AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 9, 1995
REGISTRATION NO. 33-59659
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HECLA MINING COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 82-0126240
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION ORGANIZATION) IDENTIFICATION NO.)
6500 MINERAL DRIVE
COEUR D'ALENE, IDAHO 83814
(208) 769-4100
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
MICHAEL B. WHITE, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
HECLA MINING COMPANY
6500 MINERAL DRIVE
COEUR D'ALENE, IDAHO 83814
(208) 769-4100
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE)
Copies to:
DAVID A. KATZ, ESQ. BRICE T. VORAN, ESQ.
WACHTELL, LIPTON, ROSEN & KATZ SHEARMAN & STERLING
51 WEST 52ND STREET COMMERCE COURT WEST, SUITE 4405
NEW YORK, NEW YORK 10019 199 BAY STREET
(212) 403-1000 TORONTO, ONTARIO, M5L 1E8 CANADA
(416) 360-2975
<PAGE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO
THE PUBLIC: From time to time after this Registration State-
ment becomes effective as determined by market conditions.
If the only securities being registered on this Form
are to be offered pursuant to dividend or interest reinvestment
plans, please check the following box. / /
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis pursu-
ant 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/<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
TITLE OF EACH PROPOSED MAXIMUM PROPOSED MAXIMUM
CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED UNIT<F1> PRICE<F1> REGISTRATION FEE
<S> <C> <C> <C> <C>
Debt Securities<F3>......
Preferred Stock, par value
$0.25 per share<F4><F5>
Depositary Shares<F5>.... <F2> <F2> <F2> N/A
Common Stock, par value
$0.25 per share<F6><F7>
Warrants<F8>.............
Total.................... U.S.$100,000,000<F9> 100% U.S.$100,000,000<F9>U.S.$34,482.76<F10>
<FN>
<F1> Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(o) under the
Securities Act of 1933, as amended, and exclusive of
accrued interest, if any.
<F2> Not applicable pursuant to Form S-3 General Instruction
II.D.
<F3> Subject to note (9) below, there are being registered
hereunder an indeterminate principal amount of Debt
Securities. If any Debt Securities are being issued at
an original issue discount, then the offering price
shall be in such greater principal amount as shall
result in an aggregate initial offering price not to
exceed U.S.$100,000,000, less the dollar amount of any
securities previously issued hereunder.
<F4> Subject to note (9) below, there are being registered
hereunder an indeterminate number of shares of Pre-
ferred Stock as may be sold, from time to time, by the
Registrant.
<F5> Subject to note (9) below, there are being registered
hereunder an indeterminate number of Depositary Shares
to be evidenced by Depositary Receipts issued pursuant
to a Deposit Agreement. In the event the Registrant
elects to offer to the public fractional interests in
shares of Preferred Stock registered hereunder, Deposi-
tary Receipts will be distributed to those persons pur-
chasing such fractional interests, and the shares of
Preferred Stock will be issued to the depositary under
the Deposit Agreement.
<F6> Includes the preferred stock purchase rights associated
with the Common Stock.
<F7> Subject to note (9) below, there are being registered<PAGE>
hereunder an indeterminate number of shares of Common
Stock as may be sold, from time to time, by the Regis-
trant. There are also being registered hereunder an
indeterminate number of shares of Common Stock as shall
be issuable upon conversion or redemption of Preferred
Stock or Debt Securities registered hereby or upon
exercise of Warrants registered hereby.
<F8> Subject to note (9) below, there are being registered
hereunder an indeterminate amount and number of
Warrants, representing rights to purchase Debt Securi-
ties, Preferred Stock or Common Stock registered here-
by.
<F9> In no event will the aggregate initial offering price
of all securities issued from time to time pursuant to
this Registration Statement exceed $100,000,000, or its
equivalent if some or all of the securities are denomi-
nated in one or more foreign currencies, foreign cur-
rency units or composite currencies. Any securities
registered hereunder may be sold separately or as units
with other securities registered hereunder.
<F10> The amount of registration fee, calculated in accor-
dance with Section 6(b) of the Securities Act of 1933,
as amended, and Rule 457(o) promulgated thereunder, is
1/29th of 1 per centum of the maximum aggregate offer-
ing price at which the securities registered pursuant
to this Registration Statement are proposed to be
offered. Fee was paid upon initial filing of the Reg-
istration Statement on May 26, 1995.
</FN>
/TABLE
<PAGE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON
SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE
DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH
SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
<PAGE>
[LEGEND]
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMEND-
MENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES
HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE AC-
CEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO
SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE
ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
[END LEGEND]
SUBJECT TO COMPLETION, DATED AUGUST __, 1995
PROSPECTUS
HECLA MINING COMPANY
DEBT SECURITIES
PREFERRED STOCK
DEPOSITARY SHARES
COMMON STOCK
WARRANTS
Hecla Mining Company ("Hecla" or the "Company") may
offer from time to time (i) unsecured debt securities ("Debt
Securities") consisting of debentures, notes and/or other evi-
dences of unsecured indebtedness in one or more series, (ii)
shares of preferred stock, par value $0.25 per share ("Pre-
ferred Stock"), in one or more series, or fractional interests
in shares of Preferred Stock represented by depositary shares
("Depositary Shares"), (iii) shares of common stock, par value
$0.25 per share ("Common Stock"), or (iv) warrants ("Warrants")
to purchase Debt Securities, Preferred Stock or Common Stock
(the Debt Securities, Preferred Stock, Depositary Shares, Com-
mon Stock and Warrants are collectively referred to as "Securi-
ties"), or any combination of the foregoing, at an aggregate
initial offering price not to exceed U.S.$100,000,000, or its
equivalent if some or all of the Securities are denominated in
one or more foreign currencies, at prices and on terms to be
determined at or prior to the time of sale in light of market
conditions at the time of sale. The Debt Securities may be
senior ("Senior Securities"), senior subordinated ("Senior Sub-
ordinated Securities") or subordinated ("Subordinated Secu-
rities"). The Senior Securities will rank equally with all
other unsubordinated and unsecured indebtedness of the Company.<PAGE>
The Senior Subordinated Securities will be subordinate to all
existing and future Senior Indebtedness of the Company, as de-
fined in the Senior Subordinated Indenture described herein.
The Subordinated Securities will be subordinate to all existing
and future Senior Indebtedness (including any Senior Subordi-
nated Securities) as defined in the Subordinated Indenture de-
scribed herein. The Debt Securities of any series and Pre-
ferred Stock of any series may be convertible into or exchange-
able for Debt Securities of another series or other securities
of the Company.
Specific terms of the particular Securities in re-
spect of which this Prospectus is being delivered will be set
forth in one or more accompanying Prospectus Supplements (each
a "Prospectus Supplement"), together with the terms of the of-
fering of the Securities and the initial price and the net pro-
ceeds to Hecla from the sale thereof. The Prospectus Supple-
ment will set forth with regard to the particular Securities,
without limitation, the following: (i) in the case of Debt
Securities, the specific designation, aggregate principal
amount, ranking as senior debt or subordinated debt, authorized
denomination, maturity, rate or method of calculation of in-
terest and dates for payment thereof, any exchangeability, con-
version, redemption, prepayment or sinking fund provisions, the
currency or currencies or currency unit or currency units in
which principal, premium, if any, or interest, if any, is pay-
able, any modification of the covenants and any other specific
terms thereof; (ii) in the case of Preferred Stock, the desig-
nation, number of shares, liquidation preference per share,
initial public offering price, dividend rate (or method of cal-
culation thereof), dates on which dividends will be payable and
dates from which dividends will accrue, any redemption or sink-
ing fund provisions, any conversion or exchange rights, any
other relative rights and whether Hecla has elected to offer
fractional interests in the Preferred Stock in the form of De-
positary Shares evidenced by depositary receipts; (iii) in the
case of Common Stock, the number of shares of Common Stock and
the terms of the offering and sale thereof; and (iv) in the
case of Warrants, the number and terms thereof, the designation
and the number of Securities issuable upon their exercise, the
exercise price, the terms of the offering and sale thereof and,
where applicable, the duration and detachability thereof. The
amounts payable by the Company in respect of Securities may be
calculated by reference to the value, rate or price of one or
more specified commodities, currencies or indices as set forth
in the Prospectus Supplement. The Prospectus Supplement will
also contain information, where applicable, about certain
United States federal income tax considerations relating to the
Securities covered by the Prospectus Supplement.
-2-<PAGE>
The Debt Securities, Debt Warrants and Common Stock
Warrants may be issued only in registered form, including in
the form of one or more global securities ("Global Securi-
ties"), unless otherwise set forth in the Prospectus Supple-
ment.
SEE "RISK FACTORS" AT PAGE 5 FOR A DISCUSSION OF CER-
TAIN CONSIDERATIONS RELEVANT TO AN INVESTMENT IN THE SECURI-
TIES.
The outstanding Common Stock is listed on the New
York Stock Exchange (the "NYSE") under the symbol "HL". On
August 8, 1995, the last reported sale price of the Common
Stock on the NYSE was US$10.625 per share. Any Common Stock
offered will be listed, subject to notice of issuance, on the
NYSE. The applicable Prospectus Supplement will contain in-
formation about any listing of the other Securities on a se-
curities exchange.
The Securities may be sold directly, through agents
designated from time to time, or through underwriters or deal-
ers. If any agents of Hecla or any underwriters or dealers are
involved in the sale of the Securities, the names of such
agents, underwriters or dealers, any applicable commissions and
discounts, and the net proceeds to the Company will be set
forth in the applicable Prospectus Supplement. Such under-
writers may include Merrill Lynch & Co. and Salomon Brothers
Inc. See "Plan of Distribution" for possible indemnification
arrangements for agents, underwriters and dealers.
This Prospectus may not be used to consummate sales
of Securities unless accompanied by a Prospectus Supplement.
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 COMMIS-
SION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PRO-
SPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS AUGUST 9, 1995
-3-<PAGE>
[Inside Cover]
No person is authorized to give any information or to
make any representations, other than those contained or incor-
porated by reference in this Prospectus or the accompanying
Prospectus Supplement, in connection with the offering contem-
plated hereby, and, if given or made, such information or rep-
resentations must not be relied upon as having been authorized
by the Company. Neither this Prospectus nor the accompanying
Prospectus Supplement constitutes an offer to sell or a solic-
itation of an offer to buy any securities in any jurisdiction
to any person to whom it is unlawful to make such offer or so-
licitation in such jurisdiction. Neither the delivery of this
Prospectus or the accompanying Prospectus Supplement, nor any
sale made hereunder or thereunder, shall, under any circum-
stances, create any implication that there has been no change
in the affairs of the Company since the date hereof or thereof
or that the information contained or incorporated by reference
herein or therein is correct as of any time subsequent to its
date.
AVAILABLE INFORMATION
Hecla is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy state-
ments and other information with the Securities and Exchange
Commission (the "Commission"), which can be inspected and cop-
ied at the public reference facilities maintained by the Com-
mission at 450 Fifth Street, N.W., Judiciary Plaza, Room 1024,
Washington, D.C. 20549; and at regional offices of the Commis-
sion at Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661 and at 7 World Trade Cen-
ter, 13th Floor, New York, New York 10048. Copies of such ma-
terials can be obtained at prescribed rates from the Public
Reference Section of the Commission at 450 Fifth Street, N.W.,
Judiciary Plaza, Room 1024, Washington, D.C. 20549. Such re-
ports, proxy statements and other information concerning Hecla
also may be inspected at the offices of the NYSE, 20 Broad
Street, New York, New York 10005, on which exchange certain of
the Company's securities are listed.
This Prospectus constitutes a part of a Registration
Statement on Form S-3 (together with all amendments thereto,
the "Registration Statement") filed by the Company with the
Commission under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus omits certain of the infor-
mation contained in the Registration Statement, and reference<PAGE>
is hereby made to the Registration Statement and to the ex-
hibits thereto for further information with respect to the Com-
pany and the shares of Common Stock offered hereby. Any state-
ments contained herein concerning the provisions of any docu-
ment are not necessarily complete, and in each instance refer-
ence is made to the copy of such document filed as an exhibit
to the Registration Statement or otherwise filed with the Com-
mission. Each such statement is qualified in its entirety by
such reference.
INFORMATION INCORPORATED BY REFERENCE
The following documents filed by the Company with the
Commission (File No. 1-8491) are incorporated in this Prospec-
tus by reference and hereby made a part hereof: (i) the Com-
pany's Annual Report on Form 10-K for the year ended December
31, 1994; (ii) the Company's Proxy Statement, dated March 27,
1995, for the Annual Meeting of Stockholders held on May 5,
1995 (except for pages 5 through 10 thereof relating to the
Company's compensation committee report and performance graph);
(iii) the description of Common Stock contained in the Regis-
tration Statement on Form 8-B, dated May 6, 1983, filed under
Section 12 of the Exchange Act, including any amendment or re-
port filed for the purpose of updating such description; (iv)
the description of the Company's Preferred Share Purchase
Rights contained in the Registration Statement on Form 8-A,
dated May 19, 1986, filed under Section 12 of the Exchange Act,
as amended by the description contained in the Current Report
on Form 8-K, dated November 9, 1990, including any other amend-
ment or report filed for the purpose of updating such descrip-
tion; (v) the description of the Company's Series B Cumulative
Convertible Preferred Stock contained in the Registration
Statement on Form 8-A, dated June 18, 1993, filed under Section
12 of the Exchange Act; (vi) the Company's Current Reports on
Form 8-K dated January 19, 1995, January 25, 1995, February 2,
1995, March 8, 1995, May 17, 1995 and June 6, 1995, and (vii)
the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1995.
All reports and other documents subsequently filed by
the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act, prior to the termination of the offering of
the shares of Common Stock, shall be deemed to be incorporated
by reference herein and to be a part hereof from the date of
the filing of such reports and documents. Any statement con-
tained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or super-
seded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed
-2-<PAGE>
document which also is incorporated or deemed to be incorpo-
rated by reference herein modifies or supersedes such state-
ment. 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 per-
son to whom a copy of this Prospectus is delivered, on the
written or oral request of any such person, a copy of any or
all of the documents incorporated herein by reference, other
than exhibits to such documents (except for exhibits that are
specifically incorporated by reference herein). Requests for
such copies should be directed to the Company's principal ex-
ecutive offices located at 6500 Mineral Drive, Coeur d'Alene,
Idaho 83814-8788, to the attention of Mr. Michael B. White,
Secretary (telephone number (208) 769-4100).
IN CONNECTION WITH THE OFFERING OF CERTAIN SECURI-
TIES, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT TRANSACTIONS
WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF SUCH SECURI-
TIES OR OTHER SECURITIES OF HECLA AT LEVELS ABOVE THOSE WHICH
MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING,
IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
-3-<PAGE>
THE COMPANY
The Company, originally incorporated in 1891, is
principally engaged in the exploration, development, mining and
processing of precious and non-ferrous metals, including gold,
silver, lead and zinc, and certain industrial minerals. During
1994, the Company produced 127,878 ounces of gold and 1,642,913
ounces of silver. At December 31, 1994, the Company had ap-
proximately 2.1 million and 75.9 million contained ounces of
proven and probable gold and silver reserves, respectively.
The Company's principal metals properties include the
Grouse Creek gold mine (in which the Company owns an 80% in-
terest), located near Challis, Idaho, which began operations in
December 1994; the La Choya gold mine, located in Sonora,
Mexico, which began operations in January 1994; the American
Girl gold mine and the Oro Cruz gold project (in which the Com-
pany owns a 47% interest), both located in Imperial County,
California, which were acquired in 1994; the Rosebud gold pro-
ject, located in Pershing County, Nevada, which was acquired in
1994; the Lucky Friday silver and lead mine, located near Mul-
lan, Idaho, which is a significant primary producer of silver
in the United States, and the related Gold Hunter silver
project for which the first phase of development was approved
in 1994; and the Greens Creek mine (in which the Company owns a
29.7% interest), located near Juneau, Alaska, a polymetallic
mine currently under redevelopment with commercial production
estimated to recommence by early 1997.
The Company's industrial minerals businesses consist
of Kentucky-Tennessee Clay Company (ball clay and kaolin divi-
sions), K-T Feldspar Corporation, Mountain West Products, Inc.
(bark and scoria) and Colorado Aggregate Company of New Mexico.
Hecla's industrial minerals segment is a leading producer of
three of the four basic ingredients required to manufacture
ceramic and porcelain products, including sanitaryware, pot-
tery, dinnerware, electric insulators and ceramic tile. At
current production rates, the Company has over 20 years of
proven and probable reserves of ball clay, kaolin and feldspar.
The Company has experienced losses from operations
for the first six months of 1995 and each of the last five
years. For the six months ended June 30, 1995, the Company
reported a net loss of approximately $0.2 million (before pre-
ferred dividends of $4.0 million) or $0.01 per common share.
The year to date June 30, 1995 net loss resulted primarily from
start up related expenses at the Grouse Creek mine which com-
menced operations in December 1994, partially offset by a gain
of $3.4 million on the sale of common stock investments and a
$1.1 million gain recognized as the final insurance settlement
-4-<PAGE>
for business interruption that resulted from the Lucky Friday
hoist accident in August 1994. For the year ended December 31,
1994, the Company reported a net loss of approximately $24.6
million (before preferred dividends of $8.0 million) or $0.56
per common share compared to a net loss of $17.8 million or
$0.47 per common share for 1993. The 1994 net loss resulted
primarily from non-recurring asset write-downs and increases in
the Company's provision for closed operations and environmental
matters, partially offset by improved results from both the
metals and industrial minerals segments. See "Risk Factors --
Recent Losses".
During the next several years, the Company intends to
concentrate its exploration efforts at or in the vicinity of
its existing and proposed mining properties, including Grouse
Creek, La Choya, Greens Creek, Rosebud, American Girl and Lucky
Friday. The Company and its joint venture partners own or con-
trol significant land positions surrounding these existing and
proposed mining operations. In addition, the Company will con-
tinue to evaluate acquisition and exploration opportunities,
primarily in the United States and Mexico.
The Company's principal executive offices are located
at 6500 Mineral Drive, Coeur d'Alene, Idaho 83814, and its tel-
ephone number at such address is (208) 769-4100.
RISK FACTORS
Prospective purchasers of Securities should carefully
read this Prospectus, any Prospectus Supplement delivered here-
with, and the documents incorporated by reference herein and
therein. Ownership of Securities involves certain risks. In
determining whether to purchase Securities, prospective in-
vestors should consider carefully the following risk factors
and other information contained in this Prospectus, in addition
to the other risk factors and information set forth in any Pro-
spectus Supplement delivered herewith.
RECENT LOSSES
The Company has experienced losses from operations
for the first six months of 1995 and each of the last five fis-
cal years. For the six months ended June 30, 1995, the Company
reported a net loss of approximately $0.2 million (before pre-
ferred dividends of $4.0 million) or $0.01 per common share.
The year to date June 30, 1995 net loss resulted primarily from
start up related expenses at the Grouse Creek mine which com-
menced operations in December 1994, partially offset by a gain
of $3.4 million on the sale of common stock investments and a
$1.1 million gain recognized as the final insurance settlement
-5-<PAGE>
for business interruption that resulted from the Lucky Friday
hoist accident in August 1994. For the year ended December 31,
1994, the Company reported a net loss of approximately $24.6
million (before preferred dividends of $8.0 million) or $0.56
per common share compared to a net loss of $17.8 million or
$0.47 per common share for 1993. The 1994 net loss resulted
primarily from non-recurring asset write-downs and increases in
the Company's provision for closed operations and environmental
matters, partially offset by improved results from both the
metals and industrial minerals segments. The 1993 net loss
resulted primarily from decreases in the Company's gold and
silver production and the continued depressed average prices of
lead and zinc. If the average metals prices for the first six
months of 1995 remain constant for the balance of the year, the
Company is anticipating net income (loss) applicable to common
shareholders in the range of $(3.0) to $3.0 million after the
expected dividends to preferred shareholders totaling approxi-
mately $8.0 million for the year ending December 31, 1995. Due
to the volatility of metals prices and the significant impact
metals price changes have on the Company's operations, there
can be no assurance that the actual results of operations for
the year ending December 31, 1995 will be as forecasted. How-
ever, even if metals prices remain at present levels, the Com-
pany's operating cash flows are expected to increase now that
anticipated production levels have been achieved at the Grouse
Creek mine. The Grouse Creek mine commenced operations in
December 1994. Steady-state production levels were achieved
during the second quarter of 1995. There can be no assurance
the Company will be profitable in the future.
METAL PRICE VOLATILITY
Because a significant portion of the Company's rev-
enues are derived from the sale of gold, silver, lead and zinc,
the Company's earnings are directly related to the prices of
these metals. Gold, silver, lead and zinc prices fluctuate
widely and are affected by numerous factors beyond the Com-
pany's control, including expectations for inflation, specula-
tive activities, the relative exchange rate of the U.S. dollar,
global and regional demand and production, political and eco-
nomic conditions and production costs in major producing re-
gions. The aggregate effect of these factors, all of which are
beyond the Company's control, is impossible for the Company to
predict. If the market price for these metals falls below the
Company's full production costs and remains at such level for
any sustained period, the Company will experience additional
losses and may determine to discontinue the development of a
project or mining at one or more of its properties. While the
Company has periodically used limited hedging techniques to
reduce a portion of the Company's exposure to the volatility of
-6-<PAGE>
gold, silver and zinc prices, there can be no assurance that it
will be able to do so as effectively in the future. See
"-- Hedging Activities."
<TABLE>
The following table sets forth the average closing
prices of the following metals for 1980, 1985, 1990, and each
year thereafter and the present year through July 31, 1995.
<CAPTION>
1980 1985 1990 1991 1992 1993 1994 1995
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Gold<F1>
(per oz.)....... $612.56 $317.26 $383.46 $362.18 $343.73 $359.77 $384.30 $383.91
Silver<F2>
(per oz.)....... 20.63 6.14 4.82 4.04 3.94 4.30 5.29 5.10
Lead<F3>
(per lb.)....... 0.41 0.18 0.37 0.25 0.25 0.18 0.22 0.28
Zinc<F4>
(per lb.)....... 0.34 0.36 0.69 0.51 0.56 0.44 0.44 0.48
<FN>
<F1> London Final.
<F2> Handy & Harman.
<F3> London Metals Exchange -- Cash.
<F4> London Metals Exchange -- Special High Grade -- Cash.
</FN>
</TABLE>
On August 8, 1995, the closing prices of these metals
were: gold -- $384.50 per oz.; silver -- $5.22 per oz.; lead
-- $0.28 per lb.; and zinc -- $0.46 per lb. For more current
information regarding metals prices, reference is made to the
Prospectus Supplement.
VOLATILITY OF METALS PRODUCTION
The Company's future gold production will be depen-
dent upon the Company's success in developing new reserves,
including the continued development of the Rosebud gold project
mine as well as exploration efforts at the Grouse Creek, La
Choya and the American Girl gold mines. See "-- Project De-
velopment Risks" and "-- Exploration." The Company's future
silver production will be dependent upon the Company's success
in developing new reserves, including the continued development
of the Lucky Friday Gold Hunter project and the Greens Creek
mine. If metals prices decline, the Company could determine
that it is not economically feasible to continue development of
a project or continue commercial production at some of its
properties. See "-- Metal Price Volatility."
Although the Company's gold production increased ap-
proximately 32,000 ounces from 95,907 ounces in 1993 to 127,878
ounces in 1994, resulting principally from the commencement of
operations at the La Choya and Grouse Creek mines in February
-7-<PAGE>
and December 1994, respectively, the Company's silver, lead and
zinc production has declined recently. This decline is due
primarily to the suspension of operations at the Greens Creek
and Lucky Friday mines in April 1993 and August 1994, respec-
tively. The Lucky Friday mine resumed operations in December
1994, and, the Company and its joint venture partner, Kennecott
Minerals, have agreed to redevelop the Greens Creek mine, with
commercial production expected to recommence in early 1997. If
metals prices decline, however, the Company could determine
that it is not economically feasible to continue development of
a project or continue commercial production at some of its
properties. See "-- Metal Price Volatility."
PROJECT DEVELOPMENT RISKS
The Company from time to time engages in the develop-
ment of new ore bodies both at newly acquired properties and
presently existing mining operations (collectively "Development
Projects"). The Company's ability to sustain or increase its
present level of metals production is dependent in part on the
successful development of such new ore bodies and/or expansion
of existing mining operations. The economic feasibility of any
individual Development Project and all such projects collec-
tively is based upon, among other things, estimates of re-
serves, metallurgical recoveries, and capital and operating
costs of such Development Projects, and future metal prices.
Development Projects are also subject to the successful com-
pletion of final feasibility studies, issuance of necessary
permits and receipt of adequate financing.
Development Projects may have no operating history
upon which to base estimates of future operating costs and
capital requirements. Particularly for Development Projects,
estimates of reserves, metal recoveries, and cash operating
costs are to a large extent based upon the interpretation of
geologic data obtained from drill holes and other sampling
techniques and feasibility studies which derive estimates of
cash operating costs based upon anticipated tonnage and grades
of ore to be mined and processed, the configuration of the ore
body, expected recovery rates of metals from the ore, compar-
able facility and equipment costs, anticipated climate condi-
tions and other factors. As a result, it is possible that ac-
tual cash operating costs and economic returns of any and all
Development Projects may materially differ from the costs and
returns currently estimated.
The Company's current development projects include
the Rosebud project, the Gold Hunter project located adjacent
to the Company's Lucky Friday mine, the Greens Creek mine and
-8-<PAGE>
the American Girl gold mine related to the Oro Cruz gold
project. Development and construction cost requirements to
bring the Rosebud project into commercial production are esti-
mated to be in the $45.0-$55.0 million range; $6.0-$7.0 million
in 1995, $38.0-$45.0 million in 1996, and $1.0-$3.0 million in
1997. The timing and amount of development and construction
costs at the Rosebud project are dependent upon the Company
receiving certain required regulatory approvals from the fed-
eral government. The Company estimates development and con-
struction costs of $18.0 million; $2.0 million in 1995, $3.5
million in 1996, and $12.5 for 1997 through 1999 for the Gold
Hunter project, and $26.0 million; $13.0 in 1995, and $13.0
million in 1996, for the Company's 29.7% share of the develop-
ment expenditures at the Greens Creek mine. The Company's 47%
share of the development costs at the American Girl gold mine
related to the Oro Cruz project is currently estimated at $3.8
million in 1995, $0.5 million in 1996 and $0.2 million in 1997.
The Company's estimated capital expenditures are based upon
currently available data and could increase or decrease depend-
ing upon a number of factors. One such factor is that con-
struction activities for certain Development Projects may not
commence until the Company has secured additional financing
and/or environmental approvals. If capital expenditures exceed
current estimates, secondary financing may be required. More-
over, there can be no assurance that such additional or second-
ary financing will be available. The commencement of construc-
tion activities at such Development Projects also depends on
the receipt of all necessary permits and regulatory approvals.
There can be no assurance, however, that all of the necessary
permits and regulatory approvals required for such Development
Projects will be issued in the time frame contemplated by the
Company.
EXPLORATION
Mineral exploration, particularly for gold and sil-
ver, is highly speculative in nature, involves many risks and
frequently is nonproductive. For 1995, the Company has bud-
geted exploration expenditures of approximately $6.7 million.
There can be no assurance that the Company's mineral explora-
tion efforts will be successful. Once mineralization is dis-
covered, it may take a number of years from the initial phases
of drilling until production is possible, during which time the
economic feasibility of production may change. Substantial
expenditures are required to establish ore reserves through
drilling to determine metallurgical processes to extract the
metals from the ore, and, in the case of new properties, to
construct mining and processing facilities. As a result of
-9-<PAGE>
these uncertainties, no assurance can be given that the Com-
pany's exploration programs will result in the expansion or
replacement of existing reserves that are being depleted by
current production.
RESERVES
The ore reserve figures presented or incorporated by
reference in this Prospectus and accompanying Prospectus Sup-
plement are, in large part, estimates made by the Company's
technical personnel, and no assurance can be given that the
indicated level of recovery of these metals will be realized.
Reserves estimated for properties that have not yet commenced
production may require revision based on actual production ex-
perience. Market price fluctuations of the various metals
mined by the Company, as well as increased production costs or
reduced recovery rates, may render ore reserves containing rel-
atively lower grades of mineralization uneconomic and may ulti-
mately result in a restatement of reserves. Moreover, short-
term operating factors relating to the ore reserves, such as
the need for sequential development of ore bodies and the pro-
cessing of new or different ore grades, may adversely affect
the Company's profitability in any particular accounting pe-
riod.
The metal prices used to determine mineral reserves
at a particular mine are typically set by the company managing
the mine. These metal prices may vary, depending on each com-
pany's assessment of metal prices over the near term and other
factors that such company believes relevant. Hecla sets metal
prices for its mineral reserve calculations, which approximate
current market prices, but these metal prices may vary from
current market prices based on a number of factors likely to
influence metal prices over the near term. The Company's es-
timates of proven and probable reserves at December 31, 1994
for the properties it operates are based on a gold price of
$395 per ounce, a silver price of $5.60 per ounce, a zinc price
of $0.46 per pound and a lead price of $0.28 per pound. Proven
and probable reserves at the American Girl mine at December 31,
1994, which are calculated by the mine manager, are based upon
a gold price of $400 per ounce. Proven and probable reserves
at December 31, 1994 at the Greens Creek mine, which are cal-
culated by the mine manager, are based upon a gold price of
$350 per ounce, a silver price of $4.70 per ounce, a zinc price
of $0.57 per pound, and a lead price of $0.28 per pound.
Declines in the market price of gold may also render
ore reserves containing relatively lower grades of gold min-
eralization uneconomic to exploit unless the utilization of
-10-<PAGE>
forward sales contracts or other hedging techniques is suffi-
cient to offset the effects of a drop in the market price of
the gold expected to be mined from such reserves. If the Com-
pany's realized price per ounce of gold, including hedging ben-
efits, were to decline substantially below the levels set for
calculation of reserves for an extended period, there could be
material delays in the development of new projects, increased
net losses, reduced cash flow, reductions in reserves and asset
write-downs.
In February 1995, the Company completed operations
and commenced reclamation and closure efforts at its Republic
Mine located in the Republic Mining District near Republic,
Washington. The Company made such determination when the eco-
nomic ore body at Republic was depleted. In the fourth quarter
of 1994, based on its periodic reviews of the status of various
mining properties, the Company recognized a $7.2 million write-
down of property, plant, equipment and supplies inventory at
the Republic Mine. See Note 5 to Consolidated Financial State-
ments in the Company's Form 10-K for the year ended December
31, 1994, incorporated herein by reference. See "Information
Incorporated by Reference."
In March 1995, the Financial Accounting Standards
Board Issued Statement of Financial Accounting Standards No.
121 ("SFAS #121") - "Accounting for the Impairment of Long-
Lived Assets and for Long-Lived Assets to be Disposed of".
This statement, which is effective for periods beginning after
December 15, 1995, establishes new accounting standards for,
among other things, the impairment of tangible long-lived as-
sets. The standard requires a company to review the recover-
ability of its assets by estimating the future undiscounted
cash flows expected to result from the use and eventual dispo-
sition of the asset. It is the opinion of the Company's man-
agement that the adoption of SFAS #121 will not have a material
effect on the consolidated results of operations or financial
condition of the Company.
COMPETITION FOR PROPERTIES
Because mines have limited lives based on proven ore
reserves, the Company is continually seeking to replace and
expand its reserves. The Company encounters strong competition
from other mining companies in connection with the acquisition
of properties producing or capable of producing gold, silver,
lead, zinc and industrial minerals. As a result of this com-
petition, some of which is with companies with greater finan-
cial resources than the Company, the Company may be unable to
acquire attractive mining properties on terms it considers ac-
ceptable. In addition, there are a number of uncertainties
-11-<PAGE>
inherent in any program relating to the location of economic
ore reserves, the development of appropriate metallurgical pro-
cesses, the receipt of necessary governmental permits and the
construction of mining and processing facilities. Accordingly,
there can be no assurance that the Company's programs will
yield new reserves to replace and expand current reserves.
JOINT VENTURE ARRANGEMENTS
The Grouse Creek gold mine, the Greens Creek mine,
the American Girl gold mine (including the Oro Cruz gold proj-
ect) are operated through joint ventures. The Company owns an
undivided interest in the assets of the ventures. Under the
joint venture agreements, the joint venture participants, in-
cluding the Company, are entitled to indemnification from the
other joint venture participants and are severally liable only
for the liabilities of the joint venturers in proportion to
their interest therein. If a joint venture participant de-
faults on its obligations under the terms of a joint venture
agreement (including as a result of insolvency), the Company
could incur losses in excess of its pro rata share of the joint
venture. In the event any joint venture participant so de-
faults, each agreement provides certain rights and remedies to
the remaining joint venture participants. These include the
right to force a dilution of the percentage interest of the
defaulting participant and the right to utilize the proceeds
from the sale of the defaulting parties' share of products
from, or its joint venture interest in the joint venture prop-
erties to satisfy the obligations of the defaulting partici-
pant. Based on the information available to the Company, the
Company has no reason to believe that any of its joint venture
participants in the above-described projects will be unable to
meet its financial obligations under the terms of the respec-
tive joint venture agreements.
The Company currently estimates its 29.7% share of
development and construction costs at the Greens Creek mine to
be $13.0 million in 1995 and $13.0 million in 1996. The Com-
pany's 47% share of development costs at the American Girl gold
mine related to the Oro Cruz gold project is currently esti-
mated at $3.8 million in 1995, $0.5 million in 1996, and $0.2
million in 1997. Development costs at the Grouse Creek gold
mine are complete and the Company intends to fund its 80% share
of future capital requirements, which are estimated at $5.3
million in 1995. The Company's estimates of its development
costs and capital expenditures assume that its joint venture
participants will not default in their obligations to contrib-
ute their respective portions of such costs and expenditures.
If there is such a default, there can be no assurance that the
Company's financial resources will be sufficient to achieve
-12-<PAGE>
planned levels of expenditures at the joint ventures. Gener-
ally, the manager for a particular project controls day-to-day
operating decisions and most other major decisions for the
project. Disagreement with a joint venture participant as to
the major decisions affecting a project's operations may have
an adverse impact on the project.
REGULATION OF MINING ACTIVITY
The mining operations of the Company are subject to
inspection and regulation by the Mine Safety and Health Admin-
istration of the Department of Labor ("MSHA") under provisions
of the Federal Mine Safety and Health Act of 1977. It is the
Company's policy to comply with the directives and regulations
of MSHA. In addition, the Company takes such necessary actions
as, in its judgment, are required to provide for the safety and
health of its employees. MSHA directives have had no material
adverse impact on the Company's results of operations or finan-
cial condition, and the Company believes that it is substan-
tially in compliance with the regulations promulgated by MSHA.
All of the Company's exploration, development, and
production activities in the United States, Mexico, and Canada
are subject to regulation under one or more of the various en-
vironmental laws. These laws address emissions to the air,
discharges to water, management of wastes, management of haz-
ardous substances, protection of natural resources, protection
of antiquities and reclamation of lands which are disturbed.
The Company believes that it is in substantial compliance with
applicable environmental regulations. Many of the regulations
also require permits to be obtained for the Company's activi-
ties; these permits normally are subject to public review pro-
cesses resulting in public approval of the activity. While
these laws and regulations govern how the Company conducts many
aspects of its business, management of the Company does not
believe that they have a material adverse effect on its results
of operations or financial condition at this time. The Com-
pany's projects are evaluated considering the cost and impact
of environmental regulation on the proposed activity. New laws
and regulations are evaluated as they develop to determine the
impact on, and changes necessary to, the Company's operations.
It is possible that future changes in these laws or regulations
could have a significant impact on some portion of the Com-
pany's business, causing those activities to be economically
reevaluated at that time. The Company believes that adequate
provision has been made for disposal of mine waste and mill
tailings at all of its operating and nonoperating properties in
a manner which complies with current federal and state envi-
ronmental requirements.
-13-<PAGE>
Environmental laws and regulation may also have an
indirect impact on the Company, such as increased cost for
electricity due to acid rain provisions of the Clean Air Act
Amendments of 1990. Charges by smelters to which the Company
sells its metallic concentrates and products have substantially
increased over the past several years because of requirements
that smelters meet revised environmental quality standards.
The Company has no control over the smelters' operations or
their compliance with environmental laws and regulations. If
the smelting capacity of the United States is significantly
reduced from its present level because of environmental re-
quirements or otherwise, it is possible that the Company's op-
erations could be adversely affected.
The Company is also subject to regulations under (i)
the Comprehensive Environmental Response, Compensation and Li-
ability Act of 1980 ("CERCLA" or "Superfund") which regulates
and establishes liability for the release of hazardous sub-
stances, and (ii) the Endangered Species Act ("ESA") which
identifies endangered species of plants and animals and regu-
lates activities to protect these species and their habitats.
Revisions to CERCLA and ESA are being considered by Congress;
the impact on the Company of these revisions is not clear at
this time.
PENDING LEGISLATION
During the past three years, the U.S. Congress con-
sidered a number of proposed amendments to the General Mining
Law of 1872, as amended (the "General Mining Law"), which gov-
erns mining claims and related activities on federal lands. In
1992, a holding fee of $100 per claim was imposed upon unpat-
ented mining claims located on federal lands. In October 1994,
a one year moratorium on processing of new patent applications
was approved. In addition, a variety of legislation is now
pending before the United States Congress to further amend the
General Mining Law. The proposed legislation would, among
other things, change the current patenting procedures, impose
royalties, and enact new reclamation, environmental controls
and restoration requirements. The royalty proposals range from
a 2% royalty on "net profits" from mining claims to an 8% roy-
alty on the modified gross income/net smelter returns. The
extent of any such changes is not presently known and the po-
tential impact on the Company as a result of congressional ac-
tion is difficult to predict. Although a majority of the Com-
pany's existing mining operations occur on private or patented
property, the proposed changes to the General Mining Law could
adversely affect the Company's ability to economically develop
mineral resources on federal lands. Approximately 46% of the
proven and probable gold reserves and approximately 21% of the
-14-<PAGE>
proven and probable silver reserves located at the Grouse Creek
project are located on fully patented mining claims. The
balance of such proven and probable mineral reserves are
located within mineral claims for which the Company has applied
for patents and has received a first half of Mineral Entry
Final Certificate. Upon the determination of the mineral
character of these claims by a Federal Mine Examiner, the
Company believes patents will be issued to the Company covering
these claims. Although there can be no assurance as to the
ultimate impact of legislative action on these claims or the
Company's ability to patent these claims under the existing
General Mining Law, the Company believes that the pending leg-
islation to amend the General Mining Law will not adversely
affect the ability of the Company to receive patents for the
Grouse Creek unpatented mining claims. The proven and probable
mineral reserves at the Oro Cruz and Rosebud properties are
located on claims that are unpatented.
ENVIRONMENTAL MATTERS AND LEGAL PROCEEDINGS
As further described in Note 8 of Notes to Consoli-
dated Financial Statements included in the Company's Form 10-K
for the year ended December 31, 1994, the Company has settled
the terms of its rights and liabilities with respect to the
Bunker Hill Superfund site near Kellogg, Idaho. As of December
31, 1994, the Company has accrued Superfund site remedial ac-
tion costs of $9.1 million based on current estimates of ag-
gregate costs. As also described in Note 8, the Company is a
defendant in a legal action filed in November 1990 by Star
Phoenix Mining Company ("Star Phoenix") and certain principals
of Star Phoenix, asserting that the Company breached the terms
of Star Phoenix's lease agreement for the Company's Star Morn-
ing Mine and that the Company interfered with certain contrac-
tual relationships of Star Phoenix relating to the Company's
1990 termination of such lease agreement. In June 1994, judg-
ment was entered by the Idaho State District Court against the
Company in the legal proceeding in the amount of $10.0 million
in compensatory damages and $10.0 million in punitive damages
based on a jury verdict rendered in the case in May 1994. The
Company's post-trial motions were denied by the District Court,
and the Company has appealed the judgment to the Idaho State
Supreme Court. Post-judgment interest will accrue during the
appeal period; the current interest rate is 10.875%. In order
to stay the ability of Star Phoenix to collect on the judgment
during the pending of the appeal, the Company posted an appeal
bond in the amount of $27.2 million representing 136% of the
District Court judgment. The Company pledged U.S. Treasury
Notes totaling $10.0 million as collateral for the $27.2 mil-
lion bond. The Company intends to vigorously pursue its appeal
-15-<PAGE>
to the Idaho Supreme Court and, it has been the Company's posi-
tion and at the current time it remains the Company's position
that it will not enter into a settlement with Star Phoenix for
any material amount. Although the ultimate outcome of the
appeal of the judgment is subject to the inherent uncertainties
of any legal proceeding, based on the Company's analysis of the
factual and legal issues associated with the proceeding before
the District Court and based upon the opinions of [Hawley
Troxell Ennis & Hawley, the Company's special appellate coun-
sel, and Evans, Keane, the Company's trial counsel,] as of the
date hereof, it is management's belief that the Company should
ultimately prevail in this matter, although there can be no as-
surance of such an outcome.
Although there can be no assurance as to the ultimate
outcome of these matters and the proceedings disclosed above,
it is the opinion of the Company's management, based upon the
information available at this time, that, as of the date
hereof, the outcome of these matters, individually or in the
aggregate, will not have a material adverse effect on the re-
sults of operations and financial condition of the Company and
its subsidiaries.
TITLE TO PROPERTIES
The validity of unpatented mining claims, which con-
stitute a significant portion of the Company's undeveloped
property holdings in the United States, is often uncertain and
may be contested. Although the Company has attempted to ac-
quire satisfactory title to its undeveloped properties, the
Company, in accordance with mining industry practice, does not
generally obtain title opinions until a decision is made to
develop a property, with the attendant risk that some titles,
particularly titles to undeveloped properties, may be defec-
tive.
MINING RISKS AND INSURANCE
The business of mining is generally subject to a num-
ber of risks and hazards, including environmental hazards, in-
dustrial accidents, labor disputes, encountering unusual or
unexpected geologic formations, cave-ins, rockbursts, flooding
and periodic interruptions due to inclement or hazardous
weather conditions. Such risks could result in damage to, or
destruction of, mineral properties or producing facilities,
personal injury, environmental damage, delays in mining, mone-
tary losses and possible legal liability. Although the Company
maintains insurance within ranges of coverage consistent with
-16-<PAGE>
industry practice, no assurance can be given that such insur-
ance will be available at economically feasible premiums. In-
surance against environmental risks (including potential for
pollution or other hazards as a result of disposal waste prod-
ucts occurring from exploration and production) is not gener-
ally available to the Company or to other companies within the
industry. To the extent the Company is subject to environ-
mental liabilities, the payment of such liabilities would re-
duce the funds available to the Company. Should the Company be
unable to fund fully the cost of remedying an environmental
problem, the Company might be required to suspend operations or
enter into interim compliance measures pending completion of
the required remedy.
HEDGING ACTIVITIES
In the normal course of its business, the Company
uses forward sales commitments and commodity put and call op-
tion contracts to manage its exposure to fluctuations in the
prices of certain metals which it produces. Contract positions
are designed to ensure that the Company will receive a defined
minimum price for certain quantities of its production. Gains
and losses, and the related costs paid or premiums received,
for option contracts which hedge the sales prices of commodi-
ties are deferred and included in income as part of the hedged
transaction. Revenues from the aforementioned contracts are
recognized at the time contracts are closed out by either de-
livery of the underlying commodity or settlement of the net
position in cash. The Company is exposed to certain losses on
forward sales contracts, generally the amount by which the con-
tract price exceeds the spot price of a commodity, in the event
of nonperformance by the counterparties to these agreements.
None of the aforementioned activities have been entered into
for speculative purposes as of December 31, 1994 and June 30,
1995.
<TABLE>
At December 31, 1994 and June 30, 1995 the Company's
significant metal contract hedging positions were as follows:
<CAPTION>
-17-<PAGE>
DECEMBER 31, AVERAGE CONTRACT ESTIMATED ASSET (DEFERRED REV-
1994 PRICE AMOUNT FAIR VALUE ENUE) CARRYING VALUE
(THOUSANDS) (THOUSANDS)
<S> <C> <C> <C> <C>
Forward Sales:
Gold $375/oz 3,500 ozs. <F1> --
Lead $684/MTon 3,600 MTons <F1> --
Purchased gold
put options $390/oz 102,240 ozs $621 $1,527
Sold gold call
options $464/oz 102,240 ozs ($599) ($1,527)
AVERAGE CONTRACT ESTIMATED ASSET (DEFERRED REV-
JUNE 30, 1995 PRICE AMOUNT FAIR VALUE ENUE) CARRYING VALUE
(THOUSANDS) (THOUSANDS)
Forward Sales:
Gold $407/oz. 22,500 ozs $263 --
Lead $684/MTon 3,600 MTons $152 --
Purchased gold $389/oz 76,680 ozs. $549 $1,175
put options
Sold gold call $465/oz 76,680 ozs. ($168) ($1,175)
options
___________
<FN>
<F1> It was not practicable for the Company to obtain or
calculate the estimated fair value of these contracts.
</FN>
</TABLE>
SMELTING CAPACITY
The Company sells substantially all of its metallic
concentrates to smelters that are subject to extensive regu-
lations, including environmental protection laws. The Company
has no control over the smelters' operations or their compli-
ance with environmental laws and regulations. If the smelting
capacity available to the Company was significantly further
reduced because of environmental requirements or otherwise, it
is possible that the Company's operations could be adversely
affected.
-18-<PAGE>
FOREIGN OPERATIONS
The Company's La Choya gold mine is located in So-
nora, Mexico and the Company's K-T Mexico clay slurry plant is
located in Monterey, Mexico. The Company also has exploration
projects and mining investments in Mexico, Canada and Bolivia.
Such projects and investments could be adversely affected by
exchange controls, currency fluctuations, taxation and laws or
policies of either foreign countries or the United States af-
fecting foreign trade, investment and taxation, which, in turn,
could affect the Company's current or future foreign opera-
tions.
USE OF PROCEEDS
Hecla intends to apply the net proceeds from the sale
of the Securities to its general funds to be used for general
corporate purposes, including development of its metals and in-
dustrial minerals properties. The Company in the ordinary
course of its business regularly reviews the potential acqui-
sition of precious metal and industrial mineral properties and
companies that own precious metal and industrial mineral prop-
erties. Any specific allocations of the proceeds to a partic-
ular purpose that has been made at the date of any Prospectus
Supplement will be described therein. Pending the application
of the net proceeds, the Company expects to invest such pro-
ceeds in short-term, interest-bearing instruments or other
investment-grade securities.
RATIO OF EARNINGS TO FIXED CHARGES
The Company's ratio of earnings to fixed charges was
inadequate to cover fixed charges by $1.0 million in 1990,
$18.2 million in 1991, $57.6 million in 1992, $22.3 million in
1993, $26.0 million in 1994, $6.0 million in the first six
months of 1994 and $0.5 million in the first six months of
1995. However, earnings for these periods reflect write-downs
and other non-cash charges of $30.9 million in 1990, $25.7 mil-
lion in 1991, $59.0 million in 1992, $19.1 million in 1993,
$34.0 million in 1994, $7.3 million in the first six months of
1994 and $12.0 million in the first six months of 1995. For
purposes of computing the ratio of earnings to fixed charges,
earnings consist of earnings before the cumulative effect of
accounting changes, income taxes and fixed charges, adjusted to
exclude capitalized interest. Fixed charges consist of total
interest, whether expensed or capitalized, dividends on pre-
ferred stock, amortization of debt expense and one-third of
rents, which is deemed representative of an interest factor.
-19-<PAGE>
DESCRIPTION OF DEBT SECURITIES
The following description of the Debt Securities sets
forth certain general terms and provisions of the Debt Securi-
ties to which any Prospectus Supplement may relate ("Offered
Debt Securities"). The particular terms of the Offered Debt
Securities and the extent to which such general provisions may
apply will be described in a Prospectus Supplement relating to
such Offered Debt Securities.
The Debt Securities will be general unsecured obliga-
tions of Hecla and will constitute either senior debt securi-
ties or subordinated debt securities. In the case of Debt Se-
curities that will be senior debt securities ("Senior Debt Se-
curities"), the Debt Securities will be issued under an In-
denture (the "Senior Indenture") to be entered into between
Hecla and the party to be named as trustee in a Prospectus
Supplement, as trustee under the Senior Indenture. In the case
of Debt Securities that will be subordinated debt securities
("Subordinated Debt Securities"), the Debt Securities will be
issued under an Indenture (the "Subordinated Indenture") to be
entered into between Hecla and the party to be named as trustee
in a Prospectus Supplement, as trustee under the Subordinated
Indenture. The Senior Indenture and the Subordinated Indenture
are sometimes hereinafter referred to individually as an "In-
denture" and collectively as the "Indentures". Copies of the
forms of the Indentures have been filed as exhibits to the
Registration Statement. The party who will serve as trustee
under each of the Indentures (and any successor thereto under
each Indenture) and who will be named in a Prospectus
Supplement relating to Offered Debt Securities, is referred to
herein as the "Trustee". The forms of the Senior Indenture and
the Subordinated Indenture are filed as exhibits to the
registration statement of which this Prospectus is a part. See
"Available Information". The Indentures are subject to and
governed by the Trust Indenture Act of 1939, as amended. The
statements under this caption relating to the Debt Securities
and the Indentures are summaries only and do not purport to be
complete although all material terms of the Debt Securities and
the Indentures will be described herein or in a Prospectus
Supplement. Such summaries make use of terms defined in the
Indentures. Wherever such terms are used herein or particular
provisions of the Indentures are referred to, such terms or
provisions, as the case may be, are incorporated by reference
as part of the statements made herein, and such statements are
qualified in their entirety by such reference. Certain defined
terms in the Indentures are capitalized herein. The italicized
references below apply to the section numbers in each of the
Indentures, unless otherwise indicated.
-20-<PAGE>
PROVISIONS APPLICABLE TO BOTH SENIOR
AND SUBORDINATED DEBT SECURITIES
General. The Indentures do not limit the aggregate
principal amount of Debt Securities which can be issued there-
under and provide that Debt Securities may be issued from time
to time thereunder in one or more series, each in an aggregate
principal amount authorized by Hecla prior to issuance. The
Debt Securities may be issued at various times with different
maturity dates and different principal repayment provisions,
may bear interest at different rates, may be payable in cur-
rencies other than United States dollars, in composite curren-
cies, in currency units or in amounts determined by reference
to the price, rate or value of one or more specified commodi-
ties, currencies or indices, and may otherwise vary, all as
provided in the Indentures. The Company has from time to time
entered into, and will in the future enter into, credit agree-
ments to fund its operations. Such credit agreements may be
secured by the assets of the Company, secured by the assets of
the Company's subsidiaries or guaranteed by the Company's sub-
sidiaries. To the extent that such credit agreements are so
secured or guaranteed, the lenders under such credit agreements
will have priority over the Holders of the Debt Securities with
respect to the assets of the Company or its subsidiaries which
secure such credit agreements. In addition, there are no limi-
tations on (or current intentions to limit) the amount of debt
that will rank senior to the Offered Debt Securities. As of
July 31, 1995, there was $25.0 million of Company indebtedness
that would rank senior to any Offered Debt Securities.
Unless otherwise indicated in a Prospectus Supple-
ment, the Debt Securities will not benefit from any covenant or
other provision that would afford Holders of such Debt Securi-
ties special protection in the event of a highly leveraged
transaction involving Hecla.
Reference is made to the applicable Prospectus Sup-
plement for the following terms of the Offered Debt Securities:
(i) the title and aggregate principal amount of the Offered
Debt Securities; (ii) the date or dates on which the Offered
Debt Securities will mature; (iii) the rate or rates (which may
be fixed or variable) per annum, if any, at which the Offered
Debt Securities will bear interest or the method of determining
such rate or rates; (iv) the date or dates from which such in-
terest, if any, will accrue and the date or dates at which such
interest, if any, will be payable; (v) the terms for redemption
or early payment, if any, including any mandatory or optional
sinking fund or analogous provision; (vi) the terms for con-
version or exchange, if any, of the Offered Debt Securities;
(vii) whether such Offered Debt Securities will be issued in
-21-<PAGE>
fully registered form or in bearer form or any combination
thereof; (viii) whether such Offered Debt Securities will be
issued in the form of one or more global securities and whether
such global securities are to be issuable in temporary global
form or permanent global form; (ix) information with respect to
book-entry procedures, if any; (x) the currency, currencies or
currency unit or units in which such Offered Debt Securities
will be denominated and in which the principal of, and premium
and interest, if any, on such Offered Debt Securities will be
payable; (xi) whether, and the terms and conditions on which,
Hecla or a Holder may elect that, or the other circumstances
under which, payment of principal of, or premium or interest,
if any, on such Offered Debt Securities is to be made in a cur-
rency or currencies or currency unit or units other than that
in which such Offered Debt Securities are denominated; (xii)
any index or formula to be used to determine the amount of pay-
ments of principal of (and premium, if any) and interest on
such Offered Debt Securities, and any commodities, currencies,
currency units or indices, or value, rate or price, relevant to
such determination; and (xiii) any other specific terms of the
Offered Debt Securities. (Section 301). Reference is also
made to the applicable Prospectus Supplement for information
with respect to (x) the classification of the Offered Debt Se-
curities as Senior Debt Securities or Subordinated Debt Securi-
ties, (y) the price (expressed as a percentage of the aggregate
principal amount of the Offered Debt Securities) at which the
Offered Debt Securities will be issued, if other than 100 per-
cent, and (z) any additional covenants that may be included in
the terms of the Offered Debt Securities.
No service charge will be made for any registration
of transfer or exchange of the Debt Securities, but Hecla may
require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. (Section
305).
Hecla currently conducts substantial operations
through subsidiaries, and the Holders of Debt Securities will
have a junior position to any claims of creditors and any pre-
ferred stockholders of the Company's subsidiaries. Claims of
creditors of such subsidiaries, including trade creditors, se-
cured creditors, taxing authorities and creditors holding guar-
antees, and claims of holders of any preferred stock will gen-
erally have priority as to the assets of such subsidiaries over
the claims and equity interest of the Company and, thereby in-
directly, the holders of indebtedness of the Company, including
the Debt Securities.
Offered Debt Securities may be sold at a discount
(which may be substantial) below their stated principal amount
-22-<PAGE>
bearing no interest or interest at a rate which at the time of
issuance is below market rates. Any material United States
federal income tax consequences and other special consider-
ations applicable thereto will be described in the Prospectus
Supplement relating to any such Offered Debt Securities.
If any of the Offered Debt Securities are sold for
any foreign currency or currency unit or if the principal of,
or premium or interest, if any, on any of the Offered Debt Se-
curities is payable in any foreign currency or currency unit,
the restrictions, elections, tax consequences, specific terms
and other information with respect to such Offered Debt Secu-
rities and such foreign currency or currency unit will be set
forth in the Prospectus Supplement relating thereto.
Covenants. The Indentures require the Company to
covenant, among other things, with respect to each series of
Debt Securities: (i) to duly and punctually pay the principal
of (and premium, if any) and interest, if any, on such series
of Debt Securities; (ii) to maintain an office or agency in
each Place of Payment where Debt Securities may be presented or
surrendered for payment, transferred or exchanged and where
notices to the Company may be served; (iii) if the Company
shall act as its own Paying Agent for any series of Debt Secu-
rities, to segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest, if any, so becoming due;
(iv) to deliver to the Trustee, within 120 days after the end
of each fiscal year, a written statement to the effect that the
Company has fulfilled all its obligations under the Indenture
throughout such year; (v) to preserve its corporate existence;
(vi) to maintain its properties; and (vii) to pay its taxes and
other claims, in each case, as required by the Indentures.
(Article Ten). Any other covenants governing a particular se-
ries of Debt Securities will be set forth in an applicable Pro-
spectus Supplement and supplemental indenture.
Events of Default. Unless otherwise provided with
respect to any series of Debt Securities, the following are
Events of Default under each Indenture with respect to the Debt
Securities of such series issued under such Indenture: (a)
failure to pay principal of (or premium, if any, on) any Debt
Security of such series when due; (b) failure to pay any in-
terest on any Debt Security of such series when due, continued
for 30 days; (c) failure to deposit any mandatory sinking fund
payment, when due, in respect of the Debt Securities of such
series; (d) failure to perform any other covenant of Hecla in
the applicable Indenture (other than a covenant included in the
applicable Indenture for the benefit of a series of Debt Secu-
rities other than such series), continued for 60 days after
-23-<PAGE>
written notice as provided in the applicable Indenture; (e)
certain events of bankruptcy, insolvency or reorganization; and
(f) any other Event of Default as may be established with re-
spect to Debt Securities of such series (including, without
limitation, any Event of Default arising out of a default which
results in the acceleration of certain indebtedness or a de-
fault in the payment of any amounts due on certain indebted-
ness). (Sections 301 and 501). If an Event of Default with
respect to any outstanding series of Debt Securities occurs and
is continuing, either the Trustee or the Holders of at least
25% in principal amount of the outstanding Debt Securities of
such series (subject to the following sentence, in the case of
an Event of Default described in clause (a), (b), (c) or (f)
above) or at least 25% in principal amount of all outstanding
Debt Securities under the applicable Indenture (subject to the
following sentence, in the case of other Events of Default) may
declare the principal amount of all the Debt Securities of the
applicable series (or of all outstanding Debt Securities under
the applicable Indenture, as the case may be) to be due and
payable immediately. If an Event of Default described in
clause (e) shall occur, the principal amount of the Debt Secu-
rities of all series ipso facto shall become and be immediately
due and payable without any declaration or other act on the
part of the Trustee or any Holder. At any time after a decla-
ration of acceleration has been made, but before a judgment has
been obtained, the Holders of a majority in principal amount of
the outstanding Debt Securities of such series (or of all out-
standing Debt Securities under the applicable Indenture, as the
case may be) may, under certain circumstances, rescind and an-
nul such acceleration. (Section 502). Depending on the terms
of other indebtedness of Hecla outstanding from time to time,
an Event of Default under an Indenture may give rise to cross
defaults on such other indebtedness of Hecla. If there is an
Event of Default, there can no assurance that the Company will
be financially capable of satisfying its obligations under the
Indenture.
Each Indenture provides that the Trustee will, within
90 days after the occurrence of a default in respect of any
series of Debt Securities, give to the Holders of the Debt Se-
curities of such series notice of all uncured and unwaived de-
faults known to it; provided, however, that, except in the case
of a default in the payment of the principal of (or premium, if
any) or any interest on, or any sinking fund installment with
respect to, any Debt Securities of such series, the Trustee
will be protected in withholding such notice if it in good
faith determines that the withholding of such notice is in the
interest of the Holders of the Debt Securities of such series;
and provided, further, that such notice shall not be given un-
til at least 30 days after the occurrence of a default in the
-24-<PAGE>
performance, or breach, of any covenant or warranty of Hecla
under such Indenture other than for the payment of the princi-
pal of (or premium, if any) or any interest on, or any sinking
fund installment with respect to, any Debt Securities of such
series. For the purpose of this provision, "default" with re-
spect to Debt Securities of any series means any event which
is, or after notice or lapse of time, or both, would become, an
Event of Default with respect to the Debt Securities of such
series. (Section 602).
The Holders of a majority in principal amount of the
outstanding Debt Securities of any series (or, in certain
cases, all outstanding Debt Securities under the applicable
Indenture) have the right, subject to certain limitations, to
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Debt Se-
curities of such series (or of all outstanding Debt Securities
under the applicable Indenture). (Section 512). Each Inden-
ture provides that in case an Event of Default shall occur and
be continuing with respect to the Debt Securities of any se-
ries, the Trustee shall exercise such of its rights and powers
under the applicable 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.
(Section 601). Subject to such provisions, the Trustee will be
under no obligation to exercise any of its rights or powers
under either Indenture at the request of any of the Holders of
the Debt Securities unless they shall have offered to the
Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in com-
pliance with such request. (Section 603).
The Holders of a majority in principal amount of the
outstanding Debt Securities of any series (or, in certain
cases, all outstanding Debt Securities under the applicable
Indenture) may on behalf of the Holders of all Debt Securities
of such series (or of all outstanding Debt Securities under the
applicable Indenture) waive any past default under the appli-
cable Indenture, except a default in the payment of the prin-
cipal of (or premium, if any) or interest on any Debt Security
or in respect of a provision which under the applicable Inden-
ture cannot be modified or amended without the consent of the
Holder of each outstanding Debt Security affected. (Section
513). The Holders of a majority in principal amount of the
outstanding Debt Securities affected thereby may on behalf of
the Holders of all such Debt Securities waive compliance by
Hecla with certain restrictive provisions of the Indentures.
(Section 1008).
-25-<PAGE>
Hecla is required to furnish to the Trustee annually
a statement as to the performance by Hecla of certain of its
obligations under each Indenture and as to any default in such
performance. (Section 1007).
Modification. Modifications and amendments of each
Indenture may be made by Hecla and the Trustee with the consent
of the Holders of a majority in principal amount of the out-
standing Debt Securities under the applicable Indenture af-
fected thereby; provided, however, that no such modification or
amendment may, without the consent of the Holder of each out-
standing Debt Security affected thereby, (a) change the stated
maturity date of the principal of, or any installment of in-
terest on, any Debt Security, (b) reduce the principal amount
of, or the premium (if any) or interest on, any Debt Security,
(c) change the Place of Payment or coin, currency, currencies
(including composite currencies), or currency unit or units of
payment of principal of, or premium (if any) or interest on,
any Debt Security, (d) impair the right to institute suit for
the enforcement of any payment on or with respect to any Debt
Security or (e) reduce the percentage in principal amount of
outstanding Debt Securities the consent of whose Holders is
required for modification or amendment of the Indentures or for
waiver of compliance with certain provisions of the Indentures
or for waiver of certain defaults. (Section 902).
Each Indenture provides that Hecla and the Trustee
may, without the consent of any Holders of Debt Securities,
enter into supplemental indentures for the purposes, among
other things, of adding to Hecla's covenants, securing the Debt
Securities, adding additional Events of Default, establishing
the form or terms of Debt Securities or curing ambiguities or
inconsistencies in the applicable Indenture, provided such ac-
tion to cure ambiguities or inconsistencies shall not adversely
affect the interests of the Holders of the Debt Securities in
any material respect. (Section 901).
Consolidation, Merger and Sale of Assets. Hecla,
without the consent of any Holders of outstanding Debt Securi-
ties, may consolidate with or merge into, or convey, transfer
or lease its assets substantially as an entirety, to any Per-
son, provided that the Person formed by such consolidation or
into which Hecla is merged or which acquires or leases the as-
sets of Hecla substantially as an entirety is a corporation,
partnership or trust organized under the laws of any United
States jurisdiction and assumes by supplemental indenture
Hecla's obligations on the Securities and under the Indentures,
that after giving effect to the transaction, no Event of De-
fault, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have occurred and
-26-<PAGE>
be continuing, and that certain other conditions are met. Upon
compliance with these provisions by a successor Person, Hecla
will (except in the case of a lease) be relieved of its obli-
gations under the Indentures and the Debt Securities. (Article
Eight).
Discharge and Defeasance. Hecla may terminate its
obligations under each Indenture with respect to Debt Securi-
ties of any series, other than its obligation to pay the prin-
cipal of (and premium, if any) and interest on such Debt Secu-
rities and certain other obligations, if it (i) irrevocably
deposits or causes to be irrevocably deposited with the Trustee
as trust funds money or U.S. Government Obligations maturing as
to principal and interest sufficient to pay the principal of,
any interest on, and any mandatory sinking funds in respect of,
all outstanding Debt Securities of such series on the stated
maturity of such payments or on any redemption date, (ii) has
delivered to the Trustee an opinion of counsel to the effect
that the Holders of Debt Securities of such series will not
recognize income, gain or loss for United States federal income
tax purposes as a result of such discharge and will be subject
to United States federal income tax on the same amount and in
the same manner and at the same time as would have been the
case if such discharge had not occurred, and (iii) complies
with any additional conditions specified to be applicable with
respect to the covenant defeasance of Debt Securities of such
series, and no Default or Event of Default with respect to the
Debt Securities of such issue shall have occurred and be con-
tinuing on the date of such deposit or, in so far as they re-
late to certain events of bankruptcy or insolvency, at any time
in the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period). (Sec-
tion 401).
The terms of any series of Debt Securities may also
provide for legal defeasance pursuant to each Indenture. In
such case, if Hecla (a) irrevocably deposits or causes to be
irrevocably deposited money or U.S. Government Obligations as
described above and complies with the other provisions de-
scribed above (except that the opinion referred to in clause
(ii) in the preceding paragraph must be based on a ruling by
the Internal Revenue Service or other change under applicable
federal income tax law), (b) makes a request to the Trustee to
be discharged from its obligations on the Debt Securities of
such series and (c) complies with any additional conditions
specified to be applicable with respect to legal defeasance of
Securities of such series, then Hecla shall be deemed to have
paid and discharged the entire indebtedness on all the out-
standing Debt Securities of such series and the obligations of
-27-<PAGE>
Hecla under the applicable Indenture and the Debt Securities of
such series to pay the principal of (and premium, if any) and
interest on the Debt Securities of such series shall cease,
terminate and be completely discharged, and the Holders thereof
shall thereafter be entitled only to payment out of the money
or U.S. Government Obligations deposited with the Trustee as
aforesaid, unless Hecla's obligations are revived and rein-
stated because the Trustee is unable to apply such trust fund
by reason of any legal proceeding, order or judgment. (Sec-
tions 403 and 404).
Form, Exchange, Registration and Transfer. Debt Se-
curities are issuable in definitive form as Registered Debt
Securities, as Bearer Debt Securities or both. Debt Securities
are also issuable in temporary or permanent global form. Un-
less otherwise indicated in an applicable Prospectus Supple-
ment, Bearer Debt Securities will have interest coupons at-
tached, and unless otherwise indicated in an applicable Pro-
spectus Supplement, Debt Securities (issued either as Bearer or
Registered Debt Securities) issued in temporary or permanent
global form will be issued without interest coupons attached.
(Sections 201 and 301).
Registered Debt Securities of any series will be ex-
changeable for other Registered Debt Securities of the same
series and of a like aggregate principal amount and tenor of
different authorized denominations. In addition, with respect
to any series of Bearer Debt Securities, at the option of the
Holder, subject to the terms of the applicable Indenture,
Bearer Debt Securities (with all unmatured coupons, except as
provided below, and all matured coupons in default) of such
series will be exchangeable into Registered Securities of the
same series of any authorized denominations and of a like ag-
gregate principal amount and tenor. Bearer Debt Securities
surrendered in exchange for Registered Debt Securities between
a Regular Record Date or a Special Record Date and the relevant
date for payment of interest shall be surrendered without the
coupon relating to such date for payment of interest, and in-
terest accrued as of such date will not be payable in respect
of the Registered Debt Security issued in exchange for such
Bearer Debt Security, but will be payable only to the Holder of
such coupon when due in accordance with the terms of the ap-
plicable Indenture. (Section 305).
In connection with its sale during the restricted
period (as defined below), no Bearer Debt Security (including a
Debt Security in permanent global form that is either a Bearer
Debt Security or exchangeable for Bearer Debt Securities) shall
be mailed or otherwise delivered to any location in the United
States (as defined under "-- Limitations on Issuance of Bearer
-28-<PAGE>
Debt Securities") and a Bearer Debt Security may be delivered
outside the United States in definitive form in connection with
its original issuance only if prior to delivery the Person en-
titled to receive such Bearer Debt Security furnishes written
certification, in the form required by the applicable Inden-
ture, to the effect that such Bearer Debt Security is owned by:
(a) a Person (purchasing for its own account) who is not a
United States Person (as defined under "-- Limitations on Is-
suance of Bearer Debt Securities"); (b) a United States Person
who (i) is a foreign branch of a United States financial in-
stitution purchasing for its own account or for resale or (ii)
acquired such Bearer Debt Security through the foreign branch
of a United States financial institution and who for purposes
of the certification holds such Bearer Debt Security through
such financial institution on the date of certification and, in
either case, such United States financial institution certifies
to Hecla or the distributor selling the Bearer Debt Security
within a reasonable time stating that it agrees to comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended (the
"Code"), and the regulations thereunder, or (c) a United States
or foreign financial institution for purposes of resale within
the "restricted period" as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7). A financial in-
stitution described in clause (c) of the preceding sentence
(whether or not also described in clauses (a) and (b)) must
certify that it has not acquired the Bearer Debt Security for
purpose of resale, directly or indirectly, to a United States
person or to a person within the United States or its posses-
sions. In the case of a Bearer Debt Security in permanent glo-
bal form, such certification must be given in connection with
notation of a beneficial owner's interest therein in connection
with the original issuance of such Debt Security or upon ex-
change of a portion of a temporary global Security. (Section
303). See "-- Limitations on Issuance of Bearer Debt Securi-
ties".
Debt Securities may be presented for exchange as pro-
vided above, and Registered Debt Securities may be presented
for registration of transfer (with the form of transfer en-
dorsed thereon duly executed), at the office of the Security
Registrar or at the office of any transfer agent designated by
Hecla for such purpose with respect to any series of Debt Secu-
rities and referred to in an applicable Prospectus Supplement,
without a service charge and upon payment of any taxes and
other governmental charges as described in the applicable In-
denture. Such transfer or exchange will be effected upon the
Security Registrar or such transfer agent, as the case may be,
being satisfied with the documents of title and identity of the
Person making the request. Hecla has appointed the Trustee as
-29-<PAGE>
Security Registrar. (Section 305). If a Prospectus Supplement
refers to any transfer agents (in addition to the Security Reg-
istrar) initially designated by Hecla with respect to any se-
ries of Debt Securities, Hecla may at any time rescind the des-
ignation of any such transfer agent or approve a change in the
location through which any such transfer agent acts, except
that, if Debt Securities of a series are issuable solely as
Registered Debt Securities, Hecla will be required to maintain
a transfer agent in each Place of Payment for such series and,
if Debt Securities of a series are issuable as Bearer Debt Se-
curities, Hecla will be required to maintain (in addition to
the Security Registrar) a transfer agent in a Place of Payment
located outside the United States for Registered Securities of
such series. Hecla may at any time designate additional trans-
fer agents with respect to any series of Debt Securities.
(Section 1002).
In the event of any redemption in whole or in part,
Hecla shall not be required to (i) issue or register the trans-
fer of or exchange Debt Securities of any series during a pe-
riod beginning at the opening of business 15 days prior to the
selection of Debt Securities of that series for redemption and
ending on the close of business on (A) if Debt Securities of
the series are issuable only as Registered Debt Securities, the
day of mailing of the relevant notice of redemption and (B) if
Debt Securities of the series are issuable as Bearer Debt Secu-
rities, the day of the first publication of the relevant notice
of redemption except that, if Securities of the series are also
issuable as Registered Debt Securities and there is no publica-
tion, the day of mailing of the relevant notice of redemption;
(ii) register the transfer of or exchange any Registered Debt
Security, or portion thereof, called for redemption, except the
unredeemed portion of any Registered Debt Security being re-
deemed in part; or (iii) exchange any Bearer Debt Security
called for redemption, except to exchange such Bearer Debt Se-
curity for a Registered Debt Security of that series and like
tenor which is simultaneously surrendered for redemption.
(Section 305).
Payment and Paying Agents. Unless otherwise indi-
cated in an applicable Prospectus Supplement, payment of prin-
cipal of and any premium and interest on Bearer Debt Securities
will be payable, subject to any applicable laws and regulations
in the designated currency or currencies (including composite
currencies) or currency unit or units, at the offices of such
Paying Agents outside the United States as Hecla may designate
from time to time or, at the option of the Holder, by check or
by transfer to an account maintained by the payee with a bank
located outside the United States; provided, however, that the
written certification described above under "-- Form, Exchange,
-30-<PAGE>
Registration and Transfer" has been delivered prior to the
first actual payment of interest. (Sections 307 and 1002).
Unless otherwise indicated in an applicable Prospectus Supple-
ment, payment of interest on Bearer Debt Securities on any In-
terest Payment Date will be made only against surrender to the
Paying Agent of the coupon relating to such Interest Payment
Date. (Section 1001). No payment with respect to any Bearer
Debt Security will be made at any office or agency of Hecla in
the United States or by check mailed to any address in the
United States or by transfer to any account maintained with a
bank located in the United States, nor shall any payments be
made in respect of Bearer Debt Securities upon presentation to
Hecla or its designated Paying Agents within the United States.
Notwithstanding the foregoing, payments of principal of and any
premium and interest on Bearer Debt Securities denominated and
payable in U.S. dollars will be made at the office of Hecla's
Paying Agent in the Borough of Manhattan, The City of New York,
if (but only if) payment of the full amount thereof in U.S.
dollars at all offices or agencies outside the United States is
illegal or effectively precluded by exchange controls or other
similar restrictions. (Section 1002).
Unless otherwise indicated in an applicable Prospec-
tus Supplement, payment of principal of and any premium and
interest on Registered Debt Securities will be made in the des-
ignated currency or currencies (including composite currencies)
or currency unit or units at the office of such Paying Agent or
Paying Agents as Hecla may designate from time to time, except
that at the option of Hecla payment of any interest may be made
by check mailed to the address of the Person entitled thereto
as such address shall appear in the Security Register. Unless
otherwise indicated in an applicable Prospectus Supplement,
payment of any installment of interest on Registered Debt Secu-
rities will be made to the Person in whose name such Registered
Debt Security is registered at the close of business on the
Regular Record Date for such interest. (Sections 101 and 307).
Unless otherwise indicated in an applicable Prospec-
tus Supplement, the Corporate Trust Office of the Trustee in
the Borough of Manhattan, The City of New York will be desig-
nated as a Paying Agent for Hecla for payments with respect to
Debt Securities which are issuable solely as Registered Debt
Securities, and Hecla will maintain a Paying Agent outside the
United States for payments with respect to Debt Securities
(subject to limitations described above in the case of Bearer
Debt Securities) which are issuable solely as Bearer Debt Se-
curities, or as both Registered Debt Securities and Bearer Debt
Securities. Any Paying Agents outside the United States and
-31-<PAGE>
any other Paying Agents in the United States initially desig-
nated by Hecla for the Debt Securities will be named in an ap-
plicable Prospectus Supplement. Hecla may at any time desig-
nate additional Paying Agents or rescind the designation of any
Paying Agent or approve a change in the office through which
any Paying Agent acts, except that, if Debt Securities of a
series are issuable solely as Registered Debt Securities, Hecla
will be required to maintain a Paying Agent in each Place of
Payment for such series and, if Debt Securities of a series are
issuable as Bearer Securities, Hecla will be required to main-
tain (i) a Paying Agent in the Borough of Manhattan, The City
of New York for principal payments with respect to any Regis-
tered Debt Securities of the series (and for payments with re-
spect to Bearer Debt Securities of the series in the circum-
stances described above, but not otherwise), and (ii) a Paying
Agent in a Place of Payment located outside the United States
where Securities of such series and any coupons appertaining
thereto may be presented and surrendered for payment; provided
that if the Debt Securities of such series are listed on the
International Stock Exchange of the United Kingdom and the Re-
public of Ireland Limited, the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such
stock exchange shall so require, Hecla will maintain a Paying
Agent in London, Luxembourg or any other required city located
outside the United States, as the case may be, for the Securi-
ties of such series. (Section 1002).
All moneys paid by Hecla to a Paying Agent for the
payment of principal of and any premium or interest on any Debt
Security which remain unclaimed at the end of three years after
such principal, premium or interest shall have become due and
payable will (subject to applicable escheat laws) be repaid to
Hecla and the Holder of such Debt Security or any coupon will
thereafter look only to Hecla for payment thereof. (Section
1003).
Temporary Global Securities. If so specified in an
applicable Prospectus Supplement, all or any portion of the
Debt Securities of a series which are issuable as Bearer Debt
Securities will initially be represented by one or more tempo-
rary global Debt Securities, without interest coupons, to be
deposited with a common depositary in London for the Euroclear
System ("Euroclear") and CEDEL S.A. ("CEDEL") for credit to the
designated accounts. On and after the date determined as pro-
vided in any such temporary global Debt Security and described
in an applicable Prospectus Supplement, each such temporary
global Debt Security will be exchangeable for definitive Bearer
Debt Securities, definitive Registered Debt Securities or all
or a portion of a permanent global security, or any combination
thereof, as specified in an applicable Prospectus Supplement,
-32-<PAGE>
but, unless otherwise specified in an applicable Prospectus
Supplement, only upon written certification in the form and to
the effect described under "-- Form, Exchange, Registration and
Transfer". No Bearer Debt Security delivered in exchange for a
portion of a temporary global Security will be mailed or oth-
erwise delivered to any location in the United States in con-
nection with such exchange. (Section 304).
Unless otherwise specified in an applicable Prospec-
tus Supplement, interest in respect of any portion of a tempo-
rary global Debt Security payable in respect of an Interest
Payment Date occurring prior to the issuance of definitive Debt
Securities or a permanent global Debt Security will be paid to
each of Euroclear and CEDEL with respect to the portion of the
temporary global Debt Security held for its account. Each of
Euroclear and CEDEL will undertake in such circumstances to
credit such interest received by it in respect of a temporary
global Debt Security to the respective accounts for which it
holds such temporary global Debt Security only upon receipt in
each case of written certification in the form and to the ef-
fect described above under "-- Form, Exchange, Registration and
Transfer" as of the relevant Interest Payment Date regarding
the portion of such temporary global Debt Security on which
interest is to be so credited. (Section 304).
Permanent Global Securities. If any Debt Securities
of a series are issuable in permanent global form, the appli-
cable Prospectus Supplement will describe the circumstances, if
any, under which beneficial owners of interests in any such
permanent global Debt Securities may exchange such interests
for Debt Securities of such series and of like tenor and prin-
cipal amount in any authorized form and denomination. No
Bearer Debt Security delivered in exchange for a portion of a
permanent global Debt Security shall be mailed or otherwise
delivered to any location in the United States in connection
with such exchange. (Section 305). A Person having a benefi-
cial interest in a permanent global Debt Security will, except
with respect to payment of principal of and any premium and
interest on such permanent global Debt Security, be treated as
a Holder of such principal amount of Outstanding Debt Securi-
ties represented by such permanent global Debt Security as
shall be specified in a written statement of the Holder of such
permanent global Debt Security or, in the case of a permanent
global Debt Security in bearer form, of the operator of Euro-
clear or CEDEL which is provided to the Trustee by such Person.
Principal of and any premium and interest on a permanent global
Debt Security will be payable in the manner described in the
applicable Prospectus Supplement. (Section 203).
-33-<PAGE>
Book-Entry Debt Securities. Debt Securities of a
series may be issued in whole or in part in global form that
will be deposited with, or on behalf of, a depository identi-
fied in the applicable Prospectus Supplement. Global securi-
ties may be issued in either registered or bearer form and in
either temporary or permanent form (each a "Global Security").
Unless otherwise provided in the applicable Prospectus Supple-
ment, Debt Securities that are represented by a Global Security
will be issued in denominations of $1,000 and any integral mul-
tiple thereof, and will be issued in registered form only,
without coupons. Payments of principal of (and premium, if
any) and interest, if any, on Debt Securities represented by a
Global Security will be made by the Company to the applicable
Trustee and then by such Trustee to the depository.
The Company anticipates that any Global Securities
will be deposited with, or on behalf of, The Depository Trust
Company ("DTC"), New York, New York, that such Global Securi-
ties will be registered in the name of DTC's nominee, and that
the following provisions will apply to the depository arrange-
ments with respect to any such Global Securities. Additional
or differing terms of the depository arrangements will be de-
scribed in the applicable Prospectus Supplement.
So long as DTC or its nominee is the registered owner
of a Global Security, DTC or its nominee, as the case may be,
will be considered the sole holder of the Debt Securities rep-
resented by such Global Security for all purposes under the
applicable Indenture. Except as provided below, owners of ben-
eficial interests in a Global Security will not be entitled to
have Debt Securities represented by such Global Security regis-
tered in their names, will not receive or be entitled to re-
ceive physical delivery of Debt Securities in certificated form
and will not be considered the owners or holders thereof under
the applicable Indenture. The laws of some states require that
certain purchasers of securities take physical delivery of such
securities in certificated form; accordingly, such laws may
limit the transferability of beneficial interest in a Global
Security.
If (i) DTC is at any time unwilling or unable to con-
tinue as depository and a successor depository is not appointed
by the Company within 90 days following notice to the Company,
(ii) the Company determines, in its sole discretion, not to
have any Debt Securities represented by one or more Global Se-
curities, or (iii) an Event of Default under the applicable
Indenture has occurred and is continuing, then the Company will
issue individual Debt Securities in certificated form in ex-
change for beneficial interests in such Global Securities. In
-34-<PAGE>
any such instance, an owner of a beneficial interest in a Glo-
bal Security will be entitled to physical delivery of indi-
vidual Debt Securities in certificated form of like tenor and
rank, equal in principal amount to such beneficial interest and
to have such Debt Securities in certificated form registered in
its name. Unless otherwise provided in the Prospectus Supple-
ment, Debt Securities issued in certificated form will be is-
sued in denominations of $1,000 or any integral multiple
thereof, and will be issued in registered form only, without
coupons.
The following is based on information furnished by
DTC:
DTC will act as securities depository for the Debt
Securities. The Debt Securities will be issued as fully
registered securities registered in the name of Cede & Co.
(DTC's partnership nominee). One fully registered Debt
Security certificate is issued with respect to each $150
million of principal amount of the Debt Securities of a
series, and an additional certificate will be issued with
respect to any remaining principal amount of such series.
DTC is a limited-purpose trust company organized un-
der 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 Securities Exchange Act
of 1934. DTC holds securities that its participants
("Participants") deposit with DTC. DTC also facilitates
the settlement among Participants of securities transac-
tions, such as transfers and pledges, in deposited secu-
rities through electronic computerized book-entry changes
in Participants' accounts, thereby eliminating the need
for physical movement of securities certificates. Direct
Participants include securities brokers and dealers,
banks, trust companies, clearing corporations and certain
other organizations ("Direct Participants"). DTC is owned
by a number of its Direct Participants and by the New York
Stock Exchange, Inc., the American Stock Exchange, Inc.
and the National Association of Securities Dealers, Inc.
Access to the DTC system is also available to others such
as securities brokers and dealers, banks and trust compa-
nies that clear through or maintain a custodial relation-
ship with a Direct Participant, either directly or indi-
rectly ("Indirect Participants"). The rules applicable to
DTC and its Participants are on file with the Commission.
-35-<PAGE>
Purchases of Debt Securities under the DTC system
must be made by or through Direct Participants, which will
receive a credit for the Debt Securities on DTC's records.
The ownership interest of each actual purchaser of each
Debt Security ("Beneficial Owner") is in turn recorded on
the Direct and Indirect Participants' records. A Benefi-
cial Owner does not receive written confirmation from DTC
of its purchaser, but such Beneficial Owner is expected to
receive a written confirmation providing details of the
transaction, as well as periodic statements of its hold-
ings, from the Direct or Indirect Participant through
which such Beneficial Owner entered into the transaction.
Transfers of ownership interests in Debt Securities are
accomplished by entries made on the books of Participants
acting on behalf of Beneficial Owners. Beneficial Owners
do not receive certificates representing their ownership
interest in Debt Securities, except in the event that use
of the book-entry system for the Debt Securities is dis-
continued.
To facilitate subsequent transfers, the Debt Securi-
ties are registered in the name of DTC's partnership nom-
inee, Cede & Co. The deposit of the Debt Securities with
DTC and their registration in the name of Cede & Co. ef-
fects no change in beneficial ownership. DTC has no
knowledge of the actual Beneficial Owners of the Debt Se-
curities; DTC records reflect only the identity of the
Direct Participants to whose accounts Debt Securities are
credited, which may or may not be the Beneficial Owners.
The Participants remain responsible for keeping account of
their holding on behalf of their customers.
Delivery of notices and other communications by DTC
to Direct Participants, by Direct Participants to Indirect
Participants, and by Direct Participants and Indirect Par-
ticipants to Beneficial Owners are governed by arrange-
ments among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If
less than all of the Securities within an issue are being
redeemed, DTC's practice is to determine by lot the amount
of the interest of each Direct Participant in such issue
to be redeemed.
Neither DTC nor Cede & Co. will consent or vote with
respect to the Debt Securities. Under its usual proce-
dures, DTC mails a proxy (an "Omnibus Proxy") to the is-
suer as soon as possible after the record date. The Om-
nibus Proxy assigns Cede & Co.'s consenting or voting
-36-<PAGE>
rights to those Direct Participants to whose accounts the
Debt Securities are credited on the record date (identi-
fied on a list attached to the Omnibus Proxy).
Payment of principal (and premium, if any) and in-
terest, if any, on the Debt Securities will be made to
DTC. DTC's practice is to credit Direct Participants'
accounts on the payable date in accordance with their re-
spective holdings as shown on DTC's records unless DTC has
reason to believe that it will not receive payment on the
payable date. Payments by Participants to Beneficial Own-
ers will be governed by standing instructions and cus-
tomary practices, as is the case with securities held for
the accounts of customers in bearer form or registered in
"street name" and will be the responsibility of such Par-
ticipant and not of DTC, the Paying Agent or the Company,
subject to any statutory or regulatory requirements as may
be in effect from time to time. Payment of principal (and
premium, if any) and interest to DTC is the responsibility
of the Company or the Paying Agent, disbursement of such
payments to Direct Participants is the responsibility of
DTC, and disbursement of such payments to the Beneficial
Owners is the responsibility of Direct and Indirect Par-
ticipants.
DTC may discontinue providing its services as securi-
ties depository with respect to the Debt Securities at any
time by giving reasonable notice to the Company or the
Paying Agent. Under such circumstances, in the event that
a successor securities depository is not appointed, Debt
Security certificates are required to be printed and de-
livered.
The information in this section concerning DTC and
DTC's book-entry system has been obtained from sources (in-
cluding DTC) that the Company believes to be reliable, but the
Company takes no responsibility for the accuracy thereof.
The Company may decide to discontinue use of the
system of book-entry transfers through DTC (or a successor
securities depository). In that event, Debt Security certifi-
cates will be printed and delivered.
Unless stated otherwise in the Prospectus Supplement,
the underwriters or agents with respect to a series of Debt
Securities issued as Global Securities will be Direct Partici-
pants in DTC.
None of the Company, any underwriter or agent, the
applicable Trustee or any applicable Paying Agent will have any
-37-<PAGE>
responsibility or liability for any aspect of the records re-
lating to, or payments made on account of beneficial interests
in a Global Security, or for maintaining, supervising or re-
viewing any records relating to such beneficial interest.
Limitations on Issuance of Bearer Debt Securities.
In compliance with United States federal tax laws and regula-
tions, Bearer Debt Securities (including securities in perma-
nent global form that are either Bearer Debt Securities or ex-
changeable for Bearer Debt Securities) will not be offered or
sold during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) (gener-
ally, the first 40 days after the closing date, and, with re-
spect to unsold allotments, until sold) within the United
States or to United States Persons (each as defined below)
other than to an office located outside the United States of a
United States financial institution (as defined in Section
1.165-12(c)(1)(v) of the United States Treasury Regulations),
purchasing for its own account or for resale or for the account
of certain customers, that provides a certificate stating that
it agrees to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Code and the United States
Treasury Regulations thereunder, or to certain other Persons
described in Section 1.163-5(c)(2)(i)(D)(1)(iii)(B) of the
United States Treasury Regulations. Moreover, such Bearer Debt
Securities will not be delivered in connection with their sale
during the restricted period within the United States. Any
underwriters, agents and dealers participating in the offering
of Bearer Debt Securities must covenant that they will not of-
fer or sell during the restricted period any Bearer Debt Secu-
rities within the United States or to United States Persons
(other than the persons described above) or deliver in connec-
tion with the sale of Bearer Debt Securities during the re-
stricted period any Bearer Debt Securities within the United
States and that they have in effect procedures reasonably de-
signed to ensure that their employees and agents who are di-
rectly engaged in selling the Bearer Debt Securities are aware
of the restrictions described above. No Bearer Debt Security
(other than a temporary global Bearer Debt Security) will be
delivered in connection with its original issuance nor will
interest be paid on any Bearer Debt Security until receipt by
Hecla of the written certification described above under "Form,
Exchange, Registration and Transfer". (Section 303). Each
Bearer Debt Security, other than a temporary global Bearer Debt
Security, will bear a legend to the following effect: "Any
United States person who holds this obligation will be subject
to limitations under the United States income tax laws, includ-
ing the limitations provided in Sections 165(j) and 1287(a) of
the Internal Revenue Code."
-38-<PAGE>
As used herein, "United States Person" means any
citizen or resident of the United States, any corporation,
partnership or other entity created or organized in or under
the laws of the United States and any estate or trust the in-
come of which is subject to United States federal income taxa-
tion regardless of its source, and "United States" means the
United States of America (including the states and the District
of Columbia) and its possessions.
Conversion Rights. The terms and conditions, if any,
on which Offered Debt Securities are convertible into Common
Stock of the Company will be set forth in the Prospectus Sup-
plement relating thereto. Such terms will include the con-
version price, the conversion period, provisions as to whether
conversion will be at the option of the holder or the Company,
the events requiring an adjustment of the conversion price and
provisions affecting conversion in the event of the redemption
of the Convertible Debt Securities, and such terms may include
provisions under which the number of shares of Common Stock to
be received by the holders of the Offered Debt Securities would
be calculated according to the market price of the Common Stock
as of a time stated in the Prospectus Supplement.
Meetings. The Indentures contain provisions for con-
vening meetings of the Holders of Debt Securities of a series.
A meeting may be called at any time by the Trustee, and also,
upon request, by Hecla or the Holders of at least 10% in prin-
cipal amount of the Outstanding Debt Securities of such series,
in any such case upon notice given as described under "-- No-
tices" below. Except for any consent that must be given by the
Holder of each Outstanding Debt Security affected thereby, as
described under "-- Modification" above, any resolution pre-
sented at a meeting or adjourned meeting at which a quorum is
present may be adopted by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Debt Secu-
rities of that series; provided, however, that, except for any
consent that must be given by the Holder of each Outstanding
Debt Security affected thereby, as described under "--Modifica-
tion" above, any resolution with respect to any request, de-
mand, authorization, direction, notice, consent, waiver or
other action that may be made, given or taken by the Holders of
a specified percentage, which is less than a majority in prin-
cipal amount of the Outstanding Debt Securities of a series,
may be adopted at a meeting or adjourned meeting duly recon-
vened at which a quorum is present by the affirmative vote of
the Holders of such specified percentage in principal amount of
the Outstanding Debt Securities of that series. Subject to the
proviso set forth above, any resolution passed or decision
taken at any meeting of Holders of Debt Securities of any se-
ries duly held in accordance with the Indenture will be binding
-39-<PAGE>
on all Holders of Debt Securities of that series and any re-
lated coupons. The quorum at any meeting called to adopt a
resolution, and at any reconvened meeting, will be Persons
holding or representing a majority in principal amount of the
Outstanding Debt Securities of a series. (Article Thirteen of
the Senior Indenture and Article Fourteen of the Subordinated
Indenture).
Notices. Except as otherwise provided in the Inden-
tures, notices to Holders of Bearer Debt Securities will be
given by publication at least twice in a daily newspaper in The
Borough of Manhattan, The City of New York and London or other
capital city in Western Europe and in such other city or cities
as may be specified in such Securities. Notices to Holders of
Registered Debt Securities will be given by mail to the ad-
dresses of such Holders as they appear in the Security Regis-
ter. (Section 107).
The Trustee. Each Indenture contains certain limi-
tations on the right of the Trustee, as a creditor of Hecla, to
obtain payment of claims in certain cases and to realize on
certain property received with respect to any such claims, as
security or otherwise. (Section 613). The Trustee is permit-
ted to engage in other transactions, except that, if it ac-
quires any conflicting interest and there is a default under
the Debt Securities, it must eliminate such conflict or resign.
(Section 608).
To the extent that the Trustee has any material rela-
tionship with Hecla, such relationship shall be disclosed in
the Prospectus Supplement.
Governing Law. The Indentures are, and the Debt Se-
curities will be, governed by and construed in accordance with
the laws of the State of New York.
PROVISIONS APPLICABLE SOLELY TO SENIOR DEBT SECURITIES
Senior Debt Securities will be issued under the Se-
nior Indenture and will rank pari passu with all other unse-
cured and unsubordinated debt of Hecla, and will be senior in
right of payment to all existing and future debt of Hecla that
is, by its terms, expressly subordinated to the Senior Debt
Securities.
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
General. Subordinated Debt Securities will be issued
under the Subordinated Indenture and will rank pari passu with
-40-<PAGE>
certain other subordinated debt of Hecla that may be outstand-
ing from time to time and will rank junior to all Senior In-
debtedness of Hecla (including any Senior Debt Securities) that
may be outstanding from time to time.
Subordination. The payment of the principal (and
premium, if any) and interest on the Subordinated Debt Securi-
ties is expressly subordinated, to the extent and in the manner
set forth in the Subordinated Indenture, in right of payment to
the prior payment in full of all Senior Indebtedness of Hecla.
(Section 1301 of the Subordinated Indenture).
In the event of any dissolution or winding up, or
total or partial liquidation or reorganization of Hecla,
whether in bankruptcy, reorganization, insolvency, receivership
or similar proceeding, the holders of Senior Indebtedness will
be entitled to receive payment in full of all amounts due or to
become due on or in respect of all Senior Indebtedness before
the Holders of the Subordinated Debt Securities are entitled to
receive any payment on account of principal (or premium, if
any) or interest on the Subordinated Debt Securities. (Section
1302 of the Subordinated Indenture).
Unless otherwise indicated in the applicable Pro-
spectus Supplement, no payment in respect of the Subordinated
Debt Securities shall be made if, at the time of such payment,
there exists a default in payment of all or any portion of any
Senior Indebtedness, and such default shall not have been cured
or waived in writing or the benefits of such subordination in
the Subordinated Indenture shall not have been waived in writ-
ing by or on behalf of the holders of such Senior Indebtedness.
In addition, unless otherwise provided in the applicable Pro-
spectus Supplement, during the continuance of any event of de-
fault (other than a default referred to in the immediately pre-
ceding sentence) with respect to any Senior Indebtedness per-
mitting the holders to accelerate the maturity thereof and upon
written notice thereof given to the Trustee, with a copy to
Hecla (the delivery of which shall not affect the validity of
the notice to the Trustee), by any holder of Senior Indebted-
ness or its representative, then, unless and until such an
event of default shall have been cured or waived or shall have
ceased to exist, no payment shall be made by Hecla with respect
to the principal of or interest on the Subordinated Debt Secu-
rities or to acquire any of the Subordinated Debt Securities or
on account of the redemption provisions for the Subordinated
Debt Securities; provided, however, that if the holders of the
Senior Indebtedness to which the default relates have not de-
clared such Senior Indebtedness to be immediately due and pay-
able within 180 days after the occurrence of such default (or
have declared such Senior Indebtedness to be immediately due
-41-<PAGE>
and payable and within such period have rescinded such decla-
ration of acceleration), then Hecla will be required to resume
making any and all required payments in respect of the Subor-
dinated Debt Securities (including any missed payments). Only
one such payment blockage period may be commenced within any
consecutive 365-day period with respect to the Subordinated
Debt Securities. No event of default which existed or was con-
tinuing on the date of the commencement of any 180-day payment
blockage period with respect to the Senior Indebtedness initi-
ating such payment blockage period shall be, or be made, the
basis for the commencement of a second payment blockage period
by a holder or representative of such Senior Indebtedness,
whether or not within a period of 365 consecutive days, unless
such event of default shall have been cured or waived for a
period of not less than 90 consecutive days (and, in the case
of any such waiver, no payment shall be made by Hecla to the
holders of Senior Indebtedness in connection with such waiver
other than amounts due pursuant to the terms of the Senior In-
debtedness as in effect at the time of such default). (Section
1302 of the Subordinated Indenture).
The term "Senior Indebtedness" is defined in the Sub-
ordinated Indenture as Indebtedness, either outstanding as of
the date of the Subordinated Indenture or issued subsequent to
the date of the Subordinated Indenture, that is not subordi-
nated by its terms in right of payment to any other Indebt-
edness of Hecla or pari passu with Subordinated Debt Securities
of any series, provided that the term "Senior Indebtedness"
shall not include (i) Indebtedness of Hecla to any Subsidiary
for money borrowed or advanced from such Subsidiary or (ii)
amounts owed (except to banks and other financial institutions)
for goods, materials or services purchased in the ordinary
course of business. (Section 101 of the Subordinated Inden-
ture).
The term "Indebtedness", as applied to any Person, is
defined in the Subordinated Indenture as all indebtedness,
whether or not represented by bonds, debentures, notes or other
securities, created or assumed by such Person for the repayment
of money borrowed, and obligations, computed in accordance with
generally accepted accounting principles, as lessee under
leases that should be, in accordance with generally accepted
accounting principles, treated as capital leases. All Indebt-
edness of others guaranteed as to payment of principal by such
Person or in effect guaranteed by such Person through a con-
tingent agreement to purchase such Indebtedness shall also be
deemed to be Indebtedness of such Person. (Section 101 of the
Subordinated Indenture).
-42-<PAGE>
If Subordinated Debt Securities are issued under the
Subordinated Indenture, the aggregate principal amount of Se-
nior Indebtedness outstanding as of a recent date will be set
forth in the applicable Prospectus Supplement. The Subordi-
nated Indenture does not restrict the amount of Senior Indebt-
edness that Hecla may incur.
DESCRIPTION OF PREFERRED STOCK
As stated below under "Current Capital Structure",
pursuant to the Company's Restated Certificate of Incorpora-
tion, the Board of Directors of Hecla may provide for the issu-
ance of up to 5,000,000 shares of Preferred Stock in one or
more series. As of December 31, 1994, there were 2,300,000
shares of Convertible Preferred Stock issued and outstanding
and an additional 2,000,000 shares of Series A Junior Partici-
pating Preferred Stock initially reserved for issuance upon
exercise of the Rights described below. Hecla's Board of Di-
rectors is authorized, without any further vote or action by
Hecla's stockholders, to divide the Preferred Stock into series
and, with respect to each series, to determine the dividend
rights, dividend rates, conversion rights, voting rights (which
may be greater or lesser than the voting rights of the Common
Stock), redemption rights and terms, liquidation preferences,
sinking fund rights and terms, the number of shares constitut-
ing the series and the designation of each series. Upon issu-
ance against full payment of the purchase price therefor,
shares of Preferred Stock offered hereby will be fully paid and
nonassessable. The descriptions of the Preferred Stock set
forth below and the description of the terms of a particular
series of Preferred Stock that will be set forth in a Prospec-
tus Supplement do not purport to be complete and are qualified
in their entirety by reference to Hecla's Restated Certificate
of Incorporation, the certificate establishing designation,
preferences and rights relating to such series or the Rights
Agreement referred to below. All material terms of the Pre-
ferred Stock will be described herein or in a Prospectus Sup-
plement.
The specific terms of a particular series of Pre-
ferred Stock offered hereby will be described in a Prospectus
Supplement relating to such series and will include the fol-
lowing:
(i) The maximum number of shares to constitute the
series and the distinctive designation thereof;
(ii) The annual dividend rate, if any, on shares of
the series, whether such rate is fixed or variable or
both, the date or dates from which dividends will begin to
-43-<PAGE>
accrue or accumulate and whether dividends will be cumu-
lative;
(iii) Whether the shares of the series will be re-
deemable and, if so, the price at and the terms and con-
ditions on which the shares of the series may be redeemed,
including the time during which shares of the series may
be redeemed and any accumulated dividends thereon that the
holders of shares of the series shall be entitled to re-
ceive upon the redemption thereof;
(iv) The liquidation preference, if any, applicable
to shares of the series;
(v) Whether the shares of the series will be subject
to operation of a retirement or sinking fund and, if so,
the extent and manner in which any such fund shall be ap-
plied to the purchase or redemption of the shares of the
series for retirement or for other corporate purposes, and
the terms and provisions relating to the operation of such
fund;
(vi) The terms and conditions, if any, on which the
shares of the series shall be convertible into, or ex-
changeable for, shares of any other class or classes of
capital stock of Hecla or any series of any other class or
classes, or of any other series of the same class, in-
cluding the price or prices or the rate or rates of con-
version or exchange and the method, if any, of adjusting
the same;
(vii) The voting rights, if any, on the shares of the
series;
(viii) The currency or units based on or relating to
currencies in which such series is denominated and/or in
which payments will or may be payable;
(ix) The methods by which amounts payable in respect
of such series may be calculated and any commodities, cur-
rencies or indices, or price, rate or value, relevant to
such calculation;
(x) Whether fractional interests in shares of the
series will be offered in the form of Depositary Shares as
described below under "Description of Depositary Shares";
and
-44-<PAGE>
(xi) Any other preferences and relative, participat-
ing, optional or other special rights or qualifications,
limitations or restrictions thereof.
The name of the transfer agent, registrar, dividend
disbursing agent and redemption agent, as applicable, will be
disclosed in a Prospectus Supplement.
DESCRIPTION OF COMMON STOCK
Subject to the prior rights of any shares of Pre-
ferred Stock that may from time to time be outstanding, holders
of Common Stock are entitled to share ratably in such dividends
as may be lawfully declared by the Board of Directors and paid
by Hecla and, in the event of liquidation, dissolution or
winding-up of Hecla, are entitled to share ratably in all as-
sets remaining after payment of liabilities.
The Common Stock is entitled to one vote per share
held of record on each matter submitted to a vote of stock-
holders. The holders of Common Stock have no preemptive rights
to purchase any securities of Hecla or cumulative voting
rights. Preferred stock purchase rights are issuable in re-
spect of all shares of Common Stock issued prior to certain
events. See "Current Capital Structure -- Rights". All out-
standing shares of Common Stock are validly issued, fully paid
and nonassessable. Hecla is not prohibited by its Restated
Certificate of Incorporation from repurchasing shares of its
Common Stock. Any such repurchases would be subject to any
limitations on the amount available for such purpose under ap-
plicable corporate law, any applicable restrictions under the
terms of any outstanding Preferred Stock or indebtedness and,
in the case of market purchases, such restrictions on the tim-
ing, manner and amount of such purchases as might apply in the
circumstances under applicable securities laws.
The outstanding Common Stock is listed on the NYSE
under the symbol "HL". Any Common Stock offered will be
listed, subject to notice of issuance, on the NYSE.
The transfer agent, registrar and dividend disbursing
agent for the Common Stock is American Stock Transfer & Trust
Company.
All material terms of the Common Stock will be dis-
closed herein or in a Prospectus Supplement.
-45-<PAGE>
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus
Supplement of certain provisions of the Deposit Agreement (as
defined below) and of the Depositary Shares (as defined below)
and Depositary Receipts (as defined below) does not purport to
be complete and is subject to and qualified in its entirety by
reference to the forms of Deposit Agreement and Depositary Re-
ceipts relating to each series of Preferred Stock which have
been or will be filed with the Commission in connection with
the offering of such series of Preferred Stock. All material
terms of the Deposit Agreement, the Depositary Shares and the
Depositary Receipts will be described herein or in a Prospectus
Supplement.
GENERAL
Hecla may, at its option, elect to offer fractional
interests in shares of Preferred Stock, rather than shares of
Preferred Stock. In the event such option is exercised, Hecla
will provide for the issuance by a Depositary to the public of
receipts for depositary shares ("Depositary Shares"), each of
which will represent fractional interests of a particular se-
ries of Preferred Stock (which will be set forth in the Pro-
spectus Supplement relating to a particular series of Preferred
Stock).
The shares of any series of Preferred Stock under-
lying the Depositary Shares will be deposited under a separate
Deposit Agreement (the "Deposit Agreement") between Hecla and a
bank or trust company selected by Hecla having its principal
office in the United States and having a combined capital and
surplus of at least $50,000,000 (the "Depositary"). The Pro-
spectus Supplement relating to a series of Depositary Shares
will set forth the name and address of the Depositary. Subject
to the terms of the Deposit Agreement, each owner of Depositary
Shares will be entitled, in proportion to the applicable frac-
tional interests in shares of Preferred Stock underlying such
Depositary Shares, to all the rights and preferences of the
Preferred Stock underlying such Depositary Shares (including
dividend, voting, redemption, conversion and liquidation
rights).
The Depositary Shares will be evidenced by depositary
receipts issued pursuant to the Deposit Agreement (the "Depos-
itary Receipts"). Depositary Receipts will be distributed to
those persons purchasing the fractional interests in shares of
the related series of Preferred Stock in accordance with the
terms of the offering for Preferred Stock described in the re-
lated Prospectus Supplement.
-46-<PAGE>
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or
other cash distributions received in respect of Preferred Stock
to the record holders of Depositary Shares relating to such
Preferred Stock in proportion, as nearly as practicable, to the
numbers of such Depositary Shares owned by such holders on the
relevant record date, subject to any applicable tax withhold-
ing. The Depositary shall distribute only such amount, how-
ever, 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 record
holders of Depositary Shares.
In the event of a distribution other than in cash,
the Depositary will distribute property received by it to the
record holders of Depositary Shares entitled thereto, unless
the Depositary determines that it is not feasible to make such
distribution, in which case the Depositary may, with the ap-
proval of Hecla, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution,
including the sale of such property and distribution of the net
proceeds from such sale to such holders, subject to any ap-
plicable tax withholding.
Any subscription or similar rights offered by Hecla
to holders of Preferred Stock will be made available to the
holders of Depositary Shares in such manner as the Depositary
may determine, with the approval of Hecla.
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 De-
positary resulting from the redemption, in whole or in part, of
such series of the Preferred Stock held by the Depositary. The
Depositary shall mail notice of redemption not less than 30 and
not more than 60 days prior to the date fixed for redemption to
the record holders of the Depositary Shares to be so redeemed
at their respective addresses appearing in the Depositary's
books. 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.
Whenever Hecla redeems shares of Preferred Stock held by the
Depositary, the Depositary will redeem as of the same redemp-
tion date the number of Depositary Shares relating to shares of
Preferred Stock so redeemed. If less than all of the Deposi-
tary Shares are to be redeemed, the Depositary Shares to be
-47-<PAGE>
redeemed will be selected by lot or pro rata as may be deter-
mined by the Depositary.
After the date fixed for redemption, the Depositary
Shares so called for redemption will no longer be deemed to be
outstanding and all rights of the holders of the Depositary
Shares will cease, except the right to receive the moneys, se-
curities or other property payable upon such redemption and any
money, securities or other property to which the holders of
such Depositary Shares were entitled, including any accrued and
unpaid dividends payable in connection with such redemption,
upon such redemption upon surrender to the Depositary of the
Depositary Receipts evidencing such Depositary Shares.
VOTING OF PREFERRED STOCK
Upon receipt of notice of any meeting at which the
holders of the applicable Preferred Stock are entitled to vote,
the Depositary will mail the information contained in such no-
tice of meeting to the record holders of the Depositary Shares
relating to such Preferred Stock. Each record holder of such
Depositary Shares on the record date (which will be the same
date as the record date for the Preferred Stock) will be en-
titled, subject to any applicable restrictions, to instruct the
Depositary as to the exercise of the voting rights pertaining
to the number of shares of Preferred Stock underlying such
holder's Depositary Shares. The Depositary will endeavor, in-
sofar as practicable, to vote the number of shares of Preferred
Stock underlying such Depositary Shares in accordance with such
instructions, and Hecla will agree to take all action which may
be deemed necessary by the Depositary in order to enable the
Depositary to do so.
AMENDMENT AND TERMINATION OF DEPOSITARY AGREEMENT
The form of Depositary Receipt evidencing the Depos-
itary Shares and any provision of the Deposit Agreement may at
any time be amended by agreement between Hecla and the Deposi-
tary. However, 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 the record holders of at least a majority of the Depositary
Shares then outstanding. A Deposit Agreement may be terminated
by Hecla or the Depositary only if (i) all outstanding Deposi-
tary Shares relating thereto have been redeemed or (ii) there
has been a final distribution in respect of the Preferred Stock
of the relevant series in connection with any liquidation, dis-
solution or winding up of Hecla and such distribution has been
distributed to the holders of the related Depositary Shares.
-48-<PAGE>
CHARGES OF DEPOSITARY
Hecla will pay all transfer and other taxes and gov-
ernmental charges arising solely from the existence of the de-
positary arrangements. Hecla will pay charges of the Deposi-
tary in connection with the initial deposit of any Preferred
Stock and any redemption of such Preferred Stock. Holders of
Depositary Shares will pay transfer and other taxes and gov-
ernmental charges and such other charges as are expressly pro-
vided in the Deposit Agreement to be for their accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering
to Hecla notice of its election to do so, and Hecla 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
must be appointed within 60 days after delivery of the notice
of resignation or removal and must be a bank or trust company
having its principal office in the United States and having a
combined capital and surplus of at least $50,000,000.
MISCELLANEOUS
The Depositary will forward to the holders of Depos-
itary Shares all reports and communications from Hecla which
are delivered to the Depositary and which Hecla is required to
furnish to the holders of the applicable Preferred Stock.
Neither the Depositary nor Hecla will be liable if it
is prevented or delayed by law or any circumstance beyond its
control in performing its obligations under the Deposit Agree-
ment. The obligations of Hecla and the Depositary under the
Deposit 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 De-
positary Shares or Preferred Stock unless satisfactory indem-
nity is furnished. They may rely upon written advice of coun-
sel or accountants, or information provided by persons pre-
senting Preferred Stock for deposit, holders of Depositary
Shares or other persons believed to be competent and on docu-
ments believed to be genuine.
DESCRIPTION OF WARRANTS
Hecla may issue Warrants to purchase Debt Securities
("Debt Warrants") and Warrants to purchase Common Stock or Pre-
ferred Stock ("Stock Warrants"). Warrants may be issued inde-
pendently of or together with any other Securities and may be
-49-<PAGE>
attached to or separate from such Securities. Each series of
Warrants will be issued under a separate Warrant Agreement
(each a "Warrant Agreement") to be entered into between Hecla
and a Warrant Agent ("Warrant Agent"). The Warrant Agent will
act solely as an agent of Hecla in connection with the Warrant
of such series and will not assume any obligation or relation-
ship of agency for or with holders or beneficial owners of War-
rants. The following sets forth certain general terms and pro-
visions of the Warrants offered hereby. Further terms of the
Warrants and the applicable Warrant Agreement will be set forth
in the applicable Prospectus Supplement. All material terms of
the Warrants and the applicable Warrant Agreement will be de-
scribed herein or in a Prospectus Supplement.
DEBT WARRANTS
The applicable Prospectus Supplement will describe
the terms of any Debt Warrants, including the following: (i)
the title of such Debt Warrants; (ii) the offering price for
such Debt Warrants, if any; (iii) the aggregate number of such
Debt Warrants; (iv) the designation and terms of such Debt Se-
curities purchasable upon exercise of such Debt Warrants; (v)
if applicable, the designation and terms of the Securities with
which such Debt Warrants are issued and the number of such Debt
Warrants issued with each such Security; (vi) if applicable,
the date from and after which such Debt Warrants and any Secu-
rities issued therewith will be separately transferable; (vii)
the principal amount of Debt Securities purchasable upon exer-
cise of a Debt Warrant and the price at which such principal
amount of Debt Securities may be purchased upon exercise;
(viii) the date on which the right to exercise such Debt War-
rants shall commence and the date on which such right shall
expire; (ix) if applicable, the minimum or maximum amount of
such Debt Warrants which may be exercised at any one time; (x)
whether the Debt Warrants represented by the Debt Warrant cer-
tificates or Debt Securities that may be issued upon exercise
of the Debt Warrants will be issued in registered or bearer
form; (xi) information with respect to book-entry procedures,
if any; (xii) the currency or currencies (including composite
currencies) or currency unit or units in which the offering
price, if any, and the exercise price are payable; (xiii) if
applicable, a discussion of certain United States federal in-
come tax considerations; (xiv) the antidilution provisions of
such Debt Warrants, if any; (xv) the redemption or call provi-
sions, if any, applicable to such Debt Warrants; and (xvi) any
additional terms of the Debt Warrants, including terms, proce-
dures and limitations relating to the exchange and exercise of
such Debt Warrants.
-50-<PAGE>
STOCK WARRANTS
The applicable Prospectus Supplement will describe
the terms of any Stock Warrants, including the following: (i)
the title of such Stock Warrants; (ii) the offering price, if
any, of such Stock Warrants; (iii) the aggregate number of such
Stock Warrants; (iv) the designation and terms of the Common
Stock or Preferred Stock purchasable upon exercise of such
Stock Warrants; (v) if applicable, the designation and terms of
the Securities with which such Stock Warrants are issued and
the number of such Stock Warrants issued with each such Secu-
rity; (vi) if applicable, the date from and after which such
Stock Warrants and any Securities issued therewith will be
separately transferrable; (vii) the number of shares of Common
Stock or Preferred Stock purchasable upon exercise of a Stock
Warrant and the price at which such shares may be purchased
upon exercise; (viii) the date on which the right to exercise
such Stock Warrants shall commence and the date on which such
right shall expire, including Hecla's right to accelerate the
exercisability of Stock Warrants to purchase Common Stock; (ix)
if applicable, the minimum or maximum amount of such Stock War-
rants which may be exercised at any one time; (x) the currency
or currencies (including composite currencies) or currency unit
or units in which the offering price, if any, and the exercise
price are payable; (xi) if applicable, a discussion of certain
United States federal income tax considerations; (xii) the an-
tidilution provisions, if any, of such Stock Warrants; (xiii)
the redemption or call provisions, if any, applicable to such
Stock Warrants; and (xiv) any additional terms of such Stock
Warrants, including terms, procedures and limitations relating
to the exchange and exercise of such Stock Warrants.
CURRENT CAPITAL STRUCTURE
As of the date of this Prospectus, Hecla is autho-
rized by its Restated Certificate of Incorporation to issue
100,000,000 shares of Common Stock and 5,000,000 shares of Pre-
ferred Stock. As of July 31, 1995, there were 2,300,000 shares
of Series B Cumulative Convertible Preferred Stock ("Series B
Preferred Stock") issued and outstanding and an additional
2,000,000 shares of Preferred Stock designated by the Board of
Directors of Hecla as Series A Junior Participating Preferred
Stock (the "Series A Preferred Stock"). Shares of Series A
Preferred Stock have been initially reserved for issuance upon
exercise of the Rights hereinafter described. See "-- Rights".
As of July 31, 1995, there were (i) 48,235,864 shares of Common
Stock issued and outstanding and (ii) 7,395,420 shares of Com-
mon Stock reserved for issuance upon conversion of the Con-
vertible Preferred Stock. In addition, as of July 31, 1995,
2,792,979 shares of Common Stock were authorized and remained
-51-<PAGE>
available for issuance under Hecla's stock option plans, other
employee benefit plans and stock warrants.
SERIES B PREFERRED STOCK
The Series B Preferred Stock ranks senior to the Com-
mon Stock and any shares of Series A Junior Participating Pre-
ferred Shares issued pursuant to the Rights with respect to
payment of dividends and amounts upon liquidation, dissolution
or winding-up. While any shares of Series B Preferred Stock
are outstanding, Hecla may not authorize the creation or issue
of any class or series of stock that ranks senior to the Series
B Preferred Stock as to dividends or upon liquidation, disso-
lution or winding-up without the consent of the holders of at
least 66 2/3% of the outstanding shares of Series B Preferred
Stock and any other series of Preferred Stock ranking on a par-
ity with the Series B Preferred Stock as to dividends and upon
liquidation, dissolution or winding-up (a "Parity Stock"), vot-
ing as a single class without regard to series.
Holders of shares of Series B Preferred Stock are
entitled to receive, when, as and if declared by the Board of
Directors of Hecla out of assets of Hecla legally available
therefor, cumulative cash dividends at the rate per annum of
$3.50 per share of Series B Preferred Stock.
Hecla will not (i) declare, pay or set apart funds
for the payment of any dividend or other distribution with re-
spect to any Junior Stock (as defined below) or (ii) redeem,
purchase or otherwise acquire for consideration any Junior
Stock or Parity Stock through a sinking fund or otherwise (ex-
cept by conversion into or exchange for shares of Junior Stock
and other than a redemption or purchase or other acquisition of
shares of Common Stock of Hecla made for purposes of an em-
ployee incentive or benefit plan of Hecla or any subsidiary),
unless all accrued and unpaid dividends with respect to the
Series B Preferred Stock and any Parity Stock at the time such
dividends are payable have been paid or funds have been set
apart for payment of such dividends. As used herein, (i) the
term "dividend" does not include dividends payable solely in
shares of Junior Stock on Junior Stock, or in options, warrants
or rights to holders of Junior Stock to subscribe for or pur-
chase any Junior Stock, and (ii) the term "Junior Stock" means
the Common Stock, any Series A Junior Participating Preferred
Shares issued pursuant to the Rights, and any other class of
capital stock of Hecla now or hereafter issued and outstanding
that ranks junior as to the payment of dividends or amounts
payable upon liquidation, dissolution and winding-up to the
Series B Preferred Stock.
-52-<PAGE>
The Series B Preferred Stock is not redeemable prior
to July 1, 1996. On and after such date, the Series B Pre-
ferred Stock is redeemable at the option of Hecla, in whole or
in part, at $52.45 per share if redeemed during the twelve-
month period beginning July 1, 1996 declining to $50.00 per
share July 1, 2003 and thereafter, plus, in each case, all
dividends accrued and unpaid on the Convertible Preferred Stock
up to the date fixed for redemption.
The holders of shares of Series B Preferred Stock
will be entitled to receive, in the event of any liquidation,
dissolution or winding-up of Hecla, whether voluntary or in-
voluntary, $50.00 per share of Series B Preferred Stock plus an
amount per share of Series B Preferred Stock equal to all div-
idends (whether or not earned or declared) accrued and unpaid
thereon to the date of final distribution to such holders (the
"Liquidation Preference"), and no more. Until the holders of
the Series B Preferred Stock have been paid the Liquidation
Preference in full, no payment will be made to any holder of
Junior Stock upon the liquidation, dissolution or winding-up of
Hecla.
Except as indicated below or in the Series B Pre-
ferred Certificate of Designations, or except as otherwise from
time to time required by applicable law, the holders of Series
B Preferred Stock will have no voting rights and their consent
shall not be required for taking any corporate action. When
and if the holders of Series B Preferred Stock are entitled to
vote, each holder will be entitled to one vote per share. If
the equivalent of six quarterly dividends payable on the Series
B Preferred Stock have not been declared and paid or set apart
for payment, whether or not consecutive, the number of direc-
tors then constituting the Board of Directors of Hecla shall be
increased by two and the holders of the Series B Preferred
Stock and any other series of Parity Stock similarly affected,
voting as a single class without regard to series, will be en-
titled to elect such two additional directors at the next an-
nual meeting and each subsequent meeting, until such time as
all cumulative dividends have been paid in full.
Each share of Series B Preferred Stock will be con-
vertible, in whole or in part at the option of the holders
thereof, into shares of Common Stock at a conversion price of
$15.55 per share of Common Stock (equivalent to a conversion
rate of approximately 3.2154 shares of Common Stock for each
share of Series B Preferred Stock), subject to adjustment as
described below (the "Conversion Price").
-53-<PAGE>
The Conversion Price is subject to adjustment upon
certain events, including (i) dividends (and other distribu-
tions) payable in Common Stock on any class of capital stock of
Hecla, (ii) the issuance to all holders of Common Stock of cer-
tain rights or warrants (other than the Rights or any similar
rights issued under any successor shareholders rights plan)
entitling them to subscribe for or purchase Common Stock or
securities which are convertible into Common Stock, (iii) sub-
divisions, combinations and reclassifications of Common Stock,
and (iv) distributions to all holders of Common Stock of evi-
dences of indebtedness of Hecla or assets (including securi-
ties, but excluding those dividends, rights, warrants and dis-
tributions referred to above and dividends and distributions
paid in cash out of the profits or surplus of Hecla).
WARRANTS TO PURCHASE COMMON STOCK
As a result of the Company's acquisition of Equinox
Resources Ltd. in March 1994, warrants issued by Equinox on
December 8, 1992 in connection with Equinox's acquisition of
another company ("Equinox Warrants") were assumed by Hecla.
The Equinox Warrants are exercisable for a total of 226,131
shares of Common Stock at an exercise price of Canadian $11.33
per share (equivalent to U.S.$8.36 using the exchange rate on
April 30, 1995). The Equinox Warrants expire on August 31,
1996. If the Common Stock trades higher than Canadian $16.67
for 20 consecutive trading days, upon Hecla's election and no-
tice to warrantholders, the holders of Equinox Warrants must
exercise their warrants or lose the right to exercise. The
terms of the Equinox Warrants are set forth in the warrant
transfer agency agreement made as of December 8, 1992 between
Equinox and Montreal Trust Company of Canada, which agreement
has been assumed by the Company.
RIGHTS
Upon the terms and subject to the conditions of the
Rights Agreement, a holder of a Right is entitled to purchase
one one-hundredth of a Series A Preferred Share at an exercise
price of $47.50. The Rights are currently represented by the
certificates for the Common Stock and are not transferable
apart therefrom. Transferable Rights certificates will be is-
sued at the earlier of (i) the tenth day after the public an-
nouncement that any person or group has acquired beneficial
ownership of 15% or more of the Common Stock (an "Acquiring
Person") or (ii) the tenth day after a person commences, or
announces an intention to commence, a tender or exchange offer
the consummation of which would result in any person or group
becoming an Acquiring Person. The 15% threshold for becoming
-54-<PAGE>
an Acquiring Person may be reduced by the Board of Directors of
Hecla to not less than 10% prior to any such acquisition.
The Rights are subject to adjustment in several cir-
cumstances. In particular, (i) in the event Hecla is acquired
in a merger or other business combination transaction, each
Right will entitle its holder to purchase, at the exercise
price of the Right, that number of shares of common stock of
the acquiror which at the time of such transaction would have a
market value of two times the exercise price of the Rights and
(ii) in the event any person or group becomes an Acquiring Per-
son, each holder of a Right (other than Rights beneficially
owned by the Acquiring Person, which will become void) will
thereafter have the right to receive upon exercise that number
of shares of Common Stock having a market value of two times
the exercise price of the Right.
All the outstanding Rights may be redeemed by Hecla
for $0.05 per Right prior to the tenth day following the date
on which it was announced that a person or group became an Ac-
quiring Person. Under certain circumstances, the Board of Di-
rectors of the Company may decide to exchange each Right (ex-
cept Rights held by an Acquiring Person) for one share of Com-
mon Stock. The Rights will expire on May 19, 1996 unless ear-
lier redeemed.
As long as the Rights are attached to and evidenced
by the certificates representing the Common Stock, Hecla will
continue to issue one Right with each share of Common Stock
that shall become outstanding. A Right is presently attached
to each issued and outstanding share of Common Stock. So long
as the Rights are outstanding, the Company will issue one Right
with each new share of Common Stock issued.
The Rights have certain antitakeover effects. The
Rights may cause substantial dilution to a person or group that
attempts to acquire the Company on terms not approved by the
Board of Directors of the Company. The Rights should not in-
terfere with any merger or other business combination approved
by the Board of Directors of the Company since the Rights may
be redeemed by the Company prior to the consummation of such
transactions.
-55-<PAGE>
The Rights Agreement is attached as an exhibit to the
Company's Registration Statement on Form 8-A dated May 19,
1986. The Rights Agreement was amended effective November 29,
1990 and such amendment is attached as an exhibit to the Com-
pany's Current Report on Form 8-K dated November 9, 1990 (as
amended, the "Rights Agreement"). The description of the
Rights found in each of the foregoing Form 8-A and Form 8-K has
been incorporated by reference herein and copies of such Forms
can be obtained in the manner set forth under "Information In-
corporated By Reference."
CERTAIN PROVISIONS OF THE RESTATED CERTIFICATE OF
INCORPORATION AND BY-LAWS
Certain provisions in the Company's Restated Certif-
icate of Incorporation and By-Laws may in certain circumstances
have an antitakeover effect. These provisions (1) classify the
Board of Directors into three classes, as nearly equal in num-
ber as possible, each of which serve for three years, with one
class being elected each year; (2) provide that directors may
be removed only for cause and only with the approval of the
holders of at least 80% of the voting power of the capital
stock of the Company entitled to vote generally in the election
of directors (the "Voting Stock"); (3) provide that any vacancy
on the Board of Directors shall be filled only by the remaining
directors then in office, though less than a quorum; (4) re-
quire that shareholder action be taken at an annual or special
meeting of shareholders and prohibit shareholder action by con-
sent; (5) provide that special meetings of shareholders of the
Company may be called only by the Board of Directors pursuant
to a resolution adopted by a majority of the entire Board of
Directors; and (6) provide that the shareholder vote required
to alter, amend or repeal the foregoing provisions is 80% of
the then-outstanding Voting Stock.
It would be possible, within the limitations imposed
by applicable law and the applicable rules of the New York
Stock Exchange upon which the Common Stock is listed, for the
Board of Directors to authorize the issuance of one or more
series of Preferred Stock with voting rights (including class
voting rights) or other rights, powers and preferences which
could impede the success of a proposed merger, tender offer,
proxy contest or other attempt to gain control of the Company.
In a takeover or similar situation, the issuance by the Board
of Directors of Preferred Stock having voting rights could di-
lute the voting power of the shares of Common Stock held by a
potential acquiror. Moreover, if the Preferred Stock were to
be issued with class voting rights such an issuance could po-
tentially confer veto power over the proposed transaction on a
party friendly to the Company's management.
-56-<PAGE>
The Restated Certificate of Incorporation also re-
quires the approval by the holders of 80% of the then-
outstanding Voting Stock as a condition for mergers and certain
other business combinations of the Company ("Business Combina-
tions") with any holder of more than 12 1/2% of such Voting
Stock (an "Interested Shareholder") unless the transaction is
either approved by at least a majority of the members of the
Board of Directors who are unaffiliated with the Interested
Shareholder and were directors before the Interested Share-
holder became an Interested Shareholder (the "Continuing Di-
rectors") or certain minimum price and procedural requirements
are met.
While the foregoing provisions contained in the Cer-
tificate of Incorporation and By-Laws as well as those in the
Rights Plan are intended to encourage persons seeking to ac-
quire control of the Company to initiate such an acquisition
through arm's-length negotiations with the Board of Directors,
they could also have the effect of discouraging a third party
from making a tender offer (including an offer at a substantial
premium over the then-current market value of the Common Stock)
or otherwise attempting to obtain control of the Company even
though such an attempt might be beneficial to the Company and
its shareholders. Since such provisions may have the effect of
giving the Board of Directors more bargaining powers in nego-
tiations with potential acquirors, they could also result in
the Board of Directors using such bargaining power not only to
try to negotiate a favorable price for an acquisition but also
to negotiate more favorable terms for the management or the
Board of Directors.
THE DELAWARE GENERAL CORPORATION LAW
The Company is a Delaware corporation subject to Sec-
tion 203 of the Delaware General Corporation Law (the "Delaware
Law"). Section 203 provides that, subject to certain excep-
tions specified therein, a corporation shall not engage in any
business combination with any "interested stockholder" for a
three-year period following the date that such stockholder be-
comes an interested stockholder unless (i) prior to such date,
the board of directors of the corporation approved either the
business combination or the transaction which resulted in the
stockholder becoming an interested stockholder, (ii) upon con-
summation of the transaction which resulted in the stockholder
becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation out-
standing at the time the transaction commenced (excluding cer-
tain shares), or (iii) on or subsequent to such date, the busi-
ness combination is approved by the board of directors of the
corporation and by the affirmative vote of at least 66-2/3% of
-57-<PAGE>
the outstanding voting stock which is not owned by the inter-
ested stockholder. Except as specified in Section 203 of the
Delaware Law, an interested stockholder is defined to include
(x) any person that is the owner of 15% or more of the out-
standing voting stock of the corporation, or is an affiliate or
associate of the corporation and was the owner of 15% or more
of the outstanding voting stock of the corporation, at any time
within three years immediately prior to the relevant date and
(y) the affiliates and associates of any such person. Under
certain circumstances, Section 203 of the Delaware Law makes it
more difficult for an "interested stockholder" to effect vari-
ous business combinations with a corporation for a three-year
period, although the stockholders may elect to exclude a corpo-
ration from the restrictions imposed thereunder. The Company's
Restated Certificate of Incorporation does not exclude the Com-
pany from the restrictions imposed under Section 203 of the
Delaware Law.
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. fed-
eral income tax on gains would, under certain circumstances, be
subject to tax (the "special tax") on gain realized on the dis-
position (and possible withholding tax on the proceeds from
such disposition (the "withholding tax")) of Securities, not-
withstanding such non-United States person's lack of other con-
nections 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 es-
tablished 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 dispo-
sition 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
-58-<PAGE>
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 secu-
rities market by a non-U.S. person who beneficially owns, di-
rectly 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 ap-
propriate under the circumstances, be described in the Prospec-
tus 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
Hecla may sell the Securities in and/or outside the
United States: (i) through underwriters or dealers which may
include Merrill Lynch & Co. and Salomon Brothers Inc; (ii) di-
rectly to a limited number of purchasers or to a single pur-
chaser; or (iii) through agents. The applicable Prospectus
Supplement with respect to the Offered Securities will set
forth the terms of the offering of the Offered Securities, in-
cluding the name or names of any underwriters or agents, if
any, the purchase price of the Offered Securities and the pro-
ceeds to Hecla from such sale, any delayed delivery arrange-
ments, any underwriting discounts and other items constituting
underwriters' compensation, any initial public offering price
and any discounts or concessions allowed or reallowed or paid
to dealers. Any initial public offering price and any dis-
counts or concessions allowed or reallowed or paid to dealers
may be changed from time to time.
If underwriters are used in the sale, the Offered
Securities will be acquired by the underwriters for their own
account and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the
time of sale. The Securities may be offered to the public ei-
ther through underwriting syndicates represented by one or more
managing underwriters or directly by one or more firms acting
as underwriters. The underwriter or underwriters with respect
to a particular underwritten offering of Securities to be named
in the Prospectus Supplement relating to such offering and, if
an underwriting syndicate is used, the managing underwriter or
-59-<PAGE>
underwriters will be set forth on the cover of such Prospectus
Supplement. Unless otherwise set forth in the Prospectus Sup-
plement relating thereto, the obligations of the underwriters
to purchase the Offered Securities will be subject to condi-
tions precedent and the underwriters will be obligated to pur-
chase all the Offered Securities if any are purchased.
If dealers are utilized in the sale of Offered Secu-
rities in respect of which this Prospectus is delivered, Hecla
will sell such Offered Securities to the dealers as principals.
The dealers may then resell such Offered Securities to the pub-
lic at varying prices to be determined by such dealers at the
time of resale. The names of the dealers and the terms of the
transaction will be set forth in the Prospectus Supplement re-
lating thereto.
If an agent is used in an offering of Offered Secu-
rities, the agent will be named, and the terms of the agency
will be set forth, in the Prospectus Supplement relating
thereto. Unless otherwise indicated in such Prospectus Sup-
plement, an agent will act on a best efforts basis for the pe-
riod of its appointment.
The Securities may be sold directly by Hecla or
through agents designated by Hecla from time to time. Any
agent involved in the offer or sale of the Offered Securities
in respect to which this Prospectus is delivered will be named,
and any commissions payable by Hecla to such agent will be set
forth, in the Prospectus Supplement relating thereto. Unless
otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a best efforts basis for the period of
its appointment.
The Securities may be sold directly by Hecla to in-
stitutional investors or others, who may be deemed to be under-
writers within the meaning of the Securities Act with respect
to any resale thereof. The terms of any such sales[, including
the terms of any bidding or auction process,] will be described
in the Prospectus Supplement relating thereto.
Agents, dealers and underwriters may be entitled un-
der agreements entered into with Hecla to indemnification by
Hecla against certain civil liabilities, including liabilities
under the Securities Act, or to contribution with respect to
payments which such agents, dealers or underwriters may be re-
quired to make in respect thereof. Agents, dealers and under-
writers may be customers of, engage in transactions with, or
perform services for Hecla in the ordinary course of business.
-60-<PAGE>
The Securities other than shares of Common Stock may
or may not be listed on a national securities exchange. No
assurances can be given that there will be an active trading
market for the Common Stock or a market for any such other Se-
curities.
LEGAL OPINIONS
Certain legal matters in connection with the Securi-
ties offered hereby will be passed upon for Hecla by Wachtell,
Lipton, Rosen & Katz, New York, New York, and, unless otherwise
specified in the applicable Prospectus Supplement, for any un-
derwriters or agents by Shearman & Sterling, Toronto, Canada
and New York, New York.
EXPERTS
The consolidated balance sheets as of December 31,
1993 and 1994 and the consolidated statements of operations,
changes in shareholders' equity and cash flows for each of the
three years in the three-year period ended December 31, 1994
included in the Company's Annual Report on Form 10-K for the
year ended December 31, 1994, incorporated by reference in this
Prospectus have been incorporated herein in reliance on the
report, which includes an explanatory paragraph concerning
changes in accounting for income taxes and post-retirement ben-
efits other than pensions in 1992, and accounting for invest-
ments in 1994 of Coopers & Lybrand L.L.P., independent ac-
countants, given on the authority of that firm as experts in
accounting and auditing.
The report of Coopers & Lybrand on the consolidated
financial statements of the Company as of December 31, 1993 and
for each of the two years in the period ended December 31, 1993
is based in part on the report of Deloitte & Touche, chartered
accountants, on the financial statements of Equinox Resources,
Ltd., as of December 31, 1993, and for the year then ended, the
two months ended December 31, 1992, and the year ended October
31, 1992, given on the authority of that firm as experts in
accounting and auditing.
-61-<PAGE>
TABLE OF CONTENTS
PAGE
PROSPECTUS
Available Information.............................. 1
Information Incorporated by Reference.............. 2
The Company........................................ 4
Risk Factors....................................... 5
Use of Proceeds.................................... 18
Ratio of Earnings to Fixed Charges................. 19
Description of Debt Securities..................... 19
Description of Preferred Stock..................... 42
Description of Common Stock........................ 44
Description of Depositary Shares................... 45
Description of Warrants............................ 49
Current Capital Structure.......................... 51
Certain Provisions of the Restated Certificate
of Incorporation and By-Laws..................... 55
Federal Tax Considerations as a Real
Property Holding Corporation..................... 58
Plan of Distribution............................... 59
Legal Opinions..................................... 60
Experts............................................ 61
-62-<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
The expenses payable by Hecla in connection with the
offering described in this Registration Statement (other than
underwriting discounts and commissions) are estimated (other
than the Commission's registration fee) as follows:
<CAPTION>
<S> <C>
Securities and Exchange Commission registration fee.. $ 34,482.76
Printing expenses.................................... 100,000.00
Accounting fees and expenses......................... 40,000.00
Legal fees and expenses.............................. 80,000.00
Blue Sky qualification fees and expenses............. 15,000.00
Trustee's and Warrant Agent's fees................... 30,000.00
Fees of rating agencies.............................. 60,000.00
Miscellaneous........................................ 12,517.24
Total...................................... $372,000.00
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article IX of the registrant's Certificate of Incor-
poration provides:
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section I. Limitation of Liability. A director of the
Corporation shall not be personally liable to the Corporation
or its shareholders for monetary damages for breach of fidu-
ciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Corporation or
its shareholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the Delaware General Corpo-
ration Law, or (iv) for any transaction from which the director
derived any improper personal benefit. If the Delaware General
Corporation Law is amended after approval by the shareholders
of this article to authorize corporate action further elimi-
nating or limiting the personal liability of directors, then
the liability of a director of the Corporation shall be elimi-
nated or limited to the fullest extent permitted by the Dela-
ware General Corporation Law, as so amended. This paragraph
shall not eliminate or limit the liability of a director for
any act or omission which occurred prior to the effective date
of its adoption. Any repeal or modification of this paragraph
by the shareholders of the Corporation shall not adversely af-
fect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
II-1<PAGE>
SECTION II. Indemnification and Insurance. A. Right to
Indemnification of Director, Officers and Employees. Each per-
son who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or pro-
ceeding, whether civil, criminal, administrative or investiga-
tive (hereinafter a "proceeding"), by reason of the fact that
he or she is or was a director, officer or employee of the Cor-
poration or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corpora-
tion or of a partnership, joint venture, trust or other enter-
prise, including service with respect to an employee benefit
plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a di-
rector, officer or employee or in any other capacity while
serving as a director, officer or employee, shall be indemni-
fied and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same
exists or may hereafter be amended (but, in the case of any
such amendment only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than
permitted prior thereto), against all expense, liability and
loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably
incurred or suffered by such indemnitee in connection therewith
and such indemnification shall continue as to an indemnitee who
has ceased to be a director, officer or employee and shall in-
ure to the benefit of the indemnitee's heirs, executors and
administrators; provided, however, that, except as provided in
paragraph (b) hereof with respect to proceedings to enforce
rights to indemnification, the Corporation shall indemnify any
such indemnitee in connection with a proceeding (or part there-
of) initiated by such indemnitee only if such proceeding (or
part thereof) was authorized by the board of directors of the
Corporation. The right to indemnification conferred in this
Section shall be a contract right and shall include the right
to be paid by the Corporation the expenses incurred in defend-
ing any such proceeding in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, however,
that, if the Delaware General Corporation Law requires, an
advancement of expenses incurred by an indemnitee in his or her
capacity as a director or officer (and not in ay other capacity
in which service was or is rendered such indemnitee, including,
without limitation, service to an employee benefit plan) shall
be made only upon delivery to the Corporation or an undertaking
(hereinafter an "undertaking"), by or on behalf of such indem-
nitee, to repay all amounts so advanced if it shall ultimately
be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication")
that such indemnitee is not entitled to be indemnified for such
expenses under this Section or otherwise.
II-2<PAGE>
B. Right of Indemnitee to Bring Suit. If a claim under
paragraph (a) of this Section is not paid in full by the Cor-
poration within sixty days after a written claim has been re-
ceived by the Corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period
shall be twenty days, the indemnitee may at any time thereafter
bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such
suit, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertak-
ing, the indemnitee shall be entitled to be paid also the ex-
pense of prosecuting or defending such suit. In (i) any suit
brought by the indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the indemnitee to en-
force a right to an advancement of expenses) it shall be a de-
fense that, and (ii) in any suit by the Corporation to recover
an advancement of expenses pursuant to the terms of an under-
taking the Corporation shall be entitled to recover such ex-
penses upon a final adjudication that, the indemnitee has not
met the applicable standard of conduct set forth in the Dela-
ware General Corporation Law. Neither the failure of the Cor-
poration (including its board of directors, independent legal
counsel, or its shareholders) to have made a determination
prior to the commencement of such suit that indemnification of
the indemnitee is proper in the circumstances because the in-
demnitee has met the applicable standard of conduct set forth
in the Delaware General Corporation Law, nor an actual deter-
mination by the Corporation (including its board of directors,
independent legal counsel, or its shareholders) that the in-
demnitee has not met such applicable standard of conduct, shall
create a presumption that the indemnitee has not met the ap-
plicable standard of conduct or, in the case of such a suit
brought by the indemnitee, be a defense to such suit. In any
suit brought by the indemnitee to enforce a right to indemni-
fication or to an advancement of expenses hereunder, or by the
Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified, or to such ad-
vancement of expenses, under this Section or otherwise shall be
on the Corporation.
C. Non-Exclusivity of Rights. The rights to indemnifi-
cation and to the advancement of expenses conferred in this
Section shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, this
Certificate of Incorporation, By-Law, agreement, vote of share-
holders or disinterested directors or otherwise. The Corpora-
tion is authorized to enter into contracts of indemnification.
II-3<PAGE>
D. Insurance. The Corporation may maintain insurance,
at its expense, to protect itself and any director, officer,
employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against
any expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such ex-
pense, liability or loss under the Delaware General Corporation
Law.
E. Indemnification of Agents of the Corporation. The
Corporation may, to the extent authorized from time to time by
the board of directors, grant rights to indemnification, and to
the advancement of expenses, to any agent of the Corporation to
the fullest extent of the provisions of this Section with re-
spect to the indemnification and advancement of expenses of
directors, officers and employees of the Corporation.
Article VII of the registrant's By-laws provides identi-
cally.
The registrant also maintains a directors' and officers'
liability insurance policy for directors and officers of the
Company and its subsidiaries.
II-4<PAGE>
ITEM 16. EXHIBITS
EXHIBIT
NO. DOCUMENT
3.1(a) Certificate of Incorporation of the Registrant as
amended to date.*
3.1(b) Certificate of Amendment of Certificate of
Incorporation of the Registrant, dated as of May
16, 1991.*
3.2 By-Laws of the Registrant as amended to date.*
4.1(a) Certificate of Designations, Preferences and
Rights of Series A Junior Participating Preferred
Stock.*
4.1(b) Certificate of Designations, Preferences and
Rights of Series B Cumulative Convertible Pre-
ferred Stock.*
4.2(a) Rights Agreement dated as of May 9, 1986 between
Hecla Mining Company and Manufacturers Hanover
Trust Company, which includes the form of Certifi-
cate of Designation setting forth the terms of the
Series A Junior Participating Preferred Stock of
Hecla Mining Company as Exhibit A, the form of
Right Certificate as Exhibit B and the summary of
Rights to Purchase Preferred Shares as Exhibit C.*
4.2(b) Amendment, dated as of November 9, 1990 to the
Rights Agreement dated as of May 9, 1986 between
Hecla Mining Company and Manufacturers Hanover
Trust Company.*
4.2(c) Second Amendment to Rights Agreement dated Septem-
ber 30, 1991, between Hecla Mining Company and
Manufacturers Hanover Trust Company.*
4.2(d) Hecla Mining Company Notice Letter to Sharehold-
ers, being holders of Rights Certificates, ap-
pointing American Stock Transfer & Trust Company
as Rights Agent, successor to Manufacturers
Hanover Trust Company, effective September 30,
1991, pursuant to Section 21 of the Rights Agree-
ment.*
4.3(a) Form of Deposit Agreement.
4.3(b) Form of Depositary Receipt (included in Exhibit
4.3(a)).
II-5<PAGE>
4.3(c) Form of Indenture between Hecla and
___________________, Trustee, with respect to
Senior Debt Securities ("Senior Indenture").
4.3(d) Form of Indenture between Hecla and
____________________, Trustee, with respect to
Subordinated Debt Securities ("Subordinated Inden-
ture").
4.3(e) Form of Debt Warrant Agreement.
4.3(f) Form of Debt Warrant Certificate (included as
Exhibit A to Exhibit 4.3(e) hereto).
4.3(g) Form of Preferred Stock Warrant Agreement.
4.3(h) Form of Preferred Stock Warrant Certificate (in-
cluded as Exhibit A to Exhibit 4.3(g) hereto).
4.3(i) Form of Common Stock Warrant Agreement.
4.3(j) Form of Common Stock Warrant Certificate (included
as Exhibit A to Exhibit 4.3(i) hereto).
5. Legal opinion of Wachtell, Lipton, Rosen & Katz.**
12. Statement of Computation of Ratio of Earnings to
Fixed Charges.
23.1 Consent of Coopers & Lybrand L.L.P. to incorpora-
tion by reference of their report dated February
3, 1995 on the consolidated financial statements
of the Registrant.
23.2 Consent of Wachtell, Lipton, Rosen & Katz (in-
cluded in Exhibit 5).**
23.3 Consent of Deloitte & Touche, Chartered Accoun-
tants.
23.4 Consent of Hawley Troxell Ennis & Hawley.
23.5 Consent of Evans, Keane
24. Power of Attorney.+
**To be filed by Amendment
+Previously filed as an exhibit to this Registration
Statement.
*These exhibits were filed as indicated on the following
table and are incorporated herein by this reference thereto:
II-6<PAGE>
CORRESPONDING EXHIBIT IN ANNUAL REPORT ON FORM
10-K, QUARTERLY REPORT ON FORM 10-Q, CURRENT
EXHIBIT IN REPORT ON FORM 8-K, PROXY STATEMENT OR REGISTRATION
THIS REPORT STATEMENT, AS INDICATED
3.1(a) 3.1 (10-K for 1987 -- File No. 1-849110)
3.1(b) 3.1(b) (10-K for 1991 -- File No. 1-8491)
3.2 2 (Current Report on Form 8-K Dated November 9, 1990
-- File No. 1-8491)
4.1(a) 4.1(d)(e) (Quarterly Report on Form 10-Q for the
quarter ended June 30, 1993 -- File No. 1-8491)
4.1(b) 4.5 (Quarterly Report on Form 10-Q for the quarter
ended June 30, 1993 -- File No. 1-8491)
4.2(a) 1 (Current Report on Form 8-K Dated May 23, 1986 --
File No. 1-8491)
4.2(b) 1 (Current Report on Form 8-K Dated November 9, 1990
-- File No. 1-8491)
4.2(c) 4.1(c) (10-K for 1991 -- File No. 1-8491)
4.2(d) 4.1(d) (10-K for 1991 -- File No. 1-8491)
II-7<PAGE>
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide of-
fering thereof.
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 sec-
tion 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the reg-
istration 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 state-
ment;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any mate-
rial change to such information in the registration
statement;
provided, however, that paragraphs (i) and (ii) above
do not apply if the information required to be in-
cluded in a post-effective amendment by those para-
graphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of
the Exchange Act that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any lia-
bility under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration state-
ment relating to the securities offered therein, and the
II-8<PAGE>
offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the reg-
istrant's annual report pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 (and, where appli-
cable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Ex-
change Act of 1934) that is incorporated by reference in
the registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(5) if securities to be registered are to be offered
to existing security holders pursuant to warrants or
rights and any securities not taken by security holders
are to be offered to the public, to supplement the pro-
spectus, after the expiration of the subscription period,
to set forth the results of the subscription offer, the
transactions by the underwriters during the subscription
period, the amount of unsubscribed securities to be pur-
chased by the underwriters, and the terms of any subse-
quent reoffering thereof. If any public offering by the
underwriters is to be made on terms differing from those
set forth on the cover page of the prospectus, a post-
effective amendment will be filed to set forth the terms
of such offering.
(6) if securities to be registered are to be offered
at competitive bidding:
(i) to use its best efforts to distribute prior
to the opening of bids, to prospective bidders, un-
derwriters, and dealers, a reasonable number of cop-
ies of a prospectus which at that time meets the re-
quirements of Section 10(a) of the Act, and relating
to the securities offered at competitive bidding, as
contained in the registration statement, together
with any supplements thereto, and
(ii) to file an amendment to the registration
statement reflecting the results of bidding, the
terms of the reoffering and related matters to the
II-9<PAGE>
extent required by the applicable form, not later
than the first use, authorized by the issuer after
the opening of bids, of a prospectus relating to the
securities offered at competitive bidding, unless no
further public offering of such securities by the
issuer and no reoffering of such securities by the
purchasers is proposed to be made.
(7) For purposes of determining any liability under
the Securities Act of 1933, the information omitted from
the form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this registration statement
as of the time it was declared effective.
(8) For the purpose of determining any liability
under the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such se-
curities at that time shall be deemed to be the initial
bona fide offering thereof.
(9) to file an application for the purpose of deter-
mining the eligibility of the trustee to act under subsec-
tion (a) of Section 310 of the Trust Indenture Act in ac-
cordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Act.
II-10<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds
to believe that it meets all of 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 autho-
rized, in the City of Coeur d'Alene, State of Idaho, on the ___
day of August, 1995.
HECLA MINING COMPANY
By: /s/ ARTHUR BROWN
Arthur Brown
Chairman, President and
Chief Executive Officer
<TABLE>
Pursuant to the requirements of the Securities Act of
1933, this registration statement has been signed by the fol-
lowing persons in the capacities and on the dates indicated:
<CAPTION>
NAME CAPACITY DATE
<S> <C> <C>
/s/ ARTHUR BROWN Chairman, President August __, 1995
Arthur Brown and Chief Executive
Officer (principal
executive officer)
/s/ JOHN P. STILWELL Vice President Finance August __, 1995
John P. Stilwell and Treasurer (princi-
pal financial officer)
/s/ JOSEPH T. HEATHERLY Vice President -- August __, 1995
Joseph T. Heatherly Controller (chief
accounting officer)
* Director August __, 1995
John E. Clute
* Director August __, 1995
Joseph Coors, Jr.
* Director August __, 1995
Leland O. Erdahl
* Director August __, 1995
William A. Griffith
II-11<PAGE>
* Director August __, 1995
Charles L. McAlpine
* Director August __, 1995
Jorge E. Ordonez
/s/ MICHAEL B. WHITE Attorney-in-fact for August __, 1995
Michael B. White the persons marked
above with an *
</TABLE>
II-12<PAGE>
EXHIBIT INDEX
EXHIBIT
NO. DOCUMENT
4.3(a) Form of Deposit Agreement.
4.3(b) Form of Depositary Receipt (included in Exhibit
4.3(a)).
4.3(c) Form of Indenture between Hecla and
___________________, Trustee, with respect to
Senior Debt Securities ("Senior Indenture").
4.3(d) Form of Indenture between Hecla and
____________________, Trustee, with respect to
Subordinated Debt Securities ("Subordinated Inden-
ture").
4.3(e) Form of Debt Warrant Agreement.
4.3(f) Form of Debt Warrant Certificate (included as
Exhibit A to Exhibit 4.3(e) hereto).
4.3(g) Form of Preferred Stock Warrant Agreement.
4.3(h) Form of Preferred Stock Warrant Certificate (in-
cluded as Exhibit A to Exhibit 4.3(g) hereto).
4.3(i) Form of Common Stock Warrant Agreement.
4.3(j) Form of Common Stock Warrant Certificate (included
as Exhibit A to Exhibit 4.3(i) hereto).
23.1 Consent of Coopers & Lybrand L.L.P. to incorpora-
tion by reference of their report dated February
3, 1995 on the consolidated financial statements
of the Registrant.
23.3 Consent of Deloitte & Touche, Chartered Accoun-
tants.
23.4 Consent of Hawley Troxell Ennis & Hawley
23.5 Consent of Evans, Keane.
WLR&K DRAFT 8/9/95
Exhibit 4.3(a)
HECLA MINING COMPANY,
, as Depositary,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY SHARES DESCRIBED HEREIN
DEPOSIT AGREEMENT
Dated as of <PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS
Certificate....................................... 1
Company........................................... 1
Deposit Agreement................................. 1
Depositary........................................ 1
Depositary Shares................................. 2
Depositary's Agent................................ 2
Depositary's Office............................... 2
Receipt........................................... 2
Record Holder..................................... 2
Redemption Date................................... 2
Redemption Price.................................. 2
Registrar......................................... 2
Stock............................................. 2
ARTICLE TWO
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1 Form and Transfer of Receipts........... 3
SECTION 2.2. Deposit of Stock; Execution and
Delivery of Receipts in Respect
Thereof............................... 4
SECTION 2.3 Redemption of Stock..................... 5
SECTION 2.4 Registration of Transfer of Receipts.... 7
SECTION 2.5 Split-ups and Combinations of
Receipts; Surrender of Receipts
and Withdrawal of Stock............... 7
SECTION 2.6 Limitations on Execution and
Delivery, Transfer, Surrender and
Exchange of Receipts.................. 9
SECTION 2.7 Lost Receipts........................... 9
SECTION 2.8 Cancellation and Destruction of
Surrendered Receipts.................. 9
SECTION 2.9 Preferred Stock Purchase Plans.......... 10
-i-<PAGE>
Page
ARTICLE THREE
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.1 Filing Proofs, Certificates and
Other Information..................... 10
SECTION 3.2 Payment of Taxes or Other
Governmental Charges.................. 10
SECTION 3.3 Warranty as to Stock.................... 11
ARTICLE FOUR
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.1 Cash Distributions...................... 11
SECTION 4.2 Distributions Other than Cash, Rights,
Preferences or Privileges............. 12
SECTION 4.3 Subscription Rights, Preferences
or Privileges......................... 12
SECTION 4.4 Notice of Dividends; Fixing of Record
Date for Record Holders of
Depositary Shares..................... 14
SECTION 4.5 Voting Rights........................... 14
SECTION 4.6 Changes Affecting Deposited Securities
and Reclassifications,
Recapitalizations, etc................ 15
SECTION 4.7 Delivery of Reports..................... 16
SECTION 4.8 List of Holders......................... 16
ARTICLE FIVE
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.1 Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar............................. 16
SECTION 5.2 Prevention of or Delay in
Performance by the Depositary, the
Depositary's Agents, the Registrar
or the Company........................ 17
SECTION 5.3 Obligations of the Depositary, the
Depositary's Agents, the Registrar
and the Company....................... 18
-ii-<PAGE>
Page
SECTION 5.4 Resignation and Removal of the
Depositary; Appointment of
Successor Depositary.................. 19
SECTION 5.5 Corporate Notices and Reports........... 20
SECTION 5.6 Deposit of Stock by the Company......... 20
SECTION 5.7 Indemnification by the Company.......... 20
SECTION 5.8 Charges and Expenses.................... 21
ARTICLE SIX
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment............................... 21
SECTION 6.2 Termination............................. 22
ARTICLE SEVEN
MISCELLANEOUS
SECTION 7.1 Counterparts............................ 22
SECTION 7.2 Exclusive Benefit of Parties; Holders
of Receipts Are Parties............... 22
SECTION 7.3 Invalidity of Provisions................ 22
SECTION 7.4 Notice.................................. 23
SECTION 7.5 Depositary's Agents..................... 24
SECTION 7.6 Governing Law........................... 24
SECTION 7.7 Inspection of Deposit Agreement......... 24
SECTION 7.8 Headings................................ 24
TESTIMONIUM............................................ 25
SIGNATURE AND SEALS.................................... 25
EXHIBIT A - Form of Depositary Receipt................. A-1
-iii-<PAGE>
DEPOSIT AGREEMENT
dated as of
among
HECLA MINING COMPANY,
a Delaware corporation,
, a ,
and the holders
from time to time of the Depositary Shares
described herein.
WHEREAS it is desired to provide, as hereinafter set
forth in this Deposit Agreement, for the deposit of shares of
[insert designation] Preferred Stock, par value
$0.25 per share, of Hecla Mining Company with the Depositary
(as hereinafter defined) for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of Receipts
(as hereinafter defined) evidencing Depositary Shares (as
hereinafter defined) in respect of the Stock (as hereinafter
defined) so deposited;
NOW, THEREFORE, in consideration of the premises, the
parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
The following definitions shall for all purposes,
unless otherwise indicated, apply to the respective terms used
in this Deposit Agreement and the Receipts:
"Certificate" shall mean the certificate of designa-
tions, preferences and rights of the Stock adopted by the Board
of Directors of the Company and filed with the Secretary of
State of Delaware establishing the Stock as a series of pre-
ferred stock of the Company.
"Company" shall mean Hecla Mining Company, a Delaware
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agree-
ment, as amended or supplemented from time to time.
"Depositary" shall mean [a bank or
trust company selected by the Company having its principal
office in the United States of America and having combined
capital and surplus of at least $50,000,000], a
, and any successor as Depositary hereunder.<PAGE>
"Depositary Shares" shall mean the rights represented
by the Receipts issued hereunder and the interests in the Stock
represented thereby. Each Depositary Share shall represent a
[insert fraction] interest in a share of Stock and the
same proportionate interest in any and all other property
received by the Depositary in respect of such shares of Stock
and at the time held under this Deposit Agreement.
"Depositary's Agent" shall mean an agent appointed by
the Depositary pursuant to Section 7.5.
"Depositary's Office" shall mean the office of the
Depositary at , , ,
at which at any particular time its depositary receipt business
shall be administered.
"Receipt" shall mean one of the depositary receipts
issued hereunder, whether in definitive or temporary form,
evidencing one or more Depositary Shares.
"Record Holder" as applied with respect to a Deposi-
tary Share shall mean the person in whose name a Receipt evi-
dencing such Depositary Share is registered on the books of the
Depositary, or Registrar, if one is appointed, maintained for
such purpose.
"Redemption Date" shall mean a date fixed by the
Company for the redemption, in whole or in part, of the Stock
pursuant to the terms of the Certificate.
"Redemption Price" shall mean the price (or amount)
to be paid by the Company for the redemption, in whole or in
part, of the Stock pursuant to the terms of the Certificate.
"Registrar" shall mean any bank or trust company
which shall be appointed by the Depositary pursuant to this
Deposit Agreement to register ownership and transfers of
Receipts as herein provided.
"Stock" shall mean shares of the Company's
[insert designation] Preferred Stock, par value $0.25 per
share.
-2-<PAGE>
ARTICLE TWO
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1 Form and Transfer of Receipts.
Definitive Receipts shall be engraved, printed or
lithographed on steel-engraved borders as determined by the
Company and shall be substantially in the form set forth in
Exhibit A attached hereto, with appropriate insertions, modifi-
cations and omissions, as hereinafter provided. Pending the
preparation of definitive Receipts, the Depositary, upon the
written order of the Company delivered in compliance with Sec-
tion 2.2, shall execute and deliver temporary Receipts which
are printed, lithographed, typewritten, mimeographed or other-
wise substantially of the tenor of the definitive Receipts in
lieu of which they are issued and with such appropriate inser-
tions, 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, or such
other office as the Depositary may designate, 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 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 representative of the
Depositary; provided, that such signature may be a facsimile if
a Registrar for the Receipts other than the Depositary shall
have been appointed and such Receipts are countersigned by
manual signature of a duly authorized representative of such
Registrar. No Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any pur-
pose unless it shall have been executed manually by a duly
authorized representative of the Depositary or, if a Registrar
for the Receipts other than the Depositary shall have been
appointed, by manual or facsimile signature of a duly autho-
rized representative of such Depositary and countersigned
-3-<PAGE>
manually by a duly authorized representative of such Registrar.
The Depositary shall record on its books each Receipt so signed
and delivered as hereinafter provided.
Receipts shall be in denominations of any number of
whole Depositary Shares.
Receipts may be endorsed with or have incorporated in
the text thereof such legends or recitals or changes not incon-
sistent with the provisions of this Deposit Agreement or the
Certificate as may be required by the Company or the Depositary
(or, at the election of the Depositary, the Registrar) or re-
quired 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 re-
spect thereto, or to indicate any special limitations or re-
strictions to which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt
which is properly endorsed, or accompanied by a properly exe-
cuted instrument of transfer, shall be transferable by delivery
with the same effect as in the case of a negotiable instrument;
provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Sec-
tion 2.4, the Depositary may, notwithstanding any notice to the
contrary, treat the Record Holder thereof at such time as the
absolute owner thereof for the purpose of determining the per-
son entitled to distributions of dividends or other distribu-
tions or to any notice provided for in this Deposit Agreement
and for all other purposes.
Each holder of a Receipt is entitled, proportion-
ately, to all the rights, preferences and privileges of the
Stock represented thereby (including dividend, voting, redemp-
tion, conversion and liquidation rights and preferences) and
the same proportionate interest in any and all other property
received by the Depositary in respect of such Stock and at the
time held under this Deposit Agreement.
SECTION 2.2 Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof.
Subject to the terms and conditions of this Deposit
Agreement, the Company or any holder of Stock may from time to
time deposit shares of 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 Deposi-
-4-<PAGE>
tary, together with all such certifications as may be required
by the Depositary in accordance with the provisions of this
Deposit Agreement, and together with a written order of the
Company directing the Depositary to execute and deliver to, or
upon the written order of, the person or persons stated in such
order a Receipt or Receipts for the number of Depositary Shares
relating to such deposited Stock.
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.
Upon receipt by the Depositary of a certificate or
certificates for Stock deposited in accordance with the provi-
sions of this Section, together with the other documents re-
quired as above specified, and upon recordation of the Stock so
deposited on the books of the Company in the name of the De-
positary or its nominee, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall 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 relating to the Stock so depos-
ited and registered in such name or names as may be requested
by such person or persons. The Depositary shall execute and
deliver such Receipt or Receipts at the Depositary's Office or
such other office, 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 2.3 Redemption of Stock.
Whenever the Company shall elect to redeem shares of
Stock in accordance with the provisions of the Certificate, it
shall (unless otherwise agreed in writing with the Depositary)
give written notice to the Depositary of such proposed redemp-
tion on the same date on which the Company first publicly an-
nounces such redemption, such date of notice being not less
than 30 nor more than 60 days prior to the Redemption Date.
Such notice to the Depositary shall include the proposed Re-
demption Date, the number of shares of Stock held by the De-
positary to be redeemed and the applicable redemption price
(including any accrued and unpaid dividends, if any, payable in
connection with such redemption). Any such notice to the De-
positary shall be accompanied by (i) a certificate from the
Company stating that such redemption of Stock is in accordance
with the provisions of the Certificate and (ii) the form of
notice of redemption (which shall contain substantially the
same information as the notice required by the Certificate for
the redemption of the Stock) to be delivered by the Depositary.
-5-<PAGE>
Not less than 30 nor more than 60 days prior to the Redemption
Date, the Depositary shall mail or cause to be mailed, at the
Company's expense, notice (in the form provided to the Deposi-
tary by the Company) of such redemption and the proposed cor-
responding redemption of the number of Depositary Shares repre-
senting the Stock to be redeemed, by first-class mail, postage
prepaid, to the holders of record of the Receipts evidencing
the Depositary Shares to be so redeemed, addressed to such
holders at their last addresses as shown on the records of the
Depositary (or Registrar, if one is appointed). Each such
notice mailed to Record Holders of Depositary Shares shall be
in the form provided to the Depositary by the Company and shall
state, at a minimum, the Redemption Date, the number of Deposi-
tary Shares to be redeemed, and, if less than all the Deposi-
tary Shares represented by Receipts held by such holder are to
be redeemed, the number of such Depositary Shares to be re-
deemed from such holder, the applicable redemption price, the
place or places where such Receipts are to be surrendered for
payment of the redemption price, and that any dividends in
respect of the Depositary Shares to be redeemed will cease on
the Redemption Date, except as otherwise provided in the Cer-
tificate. Any notice which is so mailed shall be conclusively
presumed to have been duly given whether or not the holder
receives such notice; and failure to give such notice by mail,
or any defect in such notice, to the holders of any Depositary
Shares designated for redemption shall not affect the validity
of the proceedings for the redemption of any other Depositary
Shares. If less than all of the then outstanding Depositary
Shares are to be redeemed, the Depositary Shares to be so re-
deemed shall be selected by lot or pro rata as may be deter-
mined by the Depositary.
Prior to the Redemption Date, the Company shall
deliver to the Depositary funds, securities or other property
sufficient to redeem in full the Stock called for redemption
and the Depositary shall surrender to the Company a certificate
or certificates (properly endorsed or assigned for transfer, if
the Company shall so require and the notice shall so state)
representing the number of shares of Stock to be so redeemed.
If the Company shall have delivered to the Depositary funds,
securities or other property necessary for the redemption in
full of the shares of Stock called for redemption, then, not-
withstanding that the Receipts evidencing Depositary Shares
representing the shares of Stock called for redemption have not
been surrendered, the dividends in respect thereof shall cease
to accrue after the Redemption Date, such Depositary Shares
shall no longer be deemed outstanding and all rights whatsoever
with respect to such Depositary Shares (except the right of the
holders to receive the redemption payment therefor without in-
terest upon surrender of the Receipts evidencing such Depo-
-6-<PAGE>
sitary Shares) shall terminate and, upon surrender in accor-
dance with such notice of the Receipts evidencing any such
Depositary Shares (properly endorsed or assigned for transfer,
if the Depositary shall so require), such Depositary Shares
shall be redeemed by the Depositary at a redemption price per
Depositary Share equal to the proportionate part of the redemp-
tion price per share paid in respect of the shares of Stock
plus all funds, securities or other property, if any, paid with
respect to such Depositary Shares, including all amounts paid
by the Company in respect of dividends which on the Redemption
Date have accumulated on the shares of Stock to be so redeemed
and have not theretofore been paid.
If less than all the Depositary Shares evidenced by a
Receipt are called for redemption, the Depositary will deliver
to the holder of such Receipt upon its surrender to the Deposi-
tary, together with the redemption payment, a new Receipt evi-
dencing the Depositary Shares evidenced by such prior Receipt
and not called for redemption.
SECTION 2.4 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 a duly authorized attorney, properly
endorsed or accompanied by a properly executed instrument of
transfer. Thereupon, the Depositary shall execute a new Re-
ceipt or Receipts evidencing the same aggregate number of
Depositary Shares as those evidenced by the Receipt or Receipts
surrendered and shall deliver such new Receipt or Receipts to
or upon the order of the person entitled thereto.
SECTION 2.5 Split-ups and Combinations of
Receipts; Surrender of Receipts
and Withdrawal of Stock.
Upon surrender of a Receipt or Receipts at the Depos-
itary's Office or at such other offices as it may designate for
the purpose of effecting a split-up or combination of such Re-
ceipt or Receipts, and subject to the terms and conditions of
this Deposit Agreement, the Depositary shall execute and de-
liver a new Receipt or Receipts in the authorized denomination
or denominations requested, evidencing the aggregate number of
Depositary Shares evidenced by the Receipt or Receipts sur-
rendered.
Any Record Holder of at least [insert number
of Depositary Shares (at least the inverse of the fraction of
-7-<PAGE>
an interest represented by each Depositary Share in a share of
Stock) below which withdrawal of Stock is not permitted]
Depositary Shares may withdraw the number of whole shares of
Stock and all money and other property, if any, underlying such
Depositary Shares by surrendering Receipts evidencing such
Depositary Shares at the Depositary's Office or at such other
offices as the Depositary may designate for such withdrawals.
Thereafter, without unreasonable delay, the Depositary shall
deliver to such holder, or to the person or persons designated
by such holder as hereinafter provided, the number of whole
shares of Stock and all money and other property, if any, un-
derlying the Depositary Shares so surrendered for withdrawal,
but holders of such whole shares of Stock will not thereafter
be entitled to deposit such Stock hereunder or to receive Re-
ceipts evidencing Depositary Shares therefor. If a Receipt
delivered by a holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares relat-
ing to other than a number of whole shares of Stock, the De-
positary shall at the same time, in addition to such number of
whole shares of Stock and such money and other property, if
any, to be so withdrawn, deliver to such holder, or (subject to
Section 3.2) upon his order, a new Receipt evidencing such
remaining number of Depositary Shares represented by the Re-
ceipt delivered in connection with such withdrawal. Delivery
of the Stock and money and other property being withdrawn may
be made by delivery of such certificates, documents of title
and other instruments as the Depositary may deem appropriate.
If the Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than
the Record Holder of the Depositary Shares evidenced by the
Receipts being surrendered for withdrawal of Stock, such holder
shall execute and deliver to the Depositary a written order so
directing the Depositary, and the Depositary may require that
the Receipt or Receipts surrendered by such holder for with-
drawal of such shares of Stock be properly endorsed in blank or
accompanied by a properly executed instrument of transfer.
Delivery of the Stock and money and other property,
if any, underlying the Depositary Shares surrendered for with-
drawal shall be made by the Depositary at the Depositary's
Office or at such other offices as the Depositary may desig-
nate, except that, at the request, risk and expense of the
holder surrendering such Depositary Shares and for the account
of such holder, such delivery may be made at such other place
as may be designated by such holder.
-8-<PAGE>
SECTION 2.6 Limitations on Execution and Delivery,
Transfer, Surrender and Exchange
of Receipts.
As a condition precedent to the execution and deliv-
ery, registration of transfer, split-up, combination, surrender
or exchange of any Receipt, the Depositary, any of the Deposi-
tary's Agents or the Company may require payment to it of a sum
sufficient for the payment (or, in the event that the Deposi-
tary or the Company shall have made such payment, the reim-
bursement to it) of any charges or expenses payable by the
holder of a Receipt pursuant to Section 5.8, may require the
production of evidence satisfactory to it as to the identity
and genuineness of any signature and may also require compli-
ance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this
Deposit Agreement.
The deposit of Stock may be refused, the delivery of
Receipts against Stock may be suspended, the registration of
transfer of Depositary Shares may be refused and the registra-
tion of transfer, surrender or exchange of outstanding Deposi-
tary Shares may be suspended (i) during any period when the
register of stockholders of the Company is closed or (ii) if
any such action is deemed necessary or advisable by the Depos-
itary, 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.
SECTION 2.7 Lost Receipts.
In case any Receipt shall be mutilated, destroyed,
lost or stolen, the Depositary in its discretion may 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, upon
(i) the filing by the holder thereof with the Depositary of
evidence satisfactory to the Depositary of such destruction or
loss or theft of such Receipt, or the authenticity thereof and
of his or her ownership thereof, and (ii) furnishing the De-
positary with reasonable indemnification satisfactory to it.
SECTION 2.8 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 all Receipts so cancelled.
-9-<PAGE>
SECTION 2.9 Preferred Stock Purchase Plans.
Upon receipt of instructions from the Company, the
Depositary shall take such action as shall be reasonable to
permit the Record Holders of the Depositary Shares to partici-
pate in any dividend reinvestment or other stock purchase plan
sponsored by the Company that permits the participation by such
holders on such terms and conditions as the Company may deter-
mine.
ARTICLE THREE
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.1 Filing Proofs, Certificates and Other
Information.
Any Record Holder of a Depositary Share may be re-
quired from time to time to file such proof of residence, or
other matters or other information, to execute such certifi-
cates 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 deliv-
ery, or delay the registration of transfer, conversion, re-
demption or exchange, of any Depositary Share or the withdrawal
of any Stock underlying Depositary Shares 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 informa-
tion is filed or such certificates are executed or such repre-
sentations and warranties are made.
SECTION 3.2 Payment of Taxes or Other
Governmental Charges.
Record Holders of Depositary Shares shall be obli-
gated to make payments to the Depositary of certain charges and
expenses, as provided in Section 5.8. Registration of transfer
of any Depositary Share or any withdrawal of Stock and delivery
of all money or other property, if any, underlying such Depos-
itary Share may be refused until any such payment due is made,
and any dividends, interest payments or other distributions may
be withheld or all or any part of the Stock or other property
relating to such Depositary Shares and not theretofore sold may
be sold for the account of the holder thereof (after attempting
by reasonable means to notify such holder prior to such sale),
and such dividends or other distributions or the proceeds of
any such sale may be applied to any payment of such charges or
-10-<PAGE>
expenses, the holder of such Depositary Share remaining liable
for any deficiency.
SECTION 3.3 Warranty as to Stock.
In the case of the initial deposit of the Stock, the
Company and, in the case of subsequent deposits thereof, each
person so depositing Stock under this Deposit Agreement shall
be deemed thereby to represent and warrant that such Stock and
each certificate therefor are valid and that the person making
such deposit is authorized to do so. The Company hereby fur-
ther represents and warrants that the Stock, when issued, will
be duly authorized, validly issued, fully paid and nonassess-
able. Such representations and warranties shall survive the
deposit of the Stock and the issuance of the Receipts.
ARTICLE FOUR
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.1 Cash Distributions.
Whenever the Depositary shall receive any cash divi-
dend or other cash distribution on the Stock, the Depositary
shall, subject to Sections 3.1 and 3.2, distribute to the
Record Holders of Depositary Shares on the record date fixed
pursuant to Section 4.4 such amounts of such dividend or dis-
tribution as are, as nearly as practicable, in proportion to
the respective numbers of Depositary Shares held by such hold-
ers; provided, however, that in case the Company or the Deposi-
tary 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 distributed in respect of Depositary Shares
shall be reduced accordingly. 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 held by the Deposi-
tary (without liability for interest thereon) and shall be
added to and be treated as part of the next sum received by the
Depositary for distribution to Record Holders of Depositary
Shares then outstanding.
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SECTION 4.2 Distributions Other than Cash, Rights,
Preferences or Privileges.
Whenever the Depositary shall receive any distribu-
tion other than cash, rights, preferences or privileges on the
Stock, the Depositary shall, subject to Sections 3.1 and 3.2,
and pursuant to written instructions from the Company, distrib-
ute to the Record Holders of Depositary Shares on the record
date fixed pursuant to Section 4.4 such amounts of the securi-
ties or property received by it as are, as nearly as practi-
cable, in proportion to the respective numbers of Depositary
Shares held by such holders, in any manner that the Company may
deem equitable and practicable for accomplishing such distribu-
tion. If, in the opinion of the Depositary, such distribution
cannot be made proportionately among such Record Holders, or if
for any other reason (including any requirement that the Com-
pany or the Depositary withhold an amount on account of taxes
or governmental charges) the Depositary deems, after consulta-
tion 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 pur-
pose 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 3.1 and 3.2, be distributed or
made available for distribution, as the case may be, by the
Depositary to the Record Holders of Depositary Shares entitled
thereto as provided by Section 4.1 in the case of a distribu-
tion received in cash. The Company shall not make any distri-
bution of such securities unless the Company shall have pro-
vided an opinion of counsel to the effect that such securities
have been registered under the Securities Act of 1933, as
amended, or need not be so registered.
SECTION 4.3 Subscription Rights, Preferences
or Privileges.
If the Company shall at any time offer or cause to be
offered to the persons in whose names Stock is recorded 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 Depositary
Shares in such manner as the Depositary may determine, either
by the issuance to such Record Holders of warrants representing
such rights, preferences or privileges or by such other method
as may be approved by the Depositary in its discretion with the
approval of the Company; provided, however, that (i) if, at the
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time of issue or offer of any such rights, preferences or
privileges, the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such
rights, preferences or privileges available to holders of De-
positary Shares by the issue of warrants or otherwise, or (ii)
if and to the extent so instructed by holders of Depositary
Shares who do not desire to exercise such rights, preferences
or privileges, then the Depositary, in its discretion (with the
approval of the Company, in any case where the Depositary has
determined that it is not feasible to make such rights, prefer-
ences or privileges available), may, if applicable laws or the
terms of such rights, preferences or privileges permit such
transfer, sell such rights, preferences or privileges 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,
subject to Sections 3.1 and 3.2, be distributed by the Deposi-
tary to the Record Holders of Depositary Shares entitled there-
to as provided by Section 4.1 in the case of a distribution
received in cash. The Company shall not make any distribution
of such rights, preferences or privileges unless the Company
shall have provided to the Depositary an opinion of counsel to
the effect that such rights, preferences or privileges have
been registered under the Securities Act of 1933, as amended,
or need not be so registered.
If registration under the Securities Act of 1933, as
amended, of the securities to which any rights, preferences or
privileges relate is required in order for holders of Deposi-
tary Shares to be offered or sold the securities to which such
rights, preferences or privileges relate, the Company agrees
with the Depositary that the Company will file promptly a reg-
istration statement pursuant to such Act with respect to such
rights, preferences or privileges and securities and use its
reasonable efforts and take all reasonable steps available to
it to cause such registration statement to become effective
sufficiently in advance of the expiration of such rights, pref-
erences 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 Depositary Shares
any right, preference or privilege to subscribe for or to pur-
chase any securities unless and until such a 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 such Act.
If any other action under the laws of any jurisdic-
tion or any governmental or administrative authorization, con-
sent or permit is required in order for such rights, prefer-
ences or privileges to be made available to the holders of
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Depositary Shares, the Company agrees with the Depositary that
the Company will use its reasonable efforts to take such action
or obtain such authorization, consent or permit sufficiently in
advance of the expiration of such rights, preferences or priv-
ileges to enable such holders to exercise such rights, prefer-
ences or privileges.
SECTION 4.4 Notice of Dividends; Fixing of
Record Date for Record Holders of
Depositary Shares.
Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall
be made, or if rights, preferences or privileges shall at any
time be offered, with respect to the Stock, or whenever the
Depositary shall receive notice of any meeting at which holders
of Stock are entitled to vote, or of which holders of Stock are
entitled to notice, or whenever the Depositary and the Company
shall decide it is appropriate, 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 Record Holders of Depositary Shares
who shall be entitled to receive a distribution in respect of
such dividend, distribution, rights, preferences or privileges
or the net proceeds of the sale thereof, or to give instruc-
tions for the exercise of voting rights at any such meeting, or
who shall be entitled to receive notice of such meeting. The
Company shall advise the Depositary of all such record dates.
SECTION 4.5 Voting Rights.
Upon receipt of notice of any meeting at which the
holders of the Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail or cause to be
mailed to the Record Holders of Depositary Shares a notice, the
form of which shall have been delivered by the Company to the
Depositary, which shall contain (i) such information as is con-
tained in such notice of meeting, (ii) a statement that the
holders of Depositary Shares at the close of business on a
specified record date fixed pursuant to Section 4.4 may, sub-
ject to any applicable provisions of law and of the Company's
Restated Certificate of Incorporation (including the Certifi-
cate), instruct the Depositary as to the exercise of the voting
rights pertaining to the amount of Stock represented by their
respective Depositary Shares (including an express indication
that instructions may be given to the Depositary to give a dis-
cretionary proxy to a person designated by the Company) and
(iii) a brief statement as to the manner in which such instruc-
tions may be given. Upon the written request of the holders of
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Depositary Shares on the record date established in accordance
with Section 4.4, the Depositary shall endeavor insofar as
practicable to vote or cause to be voted, in accordance with
the instructions set forth in such request, the maximum number
of whole shares of Stock underlying the Depositary Shares as to
which any particular voting or consent instructions are re-
ceived. The Company hereby agrees to take all action which may
be deemed necessary by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted.
The Depositary may, at its discretion, appear at any meeting
with respect to the Stock unless directed to the contrary by
the holders of all the Depositary Shares. In the absence of
specific instructions from the holder of a Depositary Share,
the Depositary will abstain from voting to the extent of the
Stock underlying such Depositary Shares.
SECTION 4.6 Changes Affecting Deposited
Securities and Reclassifications,
Recapitalizations, etc.
Upon any change in par or liquidation value, split-
up, combination or any other reclassification of the Stock, or
upon any recapitalization, reorganization, merger, amalgamation
or consolidation affecting the Company or to which it is a
party, the Depositary may, subject to the terms of the Certifi-
cate, with the approval of, or upon the instructions of, the
Company, (i) make such adjustments as are approved or directed
by the Company in (A) the fraction of an interest represented
by one Depositary Share in one share of Stock, (B) the ratio of
the redemption price per Depositary Share to the redemption
price of a share of Stock and (C) the minimum number of Deposi-
tary Shares required for the withdrawal of Stock by holders of
Depositary Shares, in each case as may be necessary fully to
reflect the effects of such changes in par or liquidation
value, split-up, combination or other reclassification of
Stock, or of such recapitalization, reorganization, merger,
amalgamation or consolidation and (ii) treat any securities
which shall be received by the Depositary in exchange for or
upon conversion of or in respect of the Stock as new deposited
securities so received in exchange for or upon conversion of or
in respect of such Stock. In any such case, the Depositary
may, in its discretion, with the approval of the Company, ex-
ecute and deliver additional Receipts or may call for the sur-
render of all outstanding Receipts to be exchanged for new
Receipts specifically describing such new deposited securities.
Anything to the contrary herein notwithstanding, holders of
Receipts shall have the right from and after the effective date
of any such reclassification of the Stock or any such recapi-
talization, reorganization, merger, amalgamation or consolida-
tion to surrender such Receipts to the Depositary with instruc-
-15-<PAGE>
tions to convert, exchange or surrender the Stock represented
thereby only into or for, as the case may be, the kind and
amount of shares of stock and other securities and property and
cash into which the Stock represented by such Depositary Re-
ceipts might have been converted or for which such Stock might
have been exchanged or surrendered immediately prior to the
effective date of such transaction.
SECTION 4.7 Delivery of Reports.
The Depositary will forward to Record Holders of
Depositary Shares, at their respective addresses appearing in
the Depositary's books, all notices, reports and communications
received from the Company which are delivered to the Depositary
and which the Company is required to furnish to the holders of
Stock or Receipts.
SECTION 4.8 List of Holders.
Promptly upon request from time to time by the Com-
pany, the Depositary shall furnish to the Company a list, as of
a recent date, of the names, addresses and holdings of Deposi-
tary Shares of all persons in whose names Receipts are regis-
tered on the books of the Depositary or Registrar, as the case
may be.
ARTICLE FIVE
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.1 Maintenance of Offices, Agencies
and Transfer Books by the
Depositary; Registrar.
Upon execution of this Deposit Agreement, the Deposi-
tary shall maintain, at the Depositary's Offices or at any
Registrar's office at which the Depositary shall have complete
access to all books and records maintained on the Company's
behalf, facilities for the execution and delivery, surrender
and exchange of Receipts and the registration and registration
of transfer of Receipts and, at the offices of the Depositary's
Agents, if any, facilities for the delivery, surrender and
exchange of Receipts and the registration of transfer 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
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Receipts, which books at all reasonable times shall be open for
inspection by the Record Holders of Depositary Shares; provided
that any such holder requesting to exercise such right shall
certify in writing 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.
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.
If the Receipts or the Depositary Shares evidenced
thereby or the Stock underlying such Depositary Shares shall be
listed on the New York Stock Exchange, the Depositary may, with
the approval of the Company, appoint a Registrar for registra-
tion 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, sur-
render and exchange of such Receipts, such Depositary Shares or
such Stock as may be required by law or applicable stock ex-
change regulation.
SECTION 5.2 Prevention of 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
any Registrar nor the Company shall incur any liability to any
holder of a Depositary Share 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, any Depositary's Agent or
any Registrar, by reason of any provision, present or future,
of the Company's Restated Certificate of Incorporation (includ-
ing the Certificate), or by reason of any act of God or war or
other circumstance beyond the control of the relevant party,
the Depositary, any Depositary's Agent, any Registrar or the
Company shall be prevented or forbidden from doing or perform-
ing any act or thing which the terms of the Deposit Agreement
provide shall be done or performed; nor shall the Depositary,
any Depositary's Agent, any Registrar or the Company incur any
liability to any Record Holder of a Depositary Share by reason
of (i) any nonperformance or delay, caused as aforesaid, in the
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performance of any act or thing which the terms of this Deposit
Agreement provide shall or may be done or performed, or (ii)
any exercise of, or failure to exercise, any discretion pro-
vided for in this Deposit Agreement except, in case of any such
exercise or failure to exercise discretion not caused as afore-
said, if caused by the negligence, bad faith or willful miscon-
duct of the party charged with such exercise or failure to
exercise.
SECTION 5.3 Obligations of the Depositary, the
Depositary's Agents, the Registrar
and the Company.
Neither the Depositary nor any Depositary's Agent nor
any Registrar nor the Company assumes any obligation or shall
be subject to any liability under this Deposit Agreement to
Record Holders of Depositary Shares other than for its
negligence, bad faith or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor
any Registrar nor the Company shall be under any obligation to
appear in, prosecute or defend any action, suit or other pro-
ceeding in respect of the Stock, the Depositary Shares or the
Receipts which, 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.
Neither the Depositary nor any Depositary's Agent nor
any Registrar nor the Company shall be liable for any action or
any failure to act by it in reliance upon the written advice of
legal counsel or accountants or information from any person
presenting Stock for deposit, any holder of a Depositary Share
or any other person believed by it in good faith to be compe-
tent to give such information. The Depositary, any Deposi-
tary's Agent, any Registrar 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 genu-
ine and to have been signed or presented by the proper party or
parties.
Neither the Depositary nor any Depositary's Agent
shall be responsible for any failure to carry out any instruc-
tion to vote any of the shares of Stock or for the manner or
effect of any such vote, as long as any such action or non-
action is in good faith. The Depositary undertakes, and any
Registrar shall be required to undertake, to perform such
duties and only such duties as are specifically set forth in
this Deposit Agreement, and no implied covenants or obligations
shall be read into this Deposit Agreement against the Deposi-
tary or any Registrar. The Depositary will indemnify the
Company against any liability which may arise out of acts
-18-<PAGE>
performed or omitted by the Depositary or its agents due to its
or their negligence or bad faith. The Depositary, the Deposi-
tary's Agents, any Registrar and the Company may own and deal
in any class of securities of the Company and its affiliates
and in Depositary Shares. The Depositary may also act as
transfer agent or registrar of any of the securities of the
Company and its affiliates.
SECTION 5.4 Resignation and Removal of the
Depositary; Appointment of
Successor Depositary.
The Depositary may at any time resign as Depositary
hereunder by notice of its election to do so delivered to the
Company, such resignation to take effect upon the appointment
of a successor Depositary and its acceptance of such appoint-
ment as hereinafter provided.
The Depositary may at any time be removed by the Com-
pany 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 herein-
after provided.
In case the Depositary acting hereunder shall at any
time 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 sur-
plus of at least $50,000,000. If no successor Depositary shall
have been so appointed 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 suc-
cessor 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 pre-
decessor, upon payment of all sums due it and on 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 Record Holders of all outstanding
Depositary Shares. Any successor Depositary shall promptly
mail notice of its appointment to the Record Holders of
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Depositary Shares. Thereafter, any predecessor Depositary
shall deliver any correspondence received from any holders of
Depositary Shares to the successor Depositary.
Any corporation into which the Depositary may be
merged, or with which it may be consolidated or converted,
shall be the successor of such Depositary without the execution
or filing of any document or any further act. Such successor
Depositary may authenticate the Receipts in the name of the
predecessor Depositary or in the name of the successor
Depositary.
SECTION 5.5 Corporate Notices and Reports.
The Company agrees that it will transmit to the
Depositary and to the Record Holders of Depositary Shares, at
the addresses provided to it pursuant to Section 4.8, all
notices, reports and communications (including without limita-
tion financial statements) required by law, the rules of any
national securities exchange upon which the Stock, the Deposi-
tary Shares or the Receipts are listed or by the Company's Cer-
tificate of Incorporation (including the Certificate) to be
furnished by the Company to holders of the Stock. Such trans-
mission will be at the Company's expense.
SECTION 5.6 Deposit of Stock by the Company.
The Company agrees with the Depositary that neither
the Company nor any company controlled by the Company will at
any time deposit any Stock if such Stock is required to be
registered under the provisions of the Securities Act of 1933,
as amended, and no registration statement is at such time in
effect as to such Stock.
SECTION 5.7 Indemnification by the Company.
The Company shall indemnify the Depositary, any
Depositary's Agent and any Registrar against, and hold each of
them harmless from, any loss, liability or expense (including
the costs and expenses of defending itself) which may arise out
of (i) acts performed or omitted in connection with this
Deposit Agreement, the Depositary Shares and the Receipts (A)
by the Depositary, any Registrar or any of their respective
agents (including any Depositary's Agent), except for any
liability arising out of negligence, bad faith or willful mis-
conduct on the respective parts of any such person or persons
or (B) by the Company or any of its agents or (ii) the offer,
sale or registration of the Depositary Shares or the Stock pur-
suant to the provisions hereof. The obligations of the Company
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set forth in this Section 5.7 shall survive any succession of
any Depositary, Registrar or Depositary's Agent.
SECTION 5.8 Charges and Expenses.
The Company shall pay all transfer and other taxes
and governmental charges arising solely from the existence of
the depositary arrangements. The Company shall pay all reason-
able charges of the Depositary in connection with the initial
deposit of the Stock and the initial issuance of the Receipts,
any redemption of the Stock at the option of the Company and
any withdrawals of Stock by holders of Depositary Shares. All
other transfer and other taxes and governmental charges shall
be at the expense of Record Holders of Depositary Shares. If,
at the request of a Record Holder of a Depositary Share, the
Depositary incurs charges or expenses for which it is not
otherwise liable hereunder, such holder will be liable for such
charges and expenses. All other charges and expenses of the
Depositary, any Depositary's Agent hereunder and any Registrar
(including, in each case, fees and expenses of counsel) inci-
dent to the performance of their respective obligations here-
under will be paid upon consultation and agreement between the
Depositary and the Company as to the amount and nature of such
charges and expenses. The Depositary shall present its state-
ment for charges and expenses to the Company once every three
months or at such other intervals as the Company and the
Depositary may agree.
ARTICLE SIX
AMENDMENT AND TERMINATION
SECTION 6.1 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; pro-
vided, however, that no such amendment (other than any change
in the fees of any Depositary, Registrar or Transfer Agent)
which shall materially and adversely alter the rights of the
existing Record Holders of Depositary Shares shall be effective
unless such amendment shall have been approved by the Record
Holders of at least a majority of the Depositary Shares then
outstanding. Every holder of an outstanding Depositary Share
at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Depositary Share, to consent
and agree to such amendment and to be bound by this Deposit
Agreement as amended thereby.
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SECTION 6.2 Termination.
This Deposit Agreement may be terminated by the Com-
pany or the Depositary only after (i) all outstanding Deposi-
tary Shares shall have been redeemed pursuant to Section 2.3 or
(ii) there shall have been made a final distribution in respect
of the Stock in connection with any liquidation, dissolution or
winding up of the Company and such distribution shall have been
distributed to the holders of Receipts pursuant to Section 4.1
or 4.2, as applicable.
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 Agents and any Registrar under Sections 5.7
and 5.8.
ARTICLE SEVEN
MISCELLANEOUS
SECTION 7.1 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 counter-
parts taken together shall constitute one and the same instru-
ment.
SECTION 7.2 Exclusive Benefit of Parties; Holders
of Receipts Are Parties.
This Deposit Agreement is for the exclusive benefit
of the parties hereto, and their respective successors here-
under, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever. Not-
withstanding that Record Holders of Depositary Shares have not
executed and delivered this Deposit Agreement or any counter-
part thereof, the holders of Depositary Shares from time to
time shall be parties to this Deposit Agreement and shall be
bound by all of the terms and conditions hereof and of the
Receipts evidencing such Depositary Shares by acceptance of
delivery thereof.
SECTION 7.3 Invalidity of Provisions.
In case any one or more of the provisions contained
in this Deposit Agreement or in the Receipts should be or
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become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provi-
sions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.4 Notice.
Any notices required or permitted to be given here-
under shall be in writing (including telegraphic, telex or fac-
simile transmission) and shall be duly given if (i) personally
delivered or sent by telegraph, telex or facsimile and (ii)
mailed by certified or registered mail, postage prepaid, return
receipt requested, addressed as follows:
If to the Company:
Hecla Mining Company
6500 Mineral Drive
Coeur d'Alene, Idaho 83814
Attention: Vice President and General
Counsel
Facsimile No. (208) 769-4159
If to the Depositary:
Facsimile No.
If to the Record Holder of a Depositary Share:
At the address as it appears on the
books of the Depositary, or if such
Record Holder shall have filed with
the Depositary a written request that
notices intended for such Record
Holder be mailed to some other
address, at the address designated in
such request.
All such notices shall be effective: (i) if mailed
or personally delivered, when received, or (ii) if sent by
telegraph, telex or facsimile, when sent with evidence of tran-
smission. The address to which notices hereunder should be
sent may be changed by any party by giving notice of such
change to the others in the manner provided in this Deposit
Agreement.
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SECTION 7.5 Depositary's Agents.
The Depositary may from time to time, with the prior
approval 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 Deposi-
tary's Agents. The Depositary will notify the Company of any
such action.
SECTION 7.6 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 WITHOUT REFERENCE TO CHOICE
OR CONFLICT OF LAW PRINCIPLES.
SECTION 7.7 Inspection of Deposit Agreement.
Copies of this Deposit Agreement 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 Record Holder of a Depositary Share.
SECTION 7.8 Headings.
The headings of articles and sections in this Deposit
Agreement and in the form of Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to
be regarded as 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.
-24-<PAGE>
IN WITNESS WHEREOF, the Company and the Depositary
have duly executed this Deposit Agreement as of the day and
year first above set forth, and all Record Holders of Deposi-
tary Shares shall become parties hereto by and upon acceptance
by them of delivery of Receipts evidencing such Depositary
Shares and issued in accordance with the terms hereof.
HECLA MINING COMPANY
By
Name:
Title:
Attest:
By
Name:
Title:
[Depositary]
By
Name:
Title:
Attest:
By
Name:
Title:
-25-<PAGE>
WLR&K DRAFT
8/9/95
Exhibit 4.3(b)
EXHIBIT A
FORM OF DEPOSITARY RECEIPT
FOR DEPOSITARY SHARES
[GENERAL FORM OF FACE OF RECEIPT]
DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING PREFERRED STOCK
HECLA MINING COMPANY
Incorporated under the laws of the State of Delaware
This Depositary Receipt is transferable
in the City of New York
, as Depositary (the "Depositary"), hereby
certifies that is the registered owner
of Depositary Shares ("Depositary Shares"),
each Depositary Share representing ( ) of one
share of Preferred Stock, par value $0.25 per share
(the "Stock"), of Hecla Mining Company, a Delaware corporation
(the "Company"), on deposit with the Depositary, subject to the
terms and entitled to the benefits of the Deposit Agreement
dated as of (the "Deposit Agreement"), among
the Company, the Depositary and all holders from time to time
of Depositary Receipts. By accepting this Depositary Receipt,
the holder hereof becomes a party to and agrees to be bound by
all the terms and conditions of the Deposit Agreement. This
Depositary Receipt shall not be valid or obligatory for any
purpose or entitled to any benefits under the Deposit Agreement
unless it shall have been executed by the Depositary by the
manual signature of a duly authorized officer thereof or, if
executed in facsimile by the Depositary, countersigned by a
Registrar in respect of the Depositary Receipts by the manual
signature of a duly authorized officer thereof.
Dated: [Depositary]
By:
Authorized Officer
Name:
Title:
A-1<PAGE>
[Registrar]
By:
Authorized Officer
Name:
Title:
A-2<PAGE>
[GENERAL FORM OF REVERSE OF RECEIPT]
HECLA MINING COMPANY
Hecla Mining Company will furnish without charge to
each receiptholder who so requests a copy of the Deposit
Agreement and a statement or summary of the voting powers,
designations, preferences, limitations, restrictions and
relative rights of each class of stock or series thereof which
Hecla Mining Company is authorized to issue. Any such request
is to be addressed to the Secretary of Hecla Mining Company.
The following abbreviations, when used in the
inscription on the face of this certificate, shall be construed
as though they were written out in full according to applicable
laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in common
UNIF GIFT MIN ACT - Custodian
(Cust) (Minor) under the Uniform Gifts to
Minors Act (State)
Additional abbreviations may also be used though not
in the above list.
For value received,
hereby sell(s), assign(s) and transfer(s) unto
(Please print or type name, address, including postal zip code,
and social security or other identifying number of Assignee)
Depositary Shares represented by the within
receipt and all rights thereunder and does hereby irrevocably
constitute and appoint attorney to transfer
said Depositary Shares on the books of the within-named
Depositary with full power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this instrument in every particular,
without alteration or enlargement or any
change whatsoever.
A-3
WLR&K DRAFT 8/9/95
Exhibit 4.3(c)
HECLA MINING COMPANY
AND
______________________,
TRUSTEE
INDENTURE
DATED AS OF
SENIOR DEBT SECURITIES
<PAGE>
HECLA MINING COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
Section 310 (a)(1)........................... 609
(a)(2)........................... 609
(a)(3)........................... Not Applicable
(a)(4)........................... Not Applicable
(b).............................. 608, 610
Section 311 (a).............................. 613
(b).............................. 613
(c).............................. Not Applicable
Section 312 (a).............................. 701, 702(a)
(b).............................. 702(b)
(c).............................. 702(c)
Section 313 (a).............................. 703(a)
(b).............................. 703(b)
(c).............................. 703(c)
(d).............................. 703(d)
Section 314 (a).............................. 704, 1007
(b).............................. Not Applicable
(c)(1)........................... 103
(c)(2)........................... 103
(c)(3)........................... Not Applicable
(d).............................. Not Applicable
(e).............................. 103
Section 315 (a).............................. 601(a)
(b).............................. 602, 703(a)
(c).............................. 601(b)
(d).............................. 601(c)
(d)(1)........................... 601(a)(1)
(d)(2)........................... 601(c)(2)
(d)(3)........................... 601(c)(3)
(e).............................. 514
Section 316 (a)(10)(A)....................... 502, 512
(a)(1)(B)........................ 513
(a)(2)........................... Not Applicable
(a)(last sentence)............... 101
(b).............................. 508
Section 317 (a)(1)........................... 503
(a)(2)........................... 504
(b).............................. 1003
Section 318 (a).............................. 108
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.<PAGE>
TABLE OF CONTENTS
PARTIES.................................................. 1
RECITALS OF THE COMPANY.................................. 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions............................... 1
Act....................................... 2
Additional Amounts........................ 2
Affiliate; control........................ 2
Authenticating Agent...................... 2
Authorized Newspaper...................... 2
Bearer Security........................... 3
Board of Directors........................ 3
Board Resolution.......................... 3
Book-Entry Security....................... 3
Business Day.............................. 3
CEDEL; CEDEL S.A.......................... 3
Certification Date........................ 3
Commission................................ 4
Common Depositary......................... 4
Company................................... 4
Company Request; Company Order............ 4
Conversion Event.......................... 4
Corporate Trust Office.................... 4
coupon.................................... 4
Defaulted Interest........................ 4
Depositary................................ 4
Dollar; $................................. 5
Euroclear................................. 5
Event of Default.......................... 5
Exchange Date............................. 5
Exchange Rate............................. 5
Holder.................................... 5
Indenture................................. 5
interest.................................. 5
Interest Payment Date..................... 5
Judgment Currency......................... 5
Maturity.................................. 5
Officers' Certificate..................... 6
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
-i-<PAGE>
Opinion of Counsel........................ 6
Original Issue Discount Security.......... 6
Outstanding............................... 6
Paying Agent.............................. 7
Person.................................... 7
Place of Payment.......................... 7
Predecessor Security...................... 7
Redemption Date........................... 8
Redemption Price.......................... 8
Registered Security....................... 8
Regular Record Date....................... 8
Required Currency......................... 8
Responsible Officer....................... 8
Securities................................ 8
Security Register; Security Registrar..... 8
Special Record Date....................... 9
Stated Maturity........................... 9
Subsidiary................................ 9
Trustee................................... 9
Trust Indenture Act....................... 9
United States............................. 9
United States Alien....................... 9
U.S. Government Obligations............... 9
Vice President............................ 10
Wholly Owned Subsidiary................... 10
Yield to Maturity......................... 10
SECTION 102. Incorporation by Reference of Trust
Indenture Act........................... 10
SECTION 103. Compliance Certificates and Opinions...... 11
SECTION 104. Form of Documents Delivered to Trustee.... 11
SECTION 105. Acts of Holders; Record Dates............. 12
SECTION 106. Notices, Etc., to Trustee and Company..... 14
SECTION 107. Notice to Holders; Waiver................. 15
SECTION 108. Conflict With Trust Indenture Act......... 16
SECTION 109. Effect of Headings and Table of
Contents................................ 16
SECTION 110. Successors and Assigns.................... 16
SECTION 111. Separability Clause....................... 16
SECTION 112. Benefits of Indenture..................... 17
SECTION 113. Governing Law............................. 17
SECTION 114. Legal Holidays............................ 17
SECTION 115. Corporate Obligation...................... 17
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally........................... 18
SECTION 202. Form of Trustee's Certificate of
Authentication.......................... 18
SECTION 203. Securities in Global Form................. 19
SECTION 204. Book-Entry Securities..................... 20
-ii-<PAGE>
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series ..... 23
SECTION 302. Denominations............................. 26
SECTION 303. Execution, Authentication, Delivery and
Dating.................................. 26
SECTION 304. Temporary Securities ..................... 29
SECTION 305. Registration, Registration of Transfer
and Exchange............................ 32
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.............................. 35
SECTION 307 Payment of Interest; Interest Rights
Preserved............................... 37
SECTION 308. Persons Deemed Owners..................... 38
SECTION 309. Cancellation.............................. 39
SECTION 310. Computation of Interest................... 40
SECTION 311. CUSIP Numbers............................. 40
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture... 40
SECTION 402. Application of Trust Money................ 43
SECTION 403. Discharge of Liability on Securities
of Any Series........................... 43
SECTION 404. Reinstatement............................. 44
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default......................... 45
SECTION 502. Acceleration of Maturity; Rescission
and Annulment........................... 47
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.................. 49
SECTION 504. Trustee May File Proofs of Claim.......... 50
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons..... 51
SECTION 506. Application of Money Collected............ 51
SECTION 507. Limitation on Suits....................... 52
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest................................ 53
SECTION 509. Restoration of Rights and Remedies........ 53
SECTION 510. Rights and Remedies Cumulative............ 53
SECTION 511. Delay or Omission Not Waiver.............. 54
SECTION 512. Control by Holders........................ 54
SECTION 513. Waiver of Past Defaults................... 54
-iii-<PAGE>
SECTION 514. Undertaking for Costs..................... 55
SECTION 515. Waiver of Stay or Extension Laws.......... 56
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities....... 56
SECTION 602. Notice of Defaults ....................... 57
SECTION 603. Certain Rights of Trustee................. 58
SECTION 604. Not Responsible for Recitals or
Issuance of Securities ................. 59
SECTION 605. May Hold Securities....................... 59
SECTION 606. Money Held in Trust....................... 60
SECTION 607. Compensation and Reimbursement ........... 60
SECTION 608. Disqualification; Conflicting Interests... 61
SECTION 609. Corporate Trustee Required; Eligibility... 61
SECTION 610. Resignation and Removal; Appointment of
Successor............................... 62
SECTION 611. Acceptance of Appointment by Successor.... 64
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business.................. 65
SECTION 613. Preferential Collection of Claims Against
Company................................. 65
SECTION 614. Appointment of Authenticating Agent....... 66
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders ................... 68
SECTION 702. Preservation of Information;
Communications to Holders .............. 68
SECTION 703. Reports by Trustee ....................... 69
SECTION 704. Reports by Company ....................... 70
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only
on Certain Terms ....................... 70
SECTION 802. Successor Person Substituted ............. 71
-iv-<PAGE>
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent
of Holders.............................. 71
SECTION 902. Supplemental Indentures With Consent
of Holders.............................. 73
SECTION 903. Execution of Supplemental Indentures...... 74
SECTION 904. Effect of Supplemental Indentures......... 75
SECTION 905. Conformity With Trust Indenture Act....... 75
SECTION 906. Reference in Securities to Supplemental
Indentures.............................. 75
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium
and Interest............................ 75
SECTION 1002. Maintenance of Office or Agency .......... 76
SECTION 1003. Money for Securities Payments to be
Held in Trust........................... 78
SECTION 1004. Existence ................................ 80
SECTION 1005. Maintenance of Properties................. 80
SECTION 1006. Payment of Taxes and Other Claims ........ 80
SECTION 1007. Statement by Officers as to Default ...... 80
SECTION 1008. Waiver of Certain Covenants .............. 81
SECTION 1009. Additional Amounts........................ 81
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.................. 82
SECTION 1102. Election to Redeem; Notice to Trustee .... 82
SECTION 1103. Selection by Trustee of Securities
to be Redeemed.......................... 83
SECTION 1104. Notice of Redemption...................... 83
SECTION 1105. Deposit of Redemption Price .............. 85
SECTION 1106. Securities Payable on Redemption Date .... 85
SECTION 1107. Securities Redeemed in Part .............. 86
SECTION 1108. Purchase of Securities.................... 86
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.................. 87
-v-<PAGE>
SECTION 1202. Satisfaction of Sinking Fund
Payments with Securities ............... 87
SECTION 1203. Redemption of Securities for Sinking
Fund.................................... 88
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May Be
Called.................................. 88
SECTION 1302. Call, Notice and Place of Meetings........ 88
SECTION 1303. Persons Entitled to Vote at Meetings...... 89
SECTION 1304. Quorum; Action............................ 89
SECTION 1305. Determination of Voting Rights;
Conduct and Adjournment of Meetings..... 90
SECTION 1306. Counting Votes and Recording Action
of Meetings............................. 91
TESTIMONIUM.............................................. 93
SIGNATURE AND SEALS...................................... 93
ACKNOWLEDGMENTS.......................................... 94
EXHIBIT A................................................ A-1
EXHIBIT B................................................ B-1
-vi-<PAGE>
INDENTURE, dated as of , between
HECLA MINING COMPANY, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the
"Company"), having its principal office at 6500 Mineral Drive,
Coeur d'Alene, Idaho 83814, and _____________________, a
________ state banking corporation, as Trustee (herein called
the "Trustee"), the office of the Trustee at which at the date
hereof its corporate trust business is principally administered
being ______________________________________________.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from
time to time of its unsecured debentures, notes or other evi-
dences of indebtedness (herein called the "Securities"), to be
issued in one or more series as in this Indenture provided.
This Indenture is subject to the provisions of the
Trust Indenture Act and the rules and regulations of the Com-
mission promulgated thereunder that are required to be part of
this Indenture and, to the extent applicable, shall be governed
by such provisions.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the pur-
chase of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit
of all Holders of the Securities or of series thereof, as fol-
lows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as other-
wise expressly provided or unless the context otherwise re-
quires:<PAGE>
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all accounting terms not otherwise defined here-
in have the meanings assigned to them in accordance with
generally accepted accounting principles in the United
States, and, except as otherwise herein expressly provid-
ed, the term "generally accepted accounting principles"
with respect to any computation required or permitted
hereunder shall mean such accounting principles as are
generally accepted in the United States at the date of
such computation; and
(c) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Six, are
defined in Section 102.
"Act", when used with respect to any Holder, has the
meaning specified in Section 105.
"Additional Amounts" means any additional amounts
that are required by a Security or by or pursuant to a Board
Resolution, under circumstances specified therein or pursuant
thereto, to be paid by the Company with respect to certain
taxes, assessments or other governmental charges imposed on
certain Holders and that are owing to such Holders.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when
used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "con-
trolled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person, which may
include the Company, authorized by the Trustee to act on behalf
of the Trustee pursuant to Section 614 to authenticate Securi-
ties of one or more series.
"Authorized Newspaper" means a newspaper, in the
English language or in an official language of the country of
publication, customarily published on each Business Day,
-2-<PAGE>
whether or not published on Saturdays, Sundays or holidays, and
of general circulation in the place in connection with which
the term is used or in the financial community of such place.
Where successive publications are required to be made in Autho-
rized Newspapers, the successive publications may be made in
the same or in different newspapers in the same city meeting
the foregoing requirements and in each case on any Business
Day.
"Bearer Security" means any Security in the form
established pursuant to Section 201 which is payable to bearer,
including, without limitation, unless the context otherwise
indicates, a Security in temporary or permanent global bearer
form.
"Board of Directors" means either the board of direc-
tors of the Company or any duly authorized committee of that
board.
"Board Resolution" means a copy of a resolution cer-
tified by the Secretary or an Assistant Secretary of the Com-
pany to have been duly adopted by the Board of Directors and to
be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Book-Entry Security" has the meaning specified in
Section 204.
"Business Day", when used with respect to any Place
of Payment, means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in that
Place of Payment are authorized or obligated by law or execu-
tive order to close.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison
de Valeurs Mobilieres S.A., or, if any time after the execution
of this instrument, Centrale de Livraison de Valeurs Mobilieres
S.A. is not existing and performing the duties now being per-
formed by it, then the successor Person performing such duties.
"Certification Date" means with respect to Securities
of any series (i) if Bearer Securities of such series are not
to be initially represented by a temporary global Security, the
date of delivery of the definitive Bearer Security and (ii), if
Bearer Securities of such series are initially represented by a
temporary global Security, the earlier of (A) the Exchange Date
with respect to Securities of such series and (B), if the first
Interest Payment Date with respect to Securities of such series
is prior to such Exchange Date, such Interest Payment Date.
-3-<PAGE>
"Commission" means the Securities and Exchange Com-
mission, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or, if at any time
after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at
such time.
"Common Depositary" has the meaning specified in
Section 304.
"Company" means the Person named as the "Company" in
the first paragraph of this instrument until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such suc-
cessor Person.
"Company Request" and "Company Order" mean, respec-
tively, a written request or order signed in the name of the
Company by its Chairman of the Board, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its
Controller, an Assistant Controller, its Secretary or an As-
sistant Secretary, and delivered to the Trustee.
"Conversion Event" has the meaning specified in Sec-
tion 501.
"Corporate Trust Office" means the principal office
of the Trustee in ____________________________________________
at which at any particular time its corporate trust business
shall be principally administered, which office at the date
hereof is that indicated in the introductory paragraph of this
Indenture.
"coupon" means any interest coupon appertaining to a
Bearer Security.
"Defaulted Interest" has the meaning specified in
Section 307.
"Depositary" means, with respect to the Securities of
any series issuable or issued in the form of a global Security,
the Person designated as Depositary by the Company pursuant to
Section 301 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 hereunder, and if at any time there is
more than one such person, "Depositary" as used with respect to
the Securities of any series shall mean the Depositary with
respect to the Securities of that series.
-4-<PAGE>
"Dollar" or "$" means a dollar or other equivalent
unit in such coin or currency of the United States as at the
time shall be legal tender for the payment of public and
private debts.
"Euroclear" means the operator of the Euroclear
System.
"Event of Default" has the meaning specified in Sec-
tion 501.
"Exchange Date" has the meaning specified in Section
304.
"Exchange Rate" has the meaning specified in Section
501.
"Holder", when used with respect to any Security,
means in the case of a Registered Security the Person in whose
name the Security is registered in the Security Register and in
the case of a Bearer Security the bearer thereof and, when used
with respect to any coupon, means the bearer thereof.
"Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities estab-
lished as contemplated by Section 301 and the provisions of the
Trust Indenture Act that are deemed to be a part of and govern
this instrument.
"interest", when used with respect to an Original
Issue Discount Security which by its terms bears interest only
after Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to
any Security, means the Stated Maturity of an installment of
interest on such Security.
"Judgment Currency" has the meaning specified in Sec-
tion 506.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security or an
installment of principal becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declara-
tion of acceleration, call for redemption or otherwise.
-5-<PAGE>
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, the President or a Vice President,
and by the Treasurer, the Controller, the Secretary or an
Assistant Treasurer, Assistant Controller or Assistant Secre-
tary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of coun-
sel, who may be counsel for or an employee of the Company, ren-
dered, if applicable, in accordance with Section 314(c) of the
Trust Indenture Act.
"Original Issue Discount Security" means any Security
which provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of accelera-
tion of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities thereto-
fore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Com-
pany) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities and any coupons apper-
taining thereto; provided that, if such Securities are to
be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satis-
factory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Sec-
tion 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant
to this Indenture, other than any such Securities in re-
spect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands such Securi-
ties are valid obligations of the Company;
provided, however, that in determining whether the Holders of
the requisite principal amount of the Outstanding Securities
have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, or whether a quorum is
present at a meeting of Holders of Securities, (A) the princi-
pal amount of an Original Issue Discount Security that shall be
-6-<PAGE>
deemed to be Outstanding for such purposes shall be the princi-
pal amount thereof that would be due and payable as of the date
of such determination upon acceleration of the Maturity thereof
pursuant to Section 502, (B) the principal amount of a Security
denominated in a foreign currency shall be the U.S. dollar
equivalent, determined by the Company on the date of original
issuance of such Security, of the principal amount (or, in the
case of an Original Issue Discount Security, the U.S. dollar
equivalent, determined on the date of original issuance of such
Security, of the amount determined as provided in (A) above),
of such Security and (C) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Com-
pany or of such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver or
upon any such determination as to the presence of a quorum,
only Securities which the Trustee knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee estab-
lishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person, which may include
the Company, authorized by the Company to pay the principal of
(and premium, if any) or interest on any one or more series of
Securities on behalf of the Company.
"Person" means any individual, corporation, partner-
ship, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the
Securities of any series, means the place or places where the
principal of (and premium, if any) and interest on the Securi-
ties of that series are payable as specified in accordance with
Section 301 subject to the provisions of Section 1002.
"Predecessor Security" of any particular Security
means every previous Security evidencing all or a portion of
the same debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security authen-
ticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a
Security to which a mutilated, destroyed, lost or stolen coupon
appertains, shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security or the Security
-7-<PAGE>
to which a mutilated, destroyed, lost or stolen coupon apper-
tains, as the case may be.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such redemp-
tion by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form
established pursuant to Section 201 which is registered in the
Security Register.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Registered Securities of any
series means the date specified for that purpose as contem-
plated by Section 301, or, if not so specified, the last day of
the calendar month preceding such Interest Payment Date if such
Interest Payment Date is the fifteenth day of the calendar
month or the fifteenth day of the calendar month preceding such
Interest Payment Date if such Interest Payment Date is the
first day of a calendar month, whether or not such day shall be
a Business Day.
"Required Currency" has the meaning specified in Sec-
tion 506.
"Responsible Officer", when used with respect to the
Trustee, means the Chairman or any Vice Chairman of the Board
of Directors, the Chairman or any Vice Chairman of the Execu-
tive Committee of the Board of Directors, the Chairman of the
Trust Committee, the President, any Vice President, the Secre-
tary, any Assistant Secretary, the Treasurer, any Assistant
Treasurer, the Cashier, any Assistant Cashier, any Trust Of-
ficer or Assistant Trust Officer, the Controller or any Assis-
tant Controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the
above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and famil-
iarity with the particular subject.
"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any Secu-
rities authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
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"Special Record Date" for the payment of any De-
faulted Interest on the Registered Securities of any series
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any
Security or any installment of principal thereof or interest
thereon, means the date specified in such Security or coupon
representing such installment of interest as the fixed date on
which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indi-
rectly, by the Company or by one or more other Subsidiaries, or
by the Company and one or more other Subsidiaries. For the
purposes of this definition, "voting stock" means stock which
ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of
stock has such voting power by reason of any contingency.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this instrument until a successor
Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that
series.
"Trust Indenture Act" means the Trust Indenture Act
of 1939 as in force at the date as of which this instrument was
executed, except as provided in Section 905.
"United States" means the United States of America
(including the States and the District of Columbia) and its
"possessions", which include Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
"United States Alien" means any Person who, for
United States federal income tax purposes, is a foreign corpo-
ration, a non-resident alien individual, a non-resident alien
or foreign fiduciary of an estate or trust, or a foreign part-
nership.
"U.S. Government Obligations" has the meaning speci-
fied in Section 401.
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"Vice President", when used with respect to the Com-
pany or the Trustee, means any vice president, whether or not
designated by a number or a word or words added before or after
the title "vice president".
"Wholly Owned Subsidiary" means a corporation all the
outstanding voting stock (other than any directors' qualifying
shares) of which is owned, directly or indirectly, by the Com-
pany or by one or more other Wholly Owned Subsidiaries, or by
the Company and one or more other Wholly Owned Subsidiaries.
For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of direc-
tors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
"Yield to Maturity", when used with respect to any
Original Issue Discount Security, means the yield to maturity,
if any, set forth on the face thereof.
SECTION 102. Incorporation by Reference
of Trust Indenture Act.
Whenever this Indenture refers to a provision of the
Trust Indenture Act, the provision is incorporated by reference
in and made a part of this Indenture. The following Trust
Indenture Act terms used in this Indenture have the following
meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11
of the United States Code.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means
the Trustee.
"obligor" on the indenture securities means the Com-
pany or any other obligor on the Securities.
All the other Trust Indenture Act terms used in this
Indenture that are defined by the Trust Indenture Act, defined
by Trust Indenture Act reference to another statute or defined
by Commission rule under the Trust Indenture Act and not other-
wise defined herein have the meanings assigned to them therein.
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SECTION 103. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Inden-
ture, upon any application or request by the Company to the
Trustee to take any action under any provision of this Inden-
ture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any (in-
cluding any covenants the compliance with which constitutes a
condition precedent), 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, if any (including any covenants the com-
pliance with which constitutes a condition precedent), have
been complied with, except that in the case of any such appli-
cation or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture
relating to such particular application or request, no addi-
tional certificate or opinion need be furnished.
Every certificate or opinion with respect to compli-
ance with a condition or covenant provided for in this Inden-
ture shall include
(a) a statement that each Person signing such cer-
tificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(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 each such
Person, such Person has made such examination or investi-
gation as is necessary to enable such Person 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, in the opinion of
each such Person, such condition or covenant has been com-
plied with.
SECTION 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Per-
son, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some
-11-<PAGE>
matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Com-
pany may be based, insofar as it relates to legal matters, upon
a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable
care should know, that the certificate or opinion or represen-
tations with respect to the matters upon which his certificate
or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to fac-
tual matters, upon a certificate or opinion of, or representa-
tions by, an officer or officers of the Company stating that
the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instru-
ment.
SECTION 105. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Inden-
ture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly
appointed in writing. If Securities of a series are issuable
as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by
this Indenture to be given by Holders of such series may,
alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof,
either in person or by proxies duly appointed in writing, at a
meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Thirteen, or
a combination of such instruments and any such records. Except
as herein otherwise expressly provided, such action shall be-
come effective when such instrument or instruments or record or
both are delivered to the Trustee and, where it is hereby ex-
pressly required, to the Company. Such instrument or instru-
ments and any such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments and
-12-<PAGE>
so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or the
holding of any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to Section 601) con-
clusive in favor of the Trustee and the Company, if made in the
manner provided in this Section. The record of any meeting of
Holders of Securities shall be proved in the manner provided in
Section 1306.
The Company may set in advance a record date for pur-
poses of determining the identity of Holders of Registered
Securities entitled to vote or consent to any action by vote or
consent authorized or permitted under this Indenture, which
record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent
list of Holders furnished to the Trustee prior to such solici-
tation. If a record date is fixed, those persons who were
Holders of Outstanding Registered Securities at such record
date (or their duly designated proxies), and only those per-
sons, shall be entitled with respect to such Securities to take
such action by vote or consent or to revoke any vote or consent
previously given, whether or not such persons continue to be
Holders after such record date. Promptly after any record date
is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice thereof to be given to the Trustee
in writing in the manner provided in Section 106 and to the
relevant Holders as set forth in Section 107.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the affi-
davit of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual sign-
ing such instrument or writing acknowledged to him the execu-
tion thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate
or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such in-
strument or writing, or the authority of the Person executing
the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The principal amount and serial numbers of Reg-
istered Securities held by any Person, and the date of holding
the same, shall be proved by the Security Register.
(d) The principal amount and serial numbers of
Bearer Securities held by any Person, and the date of holding
the same, may be proved by the production of such Bearer Secu-
rities or by a certificate executed, as depositary, by any
-13-<PAGE>
trust company, bank, banker or other depositary, wherever situ-
ated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary or exhibited to it,
the Bearer Securities therein described; or such facts may be
proved by the certificate of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the
Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues
until (1) another certificate bearing a later date issued in
respect of the same Bearer Security is produced, (2) such
Bearer Security is produced to the Trustee by some other Per-
son, (3) such Bearer Security is surrendered in exchange for a
Registered Security, or (4) such Bearer Security is no longer
Outstanding. The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the
same, may also be proved in any other manner which the Trustee
deems sufficient.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Secu-
rity shall bind every future Holder of the same Security and
the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security. Any Holder
or subsequent Holder may revoke the request, demand, authoriza-
tion, direction, notice, consent or other Act as to his Secu-
rity or portion of his Security; provided, however, that such
revocation shall be effective only if the Trustee receives the
notice of revocation before the date the Act becomes effective.
SECTION 106. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the
Trustee at its Corporate Trust Office, Attention: Corpo-
rate Trust Administration; or
(b) the Company by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and
-14-<PAGE>
mailed, first-class postage prepaid, to the Company ad-
dressed to it (1) in the case of Registered Securities, at
the address of its principal office specified in the first
paragraph of this instrument or at any other address pre-
viously furnished in writing to the Trustee by the Com-
pany, Attention: Corporate Secretary; and (2) in the case
of Bearer Securities, at the address of an office or
agency located outside the United States maintained by the
Company in accordance with Section 1002.
SECTION 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders
of Securities of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) (i) to
Holders of Registered Securities if in writing and mailed,
first-class postage prepaid, to each Holder affected by such
event, at the address of such Holder as it appears in the Secu-
rity Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such no-
tice and (ii) to Holders of Bearer Securities if published in
an Authorized Newspaper in The Borough of Manhattan, The City
of New York and in London or other capital city in Western
Europe and in such other city or cities as may be specified in
such Bearer Securities on a Business Day at least twice, the
first such publication to be not earlier than the earliest
date, and not later than the latest date, prescribed for the
giving of such notice.
In case by reason of the suspension of regular mail
service, or by reason of any other cause it shall be impracti-
cable to give such notice to Holders of Registered Securities
by mail, then such notification as shall be made with the ap-
proval of the Trustee shall constitute a sufficient notifi-
cation for every purpose hereunder. In any case in which
notice to Holders of Registered Securities is given by mail,
neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered
Security, shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the suf-
ficiency of any notice to Holders of Bearer Securities given as
provided herein.
In case by reason of the suspension of any Authorized
Newspaper or Authorized Newspapers or by reason of any other
cause it shall be impracticable to publish any notice to Hold-
ers of Bearer Securities as provided above, then such notifi-
cation to Holders of Bearer Securities as shall be made with
-15-<PAGE>
the approval of the Trustee for such Securities shall consti-
tute sufficient notice to such Holders for every purpose here-
under. Neither the failure to give notice by publication to
Holders of Bearer Securities as provided above, nor any defect
in any notice so published, shall affect the sufficiency of any
notice to Holders of Registered Securities given as provided
herein.
Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person en-
titled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the va-
lidity of any action taken in reliance upon such waiver.
SECTION 108. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or con-
flicts with any provision of the Trust Indenture Act or another
provision hereof which is required to be included in this In-
denture by any of the provisions of the Trust Indenture Act,
such provision of the Trust Indenture Act shall control. If
any provision of this Indenture modifies or excludes any provi-
sion of the Trust Indenture Act which may be so modified or
excluded, the former provision shall be deemed to apply to this
Indenture as so modified or to be excluded.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table
of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so ex-
pressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or in the
Securities (or any coupon appertaining thereto) shall be in-
valid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
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SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities (or
any coupon appertaining thereto), express or implied, shall
give to any Person, other than the parties hereto and their
successors hereunder, any Authenticating Agent, Paying Agent
and Security Registrar, and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 113. Governing Law.
THIS INDENTURE AND THE SECURITIES (OR ANY COUPON
APPERTAINING THERETO) SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO
THE EXTENT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemp-
tion Date or Stated Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any
other provision of this Indenture or of the Securities or cou-
pons appertaining thereto) payment of principal and interest
(and premium and Additional Amounts, if any) need not be made
at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, provided that no
interest shall accrue for the period from and after such Inter-
est Payment Date, Redemption Date or Stated Maturity, as the
case may be.
SECTION 115. Corporate Obligation.
No recourse may be taken, directly or indirectly,
against any incorporator, subscriber to the capital stock,
stockholder, officer, director or employee of the Company or
the Trustee or of any predecessor or successor of the Company
or the Trustee with respect to the Company's obligations on the
Securities or any coupons appertaining thereto or the obliga-
tions of the Company or the Trustee under this Indenture or any
certificate or other writing delivered in connection herewith.
-17-<PAGE>
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and
the Bearer Securities, if any, of each series and related
coupons appertaining thereto shall be in substantially such
form or forms (including temporary or permanent global form) as
shall be established by or pursuant to a Board Resolution or in
one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and
may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be re-
quired to comply with the rules of any securities exchange or
as may, consistently herewith, be determined by the officers
executing such Securities or coupons appertaining thereto, as
evidenced by their execution of the Securities or coupons ap-
pertaining thereto. If temporary Securities of any series are
issued in global form as permitted by Section 304, the form
thereof shall be established as provided in the preceding sen-
tence. A copy of the Board Resolution establishing the form or
forms of Securities or coupons appertaining thereto of any
series (or any such temporary global Security) shall be certi-
fied by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentica-
tion and delivery of such Securities (or any such temporary
global Security) or coupons appertaining thereto.
Unless otherwise specified as contemplated by Section
301, Bearer Securities shall have interest coupons appertaining
thereto attached.
The definitive Securities and coupons appertaining
thereto, if any, 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 or
coupons appertaining thereto, as evidenced by their execution
thereof.
SECTION 202. Form of Trustee's Certificate of
Authentication.
The Trustee's certificate of Authentication shall be
in substantially the following form:
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"This is one of the Securities of the series desig-
nated therein referred to in the within-mentioned Inden-
ture.
______________________,
as Trustee
By
Authorized Signatory"
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global
form, as contemplated by Section 301, then, notwithstanding
Subsection (j) of Section 301 and the provisions of Section
302, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Out-
standing Securities from time to time endorsed thereon and that
the aggregate amount of Outstanding Securities represented
thereby may from time to time be reduced to reflect exchanges.
Any endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, of Outstand-
ing Securities represented thereby shall be made by the Trustee
in such manner and upon instructions given by such Person or
Persons as shall be specified in such Security or in a Company
Order to be delivered to the Trustee pursuant to Section 303 or
Section 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and rede-
liver any Security in permanent global form in the manner and
upon instructions given by the Person or Persons specified in
such Security or in the applicable Company Order. If a Company
Order pursuant to Section 303 or 304 has been, or simulta-
neously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security
in global form shall be in writing but need not comply with
Section 103 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303
shall apply to any Security in global form if such Security was
never issued and sold by the Company and the Company delivers
to the Trustee the Security in global form together with writ-
ten instructions (which need not comply with Section 103 and
need not be accompanied by an Opinion of Counsel) with regard
to the reduction in the principal amount of Securities repre-
sented thereby, together with the written statement contem-
plated by the last sentence of Section 303.
-19-<PAGE>
Notwithstanding the provisions of Sections 201 and
307, unless otherwise specified as contemplated by Section 301,
payment of principal of (and premium, if any) and interest on
any Security in permanent global form shall be made to the
Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and
except as provided in the preceding paragraph, the Company, the
Trustee and any agent of the Company or of the Trustee shall
treat a Person as the Holder of such principal amount of Out-
standing Securities represented by a global Security as shall
be specified in a written statement, if any, of the Holder of
such global Security or, in the case of a global Bearer Secu-
rity, of Euroclear or CEDEL S.A., which is produced to the
Security Registrar by such Holder, Euroclear or CEDEL S.A., as
the case may be.
Global Securities may be issued in either registered
or bearer form and in either temporary or permanent form. Per-
manent global Securities will be issued in definitive form.
SECTION 204. Book-Entry Securities.
Notwithstanding any provision of this Indenture to
the contrary:
(a) At the discretion of the Company, any Registered
Security may be issued from time to time, in whole or in
part, in permanent global form registered in the name of a
Depositary, or its nominee. Each such Registered Security
in permanent global form is hereafter referred to as a
"Book-Entry Security". Upon such election, the Company
shall execute, and the Trustee or an Authenticating Agent
shall authenticate and deliver, one or more Book-Entry
Securities that (1) are denominated in an amount equal to
the aggregate principal amount of the Outstanding Securi-
ties of such series, (2) are registered in the name of the
Depositary or its nominee, (3) are delivered by the
Trustee or an Authenticating Agent to the Depositary or
pursuant to the Depositary's instructions and (4) bear a
legend in substantially the following form (or such other
form as the Depositary and the Company may agree upon):
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHO-
RIZED REPRESENTATIVE OF [THE DEPOSITARY], TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANS-
FER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF [NOMINEE OF
THE DEPOSITARY] OR IN SUCH OTHER NAME AS IS RE-
QUESTED BY AN AUTHORIZED REPRESENTATIVE OF [THE
-20-<PAGE>
DEPOSITARY] (AND ANY PAYMENT IS MADE TO [NOMINEE
OF THE DEPOSITARY] OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
[THE DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, [NOMINEE OF THE DEPOSITARY], HAS
AN INTEREST HEREIN.
(b) Any Book-Entry Security shall be initially exe-
cuted and delivered as provided in Section 303. Notwith-
standing any other provision of this Indenture, unless and
until it is exchanged in whole or in part for Registered
Securities not issued in global form, a Book-Entry Secu-
rity may not be transferred except as a whole by the
Depositary to a nominee of such Depositary, by a nominee
of such Depositary to such Depositary or another nominee
of such Depositary, or by such Depositary or any such nom-
inee to a successor Depositary or a nominee of such suc-
cessor Depositary.
(c) If at any time the Depositary notifies the Com-
pany or the Trustee that it is unwilling or unable to con-
tinue as Depositary for any Book-Entry Securities, the
Company shall appoint a successor Depositary, whereupon
the retiring Depositary shall surrender or cause the sur-
render of its Book-Entry Security or Securities to the
Trustee. The Trustee shall promptly notify the Company
upon receipt of such notice. If a successor Depositary
has not been so appointed by the effective date of the
resignation of the Depositary, the Book-Entry Securities
will be issued as Registered Securities not issued in
global form, in an aggregate principal amount equal to the
principal amount of the Book-Entry Security or Securities
theretofore held by the Depositary.
The Company may at any time and in its sole discre-
tion determine that the Securities shall no longer be
Book-Entry Securities represented by a global certificate
or certificates, and will so notify the Depositary. Upon
receipt of such notice, the Depositary shall promptly sur-
render or cause the surrender of its Book-Entry Security
or Securities to the Trustee. Concurrently therewith,
Registered Securities not issued in global form will be
issued in an aggregate principal amount equal to the prin-
cipal amount of the Book-Entry Security or Securities
theretofore held by the Depositary.
Upon any exchange of Book-Entry Securities for Regis-
tered Securities not issued in global form as set forth in
-21-<PAGE>
this Section 204(c), such Book-Entry Securities shall be
cancelled by the Trustee, and Securities issued in ex-
change for such Book-Entry Securities pursuant to this
Section shall be registered in such names and in such
authorized denominations as the Depositary for such Book-
Entry Securities, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the
Trustee. The Trustee or any Authenticating Agent shall
deliver such Securities to the persons in whose names such
Securities are so registered.
(d) The Company and the Trustee shall be entitled to
treat the Person in whose name any Book-Entry Security is
registered as the Holder thereof for all purposes of the
Indenture and any applicable laws, notwithstanding any
notice to the contrary received by the Trustee or the Com-
pany; and the Trustee and the Company shall have no re-
sponsibility for transmitting payments to, communication
with, notifying, or otherwise dealing with any beneficial
owners of any Book-Entry Security. Neither the Company
nor the Trustee shall have any responsibility or obliga-
tions, legal or otherwise, to the beneficial owners or to
any other party including the Depositary, except for the
Holder of any Book-Entry Security, provided however, not-
withstanding anything herein to the contrary, (1) for the
purposes of determining whether the requisite principal
amount of Outstanding Securities have given, made or taken
any request, demand, authorization, direction, notice,
consent, waiver, instruction or other action hereunder as
of any date, the Trustee shall treat any Person specified
in a written statement of the Depositary with respect to
any Book-Entry Securities as the Holder of the principal
amount of such Securities set forth therein and (2) noth-
ing herein shall prevent the Company, the Trustee, or any
agent of the Company or Trustee, from giving effect to any
written certification, proxy or other authorization fur-
nished by a Depositary with respect to any Book-Entry
Securities, or impair, as between a Depositary and holders
of beneficial interests in such Securities, the operation
of customary practices governing the exercise of the
rights of the Depositary as Holder of such Securities.
(e) So long as any Book-Entry Security is registered
in the name of a Depositary or its nominee, all payments
of the principal of (and premium, if any) and interest on
such Book-Entry Security and redemption thereof and all
notices with respect to such Book Entry Security shall be
made and given, respectively, in the manner provided in
the arrangements of the Company with such Depositary.
-22-<PAGE>
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is
unlimited.
The Securities may be issued in one or more series.
There shall be established in or pursuant to a Board Resolu-
tion, and set forth in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series,
(a) the title of the Securities of the series (which
shall distinguish the Securities of the series from all
other Securities);
(b) any limit upon the aggregate principal amount of
the Securities of the series which may be authenticated
and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
the series pursuant to Section 304, 305, 306, 906 or
1107);
(c) whether Securities of the series are to be issu-
able as Registered Securities, Bearer Securities or both,
whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securi-
ties of the series are to be issuable in permanent global
form, as Book-Entry Securities or otherwise, with or with-
out coupons appertaining thereto and, if so, whether
beneficial owners of interests in any such permanent
global Security may exchange such interests for Securities
of such series and of like tenor of any authorized form
and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner
provided in Section 305, and the Depositary for any global
Security or Securities;
(d) the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be
payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally
mature and the extent to which, or the manner in which,
any interest payable on a temporary global Security on any
-23-<PAGE>
Interest Payment Date will be paid if other than in the
manner provided in Section 304;
(e) the date or dates on which the principal of (and
premium, if any, on) the Securities of the series is
payable or the method of determination thereof;
(f) the rate or rates, or the method of determina-
tion thereof, at which the Securities of the series shall
bear interest, if any, whether and under what circum-
stances Additional Amounts with respect to such Securities
shall be payable, the date or dates from which such in-
terest shall accrue, the Interest Payment Dates on which
such interest shall be payable and, if other than as set
forth in Section 101, the Regular Record Date for the
interest payable on any Registered Securities on any In-
terest Payment Date;
(g) the place or places where, subject to the provi-
sions of Section 1002, the principal of (and premium, if
any), any interest on and any Additional Amounts with re-
spect to the Securities of the series shall be payable;
(h) the period or periods within which, the price or
prices (whether denominated in cash, securities or other-
wise) at which and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in
part, at the option of the Company, if the Company is to
have that option, and the manner in which the Company must
exercise any such option;
(i) the obligation, if any, of the Company to redeem
or make early payment of or purchase Securities of the
series pursuant to any sinking fund or analogous provi-
sions or at the option of a Holder thereof and the period
or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and
the terms and conditions upon which, Securities of the
series shall be redeemed or purchased in whole or in part
pursuant to such obligation;
(j) the denomination in which any Registered Securi-
ties of that series shall be issuable, if other than de-
nominations of $1,000 and any integral multiple thereof,
and the denomination in which any Bearer Securities of
that series shall be issuable, if other than the denomina-
tion of $5,000;
(k) the currency or currencies (including composite
currencies) or currency unit or units in which payment of
-24-<PAGE>
the principal of (and premium, if any), any interest on
and any Additional Amounts with respect to the Securities
of the series shall be payable if other than the currency
of the United States of America;
(l) if the principal of (and premium, if any) or
interest on, or any Additional Amounts with respect to,
the Securities of the series are to be payable, at the
election of the Company or a Holder thereof, in a currency
or currencies (including composite currencies) or currency
unit or units other than that in which the Securities are
stated to be payable, the currency or currencies (includ-
ing composite currencies) or currency unit or units in
which payment of the principal of (and premium, if any)
and interest on, and any Additional Amounts with respect
to, Securities of such series as to which such election is
made shall be payable, and the periods within which and
the terms and conditions upon which such election is to be
made;
(m) if the amount of payments of principal of (and
premium, if any), any interest on and any Additional
Amounts with respect to the Securities of the series may
be determined with reference to any commodities, curren-
cies (including composite currencies) or indices, or
values, rates or prices, the manner in which such amounts
shall be determined;
(n) 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 ac-
celeration of the Maturity thereof pursuant to Section
502;
(o) any additional means of satisfaction and dis-
charge of this Indenture with respect to Securities of the
series pursuant to Section 401, any additional conditions
to discharge pursuant to Section 401 or 403 and the ap-
plication, if any, of Section 403;
(p) any deletions or modifications of or additions
to the Events of Default set forth in Section 501 or cov-
enants of the Company set forth in Article Ten pertaining
to the Securities of the series; and
(q) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Inden-
ture).
-25-<PAGE>
All Securities of any one series and the coupons
appertaining to any Bearer Securities of such series shall be
substantially identical except, in the case of Registered Secu-
rities, as to denomination and except as may otherwise be pro-
vided in or pursuant to the Board Resolution referred to above
and (subject to Section 303) set forth, or determined in the
manner provided, in the Officers' Certificate referred to above
or in any such indenture supplemental hereto.
At the option of the Company, interest on the Regis-
tered Securities of any series that bears interest may be paid
by mailing a check to the address of any Holder as such address
shall appear in the Security Register.
If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy of an ap-
propriate record of such action together with such Board Reso-
lution shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in
such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with re-
spect to the Securities of any series, the Registered Securi-
ties of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiple thereof and
any Bearer Securities of such series denominated in Dollars
shall be issuable in the denominations of $5,000 and any inte-
gral multiple thereof. Unless otherwise provided as contem-
plated by Section 301 with respect to any series of Securities,
any Securities of a series denominated in a currency or curren-
cies (including composite currencies) other than Dollars shall
be issuable in denominations that are the equivalent, as deter-
mined by the Company by reference to the noon buying rate in
The City of New York for cable transfers for such currency, as
such rate is reported or otherwise made available by the Fed-
eral Reserve Bank of New York, on the applicable issue date for
such Securities, of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the
Company by its Chairman of the Board, its President, its
Treasurer or one of its Vice Presidents, under its corporate
seal reproduced thereon or affixed thereto attested by its Sec-
retary or one of its Assistant Secretaries. The signature of
-26-<PAGE>
any of these officers on the Securities may be manual or fac-
simile. Coupons shall bear the facsimile signature of the
Chairman of the Board, President, Treasurer or any Vice Presi-
dent of the Company.
Securities and coupons appertaining thereto bearing
the manual or facsimile signatures of individuals who were at
any time the proper officers of the Company shall bind the Com-
pany, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the
date of such Securities or coupons.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Securi-
ties of any series, together with any coupons appertaining
thereto, executed by the Company to the Trustee for authentica-
tion, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with
the Company Order shall authenticate and deliver such Securi-
ties as in this Indenture provided and not otherwise; provided,
however, that, in connection with its sale, during the "re-
stricted period" (as defined in Section 1.163-5(c)(2)(i)(D)(7)
of the United States Treasury Regulations), no Bearer Security
shall be mailed or otherwise delivered to any location in the
United States; and provided, further, that a Bearer Security
may (other than a temporary global security in bearer form
delivered as provided in Section 304) be delivered outside the
United States in connection with its original issuance and only
if the Person entitled to receive such Bearer Security shall
have furnished a certificate in the form set forth in Exhibit A
to this Indenture, or in such other form of certificate as
shall contain information then required by federal income tax
laws and, if applicable, federal securities laws, dated no
earlier than the Certification Date. If any Security shall be
represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a
beneficial owner's interest therein upon original issuance of
such Security or upon exchange of a portion of a temporary
global Security shall be deemed to be delivery in connection
with sale, during the "restricted period" (as defined in
Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury
Regulations) of such beneficial owner's interest in such perma-
nent global Security. Except as permitted by Section 306, the
Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have
been detached and cancelled.
-27-<PAGE>
If the form or terms of the Securities of the series
have been established in or pursuant to one or more Board Reso-
lutions as permitted by Sections 201 and 301, 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 Section
601) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(a) if the form of such Securities has been estab-
lished by or pursuant to Board Resolution as permitted by
Section 201, that such form has been established in con-
formity with the provisions of this Indenture;
(b) if the terms of such Securities have been estab-
lished by or pursuant to Board Resolution as permitted by
Section 301, that such terms have been established in con-
formity with the provisions of this Indenture; and
(c) that such Securities, together with any coupons
appertaining thereto, when authenticated and delivered by
the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of
Counsel, will constitute legal, valid and binding obliga-
tions of the Company, enforceable in accordance with their
terms, except as such enforcement is subject to the effect
of (1) bankruptcy, insolvency, reorganization or other
laws relating to or affecting creditors' rights and (2)
general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at
law).
If such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the
issue of such Securities pursuant to this Indenture will affect
the Trustee's own rights, duties or immunities under the Secu-
rities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of
its authentication; and each Bearer Security shall be dated as
of the date of issuance of the first Bearer Security of such
series to be issued.
No Security or coupon or coupons appertaining thereto
shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on
such Security, or the Security to which such coupon appertains,
a certificate of authentication substantially in the form pro-
vided for herein executed by the Trustee by manual signature,
-28-<PAGE>
and such certificate upon any Security shall be conclusive evi-
dence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 103 and need not
be accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company, for all
purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of
any series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substan-
tially of the tenor of the definitive Securities in lieu of
which they are issued, in registered form or, if authorized, in
bearer form with one or more coupons appertaining thereto or
without coupons, and with such appropriate insertions, omis-
sions, substitutions and other variations as the officers ex-
ecuting such Securities may determine, as evidenced by their
execution of such Securities. In the case of any series issu-
able as Bearer Securities, such temporary Securities may be in
global form. A temporary Bearer Security shall be delivered
only in compliance with the conditions set forth in Section
303.
Except in the case of temporary Securities in global
form (which shall be exchanged in accordance with the provi-
sions of the following paragraphs), if temporary Securities of
any series are issued, the Company will cause definitive Secu-
rities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be ex-
changeable for definitive Securities of such series upon sur-
render of the temporary Securities of such series at the office
or agency of the Company in a Place of Payment for that series,
without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Securities of any series (accom-
panied by any unmatured coupons appertaining thereto), the
Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of defin-
itive Securities of the same series of authorized denomina-
tions. Until so exchanged the temporary Securities of any
-29-<PAGE>
series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series;
provided, however that no Bearer Security shall be issued in
exchange for a temporary Registered Security; and provided,
further, that a definitive Bearer Security (including interests
in a permanent Global Security) shall be delivered in exchange
for a temporary Bearer Security only in compliance with the
conditions set forth in Section 303.
Any temporary global Bearer Security and any perma-
nent global Bearer Security shall, unless otherwise provided
therein, be delivered to the London office of a depositary or
common depositary (the "Common Depositary") for the benefit of
Euroclear and CEDEL S.A. for credit to the respective accounts
of the beneficial owners of such Securities (or to such other
accounts as they may direct).
Without unnecessary delay but in any event not later
than the date specified in, or determined pursuant to the terms
of, any such temporary global Bearer Security of a series (the
"Exchange Date"), the Company shall deliver to the Trustee
definitive Securities of that series in aggregate principal
amount equal to the principal amount of such temporary global
Bearer Security, executed by the Company. On or after the Ex-
change Date such temporary global Bearer Security shall be sur-
rendered by the Common Depositary to the Trustee, as the Com-
pany's agent for such purpose, to be exchanged, in whole or
from time to time in part, for definitive Securities of that
series without charge and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global
Bearer Security, a like aggregate principal amount of defini-
tive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global
Bearer Security to be exchanged; provided however, that unless
otherwise specified in such temporary global Bearer Security,
no such definitive Securities shall be delivered unless, upon
such presentation by the Common Depositary, such temporary
global Bearer Security is accompanied by a certificate dated
the Exchange Date or a subsequent date and signed by Euroclear
as to the portion of such temporary global Bearer Security held
for its account then to be exchanged and a certificate dated
the Exchange Date or a subsequent date and signed by CEDEL S.A.
as to the portion of such temporary global Bearer Security held
for its account then to be exchanged, each in the form set
forth in Exhibit B to this Indenture. The definitive Securi-
ties to be delivered in exchange for any such temporary global
Bearer Security shall be in bearer form, registered form, per-
manent global bearer form or permanent global registered form,
or any combination thereof, as specified as contemplated by
-30-<PAGE>
Section 301, and if any combination thereof is so specified, as
requested by the beneficial owner thereof.
Unless otherwise specified in the temporary global
Bearer Security, the interest of a beneficial owner of Securi-
ties of a series in a temporary global Bearer Security shall be
exchanged on or after the Exchange Date for definitive Securi-
ties (and where the form of the definitive Securities is not
specified by the Holder for an interest in a permanent global
Security) of the same series and of like tenor upon delivery by
such beneficial owner to Euroclear or CEDEL S.A., as the case
may be, of a certificate in the form set forth in Exhibit A to
this Indenture dated no earlier than the Certification Date,
copies of which certificate shall be available from the offices
of Euroclear and CEDEL S.A., the Trustee, any Authenticating
Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global
Bearer Security, any exchange shall be made free of charge to
the beneficial owners of such temporary global Bearer Security,
except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like in
the event that such Person does not take delivery of such de-
finitive Securities in person at the offices of Euroclear or
CEDEL S.A. Definitive Securities in bearer form to be deliv-
ered in exchange for any portion of a temporary global Bearer
Security shall be delivered only outside the United States.
All Outstanding temporary Securities of any series
shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of the same series and
of like tenor authenticated and delivered hereunder, except
that, unless otherwise specified as contemplated by Section
301, interest payable on a temporary global Bearer Security on
an Interest Payment Date for Securities of such series shall be
payable to Euroclear and CEDEL S.A. on such Interest Payment
Date upon delivery by Euroclear and CEDEL S.A. to the Trustee
of a certificate or certificates in the form set forth in Ex-
hibit B to this Indenture, for credit without further interest
on or after such Interest Payment Date to the respective ac-
counts of the Persons who are the beneficial owners of such
temporary global Bearer Security on such Interest Payment Date
and who have each delivered to Euroclear or CEDEL S.A., as the
case may be, a certificate in the form set forth in Exhibit A
to this Indenture. Any interest so received by Euroclear or
CEDEL S.A. and not paid as herein provided shall be returned to
the Trustee immediately prior to the expiration of two years
after such Interest Payment Date in order to be repaid to the
Company in accordance with Section 1003.
-31-<PAGE>
SECTION 305. Registration, Registration
of Transfer and Exchange.
The Company shall cause to be kept for each series of
Securities at one of the offices or agencies maintained pursu-
ant to Section 1002 a register (the register maintained in such
office and in any other office or agency of the Company in a
Place of Payment being herein sometimes collectively referred
to as the "Security Register") in which, subject to such rea-
sonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and of
transfers of Registered Securities of such series. The Trustee
is hereby initially appointed "Security Registrar" for the pur-
pose of registering Securities and transfers of Securities as
herein provided.
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency in a
Place of Payment for that series, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Reg-
istered Securities of the same series and of like tenor, of any
authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Registered Securities of
any series may be exchanged for other Registered Securities of
the same series and of like tenor, of any authorized denomina-
tions and of a like aggregate principal amount, upon surrender
of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is
entitled to receive. A Holder of Registered Securities cannot
have Bearer Securities issued in exchange for such Registered
Securities.
At the option of the Holder of Bearer Securities of
any series, such Bearer Securities may be exchanged for Regis-
tered Securities of the same series of any authorized denomi-
nations and of a like aggregate principal amount and tenor,
upon surrender of the Bearer Securities to be exchanged at any
such office or agency, with all unmatured coupons and all ma-
tured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured
coupon or coupons or matured coupon or coupons in default, such
exchange may be effected if the Bearer Securities are accompa-
nied by payment in funds acceptable to the Company in an amount
equal to the face amount of such missing coupon or coupons, or
the surrender of such missing coupon or coupons may be waived
-32-<PAGE>
by the Company and the Trustee if there is furnished to them
such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder
of such Security shall surrender to any Paying Agent any such
missing coupon in respect of which such a payment shall have
been made, such Holder shall be entitled to receive from the
Company the amount of such payment; provided, however, that,
except as otherwise provided in Section 1002, interest repre-
sented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located out-
side the United States. Notwithstanding the foregoing, in case
a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the
same series and like tenor after the close of business at such
office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and be-
fore the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relat-
ing to such Interest Payment Date or proposed date for payment,
as the case may be, and interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of
the Registered Security issued in exchange for such Bearer
Security but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for ex-
change, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder mak-
ing the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise
specified as contemplated by Section 301, any permanent global
Security shall be exchangeable only as provided in this para-
graph. If the beneficial owners of interests in a permanent
global Security are entitled to exchange such interest for
Securities of such series and of like tenor and principal
amount of another authorized form and denomination, as speci-
fied as contemplated by Section 301, then without unnecessary
delay but in any event not later than the earliest date on
which such interests may be so exchanged, the Company shall
deliver to the Trustee definitive Securities of that series in
an aggregate principal amount equal to the principal amount of
such permanent global Security, executed by the Company. On or
after the earliest date on which such interests may be so ex-
changed, such permanent global Security shall be surrendered
from time to time in accordance with instructions given to the
Trustee and the Common Depositary (which instructions shall be
-33-<PAGE>
in writing but need not comply with Section 103 or be accom-
panied by an Opinion of Counsel) by the Common Depositary or
such other depositary or Common Depositary as shall be speci-
fied in the Company Order with respect thereto to the Trustee,
as the Company's agent for such purpose, to be exchanged, in
whole or in part, for definitive Securities of the same series
without charge and the Trustee shall authenticate and deliver,
in exchange for each portion of such permanent global Security,
a like aggregate principal amount of other definitive Securi-
ties of the same series of authorized denominations and of like
tenor as the portion of such permanent global Security to be
exchanged which, unless the Securities of the series are not
issuable both as Bearer Securities and as Registered Securi-
ties, as specified as contemplated by Section 301, shall be in
the form of Bearer Securities or Registered Securities, or any
combination thereof, as shall be specified by the beneficial
owner thereof; provided, however, that no such exchanges may
occur during a period beginning at the opening of business 15
days before any selection of Securities of that series is to be
redeemed and ending on the relevant Redemption Date; and pro-
vided, further, that no Bearer Security delivered in exchange
for a portion of a permanent global Security shall be mailed or
otherwise delivered to any location in the United States.
Promptly following any such exchange in part, such permanent
global Security shall be returned by the Trustee to the Common
Depositary or such other depositary or Common Depositary re-
ferred to above in accordance with the instructions of the Com-
pany referred to above. If a Registered Security is issued in
exchange for any portion of a permanent global Security after
the close of business at the office or agency where such ex-
change occurs on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, inter-
est or Defaulted Interest, as the case may be, will not be pay-
able on such Interest Payment Date or proposed date for pay-
ment, as the case may be, in respect of such Registered Secu-
rity, but will be payable on such Interest Payment Date or
proposed for payment, as the case may be, only to the Person to
whom interest in respect of such portion of such permanent
global Security is payable in accordance with the provisions of
this Indenture.
All Securities issued upon any registration of trans-
fer or exchange of Securities shall be the valid obligations of
the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered
upon such registration of transfer or exchange.
-34-<PAGE>
Every Registered Security presented or surrendered
for registration of transfer or for exchange shall (if so re-
quired by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satis-
factory to the Company and the Security Registrar duly exe-
cuted, by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration
of transfer or exchange of Securities, but the Company may re-
quire payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchange pursuant to Section 304, 906 or 1107 not involving any
transfer.
The Company shall not be required (i) to issue, reg-
ister the transfer of or exchange Securities of any series dur-
ing a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of
Securities of such series selected for redemption and ending at
the close of business on (A) if Securities of the series are
issuable only as Registered Securities, the day of the mailing
of the relevant notice of redemption and (B) if Securities of
the series are issuable as Bearer Securities, the day of the
first publication of the relevant notice of redemption, except
that if Securities of the series are also issuable as Regis-
tered Securities and there is no publication, the mailing of
the relevant notice of redemption or (ii) to register the
transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part or (iii) to exchange any
Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of
that series and like tenor, provided that such Registered Secu-
rity shall be simultaneously surrendered for redemption.
SECTION 306. Mutilated, Destroyed, Lost
and Stolen Securities.
If any mutilated Security or a Security with a muti-
lated coupon appertaining to it is surrendered to the Trustee,
the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same
series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with coupons corre-
sponding to the coupons, if any, appertaining to the surren-
dered Security.
-35-<PAGE>
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction,
loss or theft of any Security or coupon appertaining thereto
and (ii) such security or indemnity as may be required by them
to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee
that such Security or coupon has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the
Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Secu-
rity to which a destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not destroyed, lost or stolen), a
new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding,
with coupons corresponding to the coupons, if any, appertaining
to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen
Security or coupon has become or is about to become due and
payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security; provided, however, that the
principal of and any premium and interest on Bearer Securities
shall, except as otherwise provided in Section 1002, be payable
only at an office or agency located outside the United States.
Upon the issuance of any new Security under this Sec-
tion, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including
the fee and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if
any, issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security or in exchange for a Security to which
a destroyed, lost or stolen coupon appertains shall constitute
an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupons shall
be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of muti-
lated, destroyed, lost or stolen Securities or coupons.
-36-<PAGE>
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable,
and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such
interest. Interest on any Bearer Security which is payable,
and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the bearer of the applicable
coupon appertaining to such Bearer Security. Unless otherwise
provided with respect to the Securities of any series, payment
of interest may be made at the option of the Company (i) in the
case of Registered Securities, by check mailed or delivered to
the address of any Person entitled thereto as such address
shall appear in the Security Register, or (ii) in the case of
Bearer Securities, except as otherwise provided in Section
1002, upon presentation and surrender of the appropriate coupon
appertaining thereto at an office or agency of the Company in a
Place of Payment located outside the United States or by check
or by transfer to an account maintained by the payee with a
bank located outside the United States.
Any interest on any Registered Security of any series
which is payable, but is not punctually paid or duly provided
for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on
the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in Subsection (a) or
(b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Reg-
istered Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on
each Registered Security of such series and the date of
the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satis-
factory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Subsection provided.
Thereupon the Trustee shall fix a Special Record Date for
-37-<PAGE>
the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the pro-
posed payment. The Trustee shall promptly notify the Com-
pany of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the pro-
posed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Registered Securities of such
series at his address as it appears in the Security Regis-
ter, not less than 10 days prior to such Special Record
Date. The Trustee may, in its discretion, in the name and
at the expense of the Company, cause a similar notice to
be published at least once in an Authorized Newspaper, but
such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Spe-
cial Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no
longer be payable pursuant to the following Subsection
(b).
(b) The Company may make payment of any Defaulted
Interest on the Registered Securities of any series in any
other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Subsec-
tion, such manner of payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this Section,
each Security delivered under this Indenture, upon registration
of transfer of, in exchange for or in lieu of, any other Secu-
rity, shall carry the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in
whose name such Registered Security is registered as the owner
-38-<PAGE>
of such Registered Security for the purpose of receiving pay-
ment of principal of (and premium, if any) and (subject to Sec-
tions 305 and 307) interest on such Registered Security and for
all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons apper-
taining thereto shall pass by delivery. The Company, the
Trustee and any agent of the Company or the Trustee may treat
the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Security or coupon for the pur-
pose of receiving payment thereof or on account thereof and for
all other purposes whatsoever, whether or not such Security or
coupon be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice
to the contrary.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment,
redemption, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee.
All Registered Securities and matured coupons so delivered
shall be promptly cancelled by the Trustee. All Bearer Securi-
ties and unmatured coupons so delivered shall be held by the
Trustee and, upon instruction by a Company Order, shall be can-
celled or held for reissuance. Bearer Securities and unmatured
coupons held for reissuance may be reissued only in replacement
of mutilated, lost, stolen or destroyed Bearer Securities of
the same series and like tenor or the related coupons pursuant
to Section 306. All Bearer Securities and unmatured coupons
held by the Trustee pending such cancellation or reissuance
shall be deemed to be delivered to the Trustee for all purposes
of this Indenture and the Securities. The Company may at any
time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Com-
pany may have acquired in any manner whatsoever, and all Secu-
rities so delivered shall be promptly cancelled by the Trustee.
No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, ex-
cept as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed
by a Company Order; provided that the Trustee shall not be re-
quired to destroy such Securities.
In the case of any temporary global Bearer Security,
which shall be disposed of if the entire aggregate principal
-39-<PAGE>
amount of the Securities represented thereby has been ex-
changed, the certificate of disposition shall state that all
certificates required pursuant to Section 304 hereof, substan-
tially in the form of Exhibit B hereto, to be given by Euro-
clear or CEDEL S.A., have been duly presented to the Trustee
for such Securities by Euroclear or CEDEL S.A., as the case may
be. Permanent global Securities shall not be disposed of until
exchanged in full for definitive Securities or until payment
thereon is made in full.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, interest on the Secu-
rities of each series shall be computed on the basis of a year
of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company 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 conve-
nience to Holders; 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 FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be
of further effect with respect to Securities of a series, and
the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of
this Indenture with respect to Securities of such series, when
(a) either
(1) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons apper-
taining to Bearer Securities surrendered for exchange
for Registered Securities and maturing after such
-40-<PAGE>
exchange, whose surrender is not required or has been
waived as provided in Section 305, (ii) Securities
and coupons which have been destroyed, lost or stolen
and which have been replaced or paid as provided in
Section 306, (iii) coupons appertaining to Bearer
Securities called for redemption and maturing after
the relevant Redemption Date, whose surrender has
been waived as provided in Section 1106, and (iv)
Securities and coupons for whose payment money has
theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as pro-
vided in Section 1003) have been delivered to the
Trustee for cancellation; or
(2) with respect to all Outstanding Securities
of such series and any coupons appertaining thereto
not theretofore delivered to the Trustee for cancel-
lation, the Company has deposited or caused to be
deposited with the Trustee as trust funds, under the
terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, for the pur-
pose money or U.S. Government Obligations maturing as
to principal and interest in such amounts and at such
times as will, together with the income to accrue
thereon, without consideration of any reinvestment
thereof, be sufficient to pay and discharge the en-
tire indebtedness on all Outstanding Securities of
such series and coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
for principal (and premium and Additional Amounts, if
any) and interest to the Stated Maturity or any Re-
demption Date contemplated by the penultimate para-
graph of this Section, as the case may be; or
(3) the Company has properly fulfilled such
other means of satisfaction and discharge as is
specified, as contemplated by Section 301, to be
applicable to the Securities of such series;
(b) the Company has paid or caused to be paid all
other sums payable hereunder by the Company with respect
to the Outstanding Securities of such series;
(c) the Company has complied with any other condi-
tions specified pursuant to Section 301 to be applicable
to the discharge of Securities of such series pursuant to
this Section 401;
-41-<PAGE>
(d) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Inden-
ture with respect to the Outstanding Securities of such
series have been complied with;
(e) if the conditions set forth in Section 401(a)(1)
have not been satisfied, and unless otherwise specified
pursuant to Section 301 for the Securities of such series,
the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of Securities of
such series will not recognize income, gain or loss for
United States federal income tax purposes as a result of
such deposit, satisfaction and discharge and will be sub-
ject to United States federal income tax on the same
amount and in the same manner and at the same time as
would have been the case if such deposit, satisfaction and
discharge had not occurred; and
(f) no Default or Event of Default with respect to
the Securities of such issue shall have occurred and be
continuing on the date of such deposit or, in so far as
Subsection (e) or (f) of Section 501 is concerned, at any
time in the period ending on the 91st day after the date
of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such
period).
For the purposes of this Indenture, "U.S. Government
Obligations" means direct non-callable obligations of, or non-
callable obligations the payment of principal of and interest
on which is guaranteed by, the United States of America, or to
the payment of which obligations or guarantees the full faith
and credit of the United States of America is pledged, or ben-
eficial interests in a trust the corpus of which consists ex-
clusively of money or such obligations or a combination there-
of.
If any Outstanding Securities of such series are to
be redeemed prior to their Stated Maturity, whether pursuant to
any optional redemption provisions or in accordance with any
mandatory sinking fund requirement, the trust agreement re-
ferred to in Clause (2) of Subsection (a) of this Section shall
provide therefor and the Company shall make such arrangements
as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Company.
-42-<PAGE>
Notwithstanding the satisfaction and discharge of
this Indenture with respect to the Outstanding Securities of
such series pursuant to this Section 401, the obligations of
the Company to the Trustee under Section 607, the obligations
of the Trustee to any Authenticating Agent under Section 614
and, except for a discharge pursuant to Clause (1) of Subsec-
tion (a) of this Section, the obligations of the Company under
Sections 305, 306, 404, 610(e), 701, 1001 and 1002 and the
obligations of the Trustee under Section 402 and the last para-
graph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of
Section 1003, all money deposited with the Trustee pursuant to
Section 401 shall be held in trust and applied by it, in ac-
cordance with the provisions of the Securities, the coupons and
this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest
and Additional Amounts for the payment of which such money has
been deposited with the Trustee.
SECTION 403. Discharge of Liability on
Securities of Any Series.
If this Section is specified, as contemplated by Sec-
tion 301, to be applicable to Securities of any series, the
Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Securities of such series,
the obligation of the Company under this Indenture and the
Securities of such series to pay the principal of (and premium,
if any) and interest on Securities of such series, and any
coupon appertaining thereto, shall cease, terminate and be com-
pletely discharged and the Trustee, at the expense of the Com-
pany, shall execute proper instruments acknowledging such sat-
isfaction and discharge, when
(a) the Company has complied with the provisions of
Section 401 of this Indenture (other than any additional
conditions specified pursuant to Sections 301 and 401(c)
and except that the opinion referred to in Section 401(e)
shall state that it is based on a ruling by the Internal
Revenue Service or other change since the date hereof
under applicable Federal income tax law) with respect to
all Outstanding Securities of such series;
(b) the Company has delivered to the Trustee a Com-
pany Request requesting such satisfaction and discharge;
-43-<PAGE>
(c) the Company has complied with any other condi-
tions specified pursuant to Section 301 to be applicable
to the discharge of Securities of such series pursuant to
this Section 403; and
(d) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the discharge of the indebtedness on the Out-
standing Securities of such series have been complied
with.
Upon the satisfaction of the conditions set forth in
this Section with respect to all the Outstanding Securities of
any series, the terms and conditions of such series, including
the terms and conditions with respect thereto set forth in this
Indenture, shall no longer be binding upon, or applicable to,
the Company; provided that, the Company shall not be discharged
from any payment obligations in respect of Securities of such
series which are deemed not to be Outstanding under clause
(iii) of the definition thereof if such obligations continue to
be valid obligations of the Company under applicable law or
pursuant to Section 305 or 306.
SECTION 404. Reinstatement.
If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations deposited with respect to
Securities of any series in accordance with Section 401 by
reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, re-
straining or otherwise prohibiting such application, the Com-
pany's obligations under this Indenture with respect to the
Securities of such series and the Securities of such series
shall be revived and reinstated as though no deposit had oc-
curred pursuant to Section 401 until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with Section 401; pro-
vided, however, that if the Company has made any payment of
principal of (or premium, if any), or interest on and any Addi-
tional Amounts with respect to any Securities because of the
reinstatement of its obligations, the Company shall be subro-
gated to the rights of the Holders of such Securities to re-
ceive such payment from the money or U.S. Government Obliga-
tions held by the Trustee or Paying Agent.
-44-<PAGE>
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect
to Securities of any series, means any one of the following
events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any adminis-
trative or governmental body), unless it is either inapplicable
to a particular series or it is specifically deleted or modi-
fied in or pursuant to the supplemental indenture or Board Res-
olution establishing such series of Securities or in the form
of Security for such series:
(a) default in the payment of any interest or any
Additional Amounts upon any Security of that series when
such interest or Additional Amounts become due and pay-
able, and continuance of such default for a period of 30
days; or
(b) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its
Maturity; or
(c) default in the deposit of any sinking fund pay-
ment, when and as due by the terms of a Security of that
series; or
(d) default in the performance or breach of any cov-
enant or warranty of the Company in this Indenture (other
than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this
Indenture solely for the benefit of one or more series of
Securities other than that series), and continuance of
such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of all
Outstanding Securities a written notice specifying such
default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" here-
under; or
(e) the entry by a court having jurisdiction in the
premises of (1) a decree or order for relief in respect of
-45-<PAGE>
the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reor-
ganization or other similar law or (2) a decree or order
adjudging the Company a bankrupt or insolvent, or approv-
ing as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of
the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for
a period of 60 consecutive days; or
(f) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar
law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy
or insolvency case or proceeding against it, or the filing
by it, of a petition or answer or consent seeking reorga-
nization or relief under any applicable Federal or State
law, or the consent by it to the filing of such petition
or to the appointment of or taking possession by a custo-
dian, receiver, liquidator, assignee, trustee, sequestra-
tor or similar official of the Company or of any sub-
stantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts gener-
ally as they become due, or the taking of corporate action
by the Company in furtherance of any such action; or
(g) any other Event of Default provided with respect
to Securities of that series (including, without limita-
tion, any Event of Default arising out of a default which
results in the acceleration of certain indebtedness or a
default in the payment of any amounts due on certain in-
debtedness).
Notwithstanding the foregoing provisions of this Sec-
tion 501, if the principal of (and premium, if any) or any in-
terest on, or Additional Amounts with respect to, any Security
is payable in a currency or currencies (including composite
-46-<PAGE>
currencies) other than Dollars and such currency (or curren-
cies) is (or are) not available to the Company for making pay-
ment thereof due to the imposition of exchange controls or
other circumstances beyond the control of the Company (a "Con-
version Event"), the Company will be entitled to satisfy its
obligations to Holders of the Securities by making such payment
in Dollars in an amount equal to the Dollar equivalent of the
amount payable in such other currency (or currencies), as
determined by the Company by reference to the noon buying rate
in The City of New York for cable transfers for such currency
("Exchange Rate"), as such Exchange Rate is certified for cus-
toms purposes by the Federal Reserve Bank of New York on the
date of such payment, or, if such rate is not then available,
on the basis of the most recently available Exchange Rate.
Notwithstanding the foregoing provisions of this Section 501,
any payment made under such circumstances in Dollars where the
required payment is in a currency (or currencies) other than
Dollars will not constitute an Event of Default under this In-
denture.
Promptly after the occurrence of a Conversion Event,
the Company shall give written notice thereof to the Trustee;
and the Trustee, promptly after receipt of such notice, shall
give notice thereof in the manner provided in Section 106 to
the Holders. Promptly after the making of any payment in Dol-
lars as a result of a Conversion Event, the Company shall give
notice in the manner provided in Section 106 to the Holders,
setting forth the applicable Exchange Rate and describing the
calculation of such payments.
SECTION 502. Acceleration of Maturity;
Rescission and Annulment.
If an Event of Default with respect to any Securities
of any series at the time Outstanding occurs and is continuing,
then in every such case the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Securities of
(i) the series affected by such default (in the case of an
Event of Default described in Subsection (a), (b), (c) or (g)
of Section 501) or (ii) all series of Securities (subject to
the immediately following sentence, in the case of other Events
of Default) may declare the principal amount (or, if any such
Securities are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of
that series) of all of the Securities of the series affected by
such default or all series, as the case may be, to be due and
payable immediately, by a notice in writing to the Company (and
to the Trustee if given by Holders), and upon any such declara-
tion such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default described
-47-<PAGE>
in Subsection (e) or (f) of Section 501 shall occur, the prin-
cipal amount of the Outstanding Securities of all series ipso
facto shall become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any
Holder.
At any time after such a declaration of acceleration
with respect to Securities of any series (or of all series, as
the case may be) has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee
as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities of
that series (or of all series, as the case may be), by written
notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if
(a) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(1) all overdue interest on, and any Addition-
al Amounts with respect to, all Securities of that
series (or of all series, as the case may be) and any
coupons appertaining thereto;
(2) the principal of (and premium, if any, on)
any Securities of that series (or of all series, as
the case may be) which have become due otherwise than
by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in
such Securities (in the case of Original Issue Dis-
count Securities, the Securities' Yield to Maturity);
(3) to the extent that payment of such interest
is lawful, interest upon overdue interest and any
Additional Amounts at the rate or rates prescribed
therefor in such Securities (in the case of Original
Issue Discount Securities, the Securities' Yield to
Maturity); and
(4) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel;
and
(b) all Events of Default with respect to Securities
of that series (or of all series, as the case may be),
other than the non-payment of the principal of Securities
of that series (or of all series, as the case may be)
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which have become due solely by such declaration of
acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of any install-
ment of interest on, or any Additional Amounts with re-
spect to, any Security of any series and any coupons
appertaining thereto when such interest or Additional
Amounts shall have become due and payable and such default
continues for a period of 30 days; or
(b) default is made in the payment of the principal
of (or premium, if any, on) any Security at the Maturity
thereof;
the Company will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities and coupons, the
whole amount then due and payable on such Securities and
coupons for principal (and premium, if any) and interest and
Additional Amounts and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest and
Additional Amounts, at the rate or rates prescribed therefor in
such Securities (or in the case of Original Issue Discount
Securities, the Securities' Yield to Maturity), and, in addi-
tion thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee
of an express trust, may institute a judicial proceeding for
the collection of the sums so due and unpaid, may prosecute
such proceeding to judgment or final decree and may enforce the
same against the Company or any other obligor upon such Securi-
ties and collect the moneys adjudged or decreed to be payable
in the manner provided by law out of the property of the Com-
pany or any other obligor upon such Securities, wherever situ-
ated.
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If an Event of Default with respect to Securities of
any series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any cov-
enant or agreement in this Indenture or in aid of the exercise
of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insol-
vency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative
to the Company or any other obligor upon the Securities or the
property of the Company or of such other obligor or their cred-
itors, the Trustee (irrespective of whether the principal (or
lesser amount in the case of Original Issue Discount Securi-
ties) of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespec-
tive of whether the Trustee shall have made any demand on the
Company for the payment of overdue principal (premium, if any),
interest or Additional Amounts) shall be entitled and empow-
ered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount
of principal (or lesser amount in the case of Original
Issue Discount Securities) (and premium, if any) and in-
terest and any Additional Amounts owing and unpaid in
respect of the Securities or any coupons appertaining
thereto and to file such other papers or documents as may
be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable com-
pensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders al-
lowed in such judicial proceeding; and
(b) to collect and receive any monies or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the rea-
sonable compensation, expenses, disbursements and advances of
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the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the
rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceed-
ings; provided, however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or
similar official.
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons.
All rights of action and claim under this Indenture
or the Securities or coupons may be prosecuted and enforced by
the Trustee without possession of any of the Securities or
coupons or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for
the payment of the reasonable compensation, expenses, disburse-
ments and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this
Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of
such money on account of principal (or premium, if any), inter-
est or any Additional Amounts, upon presentation of the Securi-
ties or coupons, or both as the case may be, and the notation
thereon of the payment if only partially paid and upon sur-
render thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 607;
SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest
and any Additional Amounts on the Securities and coupons
in respect of which or for the benefit of which such money
has been collected, ratably, without preference or prior-
ity of any kind, according to the amounts due and payable
on such Securities and coupons for principal (and premium,
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if any), interest and Additional Amounts, respectively;
and
THIRD: The balance, if any, to the Person or Persons
entitled thereto.
To the fullest extent allowed under applicable law,
if for the purpose of obtaining judgment against the Company in
any court it is necessary to convert the sum due in respect of
the principal of (or premium, if any) or interest on the Secu-
rities of any series (the "Required Currency") into a currency
in which a judgment will be rendered (the "Judgment Currency"),
the rate of exchange used shall be the rate at which in accor-
dance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment
Currency on the New York Business Day next preceding that on
which final judgment is given. Neither the Company nor the
Trustee shall be liable for any shortfall nor shall it benefit
from any windfall in payments to Holders of Securities under
this Section caused by a change in exchange rates between the
time the amount of a judgment against it is calculated as above
and the time the Trustee converts the Judgment Currency into
the Required Currency to make payments under this Section to
Holders of Securities, but payment of such judgment shall dis-
charge all amounts owed by the Company on the claim or claims
underlying such judgment.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any re-
lated coupons shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(a) an Event of Default with respect to Securities
of such series shall have occurred and be continuing and
such Holder has previously given written notice to the
Trustee of such continuing Event of Default;
(b) the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute pro-
ceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses
and liabilities to be incurred in compliance with such
request;
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(d) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to
institute any such proceeding; and
(e) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of
the Outstanding Securities of that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue
of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or prefer-
ence over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Inden-
ture, the Holder of any Security or coupon shall have the
right, which is absolute and unconditional, to receive payment
of the principal of (and premium, if any) and (subject to Sec-
tion 307) interest on and any Additional Amounts with respect
to such Security or payment of such coupon on the Stated Matu-
rity or Maturities expressed in such Security or coupon (or, in
the case of redemption, on the Redemption Date) and to insti-
tute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any pro-
ceeding to enforce any right or remedy under this Indenture and
such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any deter-
mination in such proceeding, the Company, the Trustee and the
Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and rem-
edies of the Trustee and the Holders shall continue as though
no such proceeding has been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
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Securities or coupons in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder
of any Securities or coupons to exercise any right or remedy
accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default
or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
With respect to Securities of any series, the Holders
of a majority in principal amount of the Outstanding Securities
of such series shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on
the Trustee, relating to or arising under an Event of Default
described in Subsection (a), (b), (c) or (g) of Section 501,
and with respect to all Securities the Holders of a majority in
principal amount of all Outstanding Securities shall have the
right to direct the time, method and place of conducting any
remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, not relating to or arising
under such an Event of Default, provided that in each such case
(a) such direction shall not be in conflict with any
rule of law or with this Indenture; and
(b) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 513. Waiver of Past Defaults.
The Holders of a majority in principal amount of the
Outstanding Securities of any series may on behalf of the
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Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its conse-
quences, and the Holders of a majority in principal amount of
all Outstanding Securities may on behalf of the Holders of all
Securities waive any other past default hereunder and its con-
sequences, except in each case a default
(a) in the payment of the principal of (or premium,
if any) or interest on, or any Additional Amounts with
respect to, any Security; or
(b) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended
without the consent of the Holder of each Outstanding
Security affected.
Upon any such waiver, such default shall cease to
exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder
of any Security or coupon by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its dis-
cretion assess reasonable costs, including reasonable attor-
neys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section
shall not apply to any suit instituted by the Company, to any
suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than
10% in principal amount of the Outstanding Securities of any
series, or to any suit instituted by any Holder for the en-
forcement of the payment of the principal of (or premium, if
any) or interest on, or any Additional Amounts with respect to,
any Security or the payment of any coupon on or after the
Stated Maturity or Maturities expressed in such Security or
coupon (or, in the case of redemption, on or after the Redemp-
tion Date).
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SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may law-
fully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the cov-
enants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had
been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default with respect to the Securities of any series,
(1) the Trustee undertakes to perform such
duties and only such duties as are specifically set
forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against
the Trustee; and
(2) in the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions
expressed therein, upon certificates or opinions fur-
nished to the Trustee and conforming to the require-
ments of this Indenture; but in the case of any such
certificates or opinions which by any provision here-
of 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.
(b) In case an Event of Default has occurred and is
continuing with respect to the Securities of any series, the
Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
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(c) No provision of this Indenture shall be con-
strued to relieve the Trustee from liability for its own neg-
ligent action, its own negligent failure to act or its own
willful misconduct, except that
(1) this Clause shall not be construed to limit
the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with re-
spect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of
the Holders of a majority in principal amount of the
Outstanding Securities of any series or of all
series, determined as provided in Section 512, relat-
ing to the time, method and place of conducting any
proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture shall re-
quire the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the per-
formance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(d) 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 provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default
hereunder with respect to the Securities of any series, the
Trustee shall give notice of such default hereunder known to
the Trustee to all Holders of Securities of such series in the
manner provided in Section 106, unless such default shall have
been cured or waived; provided, however, that, except in the
case of a default in the payment of the principal of (or pre-
mium, if any) or interest on, or any Additional Amounts with
respect to, any Security of such series or in the payment of
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any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive
committee or a trust committee of directors or Responsible
Officers of the Trustee in good faith determines that the with-
holding of such notice is in the interest of the Holders of
Securities of such series; and provided, further, that in the
case of any default of the character specified in Section
501(d) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with
respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) 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, deben-
ture, note, coupon, 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;
(b) any request or direction of the Company men-
tioned herein shall be sufficiently evidenced by a Company
Request or Company Order and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Res-
olution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be
proved or established prior to taking, suffering or omit-
ting any action hereunder, the Trustee (unless other evi-
dence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
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Indenture at the request or direction of any of the Hold-
ers pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indem-
nity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, coupon, other evidence of indebtedness or
other paper or document, but the Trustee, in its discre-
tion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by
agent or attorney; and
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder.
SECTION 604. Not Responsible for Recitals
or Issuance of Securities.
The recitals contained herein and in the Securities,
except the Trustee's certificates of authentication, shall be
taken as the statements of the Company, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this In-
denture or of the Securities. The Trustee shall not be ac-
countable for the use or application by the Company of Securi-
ties or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Com-
pany, in its individual or any other capacity, may become the
owner or pledgee of Securities and coupons and, subject to Sec-
tions 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticat-
ing Agent, Paying Agent, Security Registrar or such other
agent.
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SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not
be segregated from other funds except to the extent required by
law. The Trustee shall be under no liability for interest on
any money received by it hereunder except as otherwise agreed
with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(a) to pay to the Trustee from time to time reason-
able compensation for all services rendered by it hereun-
der (which compensation shall not be limited by any pro-
vision of law in regard to the compensation of a trustee
of an express trust);
(b) except as otherwise expressly provided herein,
to reimburse the Trustee upon its request for all reason-
able expenses, disbursements and advances incurred or made
by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
reasonable expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liabil-
ity in connection with the exercise or performance of any
of its powers or duties hereunder.
As security for the performance of the obligations of
the Company under this Section, the Trustee shall have a lien
prior to the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust
for the payment of principal of, premium, if any, or interest,
if any, on, or any Additional Amounts with respect to, particu-
lar Securities.
Any expenses and compensation for any services ren-
dered by the Trustee after the occurrence of an Event of De-
fault specified in Subsection (e) or (f) of Section 501 shall
constitute expenses and compensation for services of adminis-
tration under all applicable federal or state bankruptcy, in-
solvency, reorganization or other similar laws.
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The provisions of this Section shall survive the
termination of this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any con-
flicting interest, as defined in this Section, with respect to
the Securities of any series, it shall, within 90 days after
ascertaining that it has such conflicting interest, either
eliminate such conflicting interest or resign with respect to
the Securities of that series in the manner and with the effect
hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to com-
ply with the provisions of Subsection (a) of this Section with
respect to the Securities of any series, the Trustee shall,
within 10 days after the expiration of such 90-day period,
transmit by mail to all Holders of Securities of that series,
as their names and addresses appear in the Security Register,
notice of such failure.
(c) For the purposes of this Section, the term "con-
flicting interest" shall have the meaning specified in Section
310(b) of the Trust Indenture Act and the Trustee shall comply
with Section 310(b) of the Trust Indenture Act; provided, that
there shall be excluded from the operation of Section 310(b)(1)
of the Trust Indenture Act with respect to the Securities of
any series the Indenture dated as of between the
Company and the Trustee relating to the Company's subordinated
debt securities, this Indenture with respect to the Securities
of any series other than that series and any other indenture or
indentures under which other securities, or certificates of
interest or participation in other securities, of the Company
are outstanding, if the requirements for such exclusion set
forth in Section 310(b)(1) of the Trust Indenture Act are met.
For purposes of the preceding sentence, the optional provision
permitted by the second sentence of Section 310(b)(9) of the
Trust Indenture Act shall be applicable.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be a corporation organized and doing business under the
laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examina-
tion by Federal or State authority. If such corporation pub-
lishes reports of condition at least annually, pursuant to law
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or to the requirements of said supervising or examining author-
ity, then for the purposes of this Section, the combined capi-
tal and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal;
Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable re-
quirements of Section 611.
(b) The Trustee may resign at any time with respect
to the Securities of one or more series by giving written
notice thereof to the Company. If the instrument of acceptance
by a successor Trustee required by Section 611 shall not have
been delivered to the resigning Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the ap-
pointment of a successor Trustee with respect to the Securities
of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders
of a majority in principal amount of the Outstanding Securities
of such series, delivered to the Trustee and to the Company.
(d) If at any time
(1) the Trustee shall fail to comply with Sec-
tion 608(a) after written request therefor by the
Company or by any Holder who has been a bona fide
Holder of a Security for at least six months; or
(2) the Trustee shall cease to be eligible
under Section 609 and shall fail to resign after
written request therefor by the Company or by any
such Holder of Securities; or
(3)the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs
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for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, (i) the Company by a Board Resolution
may remove the Trustee with respect to all Securities, or (ii)
subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause, with respect to the Securities
of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and
such successor Trustee or Trustees shall comply with the ap-
plicable requirements of Section 611. If, within one year
after such resignation, removal or incapability, or the occur-
rence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Hold-
ers of a majority in principal amount of the Outstanding Secu-
rities of such series delivered to the Company and the retiring
Trustee, then the successor Trustee so appointed shall, forth-
with upon its acceptance of such appointment in accordance with
the applicable requirements of Section 611, become the succes-
sor Trustee with respect to the Securities of such series and
to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securi-
ties of any series shall have been so appointed by the Company
or the Holders and accepted appointment in the manner required
by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a suc-
cessor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resigna-
tion and each removal of the Trustee with respect to the Secu-
rities of any series and each appointment of a successor
Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage pre-
paid, to all Holders of Securities of such series as their
names and addresses appear in the Security Register. Each
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notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a suc-
cessor Trustee with respect to all Securities, every such suc-
cessor Trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instru-
ment accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or con-
veyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an in-
strument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly as-
sign, transfer and deliver to such successor Trustee all prop-
erty and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a suc-
cessor Trustee with respect to the Securities of one or more
(but not all) series, the Company, the retiring Trustee and
each successor Trustee with respect to the Securities of one or
more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such ap-
pointment and which (1) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securi-
ties of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not
retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee and (3) shall add to or
change any of the provisions of this Indenture as shall be nec-
essary 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 hereun-
der separate and apart from any trust or trusts hereunder ad-
ministered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the
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extent provided therein and each such successor Trustee, with-
out any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts referred to in para-
graph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appoint-
ment unless at the time of such acceptance such successor
Trustee shall be qualified and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any cor-
poration resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any corporation suc-
ceeding to all or substantially all the corporate trust busi-
ness of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise quali-
fied and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in of-
fice, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as
if such successor Trustee had itself authenticated such Secu-
rities.
SECTION 613. Preferential Collection of
Claims Against Company.
The Trustee shall comply with Section 311(a) of the
Trust Indenture Act, excluding any creditor relationship de-
scribed in Section 311(b) of the Trust Indenture Act. A
Trustee who has resigned or been removed shall be subject to
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Section 311(a) of the Trust Indenture Act to the extent indi-
cated therein.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or
Agents which shall be authorized to act on behalf of the
Trustee to authenticate Securities issued upon original issue
and upon exchange, registration of transfer or partial redemp-
tion or pursuant to Section 306, and Securities so authenti-
cated shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenti-
cated by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of Securities
by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the
Trustee by an Authenticating Agent. Each Authenticating Agent
shall be acceptable to the Company and shall at all times be a
corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of
Columbia, or in the case of an Authenticating Agent with re-
spect to Securities issuable as Bearer Securities, under the
laws of any country in which such Bearer Securities may be
offered, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than
$50,000,000 or equivalent amount expressed in a foreign cur-
rency and subject to supervision or examination by Federal or
State authority or authority of such country. If such Authen-
ticating Agent publishes reports of condition at least annu-
ally, pursuant to law or to the requirements of said supervis-
ing or examining authority, then for the purposes of this Sec-
tion, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
If at any time an Authenticating Agent shall cease to be eli-
gible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent
may be merged or converted or with which it may be consoli-
dated, or any corporation resulting from any merger, conversion
or consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall con-
tinue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the
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execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the Com-
pany. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all Hold-
ers as their names and addresses appear in the Security Regis-
ter. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like ef-
fect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eli-
gible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its ser-
vices under this Section, and the Trustee shall be entitled to
be reimbursed for such payments, subject to the provisions of
Section 607.
If an appointment is made pursuant to this Section,
the Securities may have endorsed thereon, in addition to the
Trustee's certificate of authentication, an alternate certifi-
cate of authentication in the following form:
"This is one of the Securities of the series desig-
nated therein referred to in the within-mentioned Inden-
ture.
______________________,
as Trustee
By
as Authenticating Agent
By
Authorized Signatory".
Notwithstanding any provision of this Section 614 to
the contrary, if at any time any Authenticating Agent appointed
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hereunder with respect to any series of Securities shall not
also be acting as the Security Registrar hereunder with respect
to any series of Securities, then, in addition to all other
duties of an Authenticating Agent hereunder, such Authenticat-
ing Agent shall also be obligated: (i) to furnish to the Secu-
rity Registrar promptly all information necessary to enable the
Security Registrar to maintain at all times an accurate and
current Security Register; and (ii) prior to authenticating any
Security denominated in a foreign currency or currencies (in-
cluding composite currencies), to ascertain from the Company
the units of such foreign currency that are required to be
determined by the Company pursuant to Section 302.
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names
and Addresses of Holders.
With respect to each series of Securities, the Com-
pany will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each
Regular Record Date relating to that series (or, if there
is no Regular Record Date relating to that series, on
January 1 and July 1), a list, in such form as the Trustee
may reasonably require, of the names and addresses of the
Holders of that series as of such dates; and
(b) at such other times as the Trustee may request
in writing, within 30 days after the receipt by the Com-
pany of any such request, a list of similar form and con-
tent, such list to be dated as of a date not more than 15
days prior to the time such list is furnished;
provided, that so long as the Trustee is the Security Regis-
trar, the Company shall not be required to furnish or cause to
be furnished such a list to the Trustee.
SECTION 702. Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of
Holders of each series contained in the most recent list fur-
nished to the Trustee as provided in Section 701 and the names
and addresses of Holders of each series received by the Trustee
in its capacity as Security Registrar. The Trustee may destroy
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any list furnished to it as provided in Section 701 upon re-
ceipt of a new list so furnished.
(b) Holders of Securities may communicate pursuant
to the Trust Indenture Act with other Holders with respect to
their rights under this Indenture or under the Securities.
(c) Every Holder of Securities or coupons, by re-
ceiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent
of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and ad-
dresses of the Holders in accordance with Section 702(b),
regardless of the source from which such information was de-
rived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under
Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year com-
mencing with the year 1994, the Trustee shall transmit by mail
to Holders a brief report dated as of such May 15 that complies
with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) of
the Trust Indenture Act.
(c) Reports pursuant to this Section shall be trans-
mitted by mail
(1) to all Holders of Registered Securities, as
the names and addresses of such Holders appear in the
Security Register;
(2) to such Holders of Securities as have,
within the two years preceding such transmissions,
filed their names and addresses with the Trustee for
that purpose; and
(3) except in the case of reports pursuant to
Subsection (b) of this Section, to each Holder of a
Security whose name and address is preserved at the
time by the Trustee, as provided in Section 702(a).
(d) A copy of each report pursuant to Subsection (a)
or (b) of this Section 703 shall, at the time of its transmis-
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sion to Holders, be filed by the Trustee with each stock ex-
change upon which any Securities are listed, with the Commis-
sion and with the Company. The Company will notify the Trustee
when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee, within 15
days after the Company is required to file the same with the
Commission, copies of the annual reports and of the informa-
tion, documents and other reports (or copies of such portions
of any of the foregoing as the Commission may from time to time
by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as
amended, and shall otherwise comply with Section 314(a) of the
Trust Indenture Act.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc.,
Only on Certain Terms.
The Company shall not consolidate with or merge into
any other Person or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, unless
(a) the Person formed by such consolidation or into
which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties
and assets of the Company substantially as an entirety
shall be a corporation, partnership or trust, shall be
organized and existing under the laws of the United States
and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest
(including all Additional Amounts, if any) on all the
Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or
observed;
(b) immediately after giving effect to such transac-
tion, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing; and
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(c) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supple-
mental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger
by the Company into any other Person or any conveyance, trans-
fer or lease of the properties and assets of the Company sub-
stantially as an entirety in accordance with Section 801, the
successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this In-
denture with the same effect as if such successor Person had
been named as the Company herein, and thereafter, except in the
case of such lease, the predecessor Person shall be relieved of
all obligations and covenants under this Indenture and the
Securities and coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without
Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(a) to evidence the succession of another Person to
the Company and the assumption by any such successor of
the covenants of the Company herein and in the Securities;
or
(b) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities
and any coupons appertaining thereto (and if such cov-
enants are to be for the benefit of less than all series
of Securities, stating that such covenants are expressly
being included solely for the benefit of such series), to
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convey, transfer, assign, mortgage or pledge any property
to or with the Trustee or otherwise secure any series of
the Securities or to surrender any right or power herein
conferred upon the Company; or
(c) to add any additional Events of Default with
respect to all or any series of the Securities (and, if
such Event of Default is applicable to less than all
series of Securities, specifying the series to which such
Event of Default is applicable); or
(d) to add to or change any of the provisions of
this Indenture to provide that Bearer Securities may be
registrable as to principal, to change or eliminate any
restrictions on the payment of principal of or any premium
or interest on Bearer Securities, to permit Bearer Securi-
ties to be issued in exchange for Registered Securities,
to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to
permit or facilitate the issuance of Securities in uncer-
tificated form, provided that any such action shall not
adversely affect the interests of the Holders of Securi-
ties of any series or any related coupons in any material
respect; or
(e) to change or eliminate any of the provisions of
this Indenture, provided that any such change or elimina-
tion shall become effective only when there is no Security
Outstanding of any series created prior to the execution
of such supplemental indenture which is adversely affected
by such change in or elimination of such provision; or
(f) to establish the form or terms of Securities of
any series as permitted by Sections 201 and 301; or
(g) to supplement any of the provisions of this In-
denture to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of any series of
Securities pursuant to Section 401; provided, however,
that any such action shall not adversely affect the inter-
est of the Holders of Securities of such series or any
other series of Securities in any material respect; 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 611(b); or
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(i) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsis-
tent with any other provision herein, or to make any other
provisions with respect to matters or questions arising
under this Indenture, provided such other provisions as
may be made shall not adversely affect the interests of
the Holders of Securities of any series or any related
coupons in any material respect.
SECTION 902. Supplemental Indentures With
Consent of Holders.
With the consent of the Holders of a majority in
principal amount of the Outstanding Securities of all series
affected by such supplemental indenture (acting as one class),
by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures sup-
plemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series and any related coupons
under this Indenture; provided, however, that no such supple-
mental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(a) change the Stated Maturity of the principal of,
or any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or the
rate of interest thereon, any Additional Amounts with
respect thereto or any premium payable upon the redemption
thereof, or change any obligation of the Company to pay
Additional Amounts (except as contemplated by Section
801(a) and permitted by Section 901(a)), or reduce the
amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Sec-
tion 502, or change any Place of Payment where, or the
coin or currency or currencies (including composite cur-
rencies) or currency unit or units in which, any Security
or any premium or any interest thereon or Additional
Amounts with respect thereto is payable, or impair the
right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date);
or
(b) reduce the percentage in principal amount of
Outstanding Securities, the consent of whose Holders is
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required for any such supplemental indenture, or the con-
sent of whose Holders is required for any waiver (of com-
pliance with certain provisions of this Indenture or cer-
tain defaults hereunder and their consequences) provided
for in this Indenture; or
(c) modify any of the provisions of this Section,
Section 513 or Section 1008, except to increase any such
percentage or to provide with respect to any particular
series the right to condition the effectiveness of any
supplemental indenture as to that series on the consent of
the Holders of a specified percentage of the aggregate
principal amount of Outstanding Securities of such series
(which provision may be made pursuant to Section 301
without the consent of any Holder) or to provide that cer-
tain other provisions of this Indenture cannot be modified
or waived without the consent of the Holder of each Out-
standing Security affected thereby, provided, however,
that this Subsection shall not be deemed to require the
consent of any Holder with respect to changes in the ref-
erences to "the Trustee" and concomitant changes in this
Section and Section 1008, or the deletion of this proviso,
in accordance with the requirements of Sections 611(b) and
901(g).
A supplemental indenture which changes or eliminates any cov-
enant 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 Hold-
ers of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other
series.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any pro-
posed supplemental indenture, but it shall be sufficient if
such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this In-
denture. The Trustee may, but shall not be obligated to, enter
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into any such supplemental indenture which affects the Trust-
ee's own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
under this Article, this Indenture shall be modified in ac-
cordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes, and every Holder of
Securities theretofore or thereafter authenticated and deliv-
ered hereunder shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to
this Article shall conform to the requirements of the Trust
Indenture Act as then in effect.
SECTION 906. Reference in Securities to
Supplemental Indentures.
Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to
this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter pro-
vided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series and any coupons
appertaining thereto so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental in-
denture may be prepared and executed by the Company and authen-
ticated and delivered by the Trustee in exchange for Outstand-
ing Securities of such series and any coupons appertaining
thereto.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of
each series of Securities that it will duly and punctually pay
the principal of (and premium, if any), interest on and any
Additional Amounts with respect to the Securities of that
series in accordance with the terms of the Securities, any
coupons appertaining thereto and this Indenture. Unless other-
wise specified as contemplated by Section 301 with respect to
any series of Securities, any interest due on and Additional
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Amounts payable with respect to Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender
of the several coupons for such interest installments, as are
evidenced thereby as they severally mature.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Regis-
tered Securities, the Company will maintain in each Place of
Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. If Securities of
a series are issuable as Bearer Securities, the Company will
maintain (i) in The Borough of Manhattan, The City of New York,
an office or agency where any Registered Securities of that
series may be presented or surrendered for payment, where any
Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may
be surrendered for exchange for Registered Securities, where
notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and
where Bearer Securities of that series and related coupons may
be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise), (ii)
subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the
United States, an office or agency where Bearer Securities of
that series and related coupons may be presented and surren-
dered for payment (including payment of any Additional Amounts
with respect to Bearer Securities of that series); provided,
however, that if the Securities of that series are listed on
the International Stock Exchange of the United Kingdom and the
Republic of Ireland Limited, the Luxembourg Stock Exchange or
any other stock exchange located outside the United States and
such stock exchange shall so require, the Company will maintain
a Paying Agent for the Securities of that series in London,
Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of
that series are listed on such exchange, and (iii) subject to
any laws or regulations applicable thereto, in a Place of Pay-
ment for that series located outside the United States an
office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Securi-
ties of that series may be surrendered for exchange and where
notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee of
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the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surren-
ders, notices and demands may be made or served at the Corpo-
rate Trust Office of the Trustee, except that Bearer Securities
of that series and the related coupons may be presented and
surrendered for payment (including payment of any Additional
Amounts with respect to Bearer Securities of that series) at
the office of any Paying Agent for such series located outside
the United States, and the Company hereby appoints the Trustee
as its office or agency to receive such presentations, sur-
renders, notices and demands.
With respect to Bearer Securities, payments of prin-
cipal, premium or interest on, or Additional Amounts with
respect to such Securities, will be payable, subject to any
applicable laws and regulations, in the designated currency or
currencies (including composite currencies) or currency unit or
units, at the offices of such Paying Agents outside the United
States as the Company may designate from time to time or, at
the option of the Holder, by check or by transfer to an account
maintained by the recipient of such payment with a bank or
other financial institution located outside the United States.
However, no payment of principal, premium or interest on, or
Additional Amounts with respect to, Bearer Securities shall be
made at any office or agency of the Company in the United
States or by check mailed to any address in the United States
or by transfer to an account maintained with a bank located in
the United States, nor shall any payments be made in respect of
Bearer Securities or coupons appertaining thereto pursuant to
the presentation to the Company or its designated Paying Agents
within the United States; provided, however, that, if the Secu-
rities of a series are denominated and payable in Dollars, pay-
ment of principal of and any premium and interest on any Bearer
Security (including any Additional Amounts payable on Securi-
ties of such series) shall be made at the office of the Com-
pany's Paying Agent in The Borough of Manhattan, The City of
New York, if (but only if) payment in Dollars of the full
amount of such principal, premium, interest or Additional
Amounts, as the case may be, at all offices or agencies outside
the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively pre-
cluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one
or more other offices or agencies where the Securities of one
or more series may be presented or surrendered for any or all
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such purposes and may from time to time rescind such designa-
tions; provided, however, that no such designation or rescis-
sion shall in any manner relieve the Company of its obligation
to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will
give prompt written notice to the Trustee of any such designa-
tion or rescission and of any change in the location of any
such other office or agency.
SECTION 1003. Money for Securities Payments
to be Held in Trust.
If the Company shall at any time act as its own
Paying Agent with respect to any series of Securities and any
coupons appertaining thereto, it will, on or before each due
date of the principal of (and premium, if any) or interest on
or any Additional Amounts with respect to any of the Securities
of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the prin-
cipal (and premium, if any) or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of
its action or failure so to act.
Whenever the Company shall have one or more Paying
Agents for any series of Securities and any related coupons
appertaining thereto, the Company will, on or before each due
date of the principal of (and premium, if any) or interest on
any Securities of that series, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any
series of Securities other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will
(a) hold all sums held by it for the payment of the
principal of (and premium, if any), interest on or any
Additional Amounts with respect to Securities of that
series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
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(b) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities of that
series) in the making of any payment of principal (and
premium, if any), interest on or any Additional Amounts
with respect to the Securities of that series; and
(c) at any time during the continuance of any such
default, upon the written request of the Trustee, forth-
with pay to the Trustee all sums so held in trust by such
Paying Agent.
The Company may at any time, for the purpose of ob-
taining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Com-
pany or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the
Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be re-
leased from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of (and premium, if any) or interest on any Secu-
rity of any series and remaining unclaimed for three years
after such principal (and premium, if any) or interest has
become due and payable shall, unless otherwise required by man-
datory provisions of applicable escheat, or abandoned or un-
claimed property law, be paid to the Company on Company Re-
quest, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security and coupon
appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper in The Borough of
Manhattan, The City of New York, notice that such money remains
unclaimed and that, after a date specified herein, which shall
not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will, unless
otherwise required by mandatory provisions of applicable
escheat, or abandoned or unclaimed property law, be repaid to
the Company.
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SECTION 1004. Existence.
Subject to Article Eight, the Company will do or
cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful
in the conduct of its business or the business of any Subsid-
iary to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and
will cause to be made all necessary repairs, renewals, replace-
ments, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advanta-
geously conducted at all times; provided, however, that nothing
in this Section shall prevent the Company from discontinuing
the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in
the conduct of its business or the business of any Subsidiary
and not disadvantageous in any material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid
or discharged, before the same shall become delinquent, (i) all
material taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (ii)
all material lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property
of the Company or any Subsidiary; provided, however, that the
Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
SECTION 1007. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120
days after the end of each fiscal year of the Company ending
after the date hereof so long as any Security is outstanding
hereunder, an Officers' Certificate, stating that a review of
the activities of the Company during such year and of perfor-
mance under this Indenture has been made under the supervision
of the signers thereof and whether or not to the best of their
knowledge, based upon such review, the Company is in default in
the performance, observance or fulfillment of any of its cov-
enants and other obligations under this Indenture, and if the
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Company shall be in default, specifying each such default known
to them and the nature and status thereof. One of the officers
signing the Officers' Certificate delivered pursuant to this
Section 1007 shall be the principal executive, financial or
accounting officer of the Company.
For purposes of this Section, such compliance shall
be determined without regard to any period of grace or require-
ment of notice provided under this Indenture.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any covenant or condition set forth in Sections
1004 to 1006, inclusive, or any covenant added for the benefit
of any series of Securities as contemplated by Section 301
(unless otherwise specified pursuant to Section 301) if before
or after the time for such compliance the Holders of a majority
in principal amount of the Outstanding Securities of all series
affected by such omission (acting as one class) shall, by Act
of such Holders, either waive such compliance in such instance
or generally waive compliance with such covenant or condition,
but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Com-
pany and the duties of the Trustee in respect of any such cov-
enant or condition shall remain in full force and effect.
SECTION 1009. Additional Amounts.
If the Securities of a series provide for the payment
of Additional Amounts, the Company will pay to the Holder of
any Security of such series or any coupon appertaining thereto
Additional Amounts as provided therein. Whenever in this In-
denture there is mentioned, in any context, the payment of the
principal of or any premium or interest on, or in respect of,
any Security of any series or payment of any related coupon or
the net proceeds received on the sale or exchange of any Secu-
rity of any series, such mention shall be deemed to include
mention of the payment of Additional Amounts provided for in
this Section to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof pursu-
ant to the provisions of this Section and express mention of
the payment of Additional Amounts (if applicable) in any pro-
visions hereof shall not be construed as excluding Additional
Amounts in those provisions hereof where such express mention
is not made.
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If the Securities of a series provide for the payment
of Additional Amounts, at least 10 days prior to the first In-
terest Payment Date with respect to that series of Securities
(or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of princi-
pal and any premium is made), and at least 10 days prior to
each date of payment of principal and any premium or interest
if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company
shall furnish the Trustee and the Company's principal Paying
Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal of and
any premium or interest on the Securities of that series shall
be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or
on account of any tax, assessment or other governmental charge
described in the Securities of that series. If any such with-
holding shall be required, then such Officers' Certificate
shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities or
coupons and the Company will pay to such Paying Agent the Ad-
ditional Amounts required by this Section. The Company cov-
enants to indemnify the Trustee and any Paying Agent for, and
to hold them harmless against any loss, liability or expense
reasonably incurred without negligence or bad faith on their
part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with
this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution. In case of any re-
demption at the election of the Company of less than all the
Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a
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shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount
of Securities of such series to be redeemed. In the case of
any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of
Securities to be Redeemed.
If less than all the Securities of any series are to
be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series not
previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securi-
ties of such series of a denomination larger than the minimum
authorized denomination for Securities of that series or of the
principal amount of global Securities of such series.
The Trustee shall promptly notify the Company in
writing of the Securities selected for redemption and, in the
case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the con-
text otherwise requires, all provisions relating to the redemp-
tion of Securities shall relate, in the case of any Securities
redeemed or to be redeemed only in part, to the portion of the
principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner
provided in Section 107 to each Holder of Securities to be
redeemed not less than 30 nor more than 60 days prior to the
Redemption Date.
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All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of
any series are to be redeemed, the identification (and, in
the case of partial redemption, the principal amounts) of
the particular Securities to be redeemed;
(d) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be
redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date;
(e) the place or places where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, are to be surrendered for payment of
the Redemption Price;
(f) that the redemption is for a sinking fund, if
such is the case;
(g) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for
redemption must be accompanied by all coupons appertaining
thereto maturing subsequent to the date fixed for redemp-
tion or the amount of any such missing coupon or coupons
will be deducted from the Redemption Price or security or
indemnity satisfactory to the Company, the Trustee and any
Paying Agent is furnished;
(h) if Bearer Securities of any series are to be
redeemed and any Registered Securities of such series are
not to be redeemed, and if such Bearer Securities may be
exchanged for Registered Securities not subject to redemp-
tion on such Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on
which such exchanges may be made; and
(i) the "CUSIP" number, if applicable.
A notice of redemption as contemplated by Section 107
need not identify particular Registered Securities to be re-
deemed. Notice of redemption of Securities to be redeemed at
the election of the Company shall be given by the Company or,
at the Company's request, by the Trustee in the name and at the
expense of the Company.
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SECTION 1105. Deposit of Redemption Price.
On or before any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money suf-
ficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued
interest on, and any Additional Amounts with respect to, all
the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
the Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein speci-
fied, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued in-
terest) such Securities shall cease to bear interest and the
coupons for such interest appertaining to any Bearer Securities
so to be redeemed, except to the extent provided below, shall
be redeemed. Upon surrender of any such Security for redemp-
tion in accordance with said notice, together with all coupons
appertaining thereto, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest
(and any Additional Amounts) to the Redemption Date; provided,
however, that all payments on Bearer Securities shall be made
only in the manner provided in Section 1002 for payments on
Bearer Securities; and provided further, that installments of
interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close
of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption
shall not be accompanied by all appurtenant coupons appertain-
ing thereto maturing after the Redemption Date, such Security
may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons apper-
taining thereto, or the surrender of such missing coupon or
coupons appertaining thereto may be waived by the Company and
the Trustee if there be furnished to them such security or in-
demnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been
made from the Redemption Price, such Holder shall be entitled
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to receive the amount so deducted; provided, however, that in-
terest (and any Additional Amounts with respect thereto) repre-
sented by coupons appertaining thereto shall be payable only at
an office or agency located outside the United States (except
as otherwise provided in Section 1002) and, unless otherwise
specified as contemplated by Section 301, only upon presenta-
tion and surrender of those coupons appertaining thereto.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and
premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security
or, in the case of Original Issue Discount Securities, the
Securities' Yield to Maturity.
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only
in part shall be surrendered at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due endorse-
ment by, or a written instrument of transfer in form satisfac-
tory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service
charge, a new Registered Security or Securities of the same
series and Stated Maturity, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal
of the Security so surrendered.
SECTION 1108. Purchase of Securities.
Unless otherwise specified as contemplated by Section
301, the Company and any Affiliate of the Company may at any
time purchase or otherwise acquire Securities or coupons ap-
pertaining thereto in the open market or by private agreement;
provided that purchases or other acquisitions of Bearer Secu-
rities or coupons appertaining thereto by the Company or any
Affiliate of the Company may be made only outside the United
States, and payments therefor may be made only upon surrender
of such Bearer Securities or coupons appertaining thereto at a
location outside the United States and only in the manner pro-
vided for payments on Bearer Securities in Section 1002. Such
acquisition shall not operate as or be deemed for any purpose
to be a redemption of the indebtedness represented by such
Securities or coupons appertaining thereto. Any Securities or
coupons appertaining thereto purchased or acquired by the Com-
pany may be delivered to the Trustee and, upon such delivery,
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the indebtedness represented thereby shall be deemed to be sat-
isfied. Section 309 shall apply to all Securities and coupons
so delivered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to
any sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Section 301
for Securities of such series.
The minimum amount of any sinking fund payment pro-
vided for by the terms of Securities of any series is herein
referred to as a "mandatory sinking fund payment", and any pay-
ment in excess of such minimum amount provided for by the terms
of Securities of any series is herein referred to as an "op-
tional sinking fund payment". Unless otherwise provided by the
terms of Securities of any series, the cash amount of any sink-
ing fund payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to
the redemption of Securities of any series as provided for by
the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund
Payments with Securities.
The Company (i) may deliver Outstanding Securities of
a series (other than any previously called for redemption),
together in the case of any Bearer Securities of such series
with all unmatured coupons appertaining thereto, and (ii) may
apply as a credit Securities of a series which have been re-
deemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permit-
ted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any
part of any sinking fund payment with respect to the Securities
of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series;
provided that such Securities have not been previously so cred-
ited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in
such Securities for redemption through operation of the sinking
fund and the amount of such sinking payment shall be reduced
accordingly.
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SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund pay-
ment date for any series of Securities, the Company will de-
liver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if
any, which is to be satisfied by payment of cash and the por-
tion thereof, if any, which is to be satisfied by delivery of
or by crediting Securities of that series pursuant to Section
1202 and will also deliver to the Trustee any Securities to be
so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all
series may be called at any time and from time to time pursuant
to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of
Holders of Securities of any series for any purpose specified
in Section 1301, to be held at such time and at such place in
Coeur d'Alene, Idaho, in The Borough of Manhattan, The City of
New York, in London or in any other location, as the Trustee
shall determine. Notice of every meeting of Holders of Securi-
ties of any series, 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 given, in the manner provided
in Section 107, not less than 20 nor more than 180 days prior
to the date fixed for the meeting.
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(b) In case at any time the Company, pursuant to a
Board Resolution, or the Holders of at least 10% in aggregate
principal amount of the Outstanding Securities of any series,
shall have requested the Trustee for any such series to call a
meeting of the Holders of Securities of such series for any
purpose specified in Section 1301, by written request setting
forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first pub-
lication of the notice of such meeting within 30 days after
receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Com-
pany or the Holders of Securities of such series in the amount
above specified, as the case may be, may determine the time and
the place in Coeur d'Alene, Idaho, in The Borough of Manhattan,
The City of New York, or in London, for such meeting and may
call such meeting for such purposes by giving notice thereof as
provided in Subsection (a) of this Section.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of
Securities of any series, a Person shall be (i) a Holder of one
or more Outstanding Securities of such series, or (ii) a Person
appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled
to be present or to speak at any meeting of Holders of Securi-
ties of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company
and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of a series
shall constitute a quorum for a meeting of Holders of Securi-
ties of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders of Securities of
such series, be dissolved. In any other case, the meeting may
be adjourned for a period of not less than 10 days as deter-
mined by the chairman of the meeting prior to the adjournment
of such meeting. In the absence of a quorum at any such ad-
journed meeting, such adjourned meeting may be further ad-
journed for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such
adjourned meeting. Subject to Section 1305(d), notice of the
reconvening of any adjourned meeting shall be given as provided
in Section 1302(a), except that such notice need be given only
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once not less than five days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the reconven-
ing of an adjourned meeting shall state expressly that Persons
entitled to vote a majority in principal amount of the Out-
standing Securities of such series shall constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be
adopted by the affirmative vote of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of
that series; provided, however, that, except as limited by the
proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified per-
centage that is less than a majority in aggregate principal
amount of the Outstanding Securities of a series may be adopted
at a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the affirmative vote
of the Holders of such specified percentage in aggregate prin-
cipal amount of the Outstanding Securities of that series.
Except as limited by the proviso to Section 902, any
resolution passed or decision taken at any meeting of Holders
of Securities of any series duly held in accordance with this
Section shall be binding on all the Holders of Securities of
such series and the coupons appertaining thereto, whether or
not present or represented at the meeting.
SECTION 1305. Determination of Voting Rights; Conduct
and Adjournment of Meetings.
(a) The holding of Securities shall be proved in the
manner specified in Section 105 and the appointment of any
proxy shall be proved in the manner specified in Section 105 or
by having the signature of the person executing the proxy wit-
nessed or guaranteed by any trust company, bank or banker
authorized by Section 105 to certify to the holding of Bearer
Securities. Such regulations may provide that written instru-
ments appointing proxies, regular on their face, may be pre-
sumed valid and genuine without the proof specified in Section
105 or other proof.
(b) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Company or by Holders of Securi-
ties as provided in Section 1302(b), in which case the Company
or the Holders of Securities of the series calling the meeting,
-90-<PAGE>
as the case may be, shall appoint a temporary chairman. A per-
manent chairman and a permanent secretary of the meeting shall
be elected by vote of the Persons entitled to vote a majority
in aggregate principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such
series and each proxy shall be entitled to one vote for each
$1,000 principal amount of the Outstanding Securities of such
series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chair-
man of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a
Security of such series or as a proxy.
(d) Any meeting of Holders of Securities of any
series duly called pursuant to Section 1302 at which a quorum
is present may be adjourned from time to time by Persons en-
titled to vote a majority in aggregate principal amount of the
Outstanding Securities of such series represented at the meet-
ing; and the meeting may be held as so adjourned without fur-
ther notice.
SECTION 1306. Counting Votes and Recording
Action of Meetings.
The vote upon any resolution submitted to any meeting
of Holders of Securities of any series shall be by written
ballots on which shall be subscribed the signatures of the
Holders of Securities of such series or of their representa-
tives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series 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, at least in duplicate, of the proceedings of each meet-
ing of Holders of Securities of any series shall be prepared by
the secretary of the meeting and there shall be attached to
such 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 such notice was
given as provided in Section 1302 and, if applicable, Section
1304. Each copy shall be signed and verified by the affidavits
of the permanent chairman and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the
Trustee to be preserved by the Trustee, the latter to have
-91-<PAGE>
attached thereto the ballots voted at the meeting. Any record
so signed and verified shall be conclusive evidence of the
matters therein stated.
* * *
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together consti-
tute but one and the same instrument.
-92-<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective corpo-
rate seals to be hereunto affixed and attested, all as of the
day and year first above written.
HECLA MINING COMPANY
[CORPORATE SEAL] By
Name:
Title:
_______________________ [Trustee]
[CORPORATE SEAL] By
Name:
Title:
-93-<PAGE>
STATE OF
ss.
COUNTY OF
On the day of , , before me
personally came , to me known, who, being by me
duly sworn, did depose and say that he is of
HECLA MINING COMPANY, one of the corporations described in and
which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed
his name thereto by like authority.
Notary Public
[NOTARIAL SEAL]
STATE OF
ss.
COUNTY OF
On the day of , , before me per-
sonally came , to me known, who, being by me duly
sworn, did depose and say that he is of
______________________, one of the corporations described in
and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instru-
ment is such corporate seal; that it was so affixed by author-
ity of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
Notary Public
[NOTARIAL SEAL]
-94-<PAGE>
EXHIBIT A
FORM OF CERTIFICATE TO BE
GIVEN BY OWNER OF SECURITY OR BENEFICIAL OWNER OF
INTEREST IN A GLOBAL SECURITY
HECLA MINING COMPANY
[TITLE OF SECURITIES]
(THE "SECURITIES")
This is to certify that as of the date hereof, and
except as set forth below, the above-captioned Securities that
are held by the undersigned or held by you for the account of
the undersigned (i) are owned by person(s) that are not citi-
zens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of
which is subject to United States Federal income taxation re-
gardless of its source ("United States persons"), (ii) are
owned by United States person(s) that (A) are foreign branches
of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial
institutions") purchasing for their own account or for resale,
or (B) acquired Securities through foreign branches of United
States financial institutions and who hold the Securities
through such United States financial institutions on the date
hereof (and in either case (A) or (B), each such United States
financial institution hereby certifies, on its own behalf or
through its agent, that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code
of 1986, as amended, and the regulations thereunder), or (iii)
are owned by United States or foreign financial institution(s)
for purposes of resale during the restricted period (as defined
in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7))
and in addition if the owner of the Securities is a United
States or foreign financial institution described in clause
(iii) above (whether or not also described in clause (i) or
(ii)) this is to further certify that such financial institu-
tion has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person
within the United States or its possessions.
If the Securities are of the category contemplated in
Section 230.903(c)(3) of Regulation S under the Securities Act
of 1933, as amended (the "Act"), then this is also to certify
that, except as set forth below, (i) in the case of debt secu-
rities, the Securities are beneficially owned by (a) non-U.S.
A-1<PAGE>
person(s) or (b) U.S. person(s) who purchased the Securities in
transactions which did not require registration under the Act;
or (ii) in the case of equity securities, the Securities are
owned by (x) non-U.S. person(s) (and such person(s) are not
acquiring the Securities for the account or benefit of U.S.
person(s)) or (y) U.S. person(s) who purchased the Securities
in a transaction which did not require registration under the
Act. If this certification is being delivered in connection
with the exercise of warrants pursuant to Section 230.902(m) of
Regulation S under the Act, then this is further to certify
that, except as set forth below, the Securities are being exer-
cised by and on behalf of non-U.S. person(s). As used in this
paragraph the term "U.S. person" has the meaning given to it by
Regulation S under the Act.
As used herein, "United States" means the United
States of America (including the States and District of
Columbia); and its "possessions" including Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex
or electronic transmission on or prior to the date on which you
intend to submit your certification relating to the Securities
held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may
be assumed that this certification applies as of such date.
This certification excepts and does not relate to
$ of such interest in the above Securities in respect
of which we are not able to certify and as to which we under-
stand exchange and delivery of definitive Securities (or, if
relevant, exercise of any rights or collection of any interest)
cannot be made until we do so certify.
A-
2<PAGE>
We understand that this certification is required in
connection with certain tax laws and, if applicable, certain
securities laws of the United States. In connection therewith,
if administrative or legal proceedings are commenced or threat-
ened in connection with which this certification is or would be
relevant, we irrevocably authorize you to produce this certifi-
cation to any interested party in such proceedings.
*Dated: ,
NAME OF PERSON MAKING CERTIFICATION
By:
As, or as Agent for, the
beneficial owner(s) of the
Securities to which this
Certificate relates
By:
As, or as Agent for, the
financial institution (if any)
through which a United States
Person acquired the Securities
to which this Certificate relates
_____________________
* To be dated no earlier than the Certification Date.
A-
3<PAGE>
EXHIBIT B
FORM OF CERTIFICATION TO BE GIVEN
BY EUROCLEAR OR CEDEL S.A.
HECLA MINING COMPANY
[TITLE OF SECURITIES]
(THE "SECURITIES")
This is to certify that, based solely on certifica-
tions we have received in writing, by tested telex or by elec-
tronic transmission from member organizations appearing in our
records as persons being entitled to a portion of the principal
amount set forth below (our "Member Organizations") substan-
tially to the effect set forth in the Indenture, dated as of
, between Hecla Mining Company and
______________________, as of the date hereof, [ ] princi-
pal amount of the above captioned Securities (i) is owned by
persons that are not citizens or residents of the United
States, domestic partnerships, domestic corporations or any
estate or trust the income of which is subject to United States
Federal income taxation regardless of its source ("United
States persons"), (ii) is owned by United States persons that
(A) are foreign branches of United States financial institu-
tions (as defined in U.S. Treasury Regulations Section 1.165-
12(c)(1)(v)) ("financial institutions") purchasing for their
own account or for resale, or (B) acquired the Securities
through foreign branches of United States financial institu-
tions and who hold the Securities through such United States
financial institutions on the date hereof (and in either case
(A) or (B), each such United States financial institution has
certified, on its own behalf or through its agent, that it will
comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) is owned by United States or
foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that
the United States or foreign financial institutions described
in clause (iii) above (whether or not also described in clause
(i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or
its possessions.
If the Securities are of the category contemplated in
Section 230.903(c)(3) of Regulation S under the Securities Act
B-1<PAGE>
of 1933, as amended (the "Act"), then this is also to certify
with respect to the principal amount of Securities set forth
above that, except as set forth below, we have received in
writing, by tested telex or by electronic transmission, from
our Member Organizations entitled to a portion of such princi-
pal amount, certifications with respect to such portion, sub-
stantially to the effect set forth in the Indenture.
We further certify (i) that we are not making avail-
able herewith for exchange (or, if relevant, exercise of any
rights or collection of any interest) any portion of the tem-
porary global Security excepted in such certifications and (ii)
that as of the date hereof we have not received any notifica-
tion from any of our Member Organizations to the effect that
the statements made by such Member Organizations with respect
to any portion of the part submitted herewith for exchange (or,
if relevant, exercise of any rights or collection of any in-
terest) are no longer true and cannot be relied upon as of the
date hereof.
We understand that this certification is required in
connection with certain tax laws and, if applicable, certain
securities laws of the United States. In connection therewith,
if administrative or legal proceedings are commenced or threat-
ened in connection with which this certification is or would be
relevant, we irrevocably authorize you to produce this certifi-
cation or a copy hereof to any interested party in such pro-
ceedings.
Dated: ,
(dated the Exchange Date or
the Interest Payment Date)
as operator of the Euroclear System
[Morgan Guaranty Trust Company of
New York, Brussels Office]
or
[CEDEL S.A.]
By
B-2
WLR&K DRAFT 8/9/95
Exhibit 4.3(d)
HECLA MINING COMPANY
AND
______________________,
TRUSTEE
INDENTURE
DATED AS OF
SUBORDINATED DEBT SECURITIES
<PAGE>
HECLA MINING COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
Section 310 (a)(1)........................... 609
(a)(2)........................... 609
(a)(3)........................... Not Applicable
(a)(4)........................... Not Applicable
(b).............................. 608, 610
Section 311 (a).............................. 613
(b).............................. 613
(c).............................. Not Applicable
Section 312 (a).............................. 701, 702(a)
(b).............................. 702(b)
(c).............................. 702(c)
Section 313 (a).............................. 703(a)
(b).............................. 703(b)
(c).............................. 703(c)
(d).............................. 703(d)
Section 314 (a).............................. 704, 1007
(b).............................. Not Applicable
(c)(1)........................... 103
(c)(2)........................... 103
(c)(3)........................... Not Applicable
(d).............................. Not Applicable
(e).............................. 103
Section 315 (a).............................. 601(a)
(b).............................. 602, 703(a)
(c).............................. 601(b)
(d).............................. 601(c)
(d)(1)........................... 601(a)(1)
(d)(2)........................... 601(c)(2)
(d)(3)........................... 601(c)(3)
(e).............................. 514
Section 316 (a)(10)(A)....................... 502, 512
(a)(1)(B)........................ 513
(a)(2)........................... Not Applicable
(a)(last sentence)............... 101
(b).............................. 508
Section 317 (a)(1)........................... 503
(a)(2)........................... 504
(b).............................. 1003
Section 318 (a).............................. 108
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.<PAGE>
TABLE OF CONTENTS
PARTIES.................................................. 1
RECITALS OF THE COMPANY.................................. 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions............................... 1
Act....................................... 2
Additional Amounts........................ 2
Affiliate; control........................ 2
Authenticating Agent...................... 2
Authorized Newspaper...................... 2
Bearer Security........................... 3
Board of Directors........................ 3
Board Resolution.......................... 3
Book-Entry Security....................... 3
Business Day.............................. 3
CEDEL; CEDEL S.A.......................... 3
Certification Date........................ 3
Commission................................ 4
Common Depositary......................... 4
Company................................... 4
Company Request; Company Order............ 4
Conversion Event.......................... 4
Corporate Trust Office.................... 4
coupon.................................... 4
Defaulted Interest........................ 4
Depositary................................ 4
Dollar; $................................. 5
Euroclear................................. 5
Event of Default.......................... 5
Exchange Date............................. 5
Exchange Rate............................. 5
Holder.................................... 5
Indebtedness.............................. 5
Indenture................................. 5
interest.................................. 5
Interest Payment Date..................... 6
Judgment Currency......................... 6
Maturity.................................. 6
Officers' Certificate..................... 6
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
-i-<PAGE>
Opinion of Counsel........................ 6
Original Issue Discount Security.......... 6
Outstanding............................... 6
Paying Agent.............................. 7
Person.................................... 7
Place of Payment.......................... 8
Predecessor Security...................... 8
Redemption Date........................... 8
Redemption Price.......................... 8
Registered Security....................... 8
Regular Record Date....................... 8
Required Currency......................... 8
Responsible Officer....................... 8
Securities................................ 9
Security Register; Security Registrar..... 9
Senior Indebtedness....................... 9
Special Record Date....................... 9
Stated Maturity........................... 9
Subsidiary................................ 9
Trustee................................... 10
Trust Indenture Act....................... 10
United States............................. 10
United States Alien....................... 10
U.S. Government Obligations............... 10
Vice President............................ 10
Wholly Owned Subsidiary................... 10
Yield to Maturity......................... 10
SECTION 102. Incorporation by Reference of Trust
Indenture Act........................... 11
SECTION 103. Compliance Certificates and Opinions...... 11
SECTION 104. Form of Documents Delivered to Trustee.... 12
SECTION 105. Acts of Holders; Record Dates............. 13
SECTION 106. Notices, Etc., to Trustee and Company..... 15
SECTION 107. Notice to Holders; Waiver................. 15
SECTION 108. Conflict With Trust Indenture Act......... 16
SECTION 109. Effect of Headings and Table of
Contents................................ 17
SECTION 110. Successors and Assigns.................... 17
SECTION 111. Separability Clause....................... 17
SECTION 112. Benefits of Indenture..................... 17
SECTION 113. Governing Law............................. 17
SECTION 114. Legal Holidays............................ 17
SECTION 115. Corporate Obligation...................... 18
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally........................... 18
SECTION 202. Form of Trustee's Certificate of
Authentication.......................... 19
SECTION 203. Securities in Global Form................. 19
SECTION 204. Book-Entry Securities..................... 20
-ii-<PAGE>
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series ..... 23
SECTION 302. Denominations............................. 27
SECTION 303. Execution, Authentication, Delivery and
Dating.................................. 27
SECTION 304. Temporary Securities ..................... 29
SECTION 305. Registration, Registration of Transfer
and Exchange............................ 32
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.............................. 36
SECTION 307. Payment of Interest; Interest Rights
Preserved............................... 37
SECTION 308. Persons Deemed Owners..................... 39
SECTION 309. Cancellation.............................. 40
SECTION 310. Computation of Interest................... 40
SECTION 311. CUSIP Numbers............................. 41
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture... 41
SECTION 402. Application of Trust Money................ 43
SECTION 403. Discharge of Liability on Securities
of Any Series........................... 44
SECTION 404. Reinstatement............................. 45
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default......................... 45
SECTION 502. Acceleration of Maturity; Rescission
and Annulment........................... 48
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.................. 49
SECTION 504. Trustee May File Proofs of Claim.......... 50
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons..... 52
SECTION 506. Application of Money Collected............ 52
SECTION 507. Limitation on Suits....................... 53
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest................................ 54
SECTION 509. Restoration of Rights and Remedies........ 54
SECTION 510. Rights and Remedies Cumulative............ 54
SECTION 511. Delay or Omission Not Waiver.............. 55
SECTION 512. Control by Holders........................ 55
SECTION 513. Waiver of Past Defaults................... 55
-iii-<PAGE>
SECTION 514. Undertaking for Costs..................... 56
SECTION 515. Waiver of Stay or Extension Laws.......... 56
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities....... 57
SECTION 602. Notice of Defaults ....................... 58
SECTION 603. Certain Rights of Trustee................. 59
SECTION 604. Not Responsible for Recitals or
Issuance of Securities ................. 60
SECTION 605. May Hold Securities....................... 60
SECTION 606. Money Held in Trust....................... 60
SECTION 607. Compensation and Reimbursement ........... 61
SECTION 608. Disqualification; Conflicting Interests... 62
SECTION 609. Corporate Trustee Required; Eligibility... 62
SECTION 610. Resignation and Removal; Appointment of
Successor............................... 63
SECTION 611. Acceptance of Appointment by Successor.... 65
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business.................. 66
SECTION 613. Preferential Collection of Claims Against
Company................................. 66
SECTION 614. Appointment of Authenticating Agent....... 67
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders ................... 69
SECTION 702. Preservation of Information;
Communications to Holders .............. 69
SECTION 703. Reports by Trustee ....................... 70
SECTION 704. Reports by Company ....................... 71
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only
on Certain Terms ....................... 71
SECTION 802. Successor Person Substituted ............. 72
-iv-<PAGE>
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent
of Holders.............................. 72
SECTION 902. Supplemental Indentures With Consent
of Holders.............................. 74
SECTION 903. Execution of Supplemental Indentures...... 75
SECTION 904. Effect of Supplemental Indentures......... 76
SECTION 905. Conformity With Trust Indenture Act....... 76
SECTION 906. Reference in Securities to Supplemental
Indentures.............................. 76
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium
and Interest............................ 76
SECTION 1002. Maintenance of Office or Agency .......... 77
SECTION 1003. Money for Securities Payments to be
Held in Trust........................... 79
SECTION 1004. Existence ................................ 80
SECTION 1005. Maintenance of Properties................. 81
SECTION 1006. Payment of Taxes and Other Claims ........ 81
SECTION 1007. Statement by Officers as to Default ...... 81
SECTION 1008. Waiver of Certain Covenants .............. 82
SECTION 1009. Additional Amounts........................ 82
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.................. 83
SECTION 1102. Election to Redeem; Notice to Trustee .... 83
SECTION 1103. Selection by Trustee of Securities
to be Redeemed.......................... 84
SECTION 1104. Notice of Redemption...................... 84
SECTION 1105. Deposit of Redemption Price .............. 85
SECTION 1106. Securities Payable on Redemption Date .... 85
SECTION 1107. Securities Redeemed in Part .............. 87
SECTION 1108. Purchase of Securities.................... 87
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.................. 87
-v-<PAGE>
SECTION 1202. Satisfaction of Sinking Fund
Payments with Securities ............... 88
SECTION 1203. Redemption of Securities for Sinking
Fund.................................... 88
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. Securities Subordinate to Senior
Indebtedness............................ 89
SECTION 1302. Circumstances Requiring Prior
Payment of Senior Indebtedness.......... 89
SECTION 1303. Subrogation to Rights of Holders
of Senior Indebtedness.................. 91
SECTION 1304. Provisions Solely to Define Relative
Rights.................................. 91
SECTION 1305. Trustee to Effectuate Subordination....... 92
SECTION 1306. No Waiver of Subordination Provisions..... 92
SECTION 1307. Notice to Trustee......................... 93
SECTION 1308. Reliance on Certificate of
Liquidating Agent....................... 93
SECTION 1309. Trustee Not Fiduciary for Holders
of Senior Indebtedness.................. 94
SECTION 1310. Rights of Trustee as Holder of
Senior Indebtedness..................... 94
SECTION 1311. Article Applicable to Paying Agent........ 94
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be
Called.................................. 95
SECTION 1402. Call, Notice and Place of Meetings........ 95
SECTION 1403. Persons Entitled to Vote at Meetings...... 95
SECTION 1404. Quorum; Action............................ 96
SECTION 1405. Determination of Voting Rights;
Conduct and Adjournment of Meetings..... 97
SECTION 1406. Counting Votes and Recording Action
of Meetings............................. 98
TESTIMONIUM.............................................. 99
SIGNATURE AND SEALS...................................... 99
ACKNOWLEDGMENTS.......................................... 100
EXHIBIT A................................................ A-1
EXHIBIT B................................................ B-1
-vi-<PAGE>
INDENTURE, dated as of , between
HECLA MINING COMPANY, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the
"Company"), having its principal office at 6500 Mineral Drive,
Coeur d'Alene, Idaho 83814, and _____________________, a
________ state banking corporation, as Trustee (herein called
the "Trustee"), the office of the Trustee at which at the date
hereof its corporate trust business is principally administered
being ______________________________________________.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from
time to time of its unsecured debentures, notes or other evi-
dences of indebtedness (herein called the "Securities"), to be
issued in one or more series as in this Indenture provided.
This Indenture is subject to the provisions of the
Trust Indenture Act and the rules and regulations of the Com-
mission promulgated thereunder that are required to be part of
this Indenture and, to the extent applicable, shall be governed
by such provisions.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the pur-
chase of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit
of all Holders of the Securities or of series thereof, as fol-
lows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as other-
wise expressly provided or unless the context otherwise re-
quires:<PAGE>
(a) the terms defined in this Article have the mean-
ings assigned to them in this Article and include the plu-
ral as well as the singular;
(b) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with generally accepted accounting principles in the
United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting princi-
ples" with respect to any computation required or permit-
ted hereunder shall mean such accounting principles as are
generally accepted in the United States at the date of
such computation; and
(c) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Six, are
defined in Section 102.
"Act", when used with respect to any Holder, has the
meaning specified in Section 105.
"Additional Amounts" means any additional amounts
that are required by a Security or by or pursuant to a Board
Resolution, under circumstances specified therein or pursuant
thereto, to be paid by the Company with respect to certain
taxes, assessments or other governmental charges imposed on
certain Holders and that are owing to such Holders.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when
used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "con-
trolled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person, which may
include the Company, authorized by the Trustee to act on behalf
of the Trustee pursuant to Section 614 to authenticate Securi-
ties of one or more series.
"Authorized Newspaper" means a newspaper, in the
English language or in an official language of the country of
publication, customarily published on each Business Day,
-2-<PAGE>
whether or not published on Saturdays, Sundays or holidays, and
of general circulation in the place in connection with which
the term is used or in the financial community of such place.
Where successive publications are required to be made in Au-
thorized Newspapers, the successive publications may be made in
the same or in different newspapers in the same city meeting
the foregoing requirements and in each case on any Business
Day.
"Bearer Security" means any Security in the form es-
tablished pursuant to Section 201 which is payable to bearer,
including, without limitation, unless the context otherwise
indicates, a Security in temporary or permanent global bearer
form.
"Board of Directors" means either the board of direc-
tors of the Company or any duly authorized committee of that
board.
"Board Resolution" means a copy of a resolution cer-
tified by the Secretary or an Assistant Secretary of the Com-
pany to have been duly adopted by the Board of Directors and to
be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Book-Entry Security" has the meaning specified in
Section 204.
"Business Day", when used with respect to any Place
of Payment, means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in that
Place of Payment are authorized or obligated by law or
executive order to close.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison
de Valeurs Mobilieres S.A., or, if any time after the execution
of this instrument, Centrale de Livraison de Valeurs Mobilieres
S.A. is not existing and performing the duties now being per-
formed by it, then the successor Person performing such duties.
"Certification Date" means with respect to Securities
of any series (i) if Bearer Securities of such series are not
to be initially represented by a temporary global Security, the
date of delivery of the definitive Bearer Security and (ii), if
Bearer Securities of such series are initially represented by a
temporary global Security, the earlier of (A) the Exchange Date
with respect to Securities of such series and (B), if the first
Interest Payment Date with respect to Securities of such series
is prior to such Exchange Date, such Interest Payment Date.
-3-<PAGE>
"Commission" means the Securities and Exchange Com-
mission, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or, if at any time
after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at
such time.
"Common Depositary" has the meaning specified in Sec-
tion 304.
"Company" means the Person named as the "Company" in
the first paragraph of this instrument until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such suc-
cessor Person.
"Company Request" and "Company Order" mean, respec-
tively, a written request or order signed in the name of the
Company by its Chairman of the Board, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its
Controller, an Assistant Controller, its Secretary or an Assis-
tant Secretary, and delivered to the Trustee.
"Conversion Event" has the meaning specified in Sec-
tion 501.
"Corporate Trust Office" means the principal office
of the Trustee in ____________________________________________
at which at any particular time its corporate trust business
shall be principally administered, which office at the date
hereof is that indicated in the introductory paragraph of this
Indenture.
"coupon" means any interest coupon appertaining to a
Bearer Security.
"Defaulted Interest" has the meaning specified in
Section 307.
"Depositary" means, with respect to the Securities of
any series issuable or issued in the form of a global Security,
the Person designated as Depositary by the Company pursuant to
Section 301 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 hereunder, and if at any time there is
more than one such person, "Depositary" as used with respect to
the Securities of any series shall mean the Depositary with
respect to the Securities of that series.
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"Dollar" or "$" means a dollar or other equivalent
unit in such coin or currency of the United States as at the
time shall be legal tender for the payment of public and pri-
vate debts.
"Euroclear" means the operator of the Euroclear Sys-
tem.
"Event of Default" has the meaning specified in Sec-
tion 501.
"Exchange Date" has the meaning specified in Section
304.
"Exchange Rate" has the meaning specified in Section
501.
"Holder", when used with respect to any Security,
means in the case of a Registered Security the Person in whose
name the Security is registered in the Security Register and in
the case of a Bearer Security the bearer thereof and, when used
with respect to any coupon, means the bearer thereof.
"Indebtedness", as applied to any Person, means all
indebtedness, whether or not represented by bonds, debentures,
notes or other securities, created or assumed by such Person
for the repayment of money borrowed, and obligations, computed
in accordance with generally accepted accounting principles, as
lessee under leases that should be, in accordance with gener-
ally accepted accounting principles, recorded as capital
leases. All Indebtedness of others guaranteed as to payment of
principal by such Person or in effect guaranteed by such Person
through a contingent agreement to purchase such Indebtedness
shall for all purposes hereof be deemed to be Indebtedness of
such Person.
"Indenture" means this instrument as originally ex-
ecuted or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities estab-
lished as contemplated by Section 301 and the provisions of the
Trust Indenture Act that are deemed to be a part of and govern
this instrument.
"interest", when used with respect to an Original
Issue Discount Security which by its terms bears interest only
after Maturity, means interest payable after Maturity.
-5-<PAGE>
"Interest Payment Date", when used with respect to
any Security, means the Stated Maturity of an installment of
interest on such Security.
"Judgment Currency" has the meaning specified in
Section 506.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security or an
installment of principal becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, the President or a Vice President,
and by the Treasurer, the Controller, the Secretary or an
Assistant Treasurer, Assistant Controller or Assistant
Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for or an employee of the Company,
rendered, if applicable, in accordance with Section 314(c) of
the Trust Indenture Act.
"Original Issue Discount Security" means any Security
which provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture,
except:
(i) Securities theretofore cancelled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities and any coupons
appertaining thereto; provided that, if such Securities
are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other
-6-<PAGE>
Securities have been authenticated and delivered pursuant
to this Indenture, other than any such Securities in
respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of
the requisite principal amount of the Outstanding Securities
have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, or whether a quorum is
present at a meeting of Holders of Securities, (A) the
principal amount of an Original Issue Discount Security that
shall be deemed to be Outstanding for such purposes shall be
the principal amount thereof that would be due and payable as
of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 502, (B) the principal
amount of a Security denominated in a foreign currency shall be
the U.S. dollar equivalent, determined by the Company on the
date of original issuance of such Security, of the principal
amount (or, in the case of an Original Issue Discount Security,
the U.S. dollar equivalent, determined on the date of original
issuance of such Security, of the amount determined as provided
in (A) above), of such Security and (C) Securities owned by the
Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction,
notice, consent or waiver or upon any such determination as to
the presence of a quorum, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or
of such other obligor.
"Paying Agent" means any Person, which may include
the Company, authorized by the Company to pay the principal of
(and premium, if any) or interest on any one or more series of
Securities on behalf of the Company.
"Person" means any individual, corporation,
partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency
or political subdivision thereof.
-7-<PAGE>
"Place of Payment", when used with respect to the
Securities of any series, means the place or places where the
principal of (and premium, if any) and interest on the
Securities of that series are payable as specified in
accordance with Section 301 subject to the provisions of
Section 1002.
"Predecessor Security" of any particular Security
means every previous Security evidencing all or a portion of
the same debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for
or in lieu of a mutilated, destroyed, lost or stolen Security
or a Security to which a mutilated, destroyed, lost or stolen
coupon appertains, shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security or the
Security to which a mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form
established pursuant to Section 201 which is registered in the
Security Register.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Registered Securities of any
series means the date specified for that purpose as
contemplated by Section 301, or, if not so specified, the last
day of the calendar month preceding such Interest Payment Date
if such Interest Payment Date is the fifteenth day of the
calendar month or the fifteenth day of the calendar month
preceding such Interest Payment Date if such Interest Payment
Date is the first day of a calendar month, whether or not such
day shall be a Business Day.
"Required Currency" has the meaning specified in
Section 506.
"Responsible Officer", when used with respect to the
Trustee, means the Chairman or any Vice Chairman of the Board
of Directors, the Chairman or any Vice Chairman of the
Executive Committee of the Board of Directors, the Chairman of
the Trust Committee, the President, any Vice President, the
-8-<PAGE>
Secretary, any Assistant Secretary, the Treasurer, any
Assistant Treasurer, the Cashier, any Assistant Cashier, any
Trust Officer or Assistant Trust Officer, the Controller or any
Assistant Controller or any other officer of the Trustee
customarily performing functions similar to those performed by
any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any
Securities authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means Indebtedness of the
Company, whether currently outstanding or hereafter issued,
which is not subordinated by its terms in right of payment to
any other unsecured Indebtedness of the Company or ranks pari
passu with subordinated Indebtedness of any series of the
Company; provided that "Senior Indebtedness" shall not include
(i) Indebtedness of the Company to any Subsidiary for money
borrowed or advanced from such Subsidiary or (ii) amounts owed
(except to banks and other financial institutions) for goods,
materials or services purchased in the ordinary course of
business.
"Special Record Date" for the payment of any
Defaulted Interest on the Registered Securities of any series
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any
Security or any installment of principal thereof or interest
thereon, means the date specified in such Security or coupon
representing such installment of interest as the fixed date on
which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting
stock" means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long as
no senior class of stock has such voting power by reason of any
contingency.
-9-<PAGE>
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this instrument until a successor
Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that
series.
"Trust Indenture Act" means the Trust Indenture Act
of 1939 as in force at the date as of which this instrument was
executed, except as provided in Section 905.
"United States" means the United States of America
(including the States and the District of Columbia) and its
"possessions", which include Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
"United States Alien" means any Person who, for
United States federal income tax purposes, is a foreign
corporation, a non-resident alien individual, a non-resident
alien or foreign fiduciary of an estate or trust, or a foreign
partnership.
"U.S. Government Obligations" has the meaning
specified in Section 401.
"Vice President", when used with respect to the
Company or the Trustee, means any vice president, whether or
not designated by a number or a word or words added before or
after the title "vice president".
"Wholly Owned Subsidiary" means a corporation all the
outstanding voting stock (other than any directors' qualifying
shares) of which is owned, directly or indirectly, by the
Company or by one or more other Wholly Owned Subsidiaries, or
by the Company and one or more other Wholly Owned Subsidiaries.
For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any
contingency.
"Yield to Maturity", when used with respect to any
Original Issue Discount Security, means the yield to maturity,
if any, set forth on the face thereof.
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SECTION 102. Incorporation by Reference
of Trust Indenture Act.
Whenever this Indenture refers to a provision of the
Trust Indenture Act, the provision is incorporated by reference
in and made a part of this Indenture. The following Trust
Indenture Act terms used in this Indenture have the following
meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11
of the United States Code.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means
the Trustee.
"obligor" on the indenture securities means the
Company or any other obligor on the Securities.
All the other Trust Indenture Act terms used in this
Indenture that are defined by the Trust Indenture Act, defined
by Trust Indenture Act reference to another statute or defined
by Commission rule under the Trust Indenture Act and not
otherwise defined herein have the meanings assigned to them
therein.
SECTION 103. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this
Indenture, upon any application or request by the Company to
the Trustee to take any action under any provision of this
Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if
any (including any covenants the compliance with which
constitutes a condition precedent), 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, if any (including
any covenants the compliance with which constitutes a condition
precedent), have been complied with, except that in the case of
any such application or request as to which the furnishing of
such documents is specifically required by any provision of
this Indenture relating to such particular application or
request, no additional certificate or opinion need be
furnished.
-11-<PAGE>
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this
Indenture shall include
(a) a statement that each Person signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(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 each such
Person, such Person has made such examination or
investigation as is necessary to enable such Person 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, in the opinion of
each such Person, such condition or covenant has been
complied with.
SECTION 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal matters,
upon a certificate or opinion of, or representations by,
counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of,
or representations by, an officer or officers of the Company
stating that the information with respect to such factual
matters is in the possession of the Company, unless such
counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to such matters are erroneous.
-12-<PAGE>
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one
instrument.
SECTION 105. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be given or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent
duly appointed in writing. If Securities of a series are
issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given by Holders of
such series may, alternatively, be embodied in and evidenced by
the record of Holders of Securities of such series voting in
favor thereof, either in person or by proxies duly appointed in
writing, at a meeting of Holders of Securities of such series
duly called and held in accordance with the provisions of
Article Fourteen, or a combination of such instruments and any
such records. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument
or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any
such agent, or the holding of any Person of a Security, shall
be sufficient for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved
in the manner provided in Section 1406.
The Company may set in advance a record date for
purposes of determining the identity of Holders of Registered
Securities entitled to vote or consent to any action by vote or
consent authorized or permitted under this Indenture, which
record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent
list of Holders furnished to the Trustee prior to such
solicitation. If a record date is fixed, those persons who
were Holders of Outstanding Registered Securities at such
record date (or their duly designated proxies), and only those
persons, shall be entitled with respect to such Securities to
-13-<PAGE>
take such action by vote or consent or to revoke any vote or
consent previously given, whether or not such persons continue
to be Holders after such record date. Promptly after any
record date is set pursuant to this paragraph, the Company, at
its own expense, shall cause notice thereof to be given to the
Trustee in writing in the manner provided in Section 106 and to
the relevant Holders as set forth in Section 107.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the
affidavit of a witness of such execution or by a certificate of
a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting
in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner
which the Trustee deems sufficient.
(c) The principal amount and serial numbers of
Registered Securities held by any Person, and the date of
holding the same, shall be proved by the Security Register.
(d) The principal amount and serial numbers of
Bearer Securities held by any Person, and the date of holding
the same, may be proved by the production of such Bearer
Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to
be satisfactory, showing that at the date therein mentioned
such Person had on deposit with such depositary or exhibited to
it, the Bearer Securities therein described; or such facts may
be proved by the certificate of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the
Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues
until (1) another certificate bearing a later date issued in
respect of the same Bearer Security is produced, (2) such
Bearer Security is produced to the Trustee by some other
Person, (3) such Bearer Security is surrendered in exchange for
a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the
same, may also be proved in any other manner which the Trustee
deems sufficient.
-14-<PAGE>
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any
Security shall bind every future Holder of the same Security
and the Holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by
the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security. Any Holder
or subsequent Holder may revoke the request, demand,
authorization, direction, notice, consent or other Act as to
his Security or portion of his Security; provided, however,
that such revocation shall be effective only if the Trustee
receives the notice of revocation before the date the Act
becomes effective.
SECTION 106. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the
Trustee at its Corporate Trust Office, Attention:
Corporate Trust Administration; or
(b) the Company by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company
addressed to it (1) in the case of Registered Securities,
at the address of its principal office specified in the
first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the
Company, Attention: Corporate Secretary; and (2) in the
case of Bearer Securities, at the address of an office or
agency located outside the United States maintained by the
Company in accordance with Section 1002.
SECTION 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders
of Securities of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) (i) to
Holders of Registered Securities if in writing and mailed,
first-class postage prepaid, to each Holder affected by such
event, at the address of such Holder as it appears in the
Security Register, not later than the latest date, and not
-15-<PAGE>
earlier than the earliest date, prescribed for the giving of
such notice and (ii) to Holders of Bearer Securities if
published in an Authorized Newspaper in The Borough of
Manhattan, The City of New York and in London or other capital
city in Western Europe and in such other city or cities as may
be specified in such Bearer Securities on a Business Day at
least twice, the first such publication to be not earlier than
the earliest date, and not later than the latest date,
prescribed for the giving of such notice.
In case by reason of the suspension of regular mail
service, or by reason of any other cause it shall be
impracticable to give such notice to Holders of Registered
Securities by mail, then such notification as shall be made
with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. In any case in which
notice to Holders of Registered Securities is given by mail,
neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered
Security, shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the
sufficiency of any notice to Holders of Bearer Securities given
as provided herein.
In case by reason of the suspension of any Authorized
Newspaper or Authorized Newspapers or by reason of any other
cause it shall be impracticable to publish any notice to
Holders of Bearer Securities as provided above, then such
notification to Holders of Bearer Securities as shall be made
with the approval of the Trustee for such Securities shall
constitute sufficient notice to such Holders for every purpose
hereunder. Neither the failure to give notice by publication
to Holders of Bearer Securities as provided above, nor any
defect in any notice so published, shall affect the sufficiency
of any notice to Holders of Registered Securities given as
provided herein.
Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 108. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or
conflicts with any provision of the Trust Indenture Act or
another provision hereof which is required to be included in
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this Indenture by any of the provisions of the Trust Indenture
Act, such provision of the Trust Indenture Act shall control.
If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act which may be so modified
or excluded, the former provision shall be deemed to apply to
this Indenture as so modified or to be excluded.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table
of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or in the
Securities (or any coupon appertaining thereto) shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities (or
any coupon appertaining thereto), express or implied, shall
give to any Person, other than the parties hereto and their
successors hereunder, any Authenticating Agent, Paying Agent
and Security Registrar, and the Holders and holders of any
Senior Indebtedness, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 113. Governing Law.
THIS INDENTURE AND THE SECURITIES (OR ANY COUPON
APPERTAINING THERETO) SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO
THE EXTENT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall not be
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a Business Day at any Place of Payment, then (notwithstanding
any other provision of this Indenture or of the Securities or
coupons appertaining thereto) payment of principal and interest
(and premium and Additional Amounts, if any) need not be made
at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, provided that no
interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as
the case may be.
SECTION 115. Corporate Obligation.
No recourse may be taken, directly or indirectly,
against any incorporator, subscriber to the capital stock,
stockholder, officer, director or employee of the Company or
the Trustee or of any predecessor or successor of the Company
or the Trustee with respect to the Company's obligations on the
Securities or any coupons appertaining thereto or the
obligations of the Company or the Trustee under this Indenture
or any certificate or other writing delivered in connection
herewith.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and
the Bearer Securities, if any, of each series and related
coupons appertaining thereto shall be in substantially such
form or forms (including temporary or permanent global form) as
shall be established by or pursuant to a Board Resolution or in
one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and
may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or
as may, consistently herewith, be determined by the officers
executing such Securities or coupons appertaining thereto, as
evidenced by their execution of the Securities or coupons
appertaining thereto. If temporary Securities of any series
are issued in global form as permitted by Section 304, the form
thereof shall be established as provided in the preceding
sentence. A copy of the Board Resolution establishing the form
or forms of Securities or coupons appertaining thereto of any
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series (or any such temporary global Security) shall be
certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for
the authentication and delivery of such Securities (or any such
temporary global Security) or coupons appertaining thereto.
Unless otherwise specified as contemplated by Section
301, Bearer Securities shall have interest coupons appertaining
thereto attached.
The definitive Securities and coupons appertaining
thereto, if any, 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 or
coupons appertaining thereto, as evidenced by their execution
thereof.
SECTION 202. Form of Trustee's Certificate of
Authentication.
The Trustee's certificate of Authentication shall be
in substantially the following form:
"This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
______________________,
as Trustee
By
Authorized Signatory"
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global
form, as contemplated by Section 301, then, notwithstanding
Subsection (j) of Section 301 and the provisions of Section
302, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of
Outstanding Securities from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities represented
thereby may from time to time be reduced to reflect exchanges.
Any endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the
Trustee in such manner and upon instructions given by such
Person or Persons as shall be specified in such Security or in
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a Company Order to be delivered to the Trustee pursuant to
Section 303 or Section 304. Subject to the provisions of
Section 303 and, if applicable, Section 304, the Trustee shall
deliver and redeliver any Security in permanent global form in
the manner and upon instructions given by the Person or Persons
specified in such Security or in the applicable Company Order.
If a Company Order pursuant to Section 303 or 304 has been, or
simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply
with Section 103 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303
shall apply to any Security in global form if such Security was
never issued and sold by the Company and the Company delivers
to the Trustee the Security in global form together with
written instructions (which need not comply with Section 103
and need not be accompanied by an Opinion of Counsel) with
regard to the reduction in the principal amount of Securities
represented thereby, together with the written statement
contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Sections 201 and
307, unless otherwise specified as contemplated by Section 301,
payment of principal of (and premium, if any) and interest on
any Security in permanent global form shall be made to the
Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and
except as provided in the preceding paragraph, the Company, the
Trustee and any agent of the Company or of the Trustee shall
treat a Person as the Holder of such principal amount of
Outstanding Securities represented by a global Security as
shall be specified in a written statement, if any, of the
Holder of such global Security or, in the case of a global
Bearer Security, of Euroclear or CEDEL S.A., which is produced
to the Security Registrar by such Holder, Euroclear or CEDEL
S.A., as the case may be.
Global Securities may be issued in either registered
or bearer form and in either temporary or permanent form.
Permanent global Securities will be issued in definitive form.
SECTION 204. Book-Entry Securities.
Notwithstanding any provision of this Indenture to
the contrary:
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(a) At the discretion of the Company, any Registered
Security may be issued from time to time, in whole or in
part, in permanent global form registered in the name of a
Depositary, or its nominee. Each such Registered Security
in permanent global form is hereafter referred to as a
"Book-Entry Security". Upon such election, the Company
shall execute, and the Trustee or an Authenticating Agent
shall authenticate and deliver, one or more Book-Entry
Securities that (1) are denominated in an amount equal to
the aggregate principal amount of the Outstanding
Securities of such series, (2) are registered in the name
of the Depositary or its nominee, (3) are delivered by the
Trustee or an Authenticating Agent to the Depositary or
pursuant to the Depositary's instructions and (4) bear a
legend in substantially the following form (or such other
form as the Depositary and the Company may agree upon):
UNLESS THIS SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF [THE DEPOSITARY],
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
[NOMINEE OF THE DEPOSITARY] OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF [THE DEPOSITARY] (AND ANY
PAYMENT IS MADE TO [NOMINEE OF THE DEPOSITARY]
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF [THE DEPOSITARY]),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, [NOMINEE OF THE DEPOSITARY], HAS AN
INTEREST HEREIN.
(b) Any Book-Entry Security shall be initially
executed and delivered as provided in Section 303.
Notwithstanding any other provision of this Indenture,
unless and until it is exchanged in whole or in part for
Registered Securities not issued in global form, a Book-
Entry Security may not be transferred except as a whole by
the Depositary to a nominee of such Depositary, by a
nominee of such Depositary to such Depositary or another
nominee of such Depositary, or by such Depositary or any
such nominee to a successor Depositary or a nominee of
such successor Depositary.
(c) If at any time the Depositary notifies the
Company or the Trustee that it is unwilling or unable to
continue as Depositary for any Book-Entry Securities, the
Company shall appoint a successor Depositary, whereupon
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the retiring Depositary shall surrender or cause the
surrender of its Book-Entry Security or Securities to the
Trustee. The Trustee shall promptly notify the Company
upon receipt of such notice. If a successor Depositary
has not been so appointed by the effective date of the
resignation of the Depositary, the Book-Entry Securities
will be issued as Registered Securities not issued in
global form, in an aggregate principal amount equal to the
principal amount of the Book-Entry Security or Securities
theretofore held by the Depositary.
The Company may at any time and in its sole
discretion determine that the Securities shall no longer
be Book-Entry Securities represented by a global
certificate or certificates, and will so notify the
Depositary. Upon receipt of such notice, the Depositary
shall promptly surrender or cause the surrender of its
Book-Entry Security or Securities to the Trustee.
Concurrently therewith, Registered Securities not issued
in global form will be issued in an aggregate principal
amount equal to the principal amount of the Book-Entry
Security or Securities theretofore held by the Depositary.
Upon any exchange of Book-Entry Securities for
Registered Securities not issued in global form as set
forth in this Section 204(c), such Book-Entry Securities
shall be cancelled by the Trustee, and Securities issued
in exchange for such Book-Entry Securities pursuant to
this Section shall be registered in such names and in such
authorized denominations as the Depositary for such Book-
Entry Securities, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the
Trustee. The Trustee or any Authenticating Agent shall
deliver such Securities to the persons in whose names such
Securities are so registered.
(d) The Company and the Trustee shall be entitled to
treat the Person in whose name any Book-Entry Security is
registered as the Holder thereof for all purposes of the
Indenture and any applicable laws, notwithstanding any
notice to the contrary received by the Trustee or the
Company; and the Trustee and the Company shall have no
responsibility for transmitting payments to, communication
with, notifying, or otherwise dealing with any beneficial
owners of any Book-Entry Security. Neither the Company
nor the Trustee shall have any responsibility or
obligations, legal or otherwise, to the beneficial owners
or to any other party including the Depositary, except for
the Holder of any Book-Entry Security, provided however,
notwithstanding anything herein to the contrary, (1) for
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the purposes of determining whether the requisite
principal amount of Outstanding Securities have given,
made or taken any request, demand, authorization,
direction, notice, consent, waiver, instruction or other
action hereunder as of any date, the Trustee shall treat
any Person specified in a written statement of the
Depositary with respect to any Book-Entry Securities as
the Holder of the principal amount of such Securities set
forth therein and (2) nothing herein shall prevent the
Company, the Trustee, or any agent of the Company or
Trustee, from giving effect to any written certification,
proxy or other authorization furnished by a Depositary
with respect to any Book-Entry Securities, or impair, as
between a Depositary and holders of beneficial interests
in such Securities, the operation of customary practices
governing the exercise of the rights of the Depositary as
Holder of such Securities.
(e) So long as any Book-Entry Security is registered
in the name of a Depositary or its nominee, all payments
of the principal of (and premium, if any) and interest on
such Book-Entry Security and redemption thereof and all
notices with respect to such Book Entry Security shall be
made and given, respectively, in the manner provided in
the arrangements of the Company with such Depositary.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is
unlimited.
The Securities may be issued in one or more series.
There shall be established in or pursuant to a Board
Resolution, and set forth in an Officers' Certificate, or
established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series,
(a) the title of the Securities of the series (which
shall distinguish the Securities of the series from all
other Securities);
(b) any limit upon the aggregate principal amount of
the Securities of the series which may be authenticated
and delivered under this Indenture (except for Securities
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authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
the series pursuant to Section 304, 305, 306, 906 or
1107);
(c) whether Securities of the series are to be
issuable as Registered Securities, Bearer Securities or
both, whether any Securities of the series are to be
issuable initially in temporary global form and whether
any Securities of the series are to be issuable in
permanent global form, as Book-Entry Securities or
otherwise, with or without coupons appertaining thereto
and, if so, whether beneficial owners of interests in any
such permanent global Security may exchange such interests
for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in
the manner provided in Section 305, and the Depositary for
any global Security or Securities;
(d) the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be
payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally
mature and the extent to which, or the manner in which,
any interest payable on a temporary global Security on any
Interest Payment Date will be paid if other than in the
manner provided in Section 304;
(e) the date or dates on which the principal of (and
premium, if any, on) the Securities of the series is
payable or the method of determination thereof;
(f) the rate or rates, or the method of
determination thereof, at which the Securities of the
series shall bear interest, if any, whether and under what
circumstances Additional Amounts with respect to such
Securities shall be payable, the date or dates from which
such interest shall accrue, the Interest Payment Dates on
which such interest shall be payable and, if other than as
set forth in Section 101, the Regular Record Date for the
interest payable on any Registered Securities on any
Interest Payment Date;
(g) the place or places where, subject to the
provisions of Section 1002, the principal of (and premium,
if any), any interest on and any Additional Amounts with
respect to the Securities of the series shall be payable;
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(h) the period or periods within which, the price or
prices (whether denominated in cash, securities or
otherwise) at which and the terms and conditions upon
which Securities of the series may be redeemed, in whole
or in part, at the option of the Company, if the Company
is to have that option, and the manner in which the
Company must exercise any such option;
(i) the obligation, if any, of the Company to redeem
or make early payment of or purchase Securities of the
series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices
(whether denominated in cash, securities or otherwise) at
which and the terms and conditions upon which, Securities
of the series shall be redeemed or purchased in whole or
in part pursuant to such obligation;
(j) the denomination in which any Registered
Securities of that series shall be issuable, if other than
denominations of $1,000 and any integral multiple thereof,
and the denomination in which any Bearer Securities of
that series shall be issuable, if other than the
denomination of $5,000;
(k) the currency or currencies (including composite
currencies) or currency unit or units in which payment of
the principal of (and premium, if any), any interest on
and any Additional Amounts with respect to the Securities
of the series shall be payable if other than the currency
of the United States of America;
(l) if the principal of (and premium, if any) or
interest on the Securities of the series are to be
payable, at the election of the Company or a Holder
thereof, in a currency or currencies (including composite
currencies) or currency unit or units other than that in
which the Securities are stated to be payable, the
currency or currencies (including composite currencies) or
currency unit or units in which payment of the principal
of (and premium, if any) and interest on, and any
Additional Amounts with respect to, Securities of such
series as to which such election is made shall be payable,
and the periods within which and the terms and conditions
upon which such election is to be made;
(m) if the amount of payments of principal of (and
premium, if any), any interest on and any Additional
Amounts with respect to the Securities of the series may
be determined with reference to any commodities,
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currencies (including composite currencies) or indices, or
values, rates or prices, the manner in which such amounts
shall be determined;
(n) if other than the principal amount thereof, the
portion of the principal amount of Securities of the
series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section
502;
(o) any additional means of satisfaction and
discharge of this Indenture with respect to Securities of
the series pursuant to Section 401, any additional
conditions to discharge pursuant to Section 401 or 403 and
the application, if any, of Section 403;
(p) any deletions or modifications of or additions
to the Events of Default set forth in Section 501 or
covenants of the Company set forth in Article Ten
pertaining to the Securities of the series; and
(q) any other terms of the series (which terms shall
not be inconsistent with the provisions of this
Indenture).
All Securities of any one series and the coupons
appertaining to any Bearer Securities of such series shall be
substantially identical except, in the case of Registered
Securities, as to denomination and except as may otherwise be
provided in or pursuant to the Board Resolution referred to
above and (subject to Section 303) set forth, or determined in
the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
At the option of the Company, interest on the
Registered Securities of any series that bears interest may be
paid by mailing a check to the address of any Holder as such
address shall appear in the Security Register.
If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action together with such Board
Resolution shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
The Securities shall be subordinated in right of
payment to Senior Indebtedness as provided in Article Thirteen.
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SECTION 302. Denominations.
The Securities of each series shall be issuable in
such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with
respect to the Securities of any series, the Registered
Securities of such series denominated in Dollars shall be
issuable in denominations of $1,000 and any integral multiple
thereof and any Bearer Securities of such series denominated in
Dollars shall be issuable in the denominations of $5,000 and
any integral multiple thereof. Unless otherwise provided as
contemplated by Section 301 with respect to any series of
Securities, any Securities of a series denominated in a
currency or currencies (including composite currencies) other
than Dollars shall be issuable in denominations that are the
equivalent, as determined by the Company by reference to the
noon buying rate in The City of New York for cable transfers
for such currency, as such rate is reported or otherwise made
available by the Federal Reserve Bank of New York, on the
applicable issue date for such Securities, of $1,000 and any
integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the
Company by its Chairman of the Board, its President, its
Treasurer or one of its Vice Presidents, under its corporate
seal reproduced thereon or affixed thereto attested by its
Secretary or one of its Assistant Secretaries. The signature
of any of these officers on the Securities may be manual or
facsimile. Coupons shall bear the facsimile signature of the
Chairman of the Board, President, Treasurer or any Vice
President of the Company.
Securities and coupons appertaining thereto bearing
the manual or facsimile signatures of individuals who were at
any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at
the date of such Securities or coupons.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver
Securities of any series, together with any coupons
appertaining thereto, executed by the Company to the Trustee
for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee
in accordance with the Company Order shall authenticate and
deliver such Securities as in this Indenture provided and not
-27-<PAGE>
otherwise; provided, however, that, in connection with its
sale, during the "restricted period" (as defined in Section
1.163-5(c)(2)(i)(D)(7) of the United States Treasury
Regulations), no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and provided,
further, that a Bearer Security may (other than a temporary
global security in bearer form delivered as provided in Section
304) be delivered outside the United States in connection with
its original issuance and only if the Person entitled to
receive such Bearer Security shall have furnished a certificate
in the form set forth in Exhibit A to this Indenture, or in
such other form of certificate as shall contain information
then required by federal income tax laws and, if applicable,
federal securities laws, dated no earlier than the
Certification Date. If any Security shall be represented by a
permanent global Bearer Security, then, for purposes of this
Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or
upon exchange of a portion of a temporary global Security shall
be deemed to be delivery in connection with sale, during the
"restricted period" (as defined in Section
1.163-5(c)(2)(i)(D)(7) of the United States Treasury
Regulations) of such beneficial owner's interest in such
permanent global Security. Except as permitted by Section 306,
the Trustee shall not authenticate and deliver any Bearer
Security unless all appurtenant coupons for interest then
matured have been detached and cancelled.
If the form or terms of the Securities of the series
have been established in or pursuant to one or more Board
Resolutions as permitted by Sections 201 and 301, in
authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been
established by or pursuant to Board Resolution as
permitted by Section 201, that such form has been
established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been
established by or pursuant to Board Resolution as
permitted by Section 301, that such terms have been
established in conformity with the provisions of this
Indenture; and
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(c) that such Securities, together with any coupons
appertaining thereto, when authenticated and delivered by
the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of
Counsel, will constitute legal, valid and binding
obligations of the Company, enforceable in accordance with
their terms, except as such enforcement is subject to the
effect of (1) bankruptcy, insolvency, reorganization or
other laws relating to or affecting creditors' rights and
(2) general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity
or at law).
If such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the
issue of such Securities pursuant to this Indenture will affect
the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of
its authentication; and each Bearer Security shall be dated as
of the date of issuance of the first Bearer Security of such
series to be issued.
No Security or coupon or coupons appertaining thereto
shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on
such Security, or the Security to which such coupon appertains,
a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 309
together with a written statement (which need not comply with
Section 103 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits
of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of
any series, the Company may execute, and upon Company Order the
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Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu
of which they are issued, in registered form or, if authorized,
in bearer form with one or more coupons appertaining thereto or
without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their
execution of such Securities. In the case of any series
issuable as Bearer Securities, such temporary Securities may be
in global form. A temporary Bearer Security shall be delivered
only in compliance with the conditions set forth in Section
303.
Except in the case of temporary Securities in global
form (which shall be exchanged in accordance with the
provisions of the following paragraphs), if temporary
Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such
series shall be exchangeable for definitive Securities of such
series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of
Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same
series of authorized denominations. Until so exchanged the
temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as
definitive Securities of such series; provided, however that no
Bearer Security shall be issued in exchange for a temporary
Registered Security; and provided, further, that a definitive
Bearer Security (including interests in a permanent Global
Security) shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in
Section 303.
Any temporary global Bearer Security and any
permanent global Bearer Security shall, unless otherwise
provided therein, be delivered to the London office of a
depositary or common depositary (the "Common Depositary") for
the benefit of Euroclear and CEDEL S.A. for credit to the
respective accounts of the beneficial owners of such Securities
(or to such other accounts as they may direct).
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Without unnecessary delay but in any event not later
than the date specified in, or determined pursuant to the terms
of, any such temporary global Bearer Security of a series (the
"Exchange Date"), the Company shall deliver to the Trustee
definitive Securities of that series in aggregate principal
amount equal to the principal amount of such temporary global
Bearer Security, executed by the Company. On or after the
Exchange Date such temporary global Bearer Security shall be
surrendered by the Common Depositary to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or
from time to time in part, for definitive Securities of that
series without charge and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global
Bearer Security, a like aggregate principal amount of
definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such
temporary global Bearer Security to be exchanged; provided
however, that unless otherwise specified in such temporary
global Bearer Security, no such definitive Securities shall be
delivered unless, upon such presentation by the Common
Depositary, such temporary global Bearer Security is
accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by Euroclear as to the portion of
such temporary global Bearer Security held for its account then
to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL S.A. as to the portion of
such temporary global Bearer Security held for its account then
to be exchanged, each in the form set forth in Exhibit B to
this Indenture. The definitive Securities to be delivered in
exchange for any such temporary global Bearer Security shall be
in bearer form, registered form, permanent global bearer form
or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and if
any combination thereof is so specified, as requested by the
beneficial owner thereof.
Unless otherwise specified in the temporary global
Bearer Security, the interest of a beneficial owner of
Securities of a series in a temporary global Bearer Security
shall be exchanged on or after the Exchange Date for definitive
Securities (and where the form of the definitive Securities is
not specified by the Holder for an interest in a permanent
global Security) of the same series and of like tenor upon
delivery by such beneficial owner to Euroclear or CEDEL S.A.,
as the case may be, of a certificate in the form set forth in
Exhibit A to this Indenture dated no earlier than the
Certification Date, copies of which certificate shall be
available from the offices of Euroclear and CEDEL S.A., the
Trustee, any Authenticating Agent appointed for such series of
Securities and each Paying Agent. Unless otherwise specified
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in such temporary global Bearer Security, any exchange shall be
made free of charge to the beneficial owners of such temporary
global Bearer Security, except that a Person receiving
definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does
not take delivery of such definitive Securities in person at
the offices of Euroclear or CEDEL S.A. Definitive Securities
in bearer form to be delivered in exchange for any portion of a
temporary global Bearer Security shall be delivered only
outside the United States.
All Outstanding temporary Securities of any series
shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of the same series and
of like tenor authenticated and delivered hereunder, except
that, unless otherwise specified as contemplated by Section
301, interest payable on a temporary global Bearer Security on
an Interest Payment Date for Securities of such series shall be
payable to Euroclear and CEDEL S.A. on such Interest Payment
Date upon delivery by Euroclear and CEDEL S.A. to the Trustee
of a certificate or certificates in the form set forth in
Exhibit B to this Indenture, for credit without further
interest on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial
owners of such temporary global Bearer Security on such
Interest Payment Date and who have each delivered to Euroclear
or CEDEL S.A., as the case may be, a certificate in the form
set forth in Exhibit A to this Indenture. Any interest so
received by Euroclear or CEDEL S.A. and not paid as herein
provided shall be returned to the Trustee immediately prior to
the expiration of two years after such Interest Payment Date in
order to be repaid to the Company in accordance with Section
1003.
SECTION 305. Registration, Registration
of Transfer and Exchange.
The Company shall cause to be kept for each series of
Securities at one of the offices or agencies maintained
pursuant to Section 1002 a register (the register maintained in
such office and in any other office or agency of the Company in
a Place of Payment being herein sometimes collectively referred
to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and of
transfers of Registered Securities of such series. The Trustee
is hereby initially appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities
as herein provided.
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Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency in a
Place of Payment for that series, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new
Registered Securities of the same series and of like tenor, of
any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Registered Securities of
any series may be exchanged for other Registered Securities of
the same series and of like tenor, of any authorized
denominations and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive. A Holder of
Registered Securities cannot have Bearer Securities issued in
exchange for such Registered Securities.
At the option of the Holder of Bearer Securities of
any series, such Bearer Securities may be exchanged for
Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and
tenor, upon surrender of the Bearer Securities to be exchanged
at any such office or agency, with all unmatured coupons and
all matured coupons in default thereto appertaining. If the
Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in
default, such exchange may be effected if the Bearer Securities
are accompanied by payment in funds acceptable to the Company
in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may
be waived by the Company and the Trustee if there is furnished
to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive from
the Company the amount of such payment; provided, however,
that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in
case a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the
same series and like tenor after the close of business at such
office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant
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Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date or proposed date for
payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in
exchange for such Bearer Security but will be payable only to
the Holder of such coupon when due in accordance with the
provisions of this Indenture.
Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise
specified as contemplated by Section 301, any permanent global
Security shall be exchangeable only as provided in this
paragraph. If the beneficial owners of interests in a
permanent global Security are entitled to exchange such
interest for Securities of such series and of like tenor and
principal amount of another authorized form and denomination,
as specified as contemplated by Section 301, then without
unnecessary delay but in any event not later than the earliest
date on which such interests may be so exchanged, the Company
shall deliver to the Trustee definitive Securities of that
series in an aggregate principal amount equal to the principal
amount of such permanent global Security, executed by the
Company. On or after the earliest date on which such interests
may be so exchanged, such permanent global Security shall be
surrendered from time to time in accordance with instructions
given to the Trustee and the Common Depositary (which
instructions shall be in writing but need not comply with
Section 103 or be accompanied by an Opinion of Counsel) by the
Common Depositary or such other depositary or Common Depositary
as shall be specified in the Company Order with respect thereto
to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities of
the same series without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such
permanent global Security, a like aggregate principal amount of
other definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such
permanent global Security to be exchanged which, unless the
Securities of the series are not issuable both as Bearer
Securities and as Registered Securities, as specified as
contemplated by Section 301, shall be in the form of Bearer
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Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof;
provided, however, that no such exchanges may occur during a
period beginning at the opening of business 15 days before any
selection of Securities of that series is to be redeemed and
ending on the relevant Redemption Date; and provided, further,
that no Bearer Security delivered in exchange for a portion of
a permanent global Security shall be mailed or otherwise
delivered to any location in the United States. Promptly
following any such exchange in part, such permanent global
Security shall be returned by the Trustee to the Common
Depositary or such other depositary or Common Depositary
referred to above in accordance with the instructions of the
Company referred to above. If a Registered Security is issued
in exchange for any portion of a permanent global Security
after the close of business at the office or agency where such
exchange occurs on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest,
interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or
proposed for payment, as the case may be, only to the Person to
whom interest in respect of such portion of such permanent
global Security is payable in accordance with the provisions of
this Indenture.
All Securities issued upon any registration of
transfer or exchange of Securities shall be the valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered
for registration of transfer or for exchange shall (if so
required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration
of transfer or exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
-35-<PAGE>
exchange pursuant to Section 304, 906 or 1107 not involving any
transfer.
The Company shall not be required (i) to issue,
register the transfer of or exchange Securities of any series
during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of
Securities of such series selected for redemption and ending at
the close of business on (A) if Securities of the series are
issuable only as Registered Securities, the day of the mailing
of the relevant notice of redemption and (B) if Securities of
the series are issuable as Bearer Securities, the day of the
first publication of the relevant notice of redemption, except
that if Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing
of the relevant notice of redemption or (ii) to register the
transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part or (iii) to exchange any
Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of
that series and like tenor, provided that such Registered
Security shall be simultaneously surrendered for redemption.
SECTION 306. Mutilated, Destroyed, Lost
and Stolen Securities.
If any mutilated Security or a Security with a
mutilated coupon appertaining to it is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of
the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to
the surrendered Security.
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction,
loss or theft of any Security or coupon appertaining thereto
and (ii) such security or indemnity as may be required by them
to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee
that such Security or coupon has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the
Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not destroyed, lost or stolen), a
new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding,
-36-<PAGE>
with coupons corresponding to the coupons, if any, appertaining
to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen
Security or coupon has become or is about to become due and
payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security; provided, however, that the
principal of and any premium and interest on Bearer Securities
shall, except as otherwise provided in Section 1002, be payable
only at an office or agency located outside the United States.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses
(including the fee and expenses of the Trustee) connected
therewith.
Every new Security of any series with its coupons, if
any, issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security or in exchange for a Security to which
a destroyed, lost or stolen coupon appertains shall constitute
an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupons shall
be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable,
and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such
interest. Interest on any Bearer Security which is payable,
and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the bearer of the applicable
coupon appertaining to such Bearer Security. Unless otherwise
provided with respect to the Securities of any series, payment
of interest may be made at the option of the Company (i) in the
case of Registered Securities, by check mailed or delivered to
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the address of any Person entitled thereto as such address
shall appear in the Security Register, or (ii) in the case of
Bearer Securities, except as otherwise provided in Section
1002, upon presentation and surrender of the appropriate coupon
appertaining thereto at an office or agency of the Company in a
Place of Payment located outside the United States or by check
or by transfer to an account maintained by the payee with a
bank located outside the United States.
Any interest on any Registered Security of any series
which is payable, but is not punctually paid or duly provided
for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on
the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in Subsection (a) or
(b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on
each Registered Security of such series and the date of
the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Subsection provided.
Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and
at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Registered Securities
of such series at his address as it appears in the
Security Register, not less than 10 days prior to such
Special Record Date. The Trustee may, in its discretion,
in the name and at the expense of the Company, cause a
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similar notice to be published at least once in an
Authorized Newspaper, but such publication shall not be a
condition precedent to the establishment of such Special
Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable
pursuant to the following Subsection (b).
(b) The Company may make payment of any Defaulted
Interest on the Registered Securities of any series in any
other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this
Subsection, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section,
each Security delivered under this Indenture, upon registration
of transfer of, in exchange for or in lieu of, any other
Security, shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in
whose name such Registered Security is registered as the owner
of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to
Sections 305 and 307) interest on such Registered Security and
for all other purposes whatsoever, whether or not such Security
be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to
the contrary.
Title to any Bearer Security and any coupons
appertaining thereto shall pass by delivery. The Company, the
Trustee and any agent of the Company or the Trustee may treat
the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and
for all other purposes whatsoever, whether or not such Security
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or coupon be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment,
redemption, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee.
All Registered Securities and matured coupons so delivered
shall be promptly cancelled by the Trustee. All Bearer
Securities and unmatured coupons so delivered shall be held by
the Trustee and, upon instruction by a Company Order, shall be
cancelled or held for reissuance. Bearer Securities and
unmatured coupons held for reissuance may be reissued only in
replacement of mutilated, lost, stolen or destroyed Bearer
Securities of the same series and like tenor or the related
coupons pursuant to Section 306. All Bearer Securities and
unmatured coupons held by the Trustee pending such cancellation
or reissuance shall be deemed to be delivered to the Trustee
for all purposes of this Indenture and the Securities. The
Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever,
and all Securities so delivered shall be promptly cancelled by
the Trustee. No Securities shall be authenticated in lieu of
or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of
as directed by a Company Order; provided that the Trustee shall
not be required to destroy such Securities.
In the case of any temporary global Bearer Security,
which shall be disposed of if the entire aggregate principal
amount of the Securities represented thereby has been
exchanged, the certificate of disposition shall state that all
certificates required pursuant to Section 304 hereof,
substantially in the form of Exhibit B hereto, to be given by
Euroclear or CEDEL S.A., have been duly presented to the
Trustee for such Securities by Euroclear or CEDEL S.A., as the
case may be. Permanent global Securities shall not be disposed
of until exchanged in full for definitive Securities or until
payment thereon is made in full.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, interest on the
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Securities of each series shall be computed on the basis of a
year of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company 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 Holders; 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 FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be
of further effect with respect to Securities of a series, and
the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of
this Indenture with respect to Securities of such series, when
(a) either
(1) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons
appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after
such exchange, whose surrender is not required or has
been waived as provided in Section 305, (ii)
Securities and coupons which have been destroyed,
lost or stolen and which have been replaced or paid
as provided in Section 306, (iii) coupons
appertaining to Bearer Securities called for
redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in
Section 1106, and (iv) Securities and coupons for
whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
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(2) with respect to all Outstanding Securities
of such series and any coupons appertaining thereto
not theretofore delivered to the Trustee for
cancellation, the Company has deposited or caused to
be deposited with the Trustee as trust funds, under
the terms of an irrevocable trust agreement in form
and substance satisfactory to the Trustee, for the
purpose money or U.S. Government Obligations maturing
as to principal and interest in such amounts and at
such times as will, together with the income to
accrue thereon, without consideration of any
reinvestment thereof, be sufficient to pay and
discharge the entire indebtedness on all Outstanding
Securities of such series and coupons appertaining
thereto not theretofore delivered to the Trustee for
cancellation for principal (and premium and
Additional Amounts, if any) and interest to the
Stated Maturity or any Redemption Date contemplated
by the penultimate paragraph of this Section, as the
case may be; or
(3) the Company has properly fulfilled such
other means of satisfaction and discharge as is
specified, as contemplated by Section 301, to be
applicable to the Securities of such series;
(b) the Company has paid or caused to be paid all
other sums payable hereunder by the Company with respect
to the Outstanding Securities of such series;
(c) the Company has complied with any other
conditions specified pursuant to Section 301 to be
applicable to the discharge of Securities of such series
pursuant to this Section 401;
(d) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this
Indenture with respect to the Outstanding Securities of
such series have been complied with;
(e) if the conditions set forth in Section 401(a)(1)
have not been satisfied, and unless otherwise specified
pursuant to Section 301 for the Securities of such series,
the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of Securities of
such series will not recognize income, gain or loss for
United States federal income tax purposes as a result of
such deposit, satisfaction and discharge and will be
-42-<PAGE>
subject to United States federal income tax on the same
amount and in the same manner and at the same time as
would have been the case if such deposit, satisfaction and
discharge had not occurred; and
(f) no Default or Event of Default with respect to
the Securities of such issue shall have occurred and be
continuing on the date of such deposit or, in so far as
Subsection (e) or (f) of Section 501 is concerned, at any
time in the period ending on the 91st day after the date
of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such
period).
For the purposes of this Indenture, "U.S. Government
Obligations" means direct non-callable obligations of, or
noncallable obligations the payment of principal of and
interest on which is guaranteed by, the United States of
America, or to the payment of which obligations or guarantees
the full faith and credit of the United States of America is
pledged, or beneficial interests in a trust the corpus of which
consists exclusively of money or such obligations or a
combination thereof.
If any Outstanding Securities of such series are to
be redeemed prior to their Stated Maturity, whether pursuant to
any optional redemption provisions or in accordance with any
mandatory sinking fund requirement, the trust agreement
referred to in Clause (2) of Subsection (a) of this Section
shall provide therefor and the Company shall make such
arrangements as are satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company.
Notwithstanding the satisfaction and discharge of
this Indenture with respect to the Outstanding Securities of
such series pursuant to this Section 401, the obligations of
the Company to the Trustee under Section 607, the obligations
of the Trustee to any Authenticating Agent under Section 614
and, except for a discharge pursuant to Clause (1) of
Subsection (a) of this Section, the obligations of the Company
under Sections 305, 306, 404, 610(e), 701, 1001 and 1002 and
the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of
Section 1003, all money deposited with the Trustee pursuant to
Section 401 shall be held in trust and applied by it, in
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accordance with the provisions of the Securities, the coupons
and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and
interest and Additional Amounts for the payment of which such
money has been deposited with the Trustee.
SECTION 403. Discharge of Liability on
Securities of Any Series.
If this Section is specified, as contemplated by
Section 301, to be applicable to Securities of any series, the
Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Securities of such series,
the obligation of the Company under this Indenture and the
Securities of such series to pay the principal of (and premium,
if any) and interest on Securities of such series, and any
coupon appertaining thereto, shall cease, terminate and be
completely discharged and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging such
satisfaction and discharge, when
(a) the Company has complied with the provisions of
Section 401 of this Indenture (other than any additional
conditions specified pursuant to Sections 301 and 401(c)
and except that the opinion referred to in Section 401(e)
shall state that it is based on a ruling by the Internal
Revenue Service or other change since the date hereof
under applicable Federal income tax law) with respect to
all Outstanding Securities of such series;
(b) the Company has delivered to the Trustee a
Company Request requesting such satisfaction and
discharge;
(c) the Company has complied with any other
conditions specified pursuant to Section 301 to be
applicable to the discharge of Securities of such series
pursuant to this Section 403; and
(d) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the discharge of the indebtedness on the
Outstanding Securities of such series have been complied
with.
Upon the satisfaction of the conditions set forth in
this Section with respect to all the Outstanding Securities of
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any series, the terms and conditions of such series, including
the terms and conditions with respect thereto set forth in this
Indenture, shall no longer be binding upon, or applicable to,
the Company; provided that, the Company shall not be discharged
from any payment obligations in respect of Securities of such
series which are deemed not to be Outstanding under clause
(iii) of the definition thereof if such obligations continue to
be valid obligations of the Company under applicable law or
pursuant to Section 305 or 306.
SECTION 404. Reinstatement.
If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations deposited with respect to
Securities of any series in accordance with Section 401 by
reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture with respect to the
Securities of such series and the Securities of such series
shall be revived and reinstated as though no deposit had
occurred pursuant to Section 401 until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with Section 401;
provided, however, that if the Company has made any payment of
principal of (or premium, if any), or interest on and any
Additional Amounts with respect to any Securities because of
the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to
receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect
to Securities of any series, means any one of the following
events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either
inapplicable to a particular series or it is specifically
deleted or modified in or pursuant to the supplemental
indenture or Board Resolution establishing such series of
Securities or in the form of Security for such series:
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(a) default in the payment of any interest or any
Additional Amounts upon any Security of that series when
such interest or Additional Amounts 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 Thirteen); or
(b) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its
Maturity (whether or not such payment shall be prohibited
by the provisions of Article Thirteen); or
(c) default in the deposit of any sinking fund
payment, when and as due by the terms of a Security of
that series (whether or not such payment shall be
prohibited by the provisions of Article Thirteen); or
(d) default in the performance or breach of any
covenant or warranty of the Company in this Indenture
(other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one
or more series of Securities other than that series), and
continuance of such default or breach for a period of 60
days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in
principal amount of all Outstanding Securities 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) the entry by a court having jurisdiction in the
premises of (1) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (2) a decree or
order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of
or in respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part
of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive
days; or
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(f) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar
law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy
or insolvency case or proceeding against it, or the filing
by it, of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by
a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such
action; or
(g) any other Event of Default provided with respect
to Securities of that series (including, without
limitation, any Event of Default arising out of a default
which results in the acceleration of certain indebtedness
or a default in the payment of any amounts due on certain
indebtedness).
Notwithstanding the foregoing provisions of this
Section 501, if the principal of (and premium, if any) or any
interest on, or Additional Amounts with respect to, any
Security is payable in a currency or currencies (including com-
posite currencies) other than Dollars and such currency (or
currencies) is (or are) not available to the Company for making
payment thereof due to the imposition of exchange controls or
other circumstances beyond the control of the Company (a
"Conversion Event"), the Company will be entitled to satisfy
its obligations to Holders of the Securities by making such
payment in Dollars in an amount equal to the Dollar equivalent
of the amount payable in such other currency (or currencies),
as determined by the Company by reference to the noon buying
rate in The City of New York for cable transfers for such
currency ("Exchange Rate"), as such Exchange Rate is certified
for customs purposes by the Federal Reserve Bank of New York on
the date of such payment, or, if such rate is not then
available, on the basis of the most recently available Exchange
Rate. Notwithstanding the foregoing provisions of this Section
501, any payment made under such circumstances in Dollars where
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the required payment is in a currency (or currencies) other
than Dollars will not constitute an Event of Default under this
Indenture.
Promptly after the occurrence of a Conversion Event,
the Company shall give written notice thereof to the Trustee;
and the Trustee, promptly after receipt of such notice, shall
give notice thereof in the manner provided in Section 106 to
the Holders. Promptly after the making of any payment in
Dollars as a result of a Conversion Event, the Company shall
give notice in the manner provided in Section 106 to the
Holders, setting forth the applicable Exchange Rate and
describing the calculation of such payments.
SECTION 502. Acceleration of Maturity;
Rescission and Annulment.
If an Event of Default with respect to any Securities
of any series at the time Outstanding occurs and is continuing,
then in every such case the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Securities of
(i) the series affected by such default (in the case of an
Event of Default described in Subsection (a), (b), (c) or (g)
of Section 501) or (ii) all series of Securities (subject to
the immediately following sentence, in the case of other Events
of Default) may declare the principal amount (or, if any such
Securities are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of
that series) of all of the Securities of the series affected by
such default or all series, as the case may be, to be due and
payable immediately, by a notice in writing to the Company (and
to the Trustee if given by Holders), and upon any such
declaration such principal amount (or specified amount) shall
become immediately due and payable. If an Event of Default
described in Subsection (e) or (f) of Section 501 shall occur,
the principal amount of the Outstanding Securities of all
series ipso facto shall become and be immediately due and
payable without any declaration or other act on the part of the
Trustee or any Holder.
At any time after such a declaration of acceleration
with respect to Securities of any series (or of all series, as
the case may be) has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee
as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities of
that series (or of all series, as the case may be), by written
notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if
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(a) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(1) all overdue interest on, and any Additional
Amounts with respect to, all Securities of that
series (or of all series, as the case may be) and any
coupons appertaining thereto;
(2) the principal of (and premium, if any, on)
any Securities of that series (or of all series, as
the case may be) which have become due otherwise than
by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in
such Securities (in the case of Original Issue
Discount Securities, the Securities' Yield to
Maturity);
(3) to the extent that payment of such interest
is lawful, interest upon overdue interest and any
Additional Amounts at the rate or rates prescribed
therefor in such Securities (in the case of Original
Issue Discount Securities, the Securities' Yield to
Maturity); and
(4) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel;
and
(b) all Events of Default with respect to Securities
of that series (or of all series, as the case may be),
other than the non-payment of the principal of Securities
of that series (or of all series, as the case may be)
which have become due solely by such declaration of
acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of any
installment of interest on, or any Additional Amounts with
respect to, any Security of any series and any coupons
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appertaining thereto when such interest or Additional
Amounts shall have become due and payable and such default
continues for a period of 30 days; or
(b) default is made in the payment of the principal
of (or premium, if any, on) any Security at the Maturity
thereof;
the Company will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities and coupons, the
whole amount then due and payable on such Securities and
coupons for principal (and premium, if any) and interest and
Additional Amounts and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest and
Additional Amounts, at the rate or rates prescribed therefor in
such Securities (or in the case of Original Issue Discount
Securities, the Securities' Yield to Maturity), and, in
addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee
of an express trust, may institute a judicial proceeding for
the collection of the sums so due and unpaid, may prosecute
such proceeding to judgment or final decree and may enforce the
same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of
the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of
any series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other
proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
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proceeding relative to the Company or any other obligor upon
the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of
whether the principal (or lesser amount in the case of Original
Issue Discount Securities) of the 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 on the Company for the payment of overdue principal
(premium, if any), interest or Additional Amounts) shall be
entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount
of principal (or lesser amount in the case of Original
Issue Discount Securities) (and premium, if any) and
interest and any Additional Amounts owing and unpaid in
respect of the Securities or any coupons appertaining
thereto and to file such other papers or documents as may
be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the
rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such
proceedings; provided, however, that the Trustee may, on behalf
of the Holders, vote for the election of a trustee in
bankruptcy or similar official.
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SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons.
All rights of action and claim under this Indenture
or the Securities or coupons may be prosecuted and enforced by
the Trustee without possession of any of the Securities or
coupons or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for
the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has
been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this
Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of
such money on account of principal (or premium, if any),
interest or any Additional Amounts, upon presentation of the
Securities or coupons, or both as the case may be, and the
notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 607;
SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest
and any Additional Amounts on the Securities and coupons
in respect of which or for the benefit of which such money
has been collected, ratably, without preference or
priority of any kind, according to the amounts due and
payable on such Securities and coupons for principal (and
premium, if any), interest and Additional Amounts,
respectively; and
THIRD: The balance, if any, to the Person or Persons
entitled thereto.
To the fullest extent allowed under applicable law,
if for the purpose of obtaining judgment against the Company in
any court it is necessary to convert the sum due in respect of
the principal of (or premium, if any) or interest on the
Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment
Currency"), the rate of exchange used shall be the rate at
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which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency
with the Judgment Currency on the New York Business Day next
preceding that on which final judgment is given. Neither the
Company nor the Trustee shall be liable for any shortfall nor
shall it benefit from any windfall in payments to Holders of
Securities under this Section caused by a change in exchange
rates between the time the amount of a judgment against it is
calculated as above and the time the Trustee converts the
Judgment Currency into the Required Currency to make payments
under this Section to Holders of Securities, but payment of
such judgment shall discharge all amounts owed by the Company
on the claim or claims underlying such judgment.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any
related coupons shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(a) an Event of Default with respect to Securities
of such series shall have occurred and be continuing and
such Holder has previously given written notice to the
Trustee of such continuing Event of Default;
(b) the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses
and liabilities to be incurred in compliance with such
request;
(d) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to
institute any such proceeding; and
(e) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of
the Outstanding Securities of that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue
of, or by availing of, any provision of this Indenture to
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affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this
Indenture, the Holder of any Security or coupon shall have the
right, which is absolute and unconditional, to receive payment
of the principal of (and premium, if any) and (subject to
Section 307) interest on and any Additional Amounts with
respect to such Security or payment of such coupon on the
Stated Maturity or Maturities expressed in such Security or
coupon (or, in the case of redemption, on the Redemption Date)
and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of
such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and
the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as
though no such proceeding has been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities or coupons in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
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SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder
of any Securities or coupons to exercise any right or remedy
accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default
or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
With respect to Securities of any series, the Holders
of a majority in principal amount of the Outstanding Securities
of such series shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on
the Trustee, relating to or arising under an Event of Default
described in Subsection (a), (b), (c) or (g) of Section 501,
and with respect to all Securities the Holders of a majority in
principal amount of all Outstanding Securities shall have the
right to direct the time, method and place of conducting any
remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, not relating to or arising
under such an Event of Default, provided that in each such case
(a) such direction shall not be in conflict with any
rule of law or with this Indenture; and
(b) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 513. Waiver of Past Defaults.
The Holders of a majority in principal amount of the
Outstanding Securities of any series may on behalf of the
Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its
consequences, and the Holders of a majority in principal amount
of all Outstanding Securities may on behalf of the Holders of
all Securities waive any other past default hereunder and its
consequences, except in each case a default
(a) in the payment of the principal of (or premium,
if any) or interest on, or any Additional Amounts with
respect to, any Security; or
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(b) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended
without the consent of the Holder of each Outstanding
Security affected.
Upon any such waiver, such default shall cease to
exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder
of any Security or coupon by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of
this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Outstanding
Securities of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest on, or any Additional Amounts
with respect to, any Security or the payment of any coupon on
or after the Stated Maturity or Maturities expressed in such
Security or coupon (or, in the case of redemption, on or after
the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit
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the execution of every such power as though no such law had
been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default with respect to the Securities of any series,
(1) the Trustee undertakes to perform such
duties and only such duties as are specifically set
forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against
the Trustee; and
(2) in the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of
any such certificates or opinions which by any
provision 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.
(b) In case an Event of Default has occurred and is
continuing with respect to the Securities of any series, the
Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be
construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act or its own
willful misconduct, except that
(1) this Clause shall not be construed to limit
the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
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Officer, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with
respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of
the Holders of a majority in principal amount of the
Outstanding Securities of any series or of all
series, determined as provided in Section 512,
relating to the time, method and place of conducting
any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect
to the Securities of such series; and
(4) no provision of this Indenture shall
require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(d) 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 provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default
hereunder with respect to the Securities of any series, the
Trustee shall give notice of such default hereunder known to
the Trustee to all Holders of Securities of such series in the
manner provided in Section 106, unless such default shall have
been cured or waived; provided, however, that, except in the
case of a default in the payment of the principal of (or
premium, if any) or interest on, or any Additional Amounts with
respect to, any Security of such series or in the payment of
any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive
committee or a trust committee of directors or Responsible
Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of
Securities of such series; and provided, further, that in the
case of any default of the character specified in Section
501(d) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after
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the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with
respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) 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, coupon, 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;
(b) any request or direction of the Company
mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order and any resolution of the
Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be
proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
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report, notice, request, direction, consent, order, bond,
debenture, note, coupon, other evidence of indebtedness or
other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by
agent or attorney; and
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder.
SECTION 604. Not Responsible for Recitals
or Issuance of Securities.
The recitals contained herein and in the Securities,
except the Trustee's certificates of authentication, shall be
taken as the statements of the Company, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become
the owner or pledgee of Securities and coupons and, subject to
Sections 608 and 613, may otherwise deal with the Company with
the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not
be segregated from other funds except to the extent required by
law. The Trustee shall be under no liability for interest on
any money received by it hereunder except as otherwise agreed
with the Company.
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SECTION 607. Compensation and Reimbursement.
The Company agrees
(a) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein,
to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred
or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and
the reasonable expenses and disbursements of its agents
and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad
faith; and
(c) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or
liability in connection with the exercise or performance
of any of its powers or duties hereunder.
As security for the performance of the obligations of
the Company under this Section, the Trustee shall have a lien
prior to the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust
for the payment of principal of, premium, if any, or interest,
if any, on, or any Additional Amounts with respect to,
particular Securities.
Any expenses and compensation for any services
rendered by the Trustee after the occurrence of an Event of
Default specified in Subsection (e) or (f) of Section 501 shall
constitute expenses and compensation for services of
administration under all applicable federal or state
bankruptcy, insolvency, reorganization or other similar laws.
The provisions of this Section shall survive the
termination of this Indenture.
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SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any
conflicting interest, as defined in this Section, with respect
to the Securities of any series, it shall, within 90 days after
ascertaining that it has such conflicting interest, either
eliminate such conflicting interest or resign with respect to
the Securities of that series in the manner and with the effect
hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to
comply with the provisions of Subsection (a) of this Section
with respect to the Securities of any series, the Trustee
shall, within 10 days after the expiration of such 90-day
period, transmit by mail to all Holders of Securities of that
series, as their names and addresses appear in the Security
Register, notice of such failure.
(c) For the purposes of this Section, the term
"conflicting interest" shall have the meaning specified in
Section 310(b) of the Trust Indenture Act and the Trustee shall
comply with Section 310(b) of the Trust Indenture Act;
provided, that there shall be excluded from the operation of
Section 310(b)(1) of the Trust Indenture Act with respect to
the Securities of any series the Indenture dated as of
between the Company and the Trustee relating to the
Company's senior debt securities, this Indenture with respect
to the Securities of any series other than that series and any
other indenture or indentures under which other securities, or
certificates of interest or participation in other securities,
of the Company are outstanding, if the requirements for such
exclusion set forth in Section 310(b)(1) of the Trust Indenture
Act are met. For purposes of the preceding sentence, the op-
tional provision permitted by the second sentence of Section
310(b)(9) of the Trust Indenture Act shall be applicable.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be a corporation organized and doing business under the
laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or
examination by Federal or State authority. If such corporation
publishes reports of condition at least annually, pursuant to
law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most
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recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the
manner and with the effect hereinafter specified in this
Article.
SECTION 610. Resignation and Removal;
Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable
requirements of Section 611.
(b) The Trustee may resign at any time with respect
to the Securities of one or more series by giving written
notice thereof to the Company. If the instrument of acceptance
by a successor Trustee required by Section 611 shall not have
been delivered to the resigning Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders
of a majority in principal amount of the Outstanding Securities
of such series, delivered to the Trustee and to the Company.
(d) If at any time
(1) the Trustee shall fail to comply with
Section 608(a) after written request therefor by the
Company or by any Holder who has been a bona fide
Holder of a Security for at least six months; or
(2) the Trustee shall cease to be eligible
under Section 609 and shall fail to resign after
written request therefor by the Company or by any
such Holder of Securities; or
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge
or control of the Trustee or of its property or
affairs for the purpose of rehabilitation,
conservation or liquidation;
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then, in any such case, (i) the Company by a Board Resolution
may remove the Trustee with respect to all Securities, or (ii)
subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause, with respect to the Securities
of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and
such successor Trustee or Trustees shall comply with the
applicable requirements of Section 611. If, within one year
after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to
the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the
retiring Trustee, then the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611,
become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by
the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona
fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the
Securities of such series.
(f) The Company shall give notice of each
resignation and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor
Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their
names and addresses appear in the Security Register. Each
notice shall include the name of the successor Trustee with
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respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to all Securities, every such
successor Trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one or more
(but not all) series, the Company, the retiring Trustee and
each successor Trustee with respect to the Securities of one or
more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee and (3) shall add to or
change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of such supplemental indenture,
the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such
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successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this
Article.
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without
the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 613. Preferential Collection of
Claims Against Company.
The Trustee shall comply with Section 311(a) of the
Trust Indenture Act, excluding any creditor relationship
described in Section 311(b) of the Trust Indenture Act. A
Trustee who has resigned or been removed shall be subject to
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Section 311(a) of the Trust Indenture Act to the extent
indicated therein.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or
Agents which shall be authorized to act on behalf of the
Trustee to authenticate Securities issued upon original issue
and upon exchange, registration of transfer or partial
redemption or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Wherever reference
is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company
and shall at all times be a corporation organized and doing
business under the laws of the United States of America, any
State thereof or the District of Columbia, or in the case of an
Authenticating Agent with respect to Securities issuable as
Bearer Securities, under the laws of any country in which such
Bearer Securities may be offered, authorized under such laws to
act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 or equivalent amount
expressed in a foreign currency and subject to supervision or
examination by Federal or State authority or authority of such
country. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent
may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible
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under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the agency of
an Authenticating Agent by giving written notice thereof to
such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the
Trustee may appoint a successor Authenticating Agent which
shall be acceptable to the Company and shall mail written
notice of such appointment by first-class mail, postage
prepaid, to all Holders as their names and addresses appear in
the Security Register. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall
be appointed unless eligible under the provisions of this
Section.
The Trustee agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its
services under this Section, and the Trustee shall be entitled
to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment is made pursuant to this Section,
the Securities may have endorsed thereon, in addition to the
Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
"This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
______________________,
as Trustee
By
as Authenticating Agent
By
Authorized Signatory".
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Notwithstanding any provision of this Section 614 to
the contrary, if at any time any Authenticating Agent appointed
hereunder with respect to any series of Securities shall not
also be acting as the Security Registrar hereunder with respect
to any series of Securities, then, in addition to all other
duties of an Authenticating Agent hereunder, such
Authenticating Agent shall also be obligated: (i) to furnish
to the Security Registrar promptly all information necessary to
enable the Security Registrar to maintain at all times an
accurate and current Security Register; and (ii) prior to
authenticating any Security denominated in a foreign currency
or currencies (including composite currencies), to ascertain
from the Company the units of such foreign currency that are
required to be determined by the Company pursuant to Section
302.
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names
and Addresses of Holders.
With respect to each series of Securities, the
Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each
Regular Record Date relating to that series (or, if there
is no Regular Record Date relating to that series, on
January 1 and July 1), a list, in such form as the Trustee
may reasonably require, of the names and addresses of the
Holders of that series as of such dates; and
(b) at such other times as the Trustee may request
in writing, within 30 days after the receipt by the
Company of any such request, a list of similar form and
content, such list to be dated as of a date not more than
15 days prior to the time such list is furnished;
provided, that so long as the Trustee is the Security
Registrar, the Company shall not be required to furnish or
cause to be furnished such a list to the Trustee.
SECTION 702. Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of
Holders of each series contained in the most recent list
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furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders of each series received by the
Trustee in its capacity as Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 701
upon receipt of a new list so furnished.
(b) Holders of Securities may communicate pursuant
to the Trust Indenture Act with other Holders with respect to
their rights under this Indenture or under the Securities.
(c) Every Holder of Securities or coupons, by
receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent
of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and
addresses of the Holders in accordance with Section 702(b),
regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under
Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year
commencing with the year 1994, the Trustee shall transmit by
mail to Holders a brief report dated as of such May 15 that
complies with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) of
the Trust Indenture Act.
(c) Reports pursuant to this Section shall be
transmitted by mail
(1) to all Holders of Registered Securities, as
the names and addresses of such Holders appear in the
Security Register;
(2) to such Holders of Securities as have,
within the two years preceding such transmissions,
filed their names and addresses with the Trustee for
that purpose; and
(3) except in the case of reports pursuant to
Subsection (b) of this Section, to each Holder of a
Security whose name and address is preserved at the
time by the Trustee, as provided in Section 702(a).
(d) A copy of each report pursuant to Subsection (a)
or (b) of this Section 703 shall, at the time of its
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transmission to Holders, be filed by the Trustee with each
stock exchange upon which any Securities are listed, with the
Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee, within 15
days after the Company is required to file the same with the
Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended, and shall otherwise comply with Section
314(a) of the Trust Indenture Act.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc.,
Only on Certain Terms.
The Company shall not consolidate with or merge into
any other Person or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, unless
(a) the Person formed by such consolidation or into
which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties
and assets of the Company substantially as an entirety
shall be a corporation, partnership or trust, shall be
organized and existing under the laws of the United States
and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest
(including all Additional Amounts, if any) on all the
Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or
observed;
(b) immediately after giving effect to such
transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing;
and
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(c) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such
supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger
by the Company into any other Person or any conveyance,
transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 801,
the successor Person formed by such consolidation or into which
the Company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had
been named as the Company herein, and thereafter, except in the
case of such lease, the predecessor Person shall be relieved of
all obligations and covenants under this Indenture and the
Securities and coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without
Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(a) to evidence the succession of another Person to
the Company and the assumption by any such successor of
the covenants of the Company herein and in the Securities;
or
(b) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities
and any coupons appertaining thereto (and if such
covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are
expressly being included solely for the benefit of such
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series), to convey, transfer, assign, mortgage or pledge
any property to or with the Trustee or otherwise secure
any series of the Securities or to surrender any right or
power herein conferred upon the Company; or
(c) to add any additional Events of Default with
respect to all or any series of the Securities (and, if
such Event of Default is applicable to less than all
series of Securities, specifying the series to which such
Event of Default is applicable); or
(d) to add to or change any of the provisions of
this Indenture to provide that Bearer Securities may be
registrable as to principal, to change or eliminate any
restrictions on the payment of principal of or any premium
or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of
Securities in uncertificated form, provided that any such
action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons
in any material respect; or
(e) to change or eliminate any of the provisions of
this Indenture, provided that any such change or
elimination shall become effective only when there is no
Security Outstanding of any series created prior to the
execution of such supplemental indenture which is
adversely affected by such change in or elimination of
such provision; or
(f) to establish the form or terms of Securities of
any series as permitted by Sections 201 and 301; or
(g) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit
or facilitate the defeasance and discharge of any series
of Securities pursuant to Section 401; provided, however,
that any such action shall not adversely affect the
interest of the Holders of Securities of such series or
any other series of Securities in any material respect; 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
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of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 611(b); or
(i) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or
inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions
arising under this Indenture, provided such other
provisions as may be made shall not adversely affect the
interests of the Holders of Securities of any series or
any related coupons in any material respect.
SECTION 902. Supplemental Indentures With
Consent of Holders.
With the consent of the Holders of a majority in
principal amount of the Outstanding Securities of all series
affected by such supplemental indenture (acting as one class),
by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series and any related
coupons under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder
of each Outstanding Security affected thereby,
(a) change the Stated Maturity of the principal of,
or any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or the
rate of interest thereon, any Additional Amounts with
respect thereto or any premium payable upon the redemption
thereof, or change any obligation of the Company to pay
Additional Amounts (except as contemplated by Section
801(a) and permitted by Section 901(a)), or reduce the
amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to
Section 502, or change any Place of Payment where, or the
coin or currency or currencies (including composite
currencies) or currency unit or units in which, any
Security or any premium or any interest thereon or
Additional Amounts with respect thereto is payable, or
impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption
Date); or
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(b) reduce the percentage in principal amount of
Outstanding Securities, the consent of whose Holders is
required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences)
provided for in this Indenture; or
(c) modify any of the provisions of this Section,
Section 513 or Section 1008, except to increase any such
percentage or to provide with respect to any particular
series the right to condition the effectiveness of any
supplemental indenture as to that series on the consent of
the Holders of a specified percentage of the aggregate
principal amount of Outstanding Securities of such series
(which provision may be made pursuant to Section 301
without the consent of any Holder) or to provide that
certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of
each Outstanding Security affected thereby, provided,
however, that this Subsection shall not be deemed to
require the consent of any Holder with respect to changes
in the references to "the Trustee" and concomitant changes
in this Section and Section 1008, or the deletion of this
proviso, in accordance with the requirements of Sections
611(b) and 901(g).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more
particular series of Securities, or which modifies the rights
of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of
any other series.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if
such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
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Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under
this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall
form a part of this Indenture for all purposes, and every
Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to
this Article shall conform to the requirements of the Trust
Indenture Act as then in effect.
SECTION 906. Reference in Securities to
Supplemental Indentures.
Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to
this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series and any
coupons appertaining thereto so modified as to conform, in the
opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series and any
coupons appertaining thereto.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of
each series of Securities that it will duly and punctually pay
the principal of (and premium, if any), interest on and any
Additional Amounts with respect to the Securities of that
series in accordance with the terms of the Securities, any
coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect
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to any series of Securities, any interest due on and Additional
Amounts payable with respect to Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender
of the several coupons for such interest installments, as are
evidenced thereby as they severally mature.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as
Registered Securities, the Company will maintain in each Place
of Payment for any series of Securities an office or agency
where Securities of that series may be presented or surrendered
for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. If Securities of
a series are issuable as Bearer Securities, the Company will
maintain (i) in The Borough of Manhattan, The City of New York,
an office or agency where any Registered Securities of that
series may be presented or surrendered for payment, where any
Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may
be surrendered for exchange for Registered Securities, where
notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and
where Bearer Securities of that series and related coupons may
be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise), (ii)
subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the
United States, an office or agency where Bearer Securities of
that series and related coupons may be presented and
surrendered for payment (including payment of any Additional
Amounts with respect to Bearer Securities of that series);
provided, however, that if the Securities of that series are
listed on the International Stock Exchange of the United
Kingdom and the Republic of Ireland Limited, the Luxembourg
Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located
outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange, and
(iii) subject to any laws or regulations applicable thereto, in
a Place of Payment for that series located outside the United
States an office or agency where any Registered Securities of
that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange
and where notices and demands to or upon the Company in respect
of the Securities of that series and this Indenture may be
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served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of
such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, except
that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment (including payment
of any Additional Amounts with respect to Bearer Securities of
that series) at the office of any Paying Agent for such series
located outside the United States, and the Company hereby
appoints the Trustee as its office or agency to receive such
presentations, surrenders, notices and demands.
With respect to Bearer Securities, payments of
principal, premium or interest on, or Additional Amounts with
respect to such Securities, will be payable, subject to any
applicable laws and regulations, in the designated currency or
currencies (including composite currencies) or currency unit or
units, at the offices of such Paying Agents outside the United
States as the Company may designate from time to time or, at
the option of the Holder, by check or transfer to an account
maintained by the recipient of such payment with a bank or
other financial institution located outside the United States.
However, no payment of principal, premium or interest on, or
Additional Amounts with respect to, Bearer Securities shall be
made at any office or agency of the Company in the United
States or by check mailed to any address in the United States
or by transfer to an account maintained with a bank located in
the United States, nor shall any payments be made in respect of
Bearer Securities or coupons appertaining thereto pursuant to
the presentation to the Company or its designated Paying Agents
within the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars,
payment of principal of and any premium and interest on any
Bearer Security (including any Additional Amounts payable on
Securities of such series) shall be made at the office of the
Company's Paying Agent in The Borough of Manhattan, The City of
New York, if (but only if) payment in Dollars of the full
amount of such principal, premium, interest or Additional
Amounts, as the case may be, at all offices or agencies outside
the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one
or more other offices or agencies where the Securities of one
or more series may be presented or surrendered for any or all
such purposes and may from time to time rescind such
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designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of
Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 1003. Money for Securities Payments
to be Held in Trust.
If the Company shall at any time act as its own
Paying Agent with respect to any series of Securities and any
coupons appertaining thereto, it will, on or before each due
date of the principal of (and premium, if any) or interest on
or any Additional Amounts with respect to any of the Securities
of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due
until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying
Agents for any series of Securities and any related coupons
appertaining thereto, the Company will, on or before each due
date of the principal of (and premium, if any) or interest on
any Securities of that series, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any
series of Securities other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will
(a) hold all sums held by it for the payment of the
principal of (and premium, if any), interest on or any
Additional Amounts with respect to Securities of that
series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities of that
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series) in the making of any payment of principal (and
premium, if any), interest on or any Additional Amounts
with respect to the Securities of that series; and
(c) at any time during the continuance of any such
default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by
such Paying Agent.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or
for any other purpose, pay, or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which sums were held
by the Company or such Paying Agent; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of (and premium, if any) or interest on any
Security of any series and remaining unclaimed for three years
after such principal (and premium, if any) or interest has
become due and payable shall, unless otherwise required by
mandatory provisions of applicable escheat, or abandoned or
unclaimed property law, be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security and coupon
appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper in The Borough of
Manhattan, The City of New York, notice that such money remains
unclaimed and that, after a date specified herein, which shall
not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will, unless
otherwise required by mandatory provisions of applicable
escheat, or abandoned or unclaimed property law, be repaid to
the Company.
SECTION 1004. Existence.
Subject to Article Eight, the Company will do or
cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence.
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SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful
in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and
will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in
the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the
Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid
or discharged, before the same shall become delinquent, (i) all
material taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (ii)
all material lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property
of the Company or any Subsidiary; provided, however, that the
Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
SECTION 1007. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120
days after the end of each fiscal year of the Company ending
after the date hereof so long as any Security is outstanding
hereunder, an Officers' Certificate, stating that a review of
the activities of the Company during such year and of
performance under this Indenture has been made under the
supervision of the signers thereof and whether or not to the
best of their knowledge, based upon such review, the Company is
in default in the performance, observance or fulfillment of any
of its covenants and other obligations under this Indenture,
and if the Company shall be in default, specifying each such
default known to them and the nature and status thereof. One
of the officers signing the Officers' Certificate delivered
pursuant to this Section 1007 shall be the principal executive,
financial or accounting officer of the Company.
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For purposes of this Section, such compliance shall
be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any covenant or condition set forth in Sections
1004 to 1006, inclusive, or any covenant added for the benefit
of any series of Securities as contemplated by Section 301
(unless otherwise specified pursuant to Section 301) if before
or after the time for such compliance the Holders of a majority
in principal amount of the Outstanding Securities of all series
affected by such omission (acting as one class) shall, by Act
of such Holders, either waive such compliance in such instance
or generally waive compliance with such covenant or condition,
but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
SECTION 1009. Additional Amounts.
If the Securities of a series provide for the payment
of Additional Amounts, the Company will pay to the Holder of
any Security of such series or any coupon appertaining thereto
Additional Amounts as provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect
of, any Security of any series or payment of any related coupon
or the net proceeds received on the sale or exchange of any
Security of any series, such mention shall be deemed to include
mention of the payment of Additional Amounts provided for in
this Section to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof
pursuant to the provisions of this Section and express mention
of the payment of Additional Amounts (if applicable) in any
provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such
express mention is not made.
If the Securities of a series provide for the payment
of Additional Amounts, at least 10 days prior to the first
Interest Payment Date with respect to that series of Securities
(or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of
principal and any premium is made), and at least 10 days prior
to each date of payment of principal and any premium or
interest if there has been any change with respect to the
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matters set forth in the below-mentioned Officers' Certificate,
the Company shall furnish the Trustee and the Company's
principal Paying Agent or Paying Agents, if other than the
Trustee, with an Officers' Certificate instructing the Trustee
and such Paying Agent or Paying Agents whether such payment of
principal of and any premium or interest on the Securities of
that series shall be made to Holders of Securities of that
series or any related coupons who are United States Aliens
without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of that
series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if
any, required to be withheld on such payments to such Holders
of Securities or coupons and the Company will pay to such
Paying Agent the Additional Amounts required by this Section.
The Company covenants to indemnify the Trustee and any Paying
Agent for, and to hold them harmless against any loss,
liability or expense reasonably incurred without negligence or
bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with
this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company of less than all the
Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount
of Securities of such series to be redeemed. In the case of
any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
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SECTION 1103. Selection by Trustee of
Securities to be Redeemed.
If less than all the Securities of any series are to
be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series not
previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of
Securities of such series of a denomination larger than the
minimum authorized denomination for Securities of that series
or of the principal amount of global Securities of such series.
The Trustee shall promptly notify the Company in
writing of the Securities selected for redemption and, in the
case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the
redemption of Securities shall relate, in the case of any
Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has
been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner
provided in Section 107 to each Holder of Securities to be
redeemed not less than 30 nor more than 60 days prior to the
Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of
any series are to be redeemed, the identification (and, in
the case of partial redemption, the principal amounts) of
the particular Securities to be redeemed;
(d) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be
redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date;
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(e) the place or places where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, are to be surrendered for payment of
the Redemption Price;
(f) that the redemption is for a sinking fund, if
such is the case;
(g) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for
redemption must be accompanied by all coupons appertaining
thereto maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or
coupons will be deducted from the Redemption Price or
security or indemnity satisfactory to the Company, the
Trustee and any Paying Agent is furnished;
(h) if Bearer Securities of any series are to be
redeemed and any Registered Securities of such series are
not to be redeemed, and if such Bearer Securities may be
exchanged for Registered Securities not subject to
redemption on such Redemption Date pursuant to Section 305
or otherwise, the last date, as determined by the Company,
on which such exchanges may be made; and
(i) the "CUSIP" number, if applicable.
A notice of redemption as contemplated by Section 107
need not identify particular Registered Securities to be
redeemed. Notice of redemption of Securities to be redeemed at
the election of the Company shall be given by the Company or,
at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or before any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued
interest on, and any Additional Amounts with respect to, all
the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
the Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein
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specified, and from and after such date (unless the Company
shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest
and the coupons for such interest appertaining to any Bearer
Securities so to be redeemed, except to the extent provided
below, shall be redeemed. Upon surrender of any such Security
for redemption in accordance with said notice, together with
all coupons appertaining thereto, if any, appertaining thereto
maturing after the Redemption Date, such Security shall be paid
by the Company at the Redemption Price, together with accrued
interest (and any Additional Amounts) to the Redemption Date;
provided, however, that all payments on Bearer Securities shall
be made only in the manner provided in Section 1002 for
payments on Bearer Securities; and provided further, that
installments of interest whose Stated Maturity is on or prior
to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption
shall not be accompanied by all appurtenant coupons
appertaining thereto maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price
an amount equal to the face amount of all such missing coupons
appertaining thereto, or the surrender of such missing coupon
or coupons appertaining thereto may be waived by the Company
and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have
been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however,
that interest (and any Additional Amounts with respect thereto)
represented by coupons appertaining thereto shall be payable
only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons appertaining
thereto.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and
premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security
or, in the case of Original Issue Discount Securities, the
Securities' Yield to Maturity.
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SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only
in part shall be surrendered at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing),
and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without
service charge, a new Registered Security or Securities of the
same series and Stated Maturity, of any authorized denomination
as requested by such Holder, in aggregate principal amount
equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
SECTION 1108. Purchase of Securities.
Unless otherwise specified as contemplated by Section
301, the Company and any Affiliate of the Company may at any
time purchase or otherwise acquire Securities or coupons
appertaining thereto in the open market or by private
agreement; provided that purchases or other acquisitions of
Bearer Securities or coupons appertaining thereto by the
Company or any Affiliate of the Company may be made only
outside the United States, and payments therefor may be made
only upon surrender of such Bearer Securities or coupons
appertaining thereto at a location outside the United States
and only in the manner provided for payments on Bearer
Securities in Section 1002. Such acquisition shall not operate
as or be deemed for any purpose to be a redemption of the
indebtedness represented by such Securities or coupons
appertaining thereto. Any Securities or coupons appertaining
thereto purchased or acquired by the Company may be delivered
to the Trustee and, upon such delivery, the indebtedness
represented thereby shall be deemed to be satisfied. Section
309 shall apply to all Securities and coupons so delivered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to
any sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Section 301
for Securities of such series.
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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". Unless otherwise provided by
the terms of Securities of any series, the cash amount of any
sinking fund payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to
the redemption of Securities of any series as provided for by
the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund
Payments with Securities.
The Company (i) may deliver Outstanding Securities of
a series (other than any previously called for redemption),
together in the case of any Bearer Securities of such series
with all unmatured coupons appertaining thereto, and (ii) may
apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms
of such Securities, in each case in satisfaction of all or any
part of any sinking fund payment with respect to the Securities
of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series;
provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified
in such Securities for redemption through operation of the
sinking fund and the amount of such sinking payment shall be
reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund
payment date for any series of Securities, the Company will
deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if
any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivery
of or by crediting Securities of that series pursuant to
Section 1202 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before
each such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund payment
date in the manner specified in Section 1103 and cause notice
of the redemption thereof to be given in the name of and at the
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expense of the Company in the manner provided in Section 1104.
Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of
a Security or coupon, by his acceptance thereof, whether upon
original issue or upon transfer or assignment, likewise
covenants and agrees, that, to the extent and in the manner
hereinafter set forth, the payment of the principal of (and
premium, if any) and interest on each and all of the Securities
and the payment of any coupon is hereby expressly made
subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness.
Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607.
SECTION 1302. Circumstances Requiring Prior
Payment of Senior Indebtedness.
In the event of any dissolution or winding up or
total or partial liquidation or reorganization of the Company,
whether in bankruptcy, reorganization, insolvency, receivership
or similar proceeding, then the holders of Senior Indebtedness
shall be entitled to receive payment in full of all amounts due
or to become due on or in respect of all Senior Indebtedness
before the Holders of the Securities or coupons appertaining
thereto are entitled to receive any payment on account of
principal of (or premium, if any) or interest on the Securities
or the payment of the coupons appertaining thereto.
Unless otherwise provided in Section 301, no payment
in respect of Securities shall be made if, at the time of such
payment, there exists a default in payment of all or any
portion of any Senior Indebtedness, and such default shall not
have been cured or waived in writing or the benefits of this
sentence waived in writing by or on behalf of the holders of
such Senior Indebtedness. In addition, unless otherwise
provided in Section 301, during the continuance of any event of
default (other than a default referred to in the immediately
preceding sentence) with respect to any Senior Indebtedness
permitting the holders to accelerate the maturity thereof and
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upon written notice thereof given to the Trustee, with a copy
to the Company (the delivery of which shall not affect the
validity of the notice to the Trustee), by any holder of such
Senior Indebtedness or its representative, then, unless and
until such an event of default shall have been cured or waived
or shall have ceased to exist, no payment shall be made by the
Company with respect to the principal of or interest on the
Securities or to acquire any of the Securities or on account of
the redemption provisions for the Securities; provided,
however, that if the holders of the Senior Indebtedness to
which the default relates have not declared such Senior
Indebtedness to be immediately due and payable and within 180
days after the occurrence of such default (or have declared
such Senior Indebtedness to be immediately due and payable and
within such period have rescinded such declaration of
acceleration), then the Company shall resume making any and all
required payments in respect of the Securities (including any
missed payments). Only one payment blockage period under the
immediately preceding sentence may be commenced within any
consecutive 365-day period with respect to the Securities. No
event of default which existed or was continuing on the date of
the commencement of any 180-day payment blockage period with
respect to the Senior Indebtedness initiating such payment
blockage period shall be, or be made, the basis for the
commencement of a second payment blockage period by a Holder or
representative of such Senior Indebtedness whether or not
within a period of 365 consecutive days unless such event of
default shall have been cured or waived for a period of not
less than 90 consecutive days (and, in the case of any such
waiver, no payment shall be made by the Company to the holders
of Senior Indebtedness in connection with such waiver other
than amounts due pursuant to the terms of the Senior
Indebtedness as in effect at the time of such default).
In the event that, notwithstanding the foregoing, the
Trustee or the Holder of any Security shall have received any
payment or distribution of any kind or character, whether in
cash, property or securities, before all Senior Indebtedness is
paid in full or payment thereof provided for, and if such fact
shall then have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee,
custodian, agent or other Person making payment or distribution
of assets or securities of the Company for application to the
payment of all Senior Indebtedness remaining unpaid, to the
extent necessary to pay all Senior Indebtedness in full, after
giving effect to any concurrent payment or distribution to or
for the holders of Senior Indebtedness.
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In addition, nothing in this Section shall prevent
the Company from making or the Trustee from receiving or
applying any payment in connection with the redemption of
Securities if the first publication of notice of such
redemption (whether by mail or otherwise in accordance with
this Indenture) has been made, and the Trustee has received
such payment from the Company, prior to the occurrence of any
of the contingencies specified in the first two paragraphs of
this Section.
SECTION 1303. Subrogation to Rights of Holders
of Senior Indebtedness.
Subject to the payment in full of all Senior
Indebtedness, the Holders of the Securities or coupons
appertaining thereto shall be subrogated (to the extent of the
payments or distributions made to the holders of such Senior
Indebtedness pursuant to the provisions of this Article) to the
rights of the holders of such Senior Indebtedness to receive
payments or distributions from the Company applicable to the
Senior Indebtedness until the principal of (and premium, if
any) and interest on the Securities, or the coupons
appertaining thereto, shall be paid in full. For purposes of
such subrogation, no payments or distributions to the holders
of the Senior Indebtedness to which the Holders of the
Securities or coupons appertaining thereto or the Trustee would
be entitled except for the provisions of this Article, and no
payments pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders of the Securities or
coupons appertaining thereto or the Trustee, shall, as between
the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities or coupons
appertaining thereto, be deemed to be a payment or distribution
by the Company to or on account of the Senior Indebtedness.
SECTION 1304. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended
solely for the purpose of defining the relative rights of the
Holders of the Securities or coupons appertaining thereto, on
the one hand, and the holders of Senior Indebtedness, on the
other hand. Nothing contained in this Article or elsewhere in
this Indenture or in the Securities or coupons appertaining
thereto is intended to or shall impair, as between the Company
and the Holders of the Securities or coupons appertaining
thereto, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities or
coupons appertaining thereto the principal of (and premium, if
any) and interest on the Securities or coupons appertaining
thereto as and when the same shall become due and payable in
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accordance with their terms, or is intended to or shall affect
the relative rights against the Company of the Holders of the
Securities or coupons appertaining thereto and creditors of the
Company other than the holders of Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or the
Holder of any Security or coupon from exercising all remedies
otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of
the holders of Senior Indebtedness to receive cash, property or
securities of the Company otherwise payable or deliverable to
the Trustee or such Holder.
SECTION 1305. Trustee to Effectuate Subordination.
Each Holder of a Security or coupon by his acceptance
thereof, whether upon original issue or upon transfer or
assignment, 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 and
appoints the Trustee his attorney-in-fact for any and all such
purposes.
SECTION 1306. No Waiver of Subordination Provisions.
No right of any present or future holder of any
Senior Indebtedness to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge
thereof any such holder 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 Holders of the Securities, without incurring
responsibility to the Holders of the Securities or coupons
appertaining thereto and without impairing or releasing the
subordination provided in this Article or the obligations of
the Holders of the Securities or coupons appertaining thereto
to the holders of Senior Indebtedness, do any one or more of
the following: (i) change the manner, place or terms of
payment of, or renew or alter, Senior Indebtedness, or
otherwise amend or supplement in any manner Senior Indebtedness
or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged
or otherwise securing Senior Indebtedness; (iii) release any
Person liable in any manner for the collection of Senior
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Indebtedness; and (iv) exercise or refrain from exercising any
rights against the Company and any other Person.
SECTION 1307. Notice to Trustee.
The Company shall give prompt written notice to the
Trustee in the form of an Officers' Certificate of any fact
known to the Company which would prohibit the making of any
payment of money to or by the Trustee in respect of the
Securities or coupons appertaining thereto pursuant to the
provisions of this Article. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the
Trustee 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 or coupons
appertaining thereto pursuant to the provisions of this
Article, unless and until the Trustee shall have received at
its Corporate Trust Office written notice thereof from the
Company or a holder or holders of Senior Indebtedness or from
any trustee therefor at least two Business Days prior to such
payment date; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Section 601,
shall be entitled in all respects to assume that no such facts
exist.
Subject to the provisions of Section 601, the Trustee
shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself to be a holder of
Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such notice has been given by a holder of Senior
Indebtedness or a trustee on behalf of any such holder. 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, the Trustee may
request such Person to 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, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person
to receive such payment.
SECTION 1308. Reliance on Certificate of
Liquidating Agent.
Upon any payment or distribution referred to in this
Article, the Trustee, subject to the provisions of Section 601,
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and the Holders of the Securities or coupons appertaining
thereto shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which a
dissolution, winding up or total or partial liquidation or
reorganization of the Company is pending, or a certificate of
the trustee in bankruptcy, liquidating trustee, custodian,
receiver, assignee for the benefit of creditors, agent or other
Person making such payment or distribution, delivered to the
Trustee or to the Holders of the Securities or coupons
appertaining thereto, for the purpose of ascertaining the
Persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.
SECTION 1309. 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 shall not be
liable to any such holders if it shall in good faith mistakenly
pay over or distribute to Holders of the Securities or coupons
appertaining thereto or to the Company or to any other Person
cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article or
otherwise.
SECTION 1310. Rights of Trustee as Holder
of Senior Indebtedness.
The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article 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.
SECTION 1311. Article Applicable to Paying Agent.
In case at any time any Payment Agent other than the
Trustee shall have been appointed by the Company and be then
acting hereunder, the term "Trustee" as used in this Article
shall in such case (unless the context shall otherwise require)
be construed as extending to and including such Payment 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; provided, however, that this Section
shall not apply to the Company or any Affiliate of the Company
if it or such Affiliate acts as Paying Agent.
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ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all
series may be called at any time and from time to time pursuant
to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
SECTION 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of
Holders of Securities of any series for any purpose specified
in Section 1401, to be held at such time and at such place in
Coeur d'Alene, Idaho, in The Borough of Manhattan, The City of
New York, in London or in any other location, as the Trustee
shall determine. Notice of every meeting of Holders of
Securities of any series, 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 given, in the manner provided
in Section 107, not less than 20 nor more than 180 days prior
to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a
Board Resolution, or the Holders of at least 10% in aggregate
principal amount of the Outstanding Securities of any series,
shall have requested the Trustee for any such series to call a
meeting of the Holders of Securities of such series for any
purpose specified in Section 1401, by written request setting
forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first
publication of the notice of such meeting within 30 days after
receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the
amount above specified, as the case may be, may determine the
time and the place in Coeur d'Alene, Idaho, in The Borough of
Manhattan, The City of New York, or in London, for such meeting
and may call such meeting for such purposes by giving notice
thereof as provided in Subsection (a) of this Section.
SECTION 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of
Securities of any series, a Person shall be (i) a Holder of one
or more Outstanding Securities of such series, or (ii) a Person
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appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled
to be present or to speak at any meeting of Holders of
Securities of any series shall be the Persons entitled to vote
at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company
and its counsel.
SECTION 1404. Quorum; Action.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of a series
shall constitute a quorum for a meeting of Holders of
Securities of such series. In the absence of a quorum within
30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of
Securities of such series, be dissolved. In any other case,
the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Subject to Section 1405(d), notice of the
reconvening of any adjourned meeting shall be given as provided
in Section 1402(a), except that such notice need be given only
once not less than five days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly that
Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series shall constitute a
quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be
adopted by the affirmative vote of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of
that series; provided, however, that, except as limited by the
proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified
percentage that is less than a majority in aggregate principal
amount of the Outstanding Securities of a series may be adopted
at a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the affirmative vote
of the Holders of such specified percentage in aggregate
principal amount of the Outstanding Securities of that series.
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Except as limited by the proviso to Section 902, any
resolution passed or decision taken at any meeting of Holders
of Securities of any series duly held in accordance with this
Section shall be binding on all the Holders of Securities of
such series and the coupons appertaining thereto, whether or
not present or represented at the meeting.
SECTION 1405. Determination of Voting Rights; Conduct
and Adjournment of Meetings.
(a) The holding of Securities shall be proved in the
manner specified in Section 105 and the appointment of any
proxy shall be proved in the manner specified in Section 105 or
by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker
authorized by Section 105 to certify to the holding of Bearer
Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in
Section 105 or other proof.
(b) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Company or by Holders of
Securities as provided in Section 1402(b), in which case the
Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall appoint a temporary
chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the Persons entitled to
vote a majority in aggregate principal amount of the
Outstanding Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Security of such
series and each proxy shall be entitled to one vote for each
$1,000 principal amount of the Outstanding Securities of such
series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any
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, except as a Holder of
a Security of such series or as a proxy.
(d) Any meeting of Holders of Securities of any
series duly called pursuant to Section 1402 at which a quorum
is present may be adjourned from time to time by Persons
entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of such series represented at the
meeting; and the meeting may be held as so adjourned without
further notice.
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SECTION 1406. Counting Votes and Recording
Action of Meetings.
The vote upon any resolution submitted to any meeting
of Holders of Securities of any series shall be by written
ballots on which shall be subscribed the signatures of the
Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities of such series 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, at least in duplicate, of the proceedings of each
meeting of Holders of Securities of any series shall be
prepared by the secretary of the meeting and there shall be
attached to such 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 such
notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and
verified by the affidavits of the permanent chairman and
secretary of the meeting and one such copy shall be delivered
to the Company, and another 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.
* * *
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together
constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as of
the day and year first above written.
HECLA MINING COMPANY
[CORPORATE SEAL] By
Name:
Title:
______________________[Trustee]
[CORPORATE SEAL] By
Name:
Title:
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STATE OF
ss.
COUNTY OF
On the day of , , before me
personally came , to me known, who, being by me
duly sworn, did depose and say that he is of
HECLA MINING COMPANY, one of the corporations described in and
which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed
his name thereto by like authority.
Notary Public
[NOTARIAL SEAL]
STATE OF
ss.
COUNTY OF
On the day of , , before me
personally came , to me known, who, being by me duly
sworn, did depose and say that he is of
______________________, one of the corporations described in
and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and
that he signed his name thereto by like authority.
Notary Public
[NOTARIAL SEAL]
-100-<PAGE>
EXHIBIT A
FORM OF CERTIFICATE TO BE
GIVEN BY OWNER OF SECURITY OR BENEFICIAL OWNER OF
INTEREST IN A GLOBAL SECURITY
HECLA MINING COMPANY
[TITLE OF SECURITIES]
(THE "SECURITIES")
This is to certify that as of the date hereof, and
except as set forth below, the above-captioned Securities that
are held by the undersigned or held by you for the account of
the undersigned (i) are owned by person(s) that are not
citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the
income of which is subject to United States Federal income
taxation regardless of its source ("United States persons"),
(ii) are owned by United States person(s) that (A) are foreign
branches of United States financial institutions (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(v))
("financial institutions") purchasing for their own account or
for resale, or (B) acquired Securities through foreign branches
of United States financial institutions and who hold the
Securities through such United States financial institutions on
the date hereof (and in either case (A) or (B), each such
United States financial institution hereby certifies, on its
own behalf or through its agent, that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)) and in addition if the owner of
the Securities is a United States or foreign financial
institution described in clause (iii) above (whether or not
also described in clause (i) or (ii)) this is to further
certify that such financial institution has not acquired the
Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or
its possessions.
If the Securities are of the category contemplated in
Section 230.903(c)(3) of Regulation S under the Securities Act
of 1933, as amended (the "Act"), then this is also to certify
that, except as set forth below, (i) in the case of debt
A-1<PAGE>
securities, the Securities are beneficially owned by (a) non-
U.S. person(s) or (b) U.S. person(s) who purchased the
Securities in transactions which did not require registration
under the Act; or (ii) in the case of equity securities, the
Securities are owned by (x) non-U.S. person(s) (and such
person(s) are not acquiring the Securities for the account or
benefit of U.S. person(s)) or (y) U.S. person(s) who purchased
the Securities in a transaction which did not require
registration under the Act. If this certification is being
delivered in connection with the exercise of warrants pursuant
to Section 230.902(m) of Regulation S under the Act, then this
is further to certify that, except as set forth below, the
Securities are being exercised by and on behalf of non-U.S.
person(s). As used in this paragraph the term "U.S. person"
has the meaning given to it by Regulation S under the Act.
As used herein, "United States" means the United
States of America (including the States and District of
Columbia); and its "possessions" including Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex
or electronic transmission on or prior to the date on which you
intend to submit your certification relating to the Securities
held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may
be assumed that this certification applies as of such date.
This certification excepts and does not relate to
$ of such interest in the above Securities in respect
of which we are not able to certify and as to which we
understand exchange and delivery of definitive Securities (or,
if relevant, exercise of any rights or collection of any
interest) cannot be made until we do so certify.
A-2<PAGE>
We understand that this certification is required in
connection with certain tax laws and, if applicable, certain
securities laws of the United States. In connection therewith,
if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or
would be relevant, we irrevocably authorize you to produce this
certification to any interested party in such proceedings.
*Dated: ,
NAME OF PERSON MAKING CERTIFICATION
By:
As, or as Agent for, the
beneficial owner(s) of the
Securities to which this
Certificate relates
By:
As, or as Agent for, the
financial institution (if any)
through which a United States
Person acquired the Securities
to which this Certificate relates
* To be dated no earlier than the Certificate Date.
A-3<PAGE>
EXHIBIT B
FORM OF CERTIFICATION TO BE GIVEN
BY EUROCLEAR OR CEDEL S.A.
HECLA MINING COMPANY
[TITLE OF SECURITIES]
(THE "SECURITIES")
This is to certify that, based solely on
certifications we have received in writing, by tested telex or
by electronic transmission from member organizations appearing
in our records as persons being entitled to a portion of the
principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in the Indenture, dated
as of , between Hecla Mining Company and
______________________, as of the date hereof, [ ]
principal amount of the above captioned Securities (i) is owned
by persons that are not citizens or residents of the United
States, domestic partnerships, domestic corporations or any
estate or trust the income of which is subject to United States
Federal income taxation regardless of its source ("United
States persons"), (ii) is owned by United States persons that
(A) are foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for
their own account or for resale, or (B) acquired the Securities
through foreign branches of United States financial
institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either
case (A) or (B), each such United States financial institution
has certified, on its own behalf or through its agent, that it
will comply with the requirements of Section 165(j)(3)(A), (B)
or (C) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) is owned by United States
or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that
the United States or foreign financial institutions described
in clause (iii) above (whether or not also described in clause
(i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or
its possessions.
If the Securities are of the category contemplated in
Section 230.903(c)(3) of Regulation S under the Securities Act
B-1<PAGE>
of 1933, as amended (the "Act"), then this is also to certify
with respect to the principal amount of Securities set forth
above that, except as set forth below, we have received in
writing, by tested telex or by electronic transmission, from
our Member Organizations entitled to a portion of such
principal amount, certifications with respect to such portion,
substantially to the effect set forth in the Indenture.
We further certify (i) that we are not making
available herewith for exchange (or, if relevant, exercise of
any rights or collection of any interest) any portion of the
temporary global Security excepted in such certifications and
(ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect
that the statements made by such Member Organizations with
respect to any portion of the part submitted herewith for
exchange (or, if relevant, exercise of any rights or collection
of any interest) are no longer true and cannot be relied upon
as of the date hereof.
We understand that this certification is required in
connection with certain tax laws and, if applicable, certain
securities laws of the United States. In connection therewith,
if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or
would be relevant, we irrevocably authorize you to produce this
certification or a copy hereof to any interested party in such
proceedings.
Dated: ,
(dated the Exchange Date or
the Interest Payment Date)
as operator of the Euroclear System
[Morgan Guaranty Trust Company of
New York, Brussels Office]
or
[CEDEL S.A.]
By
B-2
WLR&K DRAFT 8/9/95
Exhibit 4.3(e)
DEBT WARRANT AGREEMENT
between
HECLA MINING COMPANY
and
, as Warrant Agent
Dated <PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATE
SECTION 1.01 Issuance of Warrants..................... 2
SECTION 1.02 Execution and Delivery of Warrant
Certificates........................... 2
SECTION 1.03 Issuance of Warrant Certificates......... 4
SECTION 1.04 Temporary Warrant Certificates........... 4
ARTICLE TWO
WARRANT PRICE, DURATION AND EXERCISE
OF WARRANTS
SECTION 2.01 Warrant Price............................ 5
SECTION 2.02 Duration of Warrants..................... 5
SECTION 2.03 Exercise of Warrants..................... 6
ARTICLE THREE
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01 No Rights as Warrant Securityholder
Conferred by Warrants or Warrant
Certificates........................... 8
SECTION 3.02 Lost, Stolen, Mutilated or Destroyed
Warrant Certificates................... 8
SECTION 3.03 Holder of Warrant Certificate May
Enforce Rights......................... 9
SECTION 3.04 Consolidation, Merger, Conveyance,
Transfer or Lease...................... 9
ARTICLE FOUR
EXCHANGE AND TRANSFERS OF WARRANT CERTIFICATES
SECTION 4.01 Exchange and Transfers of Warrant
Certificates........................... 10
-i-<PAGE>
Page
SECTION 4.02 Treatment of Holders of Warrant
Certificates........................... 11
SECTION 4.03 Cancellation of Warrant Certificates..... 12
ARTICLE FIVE
CONCERNING THE WARRANT AGENT
SECTION 5.01 Warrant Agent............................ 12
SECTION 5.02 Conditions of Warrant Agent's
Obligations............................ 12
SECTION 5.03 Resignation, Removal and Appointment
of Successor........................... 14
ARTICLE SIX
MISCELLANEOUS
SECTION 6.01 Notice .................................. 16
SECTION 6.02 Notices and Demands to the Company
and Warrant Agent...................... 17
SECTION 6.03 Amendment................................ 17
SECTION 6.04 Saturdays, Sundays, Holidays, etc........ 18
SECTION 6.05 Applicable Law........................... 18
SECTION 6.06 Obtaining of Governmental Approvals...... 18
SECTION 6.07 Delivery of Prospectus................... 19
SECTION 6.08 Persons Having Rights Under Warrant
Agreement.............................. 19
SECTION 6.09 Headings................................. 19
SECTION 6.10 Counterparts............................. 19
SECTION 6.11 Inspection of Agreement.................. 19
SECTION 6.12 Successors and Assigns................... 20
TESTIMONIUM.............................................. 20
SIGNATURE AND SEALS...................................... 20
EXHIBIT A Form of Warrant Certificate.................. A-1
EXHIBIT B Form of Certificate Regarding Bearer
Warrant Securities......................... B-1
-ii-<PAGE>
HECLA MINING COMPANY
Debt Warrant Agreement*
THIS WARRANT AGREEMENT, dated as of ,
is between HELCA MINING COMPANY, a Delaware corporation (here-
inafter called the "Company," which term includes any successor
corporation under the Indenture hereinafter referred to), and
, as Warrant Agent (herein called the
"Warrant Agent").
WHEREAS, the Company has entered into an indenture
(the "[Senior] [Subordinated] Indenture") dated as of
, 199 between the Company and , pro-
viding for the issuance from time to time of its unsecured
[senior] [subordinated] debentures, notes or other evidences of
indebtedness (the "[Senior] [Subordinated] Debt Securities"),
to be issued in one or more series as provided in the [Senior]
[Subordinated] Indenture; [if Warrant Securities are not under
same Indenture as Debt Securities to which they are attached --
and an Indenture (the "[Senior] [Subordinated] Indenture," the
Senior and Subordinated Indentures being referred to collec-
tively as the "Indentures") dated as of {August} , 1995 be-
tween the Company and , as trustee (the
"[Senior] [Subordinated] Trustee," (the Senior and Subordinated
Trustees being referred to collectively, as the "Trustees"),
providing for the issuance from time to time of its [senior]
[subordinated] debentures, notes or other evidences of indebt-
edness (the "[Senior] [Subordinated] Debt Securities", the
[Senior] and [Subordinated] Debt Securities being referred to
collectively as the "Debt Securities"), to be issued in one or
more series as provided in the [Senior] [Subordinated] Inden-
ture]; and
WHEREAS, the Company proposes to sell [if Warrants
are sold with other securities -- [title of such other securi-
ties being offered] (the "Offered Securities") with] warrant
certificates evidencing one or more warrants (the "Warrants" or
individually a "Warrant") representing the right to purchase
[title of Debt Securities purchasable through exercise of War-
rants] (the "Warrant Securities"), such warrant certificates
_____________________
* Complete or modify the provisions of this Warrant
Agreement as appropriate to reflect the terms of the Warrants,
Warrant Securities and Offered Securities. Monetary amounts
may be in U.S. dollars or in foreign currency or currencies
(including composite currencies) or currency unit or units.<PAGE>
and other warrant certificates issued pursuant to this Agree-
ment being herein called the "Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act
on behalf of the Company, and the Warrant Agent is willing so
to act, in connection with the issuance, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement
wishes to set forth, among other things, the form and provi-
sions of the Warrant Certificates and
the terms and conditions on which they may be issued, ex-
changed, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and
of the mutual agreements herein contained, the parties hereto
agree as follows:
ARTICLE ONE
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01 Issuance of Warrants.
[If Warrants alone -- Upon issuance, each Warrant
Certificate shall evidence one or more Warrants.] [If Offered
Securities and Warrants -- Warrants shall be [initially] issued
in connection with the issuance of the Offered Securities [but
shall be separately transferable on and after (the
"Detachable Date")] [and shall not be separately transferable],
and each Warrant Certificate shall evidence one or more War-
rants.] Each Warrant evidenced thereby shall represent the
right, subject to the provisions contained herein and therein,
to purchase a Warrant Security in the principal amount of
$ . [If Offered Securities and Warrants -- Warrant
Certificates shall be initially issued in units with the
Offered Securities, and each Warrant Certificate included in
such a unit shall evidence Warrants for each $[ ] in
principal amount of Offered Securities included in such unit.]
SECTION 1.02 Execution and Delivery of
Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be
in [registered] [bearer] form substantially in the form set
forth in Exhibit A hereto, shall be dated and may
have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, litho-
graphed or engraved thereon as the officers of the Company
executing the same may approve (execution thereof to be conclu-
sive evidence of such approval) and as are not inconsistent
-2-<PAGE>
with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursu-
ant thereto or with any rule or regulation of any stock
exchange on which the Warrants may be listed, or to conform to
usage. The Warrant Certificates shall be signed on behalf of
the Company by its Chairman of the Board, its Chief Executive
Officer, its President or one of its Vice Presidents and by its
Secretary or one of its Assistant Secretaries under its corpo-
rate seal reproduced thereon. Such signatures may be manual or
facsimile signatures of such authorized officers and may be
imprinted or otherwise reproduced on the Warrant Certificates.
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.
No Warrant Certificate shall be valid for any pur-
pose, and no Warrant evidenced thereby shall be exercisable,
until such Warrant Certificate has been countersigned by the
manual signature of the Warrant Agent. Such signature by the
Warrant Agent upon any Warrant Certificate executed by the Com-
pany shall be conclusive evidence that the Warrant Certificate
so countersigned has been duly issued hereunder.
In case any officer of the Company who shall have
signed any of the Warrant Certificates either manually or by
facsimile signature shall cease to be such officer before the
Warrant Certificates so signed shall have been countersigned
and delivered by the Warrant Agent, such Warrant Certificates
may be countersigned and delivered notwithstanding that the
person who signed such Warrant Certificates ceased to be such
officer of the Company; and any Warrant Certificate may be
signed on behalf of the Company 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 of this Agreement any such person was not such an
officer.
The term "holder" or "holder of a Warrant Certifi-
cate" as used herein shall mean [If registered Warrants -- any
person in whose name at the time any Warrant Certificate shall
be registered upon the books to be maintained by the Warrant
Agent for that purpose] [If bearer Warrants -- the bearer of
any Warrant Certificate] [If registered Offered Securities and
Warrants are not immediately detachable -- or upon the register
of the Offered Securities prior to the Detachable Date. Prior
to the Detachable Date, the Company will, or will cause the
registrar of the Offered Securities to, make available at all
times to the Warrant Agent such information as to holders of
the Offered Securities with Warrants as may be necessary to
-3-<PAGE>
keep the Warrant Agent's records up to date] [If bearer
Offered Securities and Warrants are not immediately detachable
-- or the bearer of any Offered Security prior to the Detach-
able Date].
[If Warrants are issuable as a Global Warrant --
"Global Warrant" means a Warrant that evidences all or part of
the Warrants and is authenticated and delivered to[, and regis-
tered in the name of,] the Depositary for such Warrants or a
nominee thereof. "Depositary" means, with respect to Warrants
issuable in whole or in part in the form of one or more Global
Warrants, a clearing agency that the Company designates to act
as Depositary.]
SECTION 1.03 Issuance of Warrant Certificates.
Warrant Certificates evidencing the right to purchase
an aggregate not exceeding $ aggregate principal
amount of Warrant Securities (except as provided in Sections
1.04, 2.03(c), 3.02 and 4.01) may be executed by the Company
and delivered to the Warrant Agent upon the execution of this
Agreement or from time to time thereafter. The Warrant Agent
shall, upon receipt of Warrant Certificates duly executed on
behalf of the Company, countersign Warrant Certificates evi-
dencing Warrants representing the right to purchase up to
$ aggregate principal amount of Warrant Securities
and shall deliver such Warrant Certificates to or upon the
order of the Company. Subsequent to such original issuance of
the Warrant Certificates, the Warrant Agent shall countersign a
Warrant Certificate only if the Warrant Certificate is issued
in exchange or substitution for one or more previously counter-
signed Warrant Certificates [or in connection with their trans-
fer], as hereinafter provided.
SECTION 1.04 Temporary Warrant Certificates.
Pending the preparation of definitive Warrant Cer-
tificates, the Company may execute, and upon the order of the
Company, the Warrant Agent shall authenticate and deliver, tem-
porary Warrant Certificates which are printed, lithographed,
typewritten, mimeographed or otherwise produced substantially
of the tenor of the definitive Warrant Certificates in lieu of
which they are issued and with such insertions, omissions, sub-
stitutions and other variations as the officers executing such
Warrant Certificate may determine are appropriate, 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
-4-<PAGE>
definitive Warrant Certificates, the temporary Warrant Certifi-
cates shall be exchangeable for definitive Warrant Certificates
upon surrender of the temporary Warrant Certificates at the
corporate trust office of the Warrant Agent [or ],
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 authenticate and
deliver in exchange therefor definitive Warrant Certificates
representing the same aggregate number of Warrants. Until so
exchanged, the temporary Warrant Certificates shall in all
respects be entitled to the same benefits under this Agreement
as definitive Warrant Certificates.
ARTICLE TWO
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.01 Warrant Price.
During the period from , through and
including , each Warrant shall entitle the holder
thereof, subject to the provisions of this Agreement, to pur-
chase from the Company the principal amount of Warrant Securi-
ties stated in the Warrant Certificate at the exercise price of
$ , plus [accrued amortization of the original issue
discount] [accrued interest], if any, from the most recent date
from which interest shall have been paid on the Warrant Securi-
ties or, if no interest shall have been paid on the Warrant
Securities, from . [In each case, the original
issue discount will be amortized at a percent annual rate,
computed on an annual basis using the "interest" method and
using a 360-day year consisting of twelve 30-day months]. Such
purchase price of Warrant Securities is referred to in this
Agreement as the "Warrant Price." [The original issue discount
for each $ principal amount of Warrant Securities is
$ .]
SECTION 2.02 Duration of Warrants.
Each Warrant may be exercised in whole at any time,
as specified herein, on or after [the date thereof]
[ ] and at or before 5 P.M., New York City time, on
[or such later date as the Company may designate,
by notice to the Warrant Agent and the holders of Warrant Cer-
tificates [If registered Warrants -- mailed to their addresses
as set forth in the record books of the Warrant Agent] [If
bearer Warrants -- published in a newspaper of general
-5-<PAGE>
circulation in the City of New York and London]] (the "Expira-
tion Date"). Each Warrant not exercised at or before 5 P.M.,
New York City time, on the Expiration Date shall become void,
and all rights of the holder of the Warrant Certificate evi-
dencing such Warrant under this Agreement shall cease.
SECTION 2.03 Exercise of Warrants.
(a) During the period specified in Section 2.02, any
whole number of Warrants may be exercised by providing certain
information as set forth on the reverse side of the Warrant
Certificate and by paying in full, in [lawful money of the
United States of America] [applicable currency] [in cash or by
certified check or official bank check or by bank wire trans-
fer, in each case,] [by bank wire transfer] in [immediately
available] [next-day] funds the Warrant Price for each Warrant
exercised, to the Warrant Agent at its corporate trust office
[or at ], provided that such exercise is subject to
receipt within five business days of such [payment] [wire
transfer] by the Warrant Agent of the Warrant Certificate with
the form of election to purchase Warrant Securities set forth
on the reverse side of the Warrant Certificate properly com-
pleted and duly executed. The date on which payment in full of
the Warrant Price is received by the Warrant Agent shall, sub-
ject to receipt of the Warrant Certificate as aforesaid, be
deemed to be the date on which the Warrant is exercised. The
Warrant Agent shall deposit all funds received by it in payment
of the Warrant Price in an account of the Company maintained
with it [if non-dollar denominated funds -- or in such other
account designated by the Company] and shall advise the Company
by telephone at the end of each day on which a [payment] [wire
transfer] for the exercise of Warrants is received of the
amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephone advice to the Company in writ-
ing.
(b) The Warrant Agent shall, from time to time, as
promptly as reasonably practicable, advise the Company and the
[Trustee under the Indenture relating to the Warrant Securi-
ties] of (i) the number of Warrants exercised, (ii) the in-
structions of each holder of the Warrant Certificates evidenc-
ing such Warrants with respect to delivery of the Warrant Secu-
rities to which such holder is entitled upon such exercise,
(iii) delivery of Warrant Certificates evidencing the balance,
if any, of the Warrants remaining after such exercise, and (iv)
such other information as the Company or such Trustee shall
reasonably require.
(c) As soon as reasonably practicable after the
exercise of any Warrant, the Company shall issue, pursuant to
-6-<PAGE>
the Indenture, in authorized denominations to or upon the order
of the holder of the Warrant Certificate evidencing such War-
rant, the Warrant Securities to which such holder is entitled
[If registered Warrant Securities -- , in fully registered
form, registered in such name or names as may be directed by
such holder]. If fewer than all of the Warrants evidenced by
such Warrant Certificate are exercised, the Company shall
execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver a new Warrant Certificate evi-
dencing the number of such Warrants remaining unexercised.
(d) Issuance of certificates for the Warrant Securi-
ties upon the exercise of the Warrants shall be made without
charge to the Warrantholder for any issue or transfer tax or
other incidental expense in respect of the issuance of such
certificates, all of which taxes and expenses shall be paid by
the Company, and [If bearer Warrant Securities -- , upon deliv-
ery of the applicable certification in the form of Exhibit B
hereto with respect to Warrant Securities in bearer form,] such
certificates shall be issued in the name of the Warrantholder
or in such name or names as may be directed by the Warrant-
holder; [If registered Warrants -- provided, however, that in
the event certificates for the Warrant Securities are to be
issued in a name other than the name of the Warrantholder, the
Warrant Certificate when surrendered for exercise shall be
accompanied by the Assignment Form attached to the Warrant Cer-
tificate duly executed by the Warrantholder;] [If bearer War-
rant Securities -- provided, however, that unless otherwise
designated by the Company, Warrant Securities in bearer form
shall be delivered to or upon the order of such Warrantholder
only outside the United States and its possessions;] and pro-
vided further, that upon any transfer involved in the issuance
or delivery of any certificates for the Warrant Securities, the
Company may require, as a condition thereto, the payment of a
sum sufficient to reimburse it for any transfer tax incidental
thereto.
The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in
connection with any transfer of the Warrant Securities, and
shall not be required to issue or deliver any Warrant Security
until such tax or other charge shall have been paid or it has
been established to the Company's satisfaction that no such tax
or other charge is due.
-7-<PAGE>
ARTICLE THREE
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01 No Rights as Warrant Securityholder
Conferred by Warrants or Warrant
Certificates.
No Warrant Certificates or Warrant evidenced thereby
shall entitle the holder thereof to any of the rights of a
holder of Warrant Securities, including, without limitation,
the right to receive the payment of principal of, premium, if
any, or interest on Warrant Securities or to enforce any of the
covenants in the [Indenture relating to the Warrant Securi-
ties].
SECTION 3.02 Lost, Stolen, Mutilated or Destroyed
Warrant Certificates.
Upon receipt by the Warrant Agent of evidence reason-
ably satisfactory to it and the Company of the ownership of and
the loss, theft, destruction or mutilation of any Warrant Cer-
tificate and of indemnity reasonably satisfactory to the War-
rant Agent and the Company and, in the case of mutilation, upon
surrender thereof to the Warrant Agent for cancellation, then,
in the absence of notice to the Company or the Warrant Agent
that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall 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 or muti-
lated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the
issuance of any new Warrant Certificate under this Section, the
Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every
substitute Warrant Certificate executed and delivered pursuant
to this Section in lieu of any lost, stolen or destroyed War-
rant Certificate shall be entitled to the benefits of this
Agreement equally and proportionately with any and all other
Warrant Certificates duly executed and delivered hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with
respect to the replacement of mutilated, lost, stolen or
destroyed Warrant Certificates.
-8-<PAGE>
SECTION 3.03 Holder of Warrant Certificate May
Enforce Rights.
Notwithstanding any of the provisions of this Agree-
ment, any holder of a Warrant Certificate, without the consent
of the Warrant Agent, the Trustee, the holder of any Warrant
Securities or the holder of any other Warrant Certificate, may,
in such holder's own behalf and for such holder's own benefit,
enforce, and may institute and maintain any suit, action or
proceeding against the Company suitable to enforce, or other-
wise in respect of, such holder's right to exercise the War-
rants evidenced by such holder's Warrant Certificate in the
manner provided in such holder's Warrant Certificate and in
this Agreement.
SECTION 3.04 Consolidation, Merger, Conveyance,
Transfer or Lease.
If at any time there shall be a merger, consolida-
tion, conveyance, transfer or lease of assets subject to
Article Eight of the [Senior] [Subordinated] Indenture relating
to the Warrant Securities, then in any such event the successor
or assuming corporation referred to therein shall succeed to
and be substituted for the Company, with the same effect, sub-
ject to such Indenture, as if it had been named herein and in
the Warrant as the Company; the Company shall thereupon be
relieved of any further obligation hereunder or under the War-
rants, and the Company as the predecessor corporation may
thereupon or any time thereafter be dissolved, wound up or liq-
uidated. Such successor or assuming corporation thereupon may
cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the Warrants issuable
hereunder that theretofore shall not have been signed by the
Company, and may execute and deliver Warrant Securities in its
own name pursuant to such Indenture, in fulfillment of its
obligations to deliver Warrant Securities upon exercise of the
Warrants. All the Warrants so issued shall in all respects
have the same legal rank and benefit under this Agreement as
the Warrants theretofore or thereafter issued in accordance
with the terms of this Agreement as though all of such Warrants
had been issued at the date of the execution hereof. In any
case of any such consolidation, merger, conveyance, transfer or
lease, such changes in phraseology and form (but not in sub-
stance) may be made in the Warrants thereafter to be issued as
may be appropriate.
The Warrant Agent may receive a written opinion of
legal counsel as conclusive evidence that any such consolida-
tion, merger, conveyance, transfer or lease complies with the
provisions of this Section 3.04 and such Indenture.
-9-<PAGE>
ARTICLE FOUR
EXCHANGE AND TRANSFERS
OF WARRANT CERTIFICATES
SECTION 4.01 Exchange and Transfers of Warrant
Certificates.
[If Offered Securities with Warrants that are imme-
diately detachable -- Upon] [If Offered Securities with War-
rants that are not immediately detachable -- Prior to the
Detachable Date, a Warrant Certificate may be exchanged or
transferred only together with the Offered Security to which
the Warrant Certificate was initially attached, and only for
the purpose of effecting or in conjunction with an exchange or
transfer of such Offered Security. Prior to any Detachable
Date, each transfer of the Offered Security [on the register of
the Offered Securities] shall operate also to transfer the
related Warrant Certificates. After the Detachable Date, upon]
[If registered Warrants -- surrender at the corporate trust
office of the Warrant Agent [or ], Warrant Cer-
tificates evidencing Warrants may be exchanged for Warrant Cer-
tificates in other denominations evidencing such Warrants or
the transfer thereof may be registered in whole or in part;
provided that such other Warrant Certificates evidence the same
aggregate number of Warrants as the Warrant Certificates so
surrendered. The Warrant Agent shall keep, at its corporate
trust office [and at ], books in which, subject to
such reasonable regulations as it may prescribe, it shall reg-
ister Warrant Certificates and exchanges and transfers of out-
standing Warrant Certificates, upon surrender of the Warrant
Certificates to the Warrant Agent at its corporate trust office
[or ] for exchange or registration of transfer, prop-
erly endorsed or accompanied by appropriate instruments of reg-
istration of transfer and written instructions for transfer,
all in form satisfactory to the Company and the Warrant Agent.
No service charge shall be made for any exchange or registra-
tion of transfer of Warrant Certificates, but the Company may
require payment of a sum sufficient to cover any stamp or other
tax or other governmental charge that may be imposed in con-
nection with any such exchange or registration of transfer.
Whenever any Warrant Certificates are so surrendered for
exchange or registration of transfer, an authorized officer of
the Warrant Agent shall manually countersign and deliver to the
person or persons entitled thereto a Warrant Certificate or
Warrant Certificates duly authorized and executed by the Com-
pany, as so requested. The Warrant Agent shall not be required
to effect any exchange or registration of transfer that will
result in the issuance of a Warrant Certificate evidencing a
fraction of a Warrant or a number of full Warrants and a
-10-<PAGE>
fraction of a Warrant. All Warrant Certificates issued upon
any exchange or registration of transfer of Warrant Certifi-
cates shall be the valid obligation of the Company, evidencing
the same obligations, and entitled to the same benefits under
this Agreement, as the Warrant Certificate surrendered for such
exchange or registration of transfer] [If bearer Warrants --
delivery of Warrant Certificates, title to such Warrant Cer-
tificates shall pass].
[If Warrants are issuable as a registered Global War-
rant -- Notwithstanding any other provision in this Agreement,
no Global Warrant may be transferred to, or registered or ex-
changed for Warrants registered in the name of, any person
other than the Depositary for such Global Warrant or any nomi-
nee thereof, and no such transfer may be registered, unless (i)
such Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such Global Warrant, (ii)
the Company executes and delivers to the Warrant Agent and the
[Senior] [Subordinated] Trustee[s] a written order executed by
the Company that such Global Warrant shall be so transferable,
registerable and exchangeable, and such transfers shall be reg-
istrable, or (iii) there shall have occurred and be continuing
an event of default with respect to the Warrants evidenced by
such Global Warrant. Notwithstanding any other provision in
this Agreement, a Global Warrant to which the restriction set
forth in the preceding sentence shall have ceased to apply may
be transferred only to, and may be registered and exchanged for
Warrants registered only in the name or names of, such person
or persons as the Depositary for such Global Warrant shall have
directed and no transfer thereof other than such a transfer may
be registered.]
SECTION 4.02 Treatment of Holders of Warrant
Certificates.
[If Offered Securities and Warrants are not immedi-
ately detachable -- Prior to the Detachable Date, the Company,
the Warrant Agent and all other persons may treat the owner of
any Offered Securities as the owner of the Warrant Certificates
initially attached thereto for any purpose and as the person
entitled to exercise the rights represented by the Warrants
evidenced by such Warrant Certificates, any notice to the con-
trary notwithstanding. After the Detachable Date,] [if regis-
tered Warrants -- [and] [p][P]rior to the due presentment of a
Warrant Certificate for registration of transfer,] [t][T]he
Company and the Warrant Agent and all other persons may treat
the [registered holder] [bearer] of a Warrant Certificate as
the absolute owner thereof for any purpose and as the person
entitled to exercise the rights represented by the Warrants
-11-<PAGE>
evidenced thereby, any notice to the contrary notwithstanding.
SECTION 4.03 Cancellation of Warrant Certificates.
Any Warrant Certificate surrendered for exchange[,
registration of transfer] or exercise of the Warrants evidenced
thereby shall, if surrendered to the Company, be delivered to
the Warrant Agent and all Warrant Certificates surrendered or
so delivered to the Warrant Agent shall be promptly canceled by
the Warrant Agent and shall not be reissued and, except as
expressly permitted by this Agreement, no Warrant Certificate
shall be issued hereunder in exchange or in lieu thereof. The
Warrant Agent shall deliver to the Company from time to time or
otherwise dispose of canceled Warrant Certificates in a manner
satisfactory to the Company.
ARTICLE FIVE
CONCERNING THE WARRANT AGENT
SECTION 5.01 Warrant Agent.
The Company hereby appoints as the
Warrant Agent of the Company in respect of the Warrants and the
Warrant Certificates upon the terms and subject to the condi-
tions herein 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 Cer-
tificates and hereby and such further powers and authority to
act on behalf of the Company as the Company may hereafter grant
to or confer upon it. 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 pro-
visions hereof.
SECTION 5.02 Conditions of Warrant Agent's
Obligations.
The Warrant Agent accepts its obligations herein set
forth upon the terms and conditions hereof, including the fol-
lowing 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) Compensation and Indemnification. The Company
agrees promptly to pay the Warrant Agent the compensation
agreed upon with the Company for all services rendered by
the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including counsel fees)
-12-<PAGE>
reasonably incurred without negligence or bad faith by the
Warrant Agent in connection with the services rendered
hereunder by the Warrant Agent. The Company also agrees
to indemnify the Warrant Agent for, and to hold it harm-
less against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Warrant
Agent, arising out of or in connection with its acting as
Warrant Agent hereunder, as well as the reasonable costs
and expenses of defending against any claim of such lia-
bility.
(b) Agent for the Company. In acting under this
Agreement and in connection with the Warrant Certificates,
the Warrant Agent is acting solely as agent of the Company
and does not assume any obligations or relationship of
agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with
counsel satisfactory to it, and the written advice of such
counsel shall be full and complete authorization and pro-
tection in respect of any action reasonably taken, suf-
fered or omitted by it hereunder in good faith and in
accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected
and shall incur no liability for or in respect of any
action taken or thing suffered by it in reliance upon any
Warrant Certificate, notice, direction, consent, certifi-
cate, affidavit, statement or other paper or document rea-
sonably believed by it to be genuine and to have been pre-
sented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and
its officers, directors and employees, may become the
owner of, or acquire any interest in, Warrants, 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 depositary, trustee or agent for, any
committee or body of holders of Warrant Securities or
other obligations of the Company as freely as if it were
not the Warrant Agent hereunder. Nothing in this Agree-
ment shall be deemed to prevent the Warrant Agent from
acting as trustee under any indentures.
(f) No Liability for Interest. Unless otherwise
agreed with the Company, the Warrant Agent shall have no
liability for interest on any monies at any time received
-13-<PAGE>
by it pursuant to any of the provisions of this Agreement
or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent
shall have no liability with respect to any invalidity of
this Agreement or any of the Warrant Certificates (except
as to the Warrant Agent's countersignature thereon).
(h) No Responsibility for Representations. The War-
rant Agent shall not be responsible for any of the recit-
als or representations herein or in the Warrant Certifi-
cates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall
be obligated to perform only 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 not be accountable or
under any duty or responsibility for the use by the Com-
pany of any of the Warrant Certificates authenticated by
the Warrant Agent and delivered by it to the Company pur-
suant to this Agreement or for the application by the Com-
pany of the proceeds of the Warrant Certificates. 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 herein or in the Warrant
Certificates or in the case of a receipt of any written
demand from a holder of a Warrant Certificate with respect
to such default, including, without limiting the general-
ity of the foregoing, any duty or responsibility to ini-
tiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.02 hereof,
to make any demand upon the Company.
SECTION 5.03 Resignation, Removal and Appointment
of Successor.
(a) The Company agrees, for the benefit of the hold-
ers 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 are no longer exercisable.
(b) The Warrant Agent may at any time resign as such
agent by giving written notice to the Company of such intention
on its part, specifying the date on which its desired resigna-
tion shall become effective; provided that such date shall be
not less than three months after the date on which such notice
-14-<PAGE>
is given unless the Company otherwise agrees. The Warrant
Agent hereunder may be removed at any time by the filing with
it of an instrument in writing signed by or on behalf of the
Company and specifying such removal and the intended date when
it shall become effective. Such resignation or removal shall
take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent (which shall be a bank
or trust company authorized under the laws of the jurisdiction
of its organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent.
The obligation of the Company under Section 5.02(a) shall con-
tinue to the extent set forth therein, notwithstanding the res-
ignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall
resign, or shall be removed, or shall become incapable of act-
ing, or shall be adjudged bankrupt or insolvent, or shall com-
mence a voluntary case under the Federal bankruptcy laws, as
now or hereafter constituted, or under any other applicable
Federal or state bankruptcy, insolvency or similar law or shall
consent to the appointment of or taking possession by a re-
ceiver, custodian, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Warrant Agent or its prop-
erty or affairs, or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its
debts generally as they become due, or shall take corporate
action in furtherance of any such action, or a decree or order
for relief by a court having jurisdiction in the premises shall
have been entered in respect of the Warrant Agent in an invol-
untary case under the Federal bankruptcy laws, as now or here-
after constituted, or any other applicable Federal or state
bankruptcy, insolvency or similar law, or a decree or order by
a court having jurisdiction in the premises shall have been
entered for the appointment of a receiver, custodian, liquida-
tor, assignee, trustee, sequestrator (or similar official) of
the Warrant Agent or of its property or affairs, or any public
officer shall take charge or control of the Warrant Agent or of
its property or affairs for the purpose of rehabilitation, con-
servation, winding up or liquidation, a successor Warrant
Agent, qualified as aforesaid, shall be appointed by the Com-
pany by an instrument in writing, filed with the successor War-
rant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the successor Warrant Agent of
such appointment, the Warrant Agent shall cease to be Warrant
Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder
shall execute, acknowledge and deliver to its predecessor and
to the Company an instrument accepting such appointment
-15-<PAGE>
hereunder, and thereupon such successor Warrant Agent, without
any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, trusts, duties and obliga-
tions of such predecessor with like effect as if originally
named as Warrant Agent hereunder, and such predecessor, upon
payment of its charges and disbursements then unpaid, shall
thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive,
all monies, securities and other property on deposit with or
held by such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent
hereunder may be merged or converted or any corporation with
which the Warrant Agent may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which
the Warrant Agent shall be a party, or any corporation to which
the Warrant Agent shall sell or otherwise transfer all or sub-
stantially all the assets and business of the Warrant Agent,
provided that it shall be qualified as aforesaid, shall be the
successor Warrant Agent under this Agreement without the execu-
tion or filing of any paper or any further act on the part of
any of the parties hereto.
ARTICLE SIX
MISCELLANEOUS
SECTION 601. Notice.
Any notices required or permitted to be given here-
under [to the Company or the Warrant Agent] shall be in writing
(including telegraphic, telex or facsimile transmission) and
shall be duly given if (i) personally delivered or sent by
telegraph, telex or facsimile, and (ii) mailed by certified or
registered mail, postage prepaid, return receipt requested,
addressed as follows:
If to the Company:
Hecla Mining Company
6500 Mineral Drive
Coeur d'Alene, Idaho 83814
Attention: Vice President and
General Counsel
Facsimile No. (208) 769-4159
-16-<PAGE>
If to the Warrant Agent:
Facsimile No.
[If registered Warrants -- If to the Warrantholder:
At the address as it appears on the
books of the Warrant Agent [or on
the register of the Offered Securi-
ties prior to the Detachable Date],
or if such Warrantholder shall have
filed with the Warrant Agent a writ-
ten request that notices intended
for such Warrantholder be mailed to
some other address, at the address
designated in such request.]
All such notices shall be effective: (i) if mailed
or personally delivered, when received, or (ii) if sent by
telegraph, telex or facsimile, when sent with evidence of
transmission. The address to which notices hereunder should be
sent may be changed by any party by giving notice of such
change to the others in the manner provided in this Agreement.
[If bearer Warrants -- Any notices required or per-
mitted to be given hereunder to the Warrantholder shall be duly
given if published in a newspaper of general circulation in The
City of New York and London and in such other cities where
securities exchanges are located on which the Warrants and/or
Warrant Securities are listed, if any, and shall be effective
when so published.]
SECTION 6.02 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 Cer-
tificate pursuant to the provisions of the Warrant Certifi-
cates, the Warrant Agent shall promptly forward such notice or
demand to the Company.
SECTION 6.03 Amendment.
This Agreement may be amended by the parties hereto,
without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correct-
ing or supplementing any defective provision contained herein,
-17-<PAGE>
or making any other provisions with respect to matters or ques-
tions arising under this Agreement as the Company and the War-
rant Agent may deem necessary or desirable; provided, however,
that such action shall not affect adversely the interests of
the holders of the Warrant Certificates. The Company and the
Warrant Agent may also supplement or amend the Warrant Agree-
ment in any other respect with the approval of the holders of a
majority in number of the Warrants then outstanding; however,
no such supplement or amendment may (i) shorten the expiration
date of the Warrants, (ii) increase the Warrant Price or
decrease the principal amount of Warrant Securities to be
received upon exercise of a Warrant, or (iii) change the per-
centage of the holders of Warrant Certificates who must consent
to such amendment or supplement, without the consent of each
holder affected thereby.
SECTION 6.04 Saturdays, Sundays, Holidays, etc.
If the last or appointed day for the taking of any
action or the expiration of any right required or granted pur-
suant to this Agreement or the Warrant Certificates shall be a
Saturday, Sunday or legal holiday in the United States, then
such action may be taken or such right may be exercised on the
next succeeding business day that is not a legal holiday.
SECTION 6.05 Applicable 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, and construed in accordance with, the laws of the State of
.
SECTION 6.06 Obtaining of Governmental Approvals.
The Company from time to time will take all reason-
able actions necessary to obtain and keep effective any and all
permits, consents and approvals of governmental agencies and
authorities and securities acts filings under Federal and state
laws (including, without limitation, a registration statement
in respect of the Warrants and Warrant Securities under the
Securities Act of 1933, as amended (the "Securities Act")),
which may be or become requisite in connection with the issu-
ance, sale, transfer and delivery of the Warrant Securities
issued upon exercise of the Warrant Certificates, the exercise
of the Warrants, the issuance, sale, transfer and delivery of
the Warrants or upon the expiration of the period during which
the Warrants are exercisable.
-18-<PAGE>
If there is no effective registration statement in
respect of the Warrants and Warrant Securities under the Secu-
rities Act, no Warrantholder may sell or transfer any or all of
such Warrants or Warrant Securities, as the case may be, with-
out first providing the Company with an opinion of counsel
(which may be counsel for the Company) to the effect that such
sale or transfer will be exempt from the registration and pro-
spectus delivery requirements of the Securities Act.
SECTION 6.07 Delivery of Prospectus.
If the issuance and sale of the Warrant Securities
are registered under the Securities Act, the Company will fur-
nish to the Warrant Agent sufficient copies of a prospectus
relating to the Warrant Securities deliverable upon exercise of
the Warrants (the "Prospectus"), and the Warrant Agent agrees
that upon the exercise of any Warrant, the Warrant Agent will
deliver a Prospectus to the holder of the Warrant Certificate
evidencing such warrant prior to or concurrently with the
delivery of the Warrant Securities issued upon such exercise.
The Warrant Agent shall not, by reason of any such delivery,
assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 6.08 Persons Having Rights Under
Warrant Agreement.
Nothing in this Agreement shall give to any person
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.
SECTION 6.09 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 6.10 Counterparts.
This Agreement may be executed in any number of coun-
terparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but
one and the same instrument.
SECTION 6.11 Inspection of Agreement.
A copy of this Agreement shall be available at all
reasonable times at the principal corporate trust office of the
-19-<PAGE>
Warrant Agent for inspection by the holder of any Warrant Cer-
tificate. The Warrant Agent may require such holder to submit
his Warrant Certificate for inspection by it.
SECTION 6.12 Successors and Assigns.
All the covenants and provisions of this Agreement by
or for the benefit of the Company or the Warrant Agent shall
bind and inure to the benefit of their respective successors
and assigns hereunder.
IN WITNESS WHEREOF, Hecla Mining Company and
have caused this Agreement to be signed by
their respective duly authorized officers, and their respective
corporate seals to be affixed hereunto, and the same to be
attested by their respective Secretaries or one of their
respective Assistant Secretaries, all as of the day and year
first above written.
HECLA MINING COMPANY
By
Name:
Title:
Attest:
By
Name:
Title:
[Warrant Agent]
By
Name:
Title:
Attest:
By
Name:
Title:
-20-<PAGE>
WLR&K DRAFT
8/9/95
Exhibit 4.3(f)
Exhibit A
FORM OF WARRANT CERTIFICATE*
<TABLE>
[Face of Warrant Certificate]
<CAPTION>
<S> <C>
[Form of Legend if Offered Securities with War- Prior to , this Warrant Certificate can-
rants that are not immediately detachable. not be transferred or exchanged unless attached to
a [Title of Offered Securities].]
[Form of Legend if Warrants are not immediately Prior to , Warrants evidenced by this
exercisable. Warrant Certificate cannot be exercised.]
</TABLE>
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
HECLA MINING COMPANY
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M., NEW YORK CITY TIME, ON .
No. Warrants
This certifies that [ or registered
assigns is the registered] [the bearer hereof is the] owner of
the above indicated number of Warrants, each Warrant entitling
such owner [if Offered Securities with Warrants that are not
immediately detachable --, subject to the [bearer] [registered
owner] qualifying as a "holder" of this Warrant Certificate, as
hereinafter defined] to purchase, at any time [after 5 P.M.,
New York City time, on and] on or before 5 P.M.,
New York City time, on , $ principal
amount of [Title of Warrant Securities] (the "Warrant Securi-
ties"), of Hecla Mining Company (the "Company"), issued and to
be issued under the Indenture (as hereinafter defined), on the
following basis: [during the period from ,
through and including ,] each Warrant shall entitle
the holder thereof, subject to the provisions of the Warrant
Agreement under which these Warrants are issued, to purchase
from the Company the principal amount of Warrant Securities
stated above in this Warrant Certificate at the exercise price
of $ plus [accrued amortization of the original issue
discount] [accrued interest] from ; [during the
period from , through and including ,
the exercise price of each Warrant will be plus
[accrued amortization, if any, of the original issue discount]
[accrued interest], if any, from the most recent date from
which interest shall have been paid on the Warrant Securities
or, if no interest shall have been paid on the Warrant
A-1
_____________________
* For Debt Securities.<PAGE>
Securities, from ;] [in each case, the original
issue discount will be amortized at a percent annual rate,
computed on an annual basis using the "interest" method and
using a 360-day year consisting of twelve 30-day months] (the
"Warrant Price"). [The original issue discount for each
principal amount of Warrant Securities is
.] The holder may exercise the Warrants evidenced
hereby by providing certain information set forth on the back
hereof and by paying in full [in lawful money of the United
States of America] [applicable currency] [in cash or by certi-
fied check or official bank check or by bank wire transfer, in
each case,] [by bank wire transfer] in [immediately available]
[next-day] funds, the Warrant Price for each Warrant exercised
to the Warrant Agent (as hereinafter defined) and by surrender-
ing this Warrant Certificate, with the purchase form on the
back hereof duly executed, at the corporate trust office of
[name of Warrant Agent], or its successor as warrant agent (the
"Warrant Agent"), [or ], which is, on the date
hereof, at the address specified on the reverse hereof, and
upon compliance with and subject to the conditions set forth
herein and in the Warrant Agreement (as hereinafter defined).
The term "holder" as used herein shall mean [if
Offered Securities with Warrants that are not immediately
detachable --, prior to (the "Detachable Date"),
the [bearer] [registered owner] of the Company's [title of
Offered Securities] to which this Warrant Certificate is ini-
tially attached, and after such Detachable Date,] [the bearer
of this Warrant Certificate] [the person in whose name at the
time of this Warrant Certificate shall be registered upon the
books to be maintained by the Warrant Agent for that purpose
pursuant to Section 4.01 of the Warrant Agreement].
Any whole number of Warrants evidenced by this War-
rant Certificate may be exercised to purchase Warrant Securi-
ties in [registered] [bearer] form in denominations of
and any integral multiples thereof. Upon any exer-
cise of fewer than all of the Warrants evidenced by this War-
rant Certificate, there shall be issued to the holder hereof a
new Warrant Certificate evidencing the number of Warrants
remaining unexercised.
This Warrant Certificate is issued under and in
accordance with the Warrant Agreement dated as of
(the "Warrant Agreement") by and between the Company and the
Warrant Agent and is subject to the terms and provisions con-
tained in the Warrant Agreement, to all of which terms and pro-
visions the holder of this Warrant Certificate consents by
acceptance hereof. Copies of the Warrant Agreement are on file
A-2<PAGE>
at the above-mentioned office of the Warrant Agent [and at
].
[If Offered Securities with Warrants that are not
immediately detachable -- Prior to , this Warrant
Certificate may be exchanged or transferred only together with
the [Title of Offered Securities] (the "Offered Securities") to
which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an
exchange or transfer of such Offered Security. After such
date, transfer] [if Offered Securities with Warrants that are
immediately detachable -- Transfer] [If registered Warrants --
of this Warrant Certificate may be registered when this Warrant
Certificate is surrendered at the corporate trust office of the
Warrant Agent [or ] by the registered owner or such
owner's assigns, in person or by an attorney duly authorized in
writing, in the manner and subject to the limitations provided
in the Warrant Agreement.] [If bearer Warrants -- of this War-
rant Certificate shall be effected by delivery and the Company
and the Warrant Agent may treat the bearer hereof as the owner
for all purposes.]
[If Offered Securities with Warrants that are not
immediately detachable -- Except as provided in the immediately
preceding paragraph, after] [If Offered Securities with War-
rants which are immediately detachable or Warrant alone --
After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certifi-
cate may be exchanged at the corporate trust office of the War-
rant Agent [or ] for Warrant Certificates repre-
senting the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder
hereof to any of the rights of a holder of the Warrant Securi-
ties, including, without limitation, the right to receive pay-
ments of principal of, premium, if any, or interest, if any, on
the Warrant Securities or to enforce any of the covenants of
the Indenture.
A-3<PAGE>
This Warrant Certificate shall not be valid or
obligatory for any purpose until countersigned by the Warrant
Agent.
Dated as of .
HECLA MINING COMPANY
By
Name:
Title:
Attest:
By
Name:
Title:
Countersigned:
As Warrant Agent
By
Authorized Signature
A-4<PAGE>
[REVERSE OF WARRANT CERTIFICATE]
INSTRUCTIONS FOR EXERCISE OF WARRANT
To exercise the Warrants evidenced hereby, the holder
of this Warrant Certificate must pay in [United States dollars]
[applicable currency] [in cash or by certified check or offi-
cial bank check or by bank wire transfer] [by bank wire trans-
fer] in [immediately available] [next-day] funds the Warrant
Price in full for each of the Warrants exercised to [insert
name of Warrant Agent] [Corporate Trust Department] [insert
address of Warrant Agent], Attn. [or
], which [payment] [wire transfer] must specify
the name of the holder and the number of Warrants exercised by
such holder. In addition, such holder must complete the in-
formation required below, [including the applicable certifica-
tion with respect to Warrant Securities in bearer form], and
present this Warrant Certificate in person or by mail (certi-
fied or registered mail is recommended) to the Warrant Agent at
the appropriate address set forth below. This Warrant Certif-
icate, completed and duly executed, must be received by the
Warrant Agent within five business days of the [payment] [wire
transfer].
TO BE EXECUTED UPON EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise
Warrants, evidenced by this Warrant Certificate, to
purchase principal amount of the [Title of Warrant
Securities] (the "Warrant Securities") of Hecla Mining Company
and represents that the undersigned has tendered payment for
such Warrant Securities in [Dollars] [applicable currency] [in
cash or by certified check or official bank check or by bank
wire transfer, in each case] [by bank wire transfer] in [im-
mediately available] [next-day] funds to the order of Hecla
Mining Company, c/o [insert name and address of Warrant Agent],
in the amount of in accordance with the terms
hereof. The undersigned requests that said principal amount of
Warrant Securities be in [bearer] [fully registered] form in
the authorized denominations, registered in such names and
delivered all as specified in accordance with the instructions
set forth below. [However, unless otherwise designated by the
Company, Warrant Securities in bearer form shall be delivered
to or upon the order of the holder of such Warrant Certificate
only outside the United States and its possessions.]
If the number of Warrants exercised is less than all
of the Warrants evidenced hereby, the undersigned requests that
a new Warrant Certificate representing the remaining Warrants
A-5<PAGE>
evidenced hereby be issued and delivered to the undersigned
unless otherwise specified in the instruction below.
Dated: Name
Address
(Insert Social Security or Other
Identifying Number of Holder) (Signature must conform in all
respects to name of holder as
specified on the face of this
Signature Guaranteed Warrant Certificate and must bear a
signature guarantee by a bank, trust
company or member broker of the New
York Stock Exchange)
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at
By mail at
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing
unexercised Warrants -- complete as appropriate.]
A-6<PAGE>
[If registered Warrants -- ASSIGNMENT
[FORM OF ASSIGNMENT TO BE EXECUTED IF HOLDER
DESIRES TO TRANSFER WARRANTS EVIDENCED HEREBY]
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
(Please print name) (Please insert social security
or other identifying number)
(Address)
(City, including zip code)
the Warrants represented by the within Warrant Certificate and
does hereby irrevocably constitute and appoint as
Attorney to transfer said Warrant Certificate on the books of
the Warrant Agent with full power of substitution in the
premises.
Dated:
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate and must bear
a signature guarantee by a bank,
trust company or member broker of
the New York Stock Exchange)
Signature Guaranteed
]
A-7<PAGE>
WLR&K DRAFT
8/9/95
Exhibit B
CERTIFICATION AS TO NON-U.S. OWNERSHIP
[Form of certificate to be given by person requesting
delivery of bearer Warrant Security upon
exercise of Warrant]
CERTIFICATE
HECLA MINING COMPANY
[Title of Warrant Securities] Issuable Upon Exercise of
Warrants ("Warrant Securities")
To: Hecla Mining Company
[Name of Warrant Agent], or
Warrant Agent
This certificate is submitted in connection with the
exercise of the Warrant Certificate relating to the Warrant
Securities, by delivery to you of the election to purchase
dated as of .
The undersigned hereby certifies that, as of the date
hereof, the Warrant Securities which are to be delivered to the
undersigned in bearer form upon the exercise by the undersigned
of such Warrant Certificate (i) are owned by persons that are
not United States Persons, as defined below; (ii) are owned by
United States Persons that are (A) foreign branches of United
States financial institutions (as defined in U.S. Treasury Reg-
ulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (B) United
States Persons who acquired the obligations through foreign
branches of United States financial institutions and who hold
the obligations through such financial institutions on the date
hereof (and in either case (A) or (B), each such United States
financial institution provides a certificate in the form that
follows this certificate); or (iii) are owned by United States
or foreign financial institutions for purposes of resale during
the restricted period (as defined in the U.S. Treasury Regula-
tions Section 1.163-5(c)(2)(i)(D)(7)), which United States or
foreign institutions described in clause (iii) above (whether
or not also described in clause (i) or (ii)) certify that they
have not acquired the obligations for purposes of resale
directly or indirectly to a United States Person or to a person
within the United States or its possessions. The undersigned
undertakes
B-1<PAGE>
to advise you by tested telex or electronic transmission fol-
lowed by written confirmation if the statement in the immedi-
ately preceding sentence is not correct on the date of delivery
of the above-captioned Warrant Securities in bearer form.
The undersigned understands that this certificate is
required in connection with United States tax laws. The under-
signed irrevocably authorizes you to produce this certificate
or a copy hereof to any interested party in any administrative
or legal proceedings with respect to the matters covered by
this certificate. "United States Person" shall mean a citizen
or resident of the United States of America (including the Dis-
trict of Columbia), a corporation, partnership or other entity
created or organized in or under the laws of the United States
or any political subdivision thereof or an estate or trust that
is subject to United States Federal income taxation regardless
of the source of its income.
Date:
[Name of Person Entitled to Receive
Warrant Security Described Herein]
(Authorized Signatory)
Name:
Title:
Subject to change in accordance with changes in applicable tax
laws and regulations.
B-2<PAGE>
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
CERTIFICATE
HECLA MINING COMPANY
[Title of Warrant Securities] Issuable Upon Exercise of
Warrants ("Warrant Securities")
To: Hecla Mining Company
[Name of Warrant Agent], or
Warrant Agent
This certificate is submitted in connection with the
exercise of the Warrant Certificate relating to the Warrant
Securities, by delivery to you of the election to purchase
dated as of .
The undersigned represents that it is a branch
located outside the United States of a United States securities
clearing organization, bank or other financial institution (as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v))
that hold customers' securities in the ordinary course of its
trade or business and agrees that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Inter-
nal Revenue Code of 1986, as amended, and the regulations
thereunder and is not purchasing for resale directly or indi-
rectly to a United States Person or to a person within the
United States or its possessions. We undertake to advise you
by tested telex or electronic transmission followed by written
confirmation if the statement in the immediately preceding sen-
tence is not correct on the date of delivery of the above cap-
tioned Warrant Securities in bearer form.
B-3<PAGE>
The undersigned understands that this certificate is
required in connection with the United States tax laws. The
undersigned irrevocably authorizes you to produce this certifi-
cate or a copy hereof to any interested party in any adminis-
trative or legal proceedings with respect to the matters cov-
ered by this certificate.
Date:
[Name of Person Entitled to Delivery
of Warrant Security Described Herein]
(Authorized Signatory)
Name:
Title:
Subject to change in accordance with changes in applicable tax
laws and regulations.
B-4
WLR&K DRAFT 8/9/95
Exhibit 4.3(g)
PREFERRED STOCK WARRANT AGREEMENT
between
HECLA MINING COMPANY
and
, as Warrant Agent
Dated <PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01 Issuance of Warrants..................... 2
SECTION 1.02 Execution and Delivery of
Warrant Certificates................... 2
SECTION 1.03 Issuance of Warrant Certificates......... 3
SECTION 1.04 Temporary Warrant Certificates........... 4
ARTICLE TWO
WARRANT PRICE, DURATION AND EXERCISE
OF WARRANTS
SECTION 2.01 Warrant Price............................ 5
SECTION 2.02 Duration of Warrants..................... 5
SECTION 2.03 Exercise of Warrants..................... 5
ARTICLE THREE
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01 No Rights as Warrant Securityholder
Conferred by Warrants or Warrant
Certificates........................... 7
SECTION 3.02 Lost, Stolen, Mutilated or Destroyed
Warrant Certificates................... 7
SECTION 3.03 Holder of Warrant Certificate
May Enforce Rights..................... 8
SECTION 3.04 Reclassification, Consolidation,
Merger, Sale, Conveyance or Lease...... 8
ARTICLE FOUR
EXCHANGE AND TRANSFERS OF WARRANT CERTIFICATES
SECTION 4.01 Exchange and Transfers of Warrant
Certificates........................... 11
SECTION 4.02 Treatment of Holders of Warrant
Certificates........................... 12
SECTION 4.03 Cancellation of Warrant Certificates..... 12
-i-<PAGE>
Page
ARTICLE FIVE
CONCERNING THE WARRANT AGENT
SECTION 5.01 Warrant Agent............................ 13
SECTION 5.02 Conditions of Warrant Agent's
Obligations............................ 13
SECTION 5.03 Resignation, Removal and Appointment
of Successor........................... 15
ARTICLE SIX
MISCELLANEOUS
SECTION 6.01 Notice .................................. 17
SECTION 6.02 Notices and Demands to the Company
and Warrant Agent...................... 18
SECTION 6.03 Amendment................................ 18
SECTION 6.04 Saturdays, Sundays, Holidays, etc........ 19
SECTION 6.05 Applicable Law........................... 19
SECTION 6.06 Obtaining of Governmental Approvals...... 19
SECTION 6.07 Delivery of Prospectus................... 19
SECTION 6.08 Persons Having Rights Under Warrant
Agreement.............................. 20
SECTION 6.09 Headings................................. 20
SECTION 6.10 Counterparts............................. 20
SECTION 6.11 Inspection of Agreement.................. 20
SECTION 6.12 Successors and Assigns................... 20
TESTIMONIUM.............................................. 21
SIGNATURE AND SEALS...................................... 21
EXHIBIT A - Form of Warrant Certificate.................. A-1
-ii-<PAGE>
HECLA MINING COMPANY
Preferred Stock Warrant Agreement*
THIS WARRANT AGREEMENT, dated as of ________________,
is between HECLA MINING COMPANY, a Delaware corporation (here-
inafter called the "Company"), and _____________________, as
Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell [if Warrants
are sold with other securities -- [title of such other securi-
ties being offered] (the "Offered Securities") with] warrant
certificates evidencing one or more warrants (the "Warrants" or
individually a "Warrant") representing the right to purchase
[title of Preferred Stock or Depositary Shares purchasable
through exercise of Warrants] (the "Warrant Securities"), such
warrant certificates and other warrant certificates issued pur-
suant to this Agreement being herein called the "Warrant Cer-
tificates"; and
WHEREAS, the Company desires the Warrant Agent to act
on behalf of the Company, and the Warrant Agent is willing so
to act, in connection with the issuance, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement
wishes to set forth, among other things, the form and provi-
sions of the Warrant Certificates and the terms and conditions
on which they may be issued, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and
of the mutual agreements herein contained, the parties hereto
agree as follows:
_____________________
* Complete or modify the provisions of this Warrant Agree-
ment as appropriate to reflect the terms of the Warrants, War-
rant Securities and Offered Securities. Monetary amounts may
be in U.S. dollars or in foreign currency or currencies (in-
cluding composite currencies) or in currency unit or units.
-1-<PAGE>
ARTICLE ONE
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01 Issuance of Warrants.
[If Warrants alone -- Upon issuance, each Warrant
Certificate shall evidence one or more Warrants.] [If Offered
Securities and Warrants -- Warrants shall be [initially] issued
in connection with the issuance of the Offered Securities [but
shall be separately transferable on and after _________ (the
"Detachable Date")] [and shall not be separately transferable],
and each Warrant Certificate shall evidence one or more War-
rants.] Each Warrant evidenced thereby shall represent the
right, subject to the provisions contained herein and therein,
to purchase one Warrant Security. [If Offered Securities and
Warrants -- Warrant Certificates shall be initially issued in
units with the Offered Securities, and each Warrant Certificate
included in such a unit shall evidence __________ Warrants for
each [$_______________ in principal amount] [______ shares] of
Offered Securities included in such unit.]
SECTION 1.02 Execution and Delivery of Warrant
Certificates.
Each Warrant Certificate, whenever issued, shall be
in registered form substantially in the form set forth in Ex-
hibit A hereto, shall be dated ____________________ and may
have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, litho-
graphed or engraved thereon as the officers of the Company ex-
ecuting the same may approve (execution thereof to be conclu-
sive evidence of such approval), and as are not inconsistent
with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursu-
ant thereto or with any rule or regulation of any stock ex-
change on which the Warrants may be listed, or to conform to
usage. The Warrant Certificates shall be signed on behalf of
the Company by its Chairman of the Board, its Chief Executive
Officer, its President or one of its Vice Presidents and by its
Secretary or one of its Assistant Secretaries under its corpo-
rate seal reproduced thereon. Such signatures may be manual or
facsimile signatures of such authorized officers and may be
imprinted or otherwise reproduced on the Warrant Certificates.
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.
-2-<PAGE>
No Warrant Certificate shall be valid for any pur-
pose, and no Warrant evidenced thereby shall be exercisable,
until such Warrant Certificate has been countersigned by the
manual signature of the Warrant Agent. Such signature by the
Warrant Agent upon any Warrant Certificate executed by the Com-
pany shall be conclusive evidence that the Warrant Certificate
so countersigned has been duly issued hereunder.
In case any officer of the Company who shall have
signed any of the Warrant Certificates either manually or by
facsimile signature shall cease to be such officer before the
Warrant Certificates so signed shall have been countersigned
and delivered by the Warrant Agent, such Warrant Certificates
may be countersigned and delivered notwithstanding that the
person who signed such Warrant Certificates ceased to be such
officer of the Company; and any Warrant Certificate may be
signed on behalf of the Company by such persons as, at the ac-
tual date of the execution of such Warrant Certificate, shall
be the proper officers of the Company, although at the date of
the execution of this Agreement any such person was not such an
officer.
The term "holder" or "holder of a Warrant Certifi-
cate" as used herein shall mean any person in whose name at the
time any Warrant Certificate shall be registered upon the books
to be maintained by the Warrant Agent for that purpose [If Of-
fered Securities and Warrants are not immediately detachable --
or upon the register of the Offered Securities prior to the
Detachable Date. Prior to the Detachable Date, the Company
will, or will cause the registrar of the Offered Securities to,
make available at all times to the Warrant Agent such informa-
tion as to holders of the Offered Securities with Warrants as
may be necessary to keep the Warrant Agent's records up to
date].
[If Warrants are issuable as a Global Warrant --
"Global Warrant" means a Warrant that evidences all or part of
the Warrants and is authenticated and delivered to, and regis-
tered in the name of, the Depositary for such Warrants or a
nominee thereof. "Depositary" means, with respect to Warrants
issuable in whole or in part in the form of one or more Global
Warrants, a clearing agency that the Company designates to act
as Depositary.]
SECTION 1.03 Issuance of Warrant Certificates.
Warrant Certificates evidencing the right to purchase
an aggregate not exceeding ________ Warrant Securities (except
as provided in Sections 1.04, 2.03(c), 3.02 and 4.01) may be
executed by the Company and delivered to the Warrant Agent upon
-3-<PAGE>
the execution of this Agreement or from time to time thereaf-
ter. The Warrant Agent shall, upon receipt of Warrant Cer-
tificates duly executed on behalf of the Company, countersign
Warrant Certificates evidencing Warrants representing the right
to purchase up to _______ Warrant Securities and shall deliver
such Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Warrant Certifi-
cates, the Warrant Agent shall countersign a Warrant Certifi-
cate only if the Warrant Certificate is issued in exchange or
substitution for one or more previously countersigned Warrant
Certificates or in connection with their transfer, as herein-
after provided.
SECTION 1.04 Temporary Warrant Certificates.
Pending the preparation of definitive Warrant Cer-
tificates, the Company may execute, and upon the order of the
Company, the Warrant Agent shall authenticate and deliver, tem-
porary Warrant Certificates which are printed, lithographed,
typewritten, mimeographed or otherwise produced substantially
of the tenor of the definitive Warrant Certificates in lieu of
which they are issued and with such insertions, omissions, sub-
stitutions and other variations as the officers executing such
Warrant Certificate may determine are appropriate, as evidenced
by their execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the
Company will cause definitive Warrant Certificates to be pre-
pared without unreasonable delay. After the preparation of
definitive Warrant Certificates, the temporary Warrant Certifi-
cates shall be exchangeable for definitive Warrant Certificates
upon surrender of the temporary Warrant Certificates at the
corporate trust office of the Warrant Agent [or
___________________], without charge to the holder. Upon sur-
render for cancellation of any one or more temporary Warrant
Certificates the Company shall execute and the Warrant Agent
shall authenticate and deliver in exchange therefor definitive
Warrant Certificates representing the same aggregate number of
Warrants. Until so exchanged, the temporary Warrant Certifi-
cates shall in all respects be entitled to the same benefits
under this Agreement as definitive Warrant Certificates.
-4-<PAGE>
ARTICLE TWO
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.01 Warrant Price.
During the period from ______________, through and
including ___________________, each Warrant shall entitle the
holder thereof, subject to the provisions of this Agreement, to
purchase from the Company the number of Warrant Securities
stated in the Warrant Certificate at the exercise price of
$__________. Such purchase price of Warrant Securities is re-
ferred to in this Agreement as the "Warrant Price." No adjust-
ment shall be made for any dividends on any Warrant Securities
issuable upon exercise of any Warrant.
SECTION 2.02 Duration of Warrants.
Each Warrant may be exercised in whole at any time,
as specified herein, on or after [the date thereof]
[___________] and at or before 5 P.M., New York City time, on
_________________ or such later date as the Company may desig-
nate, by notice to the Warrant Agent and the holders of Warrant
Certificates mailed to their addresses as set forth in the
record books of the Warrant Agent (the "Expiration Date").
Each Warrant not exercised at or before 5 P.M., New York City
time, on the Expiration Date shall become void, and all rights
of the holder of the Warrant Certificate evidencing such War-
rant under this Agreement shall cease.
SECTION 2.03 Exercise of Warrants.
(a) During the period specified in Section 2.02, any
whole number of Warrants may be exercised by providing certain
information as set forth on the reverse side of the Warrant
Certificate and by paying in full, in [lawful money of the
United States of America] [applicable currency] [in cash or by
certified check or official bank check or by bank wire trans-
fer, in each case,] [by bank wire transfer] in [immediately
available] [next-day] funds the Warrant Price for each Warrant
exercised, to the Warrant Agent at its corporate trust office
[or at ___________________], provided that such exercise is
subject to receipt within five business days of such [payment]
[wire transfer] by the Warrant Agent of the Warrant Certificate
with the form of election to purchase Warrant Securities set
forth on the reverse side of the Warrant Certificate properly
completed and duly executed. The date on which payment in full
of the Warrant Price is received by the Warrant Agent shall,
subject to receipt of the Warrant Certificate as aforesaid, be
-5-<PAGE>
deemed to be the date on which the Warrant is exercised. The
Warrant Agent shall deposit all funds received by it in payment
of the Warrant Price in an account of the Company maintained
with it [if non-dollar denominated funds -- or in such other
account designated by the Company] and shall advise the Company
by telephone at the end of each day on which a [payment] [wire
transfer] for the exercise of Warrants is received of the
amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephone advice to the Company in writ-
ing.
(b) The Warrant Agent shall, from time to time, as
promptly as reasonably practicable, advise the Company of (1)
the number of Warrants exercised, (2) the instructions of each
holder of the Warrant Certificates evidencing such Warrants
with respect to delivery of the Warrant Securities to which
such holder is entitled upon such exercise, (3) delivery of
Warrant Certificates evidencing the balance, if any, of the
Warrants remaining after such exercise, and (4) such other in-
formation as the Company shall reasonably require.
(c) As soon as reasonably practicable after the ex-
ercise of any Warrant, the Company shall issue to or upon the
order of the holder of the Warrant Certificate evidencing such
Warrant, the Warrant Securities to which such holder is en-
titled, in fully registered form, registered in such name or
names as may be directed by such holder. If fewer than all of
the Warrants evidenced by such Warrant Certificate are exer-
cised, the Company shall execute, and an authorized officer of
the Warrant Agent shall manually countersign and deliver a new
Warrant Certificate evidencing the number of such Warrants re-
maining unexercised.
(d) Issuance of certificates for the Warrant Securi-
ties upon the exercise of the Warrants shall be made without
charge to the Warrantholder for any issue or transfer tax or
other incidental expense in respect of the issuance of such
certificates, all of which taxes and expenses shall be paid by
the Company, and such certificates shall be issued in the name
of the Warrantholder or in such name or names as may be di-
rected by the Warrantholder; provided, however, that in the
event certificates for the Warrant Securities are to be issued
in a name other than the name of the Warrantholder, the Warrant
Certificate when surrendered for exercise shall be accompanied
by the Assignment Form attached to the Warrant Certificate duly
executed by the Warrantholder; and provided further, that upon
any transfer involved in the issuance or delivery of any cer-
tificates for the Warrant Securities, the Company may require,
as a condition thereto, the payment of a sum sufficient to re-
imburse it for any transfer tax incidental thereto.
-6-<PAGE>
The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in
connection with any transfer of the Warrant Securities, and
shall not be required to issue or deliver any Warrant Security
until such tax or other charge shall have been paid or it has
been established to the Company's satisfaction that no such tax
or other charge is due.
(e) Prior to the issuance of any Warrants there
shall have been reserved, and the Company shall at all times
keep reserved, out of its authorized but unissued Warrant Secu-
rities, a number of shares sufficient to provide for the exer-
cise of the Warrant Certificates. The issuance of a Warrant
Certificate shall constitute full authority to the Company's
officers who are charged with the duty of executing stock cer-
tificates and to any Transfer Agent for the Company to execute
and issue the necessary certificates for the Warrant Securities
upon the exercise of the purchase rights under the Warrant Cer-
tificate.
ARTICLE THREE
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01 No Rights as Warrant Securityholder
Conferred by Warrants or Warrant
Certificates.
No Warrant Certificates or Warrant evidenced thereby
shall entitle the holder thereof to any of the rights of a
holder of Warrant Securities, including, without limitation,
the right to receive the payment of dividends or distributions,
if any, on the Warrant Securities or to exercise any voting
rights.
SECTION 3.02 Lost, Stolen, Mutilated or Destroyed
Warrant Certificates.
Upon receipt by the Warrant Agent of evidence reason-
ably satisfactory to it and the Company of the ownership of and
the loss, theft, destruction or mutilation of any Warrant Cer-
tificate and of indemnity reasonably satisfactory to the War-
rant Agent and the Company and, in the case of mutilation, upon
surrender thereof to the Warrant Agent for cancellation, then,
in the absence of notice to the Company or the Warrant Agent
that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute, and an authorized officer
of the Warrant Agent shall manually countersign and deliver, in
-7-<PAGE>
exchange for or in lieu of the lost, stolen, destroyed or muti-
lated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the
issuance of any new Warrant Certificate under this Section, the
Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every
substitute Warrant Certificate executed and delivered pursuant
to this Section in lieu of any lost, stolen or destroyed War-
rant Certificate shall be entitled to the benefits of this
Agreement equally and proportionately with any and all other
Warrant Certificates duly executed and delivered hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with re-
spect to the replacement of mutilated, lost, stolen or de-
stroyed Warrant Certificates.
SECTION 3.03 Holder of Warrant Certificate May
Enforce Rights.
Notwithstanding any of the provisions of this Agree-
ment, any holder of a Warrant Certificate, without the consent
of the Warrant Agent, the holder of any Warrant Securities or
the holder of any other Warrant Certificate, may, in such
holder's own behalf and for such holder's own benefit, enforce,
and may institute and maintain any suit, action or proceeding
against the Company suitable to enforce, or otherwise in re-
spect of, such holder's right to exercise the Warrants evi-
denced by such holder's Warrant Certificate in the manner pro-
vided in such holder's Warrant Certificate and in this Agree-
ment.
SECTION 3.04 Reclassification, Consolidation, Merger,
Sale, Conveyance or Lease.
Notwithstanding any other provision herein to the
contrary, in case of (i) any consolidation or merger to which
the Company is a party (other than a merger or consolidation in
which the Company is the continuing corporation and in which
the Warrant Securities outstanding immediately prior to the
merger or consolidation are not exchanged for cash, or for the
securities or other property of another corporation), (ii) any
sale or transfer to another corporation of the property of the
Company as an entirety or substantially as an entirety, (iii)
any statutory exchange of securities with another corporation
(other than in connection with a merger or acquisition) or (iv)
any reclassification, capital reorganization or change of the
outstanding shares of Warrant Securities (other than solely a
change in par value or from par value to no par value), then
-8-<PAGE>
lawful provision shall be made by the corporation formed by
such consolidation or the corporation whose securities, cash or
other property will immediately after the merger or consolida-
tion be owned, by virtue of the merger or consolidation, by the
holders of Warrant Securities immediately prior to the merger
or consolidation, or the corporation which shall have acquired
such assets or securities of the Company, or the Company, as
the case may be, providing that the holder of each Warrant
shall have the right thereafter, during such period as the War-
rant is exercisable, upon payment of the Warrant Price in ef-
fect immediately prior to such consolidation, merger, statutory
exchange, sale, transfer, reclassification, capital reorganiza-
tion or change to purchase upon exercise of the Warrant the
kind and amount of securities, cash or other property receiv-
able upon such consolidation, merger, statutory exchange, sale,
transfer, reclassification, capital reorganization or change by
a holder of the number of shares of Warrant Securities into
which such Warrant might have been exercised immediately prior
to such consolidation, merger, statutory exchange, sale, trans-
fer, reclassification, capital reorganization or change assum-
ing such holder of Warrant Securities did not exercise his
rights of election, if any, as to the kind or amount of securi-
ties, cash or other property receivable upon such consolida-
tion, merger, statutory exchange, sale, transfer, reclassifica-
tion, capital reorganization or change (provided that, if the
kind or amount of securities, cash or other property receivable
upon such consolidation, merger, statutory exchange, sale or
transfer is not the same for each share of Warrant Securities
in respect of which such rights of election shall not have been
exercised ("non-electing share"), then for the purposes of this
Section 3.04 the kind and amount of securities, cash or other
property receivable upon such consolidation, merger, statutory
exchange, sale or transfer for each non-electing share shall be
deemed to be the kind and amount so receivable per share by a
plurality of the non-electing shares).
The above provisions of this Section 3.04 shall simi-
larly apply to successive consolidations, mergers, statutory
exchanges, sales or transfers. If necessary, appropriate ad-
justment shall be made in the application of the provisions set
forth herein with respect to the rights and interests there-
after of the holders of the Warrants, to the end that the pro-
visions set forth herein shall thereafter correspondingly be
made applicable, as nearly as may reasonably be, in relation to
any shares of stock or other securities or property thereafter
deliverable on the exercise of the Warrants. The Company shall
not effect any such consolidation, merger, sale or transfer,
unless prior to or simultaneously with the consummation there-
of, the successor company or entity (if other than the Company)
resulting from such consolidation, merger, sale or transfer
-9-<PAGE>
shall assume, by written instrument, the obligation to deliver
to the holder of each Warrant such shares of stock, securities
or assets as, in accordance with the foregoing provisions, such
holder may be entitled to receive under this Section 3.04.
-10-<PAGE>
ARTICLE FOUR
EXCHANGE AND TRANSFERS OF WARRANT CERTIFICATES
SECTION 4.01 Exchange and Transfers of Warrant
Certificates.
[If Offered Securities with Warrants that are im-
mediately detachable -- Upon] [If Offered Securities with War-
rants that are not immediately detachable -- Prior to the De-
tachable Date a Warrant Certificate may be exchanged or trans-
ferred only together with the Offered Security to which the
Warrant Certificate was initially attached, and only for the
purpose of effecting or in conjunction with an exchange or
transfer of such Offered Security. Prior to any Detachable
Date, each transfer of the Offered Security [on the register of
the Offered Securities] shall operate also to transfer the re-
lated Warrant Certificates. After the Detachable Date, upon]
surrender at the corporate trust office of the Warrant Agent
[or __________], Warrant Certificates evidencing Warrants may
be exchanged for Warrant Certificates in other denominations
evidencing such Warrants or the transfer thereof may be regis-
tered in whole or in part; provided that such other Warrant
Certificates evidence the same aggregate number of Warrants as
the Warrant Certificates so surrendered. The Warrant Agent
shall keep, at its corporate trust office [and at _________],
books in which, subject to such reasonable regulations as it
may prescribe, it shall register Warrant Certificates and ex-
changes and transfers of outstanding Warrant Certificates, upon
surrender of the Warrant Certificates to the Warrant Agent at
its corporate trust office [or __________] for exchange or reg-
istration of transfer, properly endorsed or accompanied by ap-
propriate instruments of registration of transfer and written
instructions for transfer, all in form satisfactory to the Com-
pany and the Warrant Agent. No service charge shall be made
for any exchange or registration of transfer of Warrant Cer-
tificates, but the Company may require payment of a sum suffi-
cient to cover any stamp or other tax or other governmental
charge that may be imposed in connection with any such exchange
or registration of transfer. Whenever any Warrant Certificates
are so surrendered for exchange or registration of transfer, an
authorized officer of the Warrant Agent shall manually coun-
tersign and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates duly authorized and
executed by the Company, as so requested. The Warrant Agent
shall not be required to effect any exchange or registration of
transfer that will result in the issuance of a Warrant Certifi-
cate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates
issued upon any exchange or registration of transfer of Warrant
-11-<PAGE>
Certificates shall be the valid obligation of the Company, evi-
dencing the same obligations, and entitled to the same benefits
under this Agreement, as the Warrant Certificate surrendered
for such exchange or registration of transfer.
[If Warrants are issuable as a Global Warrant Not-
withstanding any other provision in this Agreement, no Global
Warrant may be transferred to, or registered or exchanged for
Warrants registered in the name of, any person other than the
Depositary for such Global Warrant or any nominee thereof, and
no such transfer may be registered, unless (i) such Depositary
notifies the Company that it is unwilling or unable to continue
as Depositary for such Global Warrant, (ii) the Company ex-
ecutes and delivers to the Warrant Agent a written order ex-
ecuted by the Company that such Global Warrant shall be so
transferable, registerable and exchangeable, and such transfers
shall be registrable, or (iii) there shall have occurred and be
continuing an event of default with respect to the Warrants
evidenced by such Global Warrant. Notwithstanding any other
provision in this Agreement, a Global Warrant to which the re-
striction set forth in the preceding sentence shall have ceased
to apply may be transferred only to, and may be registered and
exchanged for Warrants registered only in the name or names of,
such person or persons as the Depositary for such Global War-
rant shall have directed and no transfer thereof other than
such a transfer may be registered.]
SECTION 4.02 Treatment of Holders of Warrant
Certificates.
[If Offered Securities and Warrants are not im-
mediately detachable -- Prior to the Detachable Date, the Com-
pany, the Warrant Agent and all other persons may treat the
owner of any Offered Securities as the owner of the Warrant
Certificates initially attached thereto for any purpose and as
the person entitled to exercise the rights represented by the
Warrants evidenced by such Warrant Certificates, any notice to
the contrary notwithstanding. After the Detachable Date and
prior to the due presentment of a Warrant Certificate for reg-
istration of transfer,] [t][T]he Company and the Warrant Agent
and all other persons may treat the registered holder of a War-
rant Certificate as the absolute owner thereof for any purpose
and as the person entitled to exercise the rights represented
by the Warrants evidenced thereby, any notice to the contrary
notwithstanding.
SECTION 4.03 Cancellation of Warrant Certificates.
Any Warrant Certificate surrendered for exchange,
registration of transfer or exercise of the Warrants evidenced
-12-<PAGE>
thereby shall, if surrendered to the Company, be delivered to
the Warrant Agent and all Warrant Certificates surrendered or
so delivered to the Warrant Agent shall be promptly canceled by
the Warrant Agent and shall not be reissued and, except as ex-
pressly permitted by this Agreement, no Warrant Certificate
shall be issued hereunder in exchange or in lieu thereof. The
Warrant Agent shall deliver to the Company from time to time or
otherwise dispose of canceled Warrant Certificates in a manner
satisfactory to the Company.
ARTICLE FIVE
CONCERNING THE WARRANT AGENT
SECTION 5.01 Warrant Agent.
The Company hereby appoints _______________ as the
Warrant Agent of the Company in respect of the Warrants and the
Warrant Certificates upon the terms and subject to the condi-
tions herein set forth, and _______________________ hereby ac-
cepts such appointment. The Warrant Agent shall have the pow-
ers and authority granted to and conferred upon it in the War-
rant Certificates and hereby and such further powers and au-
thority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. 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 5.02 Conditions of Warrant Agent's
Obligations.
The Warrant Agent accepts its obligations herein set
forth upon the terms and conditions hereof, including the fol-
lowing 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) Compensation and Indemnification. The Company
agrees promptly to pay the Warrant Agent the compensation
agreed upon with the Company for all services rendered by
the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including counsel fees)
reasonably incurred without negligence or bad faith by the
Warrant Agent in connection with the services rendered
hereunder by the Warrant Agent. The Company also agrees
to indemnify the Warrant Agent for, and to hold it harm-
less against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Warrant
-13-<PAGE>
Agent, arising out of or in connection with its acting as
Warrant Agent hereunder, as well as the reasonable costs
and expenses of defending against any claim of such li-
ability.
(b) Agent for the Company. In acting under this
Agreement and in connection with the Warrant Certificates,
the Warrant Agent is acting solely as agent of the Company
and does not assume any obligations or relationship of
agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with
counsel satisfactory to it, and the written advice of such
counsel shall be full and complete authorization and pro-
tection in respect of any action reasonably taken, suf-
fered or omitted by it hereunder in good faith and in ac-
cordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected
and shall incur no liability for or in respect of any ac-
tion taken or thing suffered by it in reliance upon any
Warrant Certificate, notice, direction, consent, certifi-
cate, affidavit, statement or other paper or document rea-
sonably believed by it to be genuine and to have been pre-
sented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and
its officers, directors and employees, may become the
owner of, or acquire any interest in, Warrants, 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 depositary, trustee or agent for, any
committee or body of holders of Warrant Securities or
other obligations of the Company as freely as if it were
not the Warrant Agent hereunder. Nothing in this Agree-
ment shall be deemed to prevent the Warrant Agent from
acting as trustee under any indentures.
(f) No Liability for Interest. Unless otherwise
agreed with the Company, the Warrant Agent shall have no
liability for interest on any monies at any time received
by it pursuant to any of the provisions of this Agreement
or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent
shall have no liability with respect to any invalidity of
-14-<PAGE>
this Agreement or any of the Warrant Certificates (except
as to the Warrant Agent's countersignature thereon).
(h) No Responsibility for Representations. The War-
rant Agent shall not be responsible for any of the recit-
als or representations herein or in the Warrant Certifi-
cates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall
be obligated to perform only 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 not be accountable or un-
der any duty or responsibility for the use by the Company
of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant
to this Agreement or for the application by the Company of
the proceeds of the Warrant Certificates. 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 herein or in the Warrant Certifi-
cates or in the case of a 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 6.02 hereof, to make any
demand upon the Company.
SECTION 5.03 Resignation, Removal and Appointment
of Successor.
(a) The Company agrees, for the benefit of the hold-
ers 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 are no longer exercisable.
(b) The Warrant Agent may at any time resign as such
agent by giving written notice to the Company of such intention
on its part, specifying the date on which its desired resigna-
tion shall become effective; provided that such date shall be
not less than three months after the date on which such notice
is given unless the Company otherwise agrees. The Warrant
Agent hereunder may be removed at any time by the filing with
it of an instrument in writing signed by or on behalf of the
Company and specifying such removal and the intended date when
it shall become effective. Such resignation or removal shall
take effect upon the appointment by the Company, as hereinafter
-15-<PAGE>
provided, of a successor Warrant Agent (which shall be a bank
or trust company authorized under the laws of the jurisdiction
of its organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent.
The obligation of the Company under Section 5.02(a) shall con-
tinue to the extent set forth therein, notwithstanding the res-
ignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall re-
sign, or shall be removed, or shall become incapable of acting,
or shall be adjudged bankrupt or insolvent, or shall commence a
voluntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or under any other applicable Federal or
state bankruptcy, insolvency or similar law or shall consent to
the appointment of or taking possession by a receiver, custo-
dian, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Warrant Agent or its property or af-
fairs, or shall make an assignment for the benefit of credi-
tors, or shall admit in writing its inability to pay its debts
generally as they become due, or shall take corporate action in
furtherance of any such action, or a decree or order for relief
by a court having jurisdiction in the premises shall have been
entered in respect of the Warrant Agent in an involuntary case
under the Federal bankruptcy laws, as now or hereafter consti-
tuted, or any other applicable Federal or state bankruptcy,
insolvency or similar law, or a decree or order by a court hav-
ing jurisdiction in the premises shall have been entered for
the appointment of a receiver, custodian, liquidator, assignee,
trustee, sequestrator (or similar official) of the Warrant
Agent or of its property or affairs, or any public officer
shall take charge or control of the Warrant Agent or of its
property or affairs for the purpose of rehabilitation, conser-
vation, winding up or liquidation, a successor Warrant Agent,
qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent.
Upon the appointment as aforesaid of a successor Warrant Agent
and acceptance by the successor Warrant Agent of such appoint-
ment, the Warrant Agent shall cease to be Warrant Agent hereun-
der.
(d) Any successor Warrant Agent appointed hereunder
shall execute, acknowledge and deliver to its predecessor and
to the Company an instrument accepting such appointment hereun-
der, and thereupon such successor Warrant Agent, without any
further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, duties and obligations
of such predecessor with like effect as if originally named as
Warrant Agent hereunder, and such predecessor, upon payment of
-16-<PAGE>
its charges and disbursements then unpaid, shall thereupon be-
come obligated to transfer, deliver and pay over, and such suc-
cessor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent
hereunder may be merged or converted or any corporation with
which the Warrant Agent may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which
the Warrant Agent shall be a party, or any corporation to which
the Warrant Agent shall sell or otherwise transfer all or sub-
stantially all the assets and business of the Warrant Agent,
provided that it shall be qualified as aforesaid, shall be the
successor Warrant Agent under this Agreement without the execu-
tion or filing of any paper or any further act on the part of
any of the parties hereto.
ARTICLE SIX
MISCELLANEOUS
SECTION 6.01 Notice.
Any notices required or permitted to be given hereun-
der shall be in writing (including telegraphic, telex or fac-
simile transmission) and shall be duly given if (i) personally
delivered or sent by telegraph, telex or facsimile, and (ii)
mailed by certified or registered mail, postage prepaid, return
receipt requested, addressed as follows:
If to the Company:
Hecla Mining Company
6500 Mineral Drive
Coeur d'Alene, Idaho 83814
Attention: Vice President and
General Counsel
Facsimile No. (208) 769-4159
If to the Warrant Agent:
______________________________
______________________________
______________________________
Facsimile No. ________________
-17-<PAGE>
[If to the Warrantholder:
At the address as it appears on the
books of the Warrant Agent [or on the
register of the Offered Securities
prior to the Detachable Date], or if
such Warrantholder shall have filed
with the Warrant Agent a written re-
quest that notices intended for such
Warrantholder be mailed to some other
address, at the address designated in
such request.]
All such notices shall be effective: (i) if mailed
or personally delivered, when received, or (ii) if sent by
telegraph, telex or facsimile, when sent with evidence of
transmission. The address to which notices hereunder should be
sent may be changed by any party by giving notice of such
change to the others in the manner provided in this Agreement.
SECTION 6.02 Notices and Demands to the Company and
Warrant Agent.
If the Warrant Agent shall receive any notice or de-
mand addressed to the Company by the holder of a Warrant Cer-
tificate pursuant to the provisions of the Warrant Certifi-
cates, the Warrant Agent shall promptly forward such notice or
demand to the Company.
SECTION 6.03 Amendment.
This Agreement may be amended by the parties hereto,
without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correct-
ing or supplementing any defective provision contained herein,
or making any other provisions with respect to matters or ques-
tions arising under this Agreement as the Company and the War-
rant Agent may deem necessary or desirable; provided, however,
that such action shall not affect adversely the interests of
the holders of the Warrant Certificates. The Company and the
Warrant Agent may also supplement or amend the Warrant Agree-
ment in any other respect with the approval of the holders of a
majority in number of the Warrants then outstanding; however,
no such supplement or amendment may (i) shorten the expiration
date of the Warrants, (ii) increase the Warrant Price or reduce
the number of shares to be received upon exercise of a Warrant,
or (iii) change the percentage of the holders of Warrant Cer-
tificates who must consent to such amendment or supplement,
without the consent of each holder affected thereby.
-18-<PAGE>
SECTION 6.04 Saturdays, Sundays, Holidays, etc.
If the last or appointed day for the taking of any
action or the expiration of any right required or granted pur-
suant to this Agreement or the Warrant Certificates shall be a
Saturday, Sunday or legal holiday in the United States, then
such action may be taken or such right may be exercised on the
next succeeding business day that is not a legal holiday.
SECTION 6.05 Applicable 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, and construed in accordance with, the laws of the State of
__________________.
SECTION 6.06 Obtaining of Governmental Approvals.
The Company will from time to time take all reason-
able actions necessary to obtain and keep effective any and all
permits, consents and approvals of governmental agencies and
authorities and securities acts filings under Federal and state
laws (including, without limitation, a registration statement
in respect of the Warrants and Warrant Securities under the
Securities Act of 1933, as amended (the "Securities Act")),
which may be or become requisite in connection with the issu-
ance, sale, transfer and delivery of the Warrant Securities
issued upon exercise of the Warrant Certificates, the exercise
of the Warrants, the issuance, sale, transfer and delivery of
the Warrants or upon the expiration of the period during which
the Warrants are exercisable.
If there is no effective registration statement in
respect of the Warrants and Warrant Securities under the Secu-
rities Act, no Warrantholder may sell or transfer any or all of
such Warrants or Warrant Securities, as the case may be, with-
out first providing the Company with an opinion of counsel
(which may be counsel for the Company) to the effect that such
sale or transfer will be exempt from the registration and pro-
spectus delivery requirements of the Securities Act.
SECTION 6.07 Delivery of Prospectus.
If the issuance and sale of the Warrant Securities
are registered under the Securities Act, the Company will fur-
nish to the Warrant Agent sufficient copies of a prospectus
relating to the Warrant Securities deliverable upon exercise of
the Warrants (the "Prospectus"), and the Warrant Agent agrees
that upon the exercise of any Warrant, the Warrant Agent will
-19-<PAGE>
deliver a Prospectus to the holder of the Warrant Certificate
evidencing such warrant prior to or concurrently with the de-
livery of the Warrant Securities issued upon such exercise.
The Warrant Agent shall not, by reason of any such delivery,
assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 6.08 Persons Having Rights Under
Warrant Agreement.
Nothing in this Agreement shall give to any person
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.
SECTION 6.09 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 6.10 Counterparts.
This Agreement may be executed in any number of coun-
terparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but
one and the same instrument.
SECTION 6.11 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 Cer-
tificate. The Warrant Agent may require such holder to submit
his Warrant Certificate for inspection by it.
SECTION 6.12 Successors and Assigns.
All the covenants and provisions of this Agreement by
or for the benefit of the Company or the Warrant Agent shall
bind and inure to the benefit of their respective successors
and assigns hereunder.
-20-<PAGE>
IN WITNESS WHEREOF, Hecla Mining Company and
________________ have caused this Agreement to be signed by
their respective duly authorized officers, and their respective
corporate seals to be affixed hereunto, and the same to be at-
tested by their respective Secretaries or one of their respec-
tive Assistant Secretaries, all as of the day and year first
above written.
HECLA MINING COMPANY
By
Name:
Title:
Attest:
By
Name:
Title:
[Warrant Agent]
By
Name:
Title:
Attest:
By
Name:
Title:
-21-<PAGE>
WLR&K DRAFT
8/9/95
Exhibit 4.3(h)
Exhibit A
FORM OF WARRANT CERTIFICATE*
<TABLE>
[Face of Warrant Certificate]
<CAPTION>
<S> <C>
[Form of Legend if Offered Securities with War- Prior to , this Warrant Certificate can-
rants that are not immediately detachable. not be transferred or exchanged unless attached to
a [Title of Offered Securities].]
[Form of Legend if Warrants are not immediately Prior to , Warrants evidenced by this
exercisable. Warrant Certificate cannot be exercised.]
</TABLE>
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
HECLA MINING COMPANY
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M., NEW YORK CITY TIME, ON
No. Warrants
This certifies that _________________ or registered
assigns is the registered owner of the above indicated number
of Warrants, each Warrant entitling such owner [if Offered Se-
curities with Warrants that are not immediately detachable --,
subject to the registered owner qualifying as a "holder" of
this Warrant Certificate, as hereinafter defined] to purchase,
at any time [after 5 P.M., New York City time, on
__________________ and] on or before 5 P.M., New York City
time, on ________________, _____________ shares of [Title of
Warrant Securities] (the "Warrant Securities"), of Hecla Mining
Company (the "Company") on the following basis: [during the
period from ____________, through and including _____________,
each Warrant shall entitle the holder thereof, subject to the
provisions of the Warrant Agreement under which these Warrants
are issued, to purchase from the Company the number of Warrant
Securities stated above in this Warrant Certificate at the ex-
ercise price of $___________, during the period from
__________, through and including _________________,] the exer-
cise price of each Warrant will be ____________ (the "Warrant
Price"). No adjustment shall be made for any dividends on any
Warrant Securities issuable upon exercise of any Warrant. The
holder may exercise the Warrants evidenced hereby by providing
certain information set forth on the back hereof and by paying
in full [in lawful money of the United States of America] [in
cash or by certified check or official bank check or by bank
A-1
_____________________
* For Preferred Stock.<PAGE>
wire transfer, in each case,] [by bank wire transfer] in [im-
mediately available] [next-day] funds, the Warrant Price for
each Warrant exercised to the Warrant Agent (as hereinafter
defined) and by surrendering this Warrant Certificate, with the
purchase form on the back hereof duly executed, at the corpo-
rate trust office of [name of Warrant Agent], or its successor
as warrant agent (the "Warrant Agent"), [or ____________],
which is, on the date hereof, at the address specified on the
reverse hereof, and upon compliance with and subject to the
conditions set forth herein and in the Warrant Agreement (as
hereinafter defined).
The term "holder" as used herein shall mean [if Of-
fered Securities with Warrants that are not immediately detach-
able --, prior to ________ (the "Detachable Date"), the regis-
tered owner of the Company's [title of Offered Securities] to
which this Warrant Certificate is initially attached, and after
such Detachable Date,] the person in whose name at the time of
this Warrant Certificate shall be registered upon the books to
be maintained by the Warrant Agent for that purpose pursuant to
Section 4.01 of the Warrant Agreement.
Any whole number of Warrants evidenced by this War-
rant Certificate may be exercised to purchase Warrant Securi-
ties in registered form. Upon any exercise of fewer than all
of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the holder hereof a new Warrant Certificate
evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in ac-
cordance with the Warrant Agreement dated as of _____________
(the "Warrant Agreement") by and between the Company and the
Warrant Agent and is subject to the terms and provisions con-
tained in the Warrant Agreement, to all of which terms and pro-
visions the holder of this Warrant Certificate consents by ac-
ceptance hereof. Copies of the Warrant Agreement are on file
at the above-mentioned office of the Warrant Agent [and at
_____________].
[If Offered Securities with Warrants that are not
immediately detachable -- Prior to ________________, this War-
rant Certificate may be exchanged or transferred only together
with the [Title of Offered Securities] (the "Offered Securi-
ties") to which this Warrant Certificate was initially at-
tached, and only for the purpose of effecting, or in conjunc-
tion with, an exchange or transfer of such Offered Security.
After such date, transfer] [if Offered Securities with Warrants
that are immediately detachable -- Transfer] of this Warrant
Certificate may be registered when this Warrant Certificate
A-2<PAGE>
is surrendered at the corporate trust office of the Warrant
Agent [or ___________] by the registered owner or such owner's
assigns, in person or by an attorney duly authorized in writ-
ing, in the manner and subject to the limitations provided in
the Warrant Agreement.]
[If Offered Securities with Warrants that are not
immediately detachable -- Except as provided in the immediately
preceding paragraph, after] [If Offered Securities with War-
rants which are immediately detachable or Warrant alone -- Af-
ter] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certifi-
cate may be exchanged at the corporate trust office of the War-
rant Agent [or ____________] for Warrant Certificates repre-
senting the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder
hereof to any of the rights of a holder of the Warrant Securi-
ties, including, without limitation, the right to receive pay-
ments of dividends or distributions, if any, on the Warrant
Securities or to exercise any voting rights.
A-3<PAGE>
This Warrant Certificate shall not be valid or
obligatory for any purpose until countersigned by the Warrant
Agent.
Dated as of .
HECLA MINING COMPANY
By
Name:
Title:
Attest:
By
Name:
Title:
Countersigned:
As Warrant Agent
By
Authorized Signature
A-4<PAGE>
[REVERSE OF WARRANT CERTIFICATE]
INSTRUCTIONS FOR EXERCISE OF WARRANT
To exercise the Warrants evidenced hereby, the holder
of this Warrant Certificate must pay in United States dollars
[in cash or by certified check or official bank check or by
bank wire transfer] [by bank wire transfer] in [immediately
available] [next-day] funds the Warrant Price in full for each
of the Warrants exercised to [insert name of Warrant Agent]
[Corporate Trust Department] [insert address of Warrant Agent],
Attn. [or ], which [payment] [wire
transfer] must specify the name of the holder and the number of
Warrants exercised by such holder. In addition, such holder
must complete the information required below and present this
Warrant Certificate in person or by mail (certified or regis-
tered mail is recommended) to the Warrant Agent at the appro-
priate address set forth below. This Warrant Certificate, com-
pleted and duly executed, must be received by the Warrant Agent
within five business days of the [payment] [wire transfer].
TO BE EXECUTED UPON EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise
______ Warrants, evidenced by this Warrant Certificate, to pur-
chase ______ shares of [Title of Warrant Securities] (the "War-
rant Securities") of Hecla Mining Company and represents that
the undersigned has tendered payment for such Warrant Securi-
ties in Dollars [in cash or by certified check or official bank
check or by bank wire transfer, in each case] [by bank wire
transfer] in [immediately available] [next-day] funds to the
order of Hecla Mining Company, c/o [insert name and address of
Warrant Agent], in the amount of _______ in accordance with the
terms hereof. The undersigned requests that said amount of
Warrant Securities be in fully registered form in the autho-
rized denominations, registered in such names and delivered all
as specified in accordance with the instructions set forth be-
low.
If the number of Warrants exercised is less than all
of the Warrants evidenced hereby, the undersigned requests that
a new Warrant Certificate representing the remaining Warrants
evidenced hereby be issued and delivered to the undersigned
unless otherwise specified in the instruction below.
A-5<PAGE>
Dated: Name
Address
[Insert Social Security or Other
Identifying Number of Holder (Signature must conform in all
respects to name of holder as
specified on the face of this
Signature Guaranteed Warrant Certificate and must bear a
signature guarantee by a bank, trust
company or member broker of the New
York Stock Exchange)
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at
By mail at
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing
unexercised Warrants -- complete as appropriate.]
A-6<PAGE>
ASSIGNMENT
[FORM OF ASSIGNMENT TO BE EXECUTED IF HOLDER
DESIRES TO TRANSFER WARRANTS EVIDENCED HEREBY]
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
(Please print name) (Please insert social security
or other identifying number)
(Address)
(City, including zip code)
the Warrants represented by the within Warrant Certificate and
does hereby irrevocably constitute and appoint
as Attorney to transfer said Warrant Certificate on the books
of the Warrant Agent with full power of substitution in the
premises.
Dated:
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate and must
bear a signature guarantee by a
bank, trust company or member
broker of the New York Stock
Exchange)
Signature Guaranteed
A-7
WLR&K DRAFT 8/9/95
Exhibit 4.3(i)
COMMON STOCK WARRANT AGREEMENT
between
HECLA MINING COMPANY
and
, as Warrant Agent
Dated <PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01 Issuance of Warrants..................... 1
SECTION 1.02 Execution and Delivery of
Warrant Certificates................... 2
SECTION 1.03 Issuance of Warrant Certificates......... 3
SECTION 1.04 Temporary Warrant Certificates........... 4
ARTICLE TWO
WARRANT PRICE, DURATION AND EXERCISE
OF WARRANTS
SECTION 2.01 Warrant Price............................ 4
SECTION 2.02 Adjustments in Warrant Price............. 5
SECTION 2.03 Duration of Warrants..................... 13
SECTION 2.04 Exercise of Warrants..................... 14
ARTICLE THREE
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01 No Rights as Warrant Securityholder
Conferred by Warrants or Warrant
Certificates........................... 16
SECTION 3.02 Lost, Stolen, Mutilated or Destroyed
Warrant Certificates................... 16
SECTION 3.03 Holder of Warrant Certificate
May Enforce Rights..................... 17
ARTICLE FOUR
EXCHANGE AND TRANSFERS OF WARRANT CERTIFICATES
SECTION 4.01 Exchange and Transfers of Warrant
Certificates........................... 17
SECTION 4.02 Treatment of Holders of Warrant
Certificates........................... 18
SECTION 4.03 Cancellation of Warrant Certificates..... 19
-i-<PAGE>
Page
ARTICLE FIVE
CONCERNING THE WARRANT AGENT
SECTION 5.01 Warrant Agent............................ 19
SECTION 5.02 Conditions of Warrant Agent's
Obligations............................ 20
SECTION 5.03 Resignation, Removal and Appointment
of Successor........................... 22
ARTICLE SIX
ACCELERATION OF WARRANTS
SECTION 6.01 Acceleration............................. 23
SECTION 6.02 Acceleration of Portion of Warrants...... 24
SECTION 6.03 Notice .................................. 24
SECTION 6.04 Time of Acceleration..................... 24
ARTICLE SEVEN
MISCELLANEOUS
SECTION 7.01 Notice .................................. 24
SECTION 7.02 Notices and Demands to the Company
and Warrant Agent...................... 25
SECTION 7.03 Amendment................................ 26
SECTION 7.04 Saturdays, Sundays, Holidays, etc........ 26
SECTION 7.05 Applicable Law........................... 26
SECTION 7.06 Obtaining of Governmental Approvals...... 26
SECTION 7.07 Delivery of Prospectus................... 27
SECTION 7.08 Persons Having Rights Under Warrant
Agreement.............................. 27
SECTION 7.09 Headings................................. 27
SECTION 7.10 Counterparts............................. 27
SECTION 7.11 Inspection of Agreement.................. 28
SECTION 7.12 Successors and Assigns................... 28
TESTIMONIUM.............................................. 29
SIGNATURE AND SEALS...................................... 29
EXHIBIT A - Form of Warrant Certificate.................. A-1
-ii-<PAGE>
HECLA MINING COMPANY
Common Stock Warrant Agreement*
THIS WARRANT AGREEMENT, dated as of ________________,
is between HECLA MINING COMPANY, a Delaware corporation (here-
inafter called the "Company"), and _____________________, as
Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell [if Warrants
are sold with other securities -- [title of such other securi-
ties being offered] (the "Offered Securities") with] warrant
certificates evidencing one or more warrants (the "Warrants" or
individually a "Warrant") representing the right to purchase
Common Stock, par value $0.25 per share, of the Company (the
"Warrant Securities"), such warrant certificates and other war-
rant certificates issued pursuant to this Agreement being
herein called the "Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act
on behalf of the Company, and the Warrant Agent is willing so
to act, in connection with the issuance, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement
wishes to set forth, among other things, the form and provi-
sions of the Warrant Certificates and the terms and conditions
on which they may be issued, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and
of the mutual agreements herein contained, the parties hereto
agree as follows:
ARTICLE ONE
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01 Issuance of Warrants.
[If Warrants alone -- Upon issuance, each Warrant
Certificate shall evidence one or more Warrants.] [If Offered
_____________________
* Complete or modify the provisions of this Warrant
Agreement as appropriate to reflect the terms of the Warrants,
Warrant Securities and Offered Securities. Monetary units may
be in U.S. dollars or in foreign currency or currencies
(including composite currencies) or currency unit or units.<PAGE>
Securities and Warrants -- Warrants shall be [initially] issued
in connection with the issuance of the Offered Securities [but
shall be separately transferable on and after _________ (the
"Detachable Date")] [and shall not be separately transferable],
and each Warrant Certificate shall evidence one or more War-
rants.] Each Warrant evidenced thereby shall represent the
right, subject to the provisions contained herein and therein,
to purchase one Warrant Security. [If Offered Securities and
Warrants -- Warrant Certificates shall be initially issued in
units with the Offered Securities, and each Warrant Certificate
included in such a unit shall evidence __________ Warrants for
each [$_______________ in principal amount] [______ shares] of
Offered Securities included in such unit.]
SECTION 1.02 Execution and Delivery of Warrant
Certificates.
Each Warrant Certificate, whenever issued, shall be
in registered form substantially in the form set forth in
Exhibit A hereto, shall be dated ____________________ and may
have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, litho-
graphed or engraved thereon as the officers of the Company
executing the same may approve (execution thereof to be conclu-
sive evidence of such approval), and as are not inconsistent
with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursu-
ant thereto or with any rule or regulation of any stock ex-
change on which the Warrants may be listed, or to conform to
usage. The Warrant Certificates shall be signed on behalf of
the Company by its Chairman of the Board, its Chief Executive
Officer, its President or one of its Vice Presidents and by its
Secretary or one of its Assistant Secretaries under its corpo-
rate seal reproduced thereon. Such signatures may be manual or
facsimile signatures of such authorized officers and may be
imprinted or otherwise reproduced on the Warrant Certificates.
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.
No Warrant Certificate shall be valid for any pur-
pose, and no Warrant evidenced thereby shall be exercisable,
until such Warrant Certificate has been countersigned by the
manual signature of the Warrant Agent. Such signature by the
Warrant Agent upon any Warrant Certificate executed by the Com-
pany shall be conclusive evidence that the Warrant Certificate
so countersigned has been duly issued hereunder.
-2-<PAGE>
In case any officer of the Company who shall have
signed any of the Warrant Certificates either manually or by
facsimile signature shall cease to be such officer before the
Warrant Certificates so signed shall have been countersigned
and delivered by the Warrant Agent, such Warrant Certificates
may be countersigned and delivered notwithstanding that the
person who signed such Warrant Certificates ceased to be such
officer of the Company; and any Warrant Certificate may be
signed on behalf of the Company 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 of this Agreement any such person was not such an
officer.
The term "holder" or "holder of a Warrant Certifi-
cate" as used herein shall mean any person in whose name at the
time any Warrant Certificate shall be registered upon the books
to be maintained by the Warrant Agent for that purpose [If
Offered Securities and Warrants are not immediately detachable
-- or upon the register of the Offered Securities prior to the
Detachable Date. Prior to the Detachable Date, the Company
will, or will cause the registrar of the Offered Securities to,
make available at all times to the Warrant Agent such informa-
tion as to holders of the Offered Securities with Warrants as
may be necessary to keep the Warrant Agent's records up to
date].
[If Warrants are issuable as a Global Warrant --
"Global Warrant" means a Warrant that evidences all or part of
the Warrants and is authenticated and delivered to, and regis-
tered in the name of, the Depositary for such Warrants or a
nominee thereof. "Depositary" means, with respect to Warrants
issuable in whole or in part in the form of one or more Global
Warrants, a clearing agency that the Company designates to act
as Depositary.]
SECTION 1.03 Issuance of Warrant Certificates.
Warrant Certificates evidencing the right to purchase
an aggregate not exceeding ________ Warrant Securities (except
as provided in Sections 1.04, 2.04(c), 3.02 and 4.01) may be
executed by the Company and delivered to the Warrant Agent upon
the execution of this Agreement or from time to time there-
after. The Warrant Agent shall, upon receipt of Warrant Cer-
tificates duly executed on behalf of the Company, countersign
Warrant Certificates evidencing Warrants representing the right
to purchase up to _______ Warrant Securities and shall deliver
such Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Warrant Certifi-
cates, the Warrant Agent shall countersign a Warrant
-3-<PAGE>
Certificate only if the Warrant Certificate is issued in
exchange or substitution for one or more previously counter-
signed Warrant Certificates or in connection with their trans-
fer, as hereinafter provided.
SECTION 1.04 Temporary Warrant Certificates.
Pending the preparation of definitive Warrant Cer-
tificates, the Company may execute, and upon the order of the
Company, the Warrant Agent shall authenticate and deliver, tem-
porary Warrant Certificates which are printed, lithographed,
typewritten, mimeographed or otherwise produced substantially
of the tenor of the definitive Warrant Certificates in lieu of
which they are issued and with such insertions, omissions, sub-
stitutions and other variations as the officers executing such
Warrant Certificate may determine are appropriate, as evidenced
by their execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the
Company will cause definitive Warrant Certificates to be pre-
pared without unreasonable delay. After the preparation of
definitive Warrant Certificates, the temporary Warrant Certifi-
cates shall be exchangeable for definitive Warrant Certificates
upon surrender of the temporary Warrant Certificates at the
corporate trust office of the Warrant Agent [or
___________________], without charge to the holder. Upon sur-
render for cancellation of any one or more temporary Warrant
Certificates the Company shall execute and the Warrant Agent
shall authenticate and deliver in exchange therefor definitive
Warrant Certificates representing the same aggregate number of
Warrants. Until so exchanged, the temporary Warrant Certifi-
cates shall in all respects be entitled to the same benefits
under this Agreement as definitive Warrant Certificates.
ARTICLE TWO
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.01 Warrant Price.
During the period from ______________, through and
including ___________________, each Warrant shall entitle the
holder thereof, subject to the provisions of this Agreement, to
purchase from the Company the number of Warrant Securities
stated in the Warrant Certificate at the exercise price of
$__________ [at least $0.25, the par value of the Common
Stock], subject to adjustment as provided in Section 2.02.
-4-<PAGE>
Such purchase price of Warrant Securities is referred to in
this Agreement as the "Warrant Price." Other than as provided
in Section 2.02 herein, no adjustment shall be made for any
dividends on any Warrant Securities issuable upon exercise of
any Warrant.
SECTION 2.02 Adjustments in Warrant Price.
The Warrant Price, the number of shares purchasable
upon exercise of the Warrants and the number of Warrants out-
standing shall be subject to adjustment as follows:
(a) In case the Company shall (1) pay a dividend or
make a distribution on its Common Stock in shares of Com-
mon Stock, (2) subdivide its outstanding shares of Common
Stock into a greater number of shares, (3) combine its
outstanding shares of Common Stock into a smaller number
of shares, or (4) issue by reclassification of its Common
Stock any shares of capital stock of the Company (includ-
ing any such reclassification in connection with a con-
solidation or merger in which the Company is the surviving
company), then in each such case the Warrant Price in
effect immediately prior to such action shall be adjusted
so that the holder of any Warrant thereafter exercised
shall be entitled to receive the number of shares of Com-
mon Stock or other capital stock of the Company which he
would have owned or been entitled to receive immediately
following such action had such Warrant been exercised
immediately prior to the occurrence of such event. An
adjustment made pursuant to this Subsection (a) shall
become effective immediately after the record date for
such action, in the case of a dividend or distribution, or
immediately after the effective date, in the case of a
subdivision, combination or reclassification. If, as a
result of an adjustment made pursuant to this Subsection
(a), the holder of any Warrant thereafter exercised shall
become entitled to receive shares of two or more classes
of capital stock or shares of Common Stock and other capi-
tal stock of the Company, the Board of Directors (whose
determination shall be conclusive and shall be described
in a statement certified by a corporate officer and filed
by the Company with the Warrant Agent) shall determine the
allocation of the adjusted Warrant Price between or among
shares of such classes of capital stock or shares of Com-
mon Stock and other capital stock.
(b) In case the Company shall issue rights or war-
rants to all holders of its outstanding shares of Common
Stock (which rights or warrants are not available
-5-<PAGE>
on an equivalent basis to holders of Warrants) entitling
them (for a period expiring within 45 days after the
record date mentioned below) to subscribe for or purchase
shares of Common Stock at a price per share less than the
current market price per share (as determined pursuant to
Subsection (d) of this Section) of the Common Stock, then
the Warrant Price in effect immediately prior thereto
shall be adjusted (subject to the limitations contained in
Subsection (f) of this Section) so that it shall equal the
price determined by multiplying the Warrant Price in
effect immediately prior to the record date for the deter-
mination 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 on the
date of issuance of such rights or warrants (immediately
prior to such issuance) plus the number of shares which
the aggregate offering price of the total number of shares
so offered would purchase at such current market price,
and of which the denominator shall be the numbers of
shares of Common Stock outstanding on the date of issuance
of such rights or warrants (immediately prior to such
issuance) plus the number of additional shares of Common
Stock offered for subscription or purchase; provided, how-
ever, that no adjustment shall be made if the Company
issues or distributes to the holders of the Warrants the
rights or warrants which such holders would have been
entitled to receive had the Warrants been exercised prior
to the record date mentioned below. Such adjustment shall
be made successively whenever any rights or warrants are
issued, and shall become effective immediately after the
close of business on the record date for the determination
of stockholders entitled to receive such rights or war-
rants; provided, however, in the event that all the shares
of Common Stock offered for subscription or purchase are
not delivered upon the exercise of such rights or war-
rants, upon the expiration of such rights or warrants the
Warrant Price shall be readjusted to the Warrant Price
which would have been in effect had the numerator and the
denominator of the foregoing fraction and the resulting
adjustment been made based upon the number of shares of
Common Stock actually delivered upon the exercise of such
rights or warrants rather than upon the number of shares
of Common Stock offered for subscription or purchase.
In determining whether any rights or warrants
entitle the holders to subscribe for or purchase shares of
Common Stock at less than such current market price, and
in determining the aggregate offering price of such shares
of Common Stock, there shall be taken into account any
-6-<PAGE>
consideration received by the Company for such rights or
warrants, the value of such consideration, if other than
cash, to be determined by the Board of Directors (whose
determination shall be conclusive and shall be described
in a statement filed by the Company with the Warrant
Agent). Notwithstanding the foregoing, any adjustments to
the Warrant Price with respect to the preferred stock pur-
chase rights (the "Rights") of the Company associated with
the shares of Common Stock, which Rights are governed by a
Rights Agreement dated as of [________ __, 19__], as
amended (the "Rights Agreement"), or similar rights or
warrants adopted or issued subsequent to the date hereof
shall be made when such Rights or similar rights or war-
rants are exercised. If after the Distribution Date (as
defined in the Rights Agreement or a similar date defined
in a similar agreement), holders exercising Warrants are
not entitled to receive the Rights or similar rights or
warrants which would otherwise be attributable (but for
the date of exercise) to the shares of Common Stock
received upon such exercise, then adjustment to the War-
rant Price shall be made under this subsection as if the
Rights or similar rights or warrants were then issued to
holders of Common Stock. If such an adjustment is made
and the Rights or similar rights or warrants are later
redeemed, invalidated or terminated, then a corresponding
reversing adjustment shall be made to the Warrant Price,
on an equitable basis, to take account of such event.
However, the Company may elect to provide that such shares
of Common Stock issuable upon exercise of the Warrants,
whether or not issued after the Distribution Date for such
Rights or such similar date for such similar rights or
warrants, will be accompanied by the Rights or such simi-
lar rights or warrants which would otherwise be attribut-
able (but for the date of exercise) to such shares of Com-
mon Stock, in which event the preceding two sentences
shall not apply.
(c) In case the Company shall, by dividend or
otherwise, distribute to all holders of its outstanding
Common Stock (including any such distribution made in con-
nection with a consolidation or merger in which the
Company is the surviving company), evidences of its
indebtedness or assets (including securities and cash, but
excluding any regular periodic cash dividend of the Com-
pany and dividends or distributions payable in stock for
which adjustment is made pursuant to Subsection (a) of
this Section) or rights or warrants to subscribe for or
purchase securities of the Company (excluding those
referred to in Subsection (b) of this Section), then in
each such case the Warrant Price shall be adjusted
-7-<PAGE>
(subject to the limitations contained in Subsection (f) of
this Section) so that the same shall equal the price
determined by multiplying the Warrant Price in effect
immediately prior to the record date of such distribution
by a fraction of which the numerator shall be the current
market price per share (as determined pursuant to Subsec-
tion (d) of this Section) of the Common Stock less the
fair market value on such record date (as determined by
the Board of Directors, whose determination shall be con-
clusive and shall be described in a statement filed by the
Company with the Warrant Agent) of the portion of the cap-
ital stock or assets or the evidences of indebtedness or
assets so distributed to the holder of one share of Common
Stock or of such subscription rights or warrants appli-
cable to one share of Common Stock, and of which the
denominator shall be such current market price per share
of Common Stock. Such adjustment shall become effective
immediately after the close of business on the record date
for the determination of stockholders entitled to receive
such distribution.
(d) For the purpose of any computation under
Subsections (b) and (c) of this Section, the current mar-
ket price per share of Common Stock on any date shall be
deemed to be the average of the market price ("Market
Price") for the shorter of (1) 30 consecutive trading days
ending on the last full trading day prior to the Time of
Determination or (2) the period commencing on the date
next succeeding the first public announcement of the issu-
ance of such rights or warrants or such distribution
through such last full trading day prior to the Time of
Determination. For purposes of the foregoing, the term
"Time of Determination" shall mean the time and date of
the earlier of (i) the record date for determining stock-
holders entitled to receive the rights, warrants or dis-
tributions referred to in Subsections (b) and (c) of this
Section or (ii) the commencement of "exdividend" trading
on the exchange or market referred to below. The Market
Price for each day shall be the last reported sales price
regular way or, in case no such reported sales takes place
on such day, the average of the closing bid and asked
prices regular way for such day, in each case on the New
York Stock Exchange Composite Tape or, if not listed on
the New York Stock Exchange, on the principal national
securities exchange on which the shares of Common Stock
are listed or admitted to trading or, if not listed or
admitted to trading on a national securities exchange, the
last sale price regular way for the Common Stock as pub-
lished by The New York Stock Exchange, Inc. ("NYSE") or if
such last sale price is not so published by NYSE or if
-8-<PAGE>
no such sale takes place on such day, the mean between the
closing bid and asked prices for the Common Stock as pub-
lished by NYSE. If the shares of Common Stock are not
listed or admitted to trading on a national securities
exchange or quoted by NYSE, the determination of Market
Price shall be determined in good faith by the Board of
Directors of the Company or, if such determination cannot
be made, by a nationally recognized independent investment
banking firm selected in good faith by the Board of Direc-
tors of the Company. For the purposes of this Subsection
(d), trading day shall mean a day on which the securities
exchange specified for purposes of this Subsection (d)
shall be open for business or, if the shares of Common
Stock shall not be listed on such exchange for such
period, a day with respect to which quotations of the
character referred to in the next preceding sentence shall
be reported.
(e) In any case in which this Section shall
require that an adjustment be made immediately following a
record date or an effective date, the Company may elect to
defer until the actual occurrence of such event issuing to
the holder of any Warrant exercised after such record date
or effective date the shares of Common Stock issuable upon
such exercise over and above the shares of Common Stock
issuable upon such exercise on the basis of the Warrant
Price prior to adjustment, and paying to such holder any
amount of cash in lieu of a fractional share.
(f) No adjustment in the Warrant Price shall be
made for the issuance of shares of capital stock pursuant
to any stock option, restricted stock or other incentive
or benefit plan or stock ownership or purchase plan for
the benefit of employees, directors or officers or any
dividend reinvestment plan of the Company in effect at the
time hereof or any other similar plan adopted or imple-
mented hereafter. No adjustment in the Warrant Price
shall be required to be made unless such adjustment would
require an increase or decrease of at least one percent of
such price; provided, however, that any adjustments which
by reason of this Subsection (f) are not required to be
made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this
Section shall be made to the nearest cent or to the near-
est 1-1000th of a share, as the case may be. Anything in
this Section to the contrary notwithstanding, the Company
shall be entitled to make such reduction in the Warrant
Price, in addition to those required by this Section, as
it in its discretion shall determine to be advisable in
order that any stock dividend, subdivision of
-9-<PAGE>
shares, distribution of rights to purchase stock or secu-
rities, or distribution of securities convertible into or
exchangeable for stock hereafter made by the Company to
its stockholders shall not be taxable to the recipients.
Except as set forth in Subsections (a), (b) and (c) above,
the Warrant Price shall not be adjusted for the issuance
of Common Stock, or any securities convertible into or
exchangeable for Common Stock or carrying the right to
purchase any of the foregoing, in exchange for cash, prop-
erty or services.
(g) Whenever the Warrant Price is adjusted as
herein provided, (1) the Company shall promptly file with
the Warrant Agent a certificate setting forth the Warrant
Price after such adjustment and a brief statement of the
facts requiring such adjustment and the manner of comput-
ing the same, which certificate shall be conclusive evi-
dence of the correctness of such adjustment, and (2) the
Company shall also mail or cause to be mailed by first
class mail, postage prepaid, as soon as practicable to
each holder of Warrants a notice stating that the Warrant
Price has been adjusted and setting forth the adjusted
Warrant Price. The Warrant Agent shall not be under any
duty or responsibility with respect to the certificate
required by this Subsection (g) except to exhibit the same
to any holder of Warrants who requests to inspect it.
(h) In the event that at any time, as a result
of an adjustment made pursuant to Subsection (a) of this
Section, the holder of any Warrant thereafter exercised
shall become entitled to receive any shares of the Company
other than shares of Common Stock, thereafter the Warrant
Price of such other shares so receivable upon exercise of
any Warrant 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.
(i) The Company from time to time may decrease
the Warrant Price by any amount for any period of time if
the period is at least 20 days and if the decrease is
irrevocable during the period. Whenever the Warrant Price
is so decreased, the Company shall mail to the holders of
the Warrants a notice of the decrease at least 15 days
before the date the decreased Warrant Price takes effect,
and such notice shall state the decreased Warrant Price
and the period it will be in effect, and the Company shall
cause to be published similar notice at least once in a
newspaper of general circulation in The City of New York,
New York, and such other cities where securities exchanges
-10-<PAGE>
are located on which the Warrants and/or Warrant Securi-
ties are listed, at least 15 days before the date the
decreased Warrant Price takes effect.
(j) In case:
(1) the Company shall take any action
which would require an adjustment in the Warrant
Price pursuant to Subsection (c) of this Section; or
(2) the Company shall authorize the grant-
ing to the holders of its Common Stock of rights or
warrants to subscribe for or purchase any shares of
stock of any class or of any other rights; or
(3) there shall be any reorganization or
reclassification of the Common Stock (other than a
subdivision or combination of the outstanding Common
Stock and other than a change in the par value of the
Common Stock), or any consolidation or merger to
which the Company is a party or any statutory ex-
change of securities with another corporation and for
which approval of any stockholders of the Company is
required, or any sale or transfer of all or substan-
tially all of the assets of the Company; or
(4) there shall be a voluntary or involun-
tary dissolution, liquidation or winding-up of the
Company;
then in each such case the Company shall cause to be given
to the holders of the Warrants and the Warrant Agent, as
promptly as possible, but in any event at least 20 days
prior to the applicable date hereinafter specified, a
notice stating (i) the date on which a record is to be
taken for the purpose of such action or granting of rights
or warrants, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be
entitled to such distribution, rights or warrants are to
be determined, or (ii) the date on which such reorganiza-
tion, reclassification, consolidation, merger, statutory
exchange, sale, transfer, dissolution, liquidation or
winding-up is expected to become effective or occur, and
the date as of which it is expected that holders of Common
Stock of record shall be entitled to exchange their shares
of Common Stock for securities, cash or other property
deliverable upon such reorganization, reclassification,
consolidation, merger, statutory exchange, sale, transfer,
dissolution, liquidation or winding-up. Failure to give
such notice or any defect
-11-<PAGE>
therein shall not affect the legality or validity of the
proceedings described in Clauses (1), (2), (3) or (4) of
this Subsection (j).
(k) Notwithstanding any other provision herein
to the contrary, in case of any consolidation or merger to
which the Company is a party (other than a merger or con-
solidation in which the Company is the continuing corpora-
tion and in which the Common Stock outstanding immediately
prior to the merger or consolidation is not exchanged for
cash, or for the securities or other property of another
corporation), or in case of any sale or transfer to
another corporation of the property of the Company as an
entirety or substantially as an entirety, or in the case
of any statutory exchange of securities with another cor-
poration (other than in connection with a merger or acqui-
sition), then lawful provision shall be made by the corpo-
ration formed by such consolidation or the corporation
whose securities, cash or other property will immediately
after the merger or consolidation be owned, by virtue of
the merger or consolidation, by the holders of Common
Stock immediately prior to the merger or consolidation, or
the corporation which shall have acquired such assets or
securities of the Company (collectively the "Formed, Sur-
viving or Acquiring Corporation"), as the case may be,
providing that the holder of each Warrant shall have the
right thereafter, during such period as the Warrant is
exercisable, upon payment of the Warrant Price in effect
immediately prior to such consolidation, merger, statutory
exchange, sale or transfer, to purchase upon exercise of
the Warrant the kind and amount of securities, cash or
other property receivable upon such consolidation, merger,
statutory exchange, sale or transfer by a holder of the
number of shares of Common Stock into which such Warrant
might have been exercised immediately prior to such con-
solidation, merger, statutory exchange, sale or transfer
assuming such holder of Common Stock did not exercise his
rights of election, if any, as to the kind or amount of
securities, cash or other property receivable upon such
consolidation, merger, statutory exchange, sale or trans-
fer (provided that, if the kind or amount of securities,
cash or other property receivable upon such consolidation,
merger, statutory exchange, sale or transfer is not the
same for each share of Common Stock in respect of which
such rights of election shall not have been exercised
("non-electing share"), then for the purposes of this Sub-
section (k) the kind and amount of securities, cash or
other property receivable upon such consolidation, merger,
statutory exchange, sale or transfer for each non-electing
share
-12-<PAGE>
shall be deemed to be the kind and amount so receivable
per share by a plurality of the non-electing shares).
The above provisions of this Subsection (k)
shall similarly apply to successive consolidations, merg-
ers, statutory exchanges, sales or transfers. If neces-
sary, appropriate adjustment shall be made in the applica-
tion of the provisions set forth herein with respect to
the rights and interests thereafter of the holders of the
Warrants, to the end that the provisions set forth herein
shall thereafter correspondingly be made applicable, as
nearly as may reasonably be, in relation to any shares of
stock or other securities or property thereafter deliver-
able on the exercise of the Warrants. The Company shall
not effect any such consolidation, merger, sale or trans-
fer, unless prior to or simultaneously with the consumma-
tion thereof, the successor company or entity (if other
than the Company) resulting from such consolidation,
merger, sale or transfer shall assume, by written instru-
ment, the obligation to deliver to the holder of each War-
rant such shares of stock, securities or assets as, in
accordance with the foregoing provisions, such holder may
be entitled to receive under this Section 2.02.
(l) No fractional shares or scrip representing
fractional shares of Common Stock shall be issued upon the
exercise of the Warrants. If more than one Warrant shall
be surrendered for exercise at one time by the same
holder, the number of full shares issuable upon exercise
thereof shall be computed on the basis of the aggregate
number of shares purchased pursuant to the Warrants so
exercised. In lieu of any fractional interest in a share
of Common Stock which would otherwise be deliverable upon
the exercise of any Warrant, the Company shall pay to the
holder of such Warrant an amount in cash (computed to the
nearest cent) equal to the Market Price (as defined in
Subsection (d) of this Section) on the business day next
preceding the day of exercise multiplied by the fractional
interest that otherwise would have been deliverable upon
exercise of such Warrant.
SECTION 2.03 Duration of Warrants.
Each Warrant may be exercised in whole at any time,
as specified herein, on or after [the date thereof]
[___________] and at or before 5 P.M., New York City time, on
_________________ or such later date as the Company may desig-
nate, by notice to the Warrant Agent and the holders of Warrant
Certificates mailed to their addresses as set forth in the
-13-<PAGE>
record books of the Warrant Agent (the "Expiration Date").
Each Warrant not exercised at or before 5 P.M., New York City
time, on the Expiration Date shall become void, and all rights
of the holder of the Warrant Certificate evidencing such War-
rant under this Agreement shall cease.
SECTION 2.04 Exercise of Warrants.
(a) During the period specified in Section 2.03, any
whole number of Warrants may be exercised by providing certain
information as set forth on the reverse side of the Warrant
Certificate and by paying in full, in [lawful money of the
United States of America] [applicable currency] [in cash or by
certified check or official bank check or by bank wire trans-
fer, in each case,] [by bank wire transfer] in [immediately
available] [next-day] funds the Warrant Price for each Warrant
exercised, to the Warrant Agent at its corporate trust office
[or at ___________________], provided that such exercise is
subject to receipt within five business days of such [payment]
[wire transfer] by the Warrant Agent of the Warrant Certificate
with the form of election to purchase Warrant Securities set
forth on the reverse side of the Warrant Certificate properly
completed and duly executed. The date on which payment in full
of the Warrant Price is received by the Warrant Agent shall,
subject to receipt of the Warrant Certificate as aforesaid, be
deemed to be the date on which the Warrant is exercised. The
Warrant Agent shall deposit all funds received by it in payment
of the Warrant Price in an account of the Company maintained
with it [if non-dollar denominated funds -- or in such other
account designated by the Company] and shall advise the Company
by telephone at the end of each day on which a [payment] [wire
transfer] for the exercise of Warrants is received of the
amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephone advice to the Company in writ-
ing.
(b) The Warrant Agent shall, from time to time, as
promptly as reasonably practicable, advise the Company of (1)
the number of Warrants exercised, (2) the instructions of each
holder of the Warrant Certificates evidencing such Warrants
with respect to delivery of the Warrant Securities to which
such holder is entitled upon such exercise, (3) delivery of
Warrant Certificates evidencing the balance, if any, of the
Warrants remaining after such exercise, and (4) such other
information as the Company shall reasonably require.
(c) As soon as reasonably practicable after the
exercise of any Warrant, the Company shall issue to or upon the
order of the holder of the Warrant Certificate evidencing such
Warrant, the Warrant Securities to which such holder is
-14-<PAGE>
entitled, in fully registered form, registered in such name or
names as may be directed by such holder. If fewer than all of
the Warrants evidenced by such Warrant Certificate are exer-
cised, the Company shall execute, and an authorized officer of
the Warrant Agent shall manually countersign and deliver a new
Warrant Certificate evidencing the number of such Warrants
remaining unexercised.
(d) Issuance of certificates for the Warrant Securi-
ties upon the exercise of the Warrants shall be made without
charge to the Warrantholder for any issue or transfer tax or
other incidental expense in respect of the issuance of such
certificates, all of which taxes and expenses shall be paid by
the Company, and such certificates shall be issued in the name
of the Warrantholder or in such name or names as may be
directed by the Warrantholder; provided, however, that in the
event certificates for the Warrant Securities are to be issued
in a name other than the name of the Warrantholder, the Warrant
Certificate when surrendered for exercise shall be accompanied
by the Assignment Form attached to the Warrant Certificate duly
executed by the Warrantholder; and provided further, that upon
any transfer involved in the issuance or delivery of any cer-
tificates for the Warrant Securities, the Company may require,
as a condition thereto, the payment of a sum sufficient to
reimburse it for any transfer tax incidental thereto.
The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in
connection with any transfer of the Warrant Securities, and
shall not be required to issue or deliver any Warrant Security
until such tax or other charge shall have been paid or it has
been established to the Company's satisfaction that no such tax
or other charge is due.
(e) Prior to the issuance of any Warrants there
shall have been reserved, and the Company shall at all times
keep reserved, out of its authorized but unissued Warrant Secu-
rities, a number of shares sufficient to provide for the exer-
cise of the Warrant Certificates. The issuance of a Warrant
Certificate shall constitute full authority to the Company's
officers who are charged with the duty of executing stock cer-
tificates and to any Transfer Agent for the Company to execute
and issue the necessary certificates for the Warrant Securities
upon the exercise of the purchase rights under the Warrant Cer-
tificate.
-15-<PAGE>
ARTICLE THREE
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01 No Rights as Warrant Securityholder
Conferred by Warrants or Warrant
Certificates.
No Warrant Certificates or Warrant evidenced thereby
shall entitle the holder thereof to any of the rights of a
holder of Warrant Securities, including, without limitation,
the right to receive the payment of dividends or distributions,
if any, on the Warrant Securities or to exercise any voting
rights.
SECTION 3.02 Lost, Stolen, Mutilated or Destroyed
Warrant Certificates.
Upon receipt by the Warrant Agent of evidence reason-
ably satisfactory to it and the Company of the ownership of and
the loss, theft, destruction or mutilation of any Warrant Cer-
tificate and of indemnity reasonably satisfactory to the War-
rant Agent and the Company and, in the case of mutilation, upon
surrender thereof to the Warrant Agent for cancellation, then,
in the absence of notice to the Company or the Warrant Agent
that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall 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 or muti-
lated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the
issuance of any new Warrant Certificate under this Section, the
Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every
substitute Warrant Certificate executed and delivered pursuant
to this Section in lieu of any lost, stolen or destroyed War-
rant Certificate shall be entitled to the benefits of this
Agreement equally and proportionately with any and all other
Warrant Certificates duly executed and delivered hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with
respect to the replacement of mutilated, lost, stolen or
destroyed Warrant Certificates.
-16-<PAGE>
SECTION 3.03 Holder of Warrant Certificate May
Enforce Rights.
Notwithstanding any of the provisions of this Agree-
ment, any holder of a Warrant Certificate, without the consent
of the Warrant Agent, the holder of any Warrant Securities or
the holder of any other Warrant Certificate, may, in such hold-
er's own behalf and for such holder's own benefit, enforce, and
may institute and maintain any suit, action or proceeding
against the Company suitable to enforce, or otherwise in
respect of, such holder's right to exercise the Warrants evi-
denced by such holder's Warrant Certificate in the manner pro-
vided in such holder's Warrant Certificate and in this Agree-
ment.
ARTICLE FOUR
EXCHANGE AND TRANSFERS OF WARRANT CERTIFICATES
SECTION 4.01 Exchange and Transfers of Warrant
Certificates.
[If Offered Securities with Warrants that are imme-
diately detachable -- Upon] [If Offered Securities with War-
rants that are not immediately detachable -- Prior to the
Detachable Date a Warrant Certificate may be exchanged or
transferred only together with the Offered Security to which
the Warrant Certificate was initially attached, and only for
the purpose of effecting or in conjunction with an exchange or
transfer of such Offered Security. Prior to any Detachable
Date, each transfer of the Offered Security [on the register of
the Offered Securities] shall operate also to transfer the
related Warrant Certificates. After the Detachable Date, upon]
surrender at the corporate trust office of the Warrant Agent
[or __________], Warrant Certificates evidencing Warrants may
be exchanged for Warrant Certificates in other denominations
evidencing such Warrants or the transfer thereof may be regis-
tered in whole or in part; provided that such other Warrant
Certificates evidence the same aggregate number of Warrants as
the Warrant Certificates so surrendered. The Warrant Agent
shall keep, at its corporate trust office [and at _________],
books in which, subject to such reasonable regulations as it
may prescribe, it shall register Warrant Certificates and
exchanges and transfers of outstanding Warrant Certificates,
upon surrender of the Warrant Certificates to the Warrant Agent
at its corporate trust office [or __________] for exchange or
registration of transfer, properly endorsed or accompanied by
appropriate instruments of registration of transfer and written
instructions for transfer, all in form satisfactory to the
-17-<PAGE>
Company and the Warrant Agent. No service charge shall be made
for any exchange or registration of transfer of Warrant Cer-
tificates, but the Company may require payment of a sum suffi-
cient to cover any stamp or other tax or other governmental
charge that may be imposed in connection with any such exchange
or registration of transfer. Whenever any Warrant Certificates
are so surrendered for exchange or registration of transfer, an
authorized officer of the Warrant Agent shall manually coun-
tersign and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates duly authorized and
executed by the Company, as so requested. The Warrant Agent
shall not be required to effect any exchange or registration of
transfer that will result in the issuance of a Warrant Certifi-
cate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates
issued upon any exchange or registration of transfer of Warrant
Certificates shall be the valid obligation of the Company, evi-
dencing the same obligations, and entitled to the same benefits
under this Agreement, as the Warrant Certificate surrendered
for such exchange or registration of transfer.
[If Warrants are issuable as a Global Warrant Not-
withstanding any other provision in this Agreement, no Global
Warrant may be transferred to, or registered or exchanged for
Warrants registered in the name of, any person other than the
Depositary for such Global Warrant or any nominee thereof, and
no such transfer may be registered, unless (i) such Depositary
notifies the Company that it is unwilling or unable to continue
as Depositary for such Global Warrant, (ii) the Company exe-
cutes and delivers to the Warrant Agent a written order exe-
cuted by the Company that such Global Warrant shall be so
transferable, registerable and exchangeable, and such transfers
shall be registrable, or (iii) there shall have occurred and be
continuing an event of default with respect to the Warrants
evidenced by such Global Warrant. Notwithstanding any other
provision in this Agreement, a Global Warrant to which the
restriction set forth in the preceding sentence shall have
ceased to apply may be transferred only to, and may be regis-
tered and exchanged for Warrants registered only in the name or
names of, such person or persons as the Depositary for such
Global Warrant shall have directed and no transfer thereof
other than such a transfer may be registered.]
SECTION 4.02 Treatment of Holders of Warrant
Certificates.
[If Offered Securities and Warrants are not immedi-
ately detachable -- Prior to the Detachable Date, the Company,
the Warrant Agent and all other persons may treat the owner of
-18-<PAGE>
any Offered Securities as the owner of the Warrant Certificates
initially attached thereto for any purpose and as the person
entitled to exercise the rights represented by the Warrants
evidenced by such Warrant Certificates, any notice to the con-
trary notwithstanding. After the Detachable Date and prior to
the due presentment of a Warrant Certificate for registration
of transfer,] [t][T]he Company and the Warrant Agent and all
other persons may treat the registered holder of a Warrant Cer-
tificate as the absolute owner thereof for any purpose and as
the person entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary notwith-
standing.
SECTION 4.03 Cancellation of Warrant Certificates.
Any Warrant Certificate surrendered for exchange,
registration of transfer or exercise of the Warrants evidenced
thereby shall, if surrendered to the Company, be delivered to
the Warrant Agent and all Warrant Certificates surrendered or
so delivered to the Warrant Agent shall be promptly canceled by
the Warrant Agent and shall not be reissued and, except as
expressly permitted by this Agreement, no Warrant Certificate
shall be issued hereunder in exchange or in lieu thereof. The
Warrant Agent shall deliver to the Company from time to time or
otherwise dispose of canceled Warrant Certificates in a manner
satisfactory to the Company.
ARTICLE FIVE
CONCERNING THE WARRANT AGENT
SECTION 5.01 Warrant Agent.
The Company hereby appoints _______________ as the
Warrant Agent of the Company in respect of the Warrants and the
Warrant Certificates upon the terms and subject to the condi-
tions herein 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 and such further powers and
authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. 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.
-19-<PAGE>
SECTION 5.02 Conditions of Warrant Agent's
Obligations.
The Warrant Agent accepts its obligations herein set
forth upon the terms and conditions hereof, including the fol-
lowing 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) Compensation and Indemnification. The Company
agrees promptly to pay the Warrant Agent the compensation
agreed upon with the Company for all services rendered by
the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including counsel fees)
reasonably incurred without negligence or bad faith by the
Warrant Agent in connection with the services rendered
hereunder by the Warrant Agent. The Company also agrees
to indemnify the Warrant Agent for, and to hold it harm-
less against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Warrant
Agent, arising out of or in connection with its acting as
Warrant Agent hereunder, as well as the reasonable costs
and expenses of defending against any claim of such lia-
bility.
(b) Agent for the Company. In acting under this
Agreement and in connection with the Warrant Certificates,
the Warrant Agent is acting solely as agent of the Company
and does not assume any obligations or relationship of
agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with
counsel satisfactory to it, and the written advice of such
counsel shall be full and complete authorization and pro-
tection in respect of any action reasonably taken, suf-
fered or omitted by it hereunder in good faith and in
accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected
and shall incur no liability for or in respect of any
action taken or thing suffered by it in reliance upon any
Warrant Certificate, notice, direction, consent, certifi-
cate, affidavit, statement or other paper or document rea-
sonably believed by it to be genuine and to have been pre-
sented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and
its officers, directors and employees, may become the
owner of, or acquire any interest in, Warrants, with the
-20-<PAGE>
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 depositary, trustee or agent for, any
committee or body of holders of Warrant Securities or
other obligations of the Company as freely as if it were
not the Warrant Agent hereunder. Nothing in this Agree-
ment shall be deemed to prevent the Warrant Agent from
acting as trustee under any indentures.
(f) No Liability for Interest. Unless otherwise
agreed with the Company, the Warrant Agent shall have no
liability for interest on any monies at any time received
by it pursuant to any of the provisions of this Agreement
or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent
shall have no liability with respect to any invalidity of
this Agreement or any of the Warrant Certificates (except
as to the Warrant Agent's countersignature thereon).
(h) No Responsibility for Representations. The War-
rant Agent shall not be responsible for any of the recit-
als or representations herein or in the Warrant Certifi-
cates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall
be obligated to perform only 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 not be accountable or
under any duty or responsibility for the use by the Com-
pany of any of the Warrant Certificates authenticated by
the Warrant Agent and delivered by it to the Company pur-
suant to this Agreement or for the application by the Com-
pany of the proceeds of the Warrant Certificates. 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 herein or in the Warrant
Certificates or in the case of a receipt of any written
demand from a holder of a Warrant Certificate with respect
to such default, including, without limiting the general-
ity of the foregoing, any duty or responsibility to ini-
tiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 7.02 hereof,
to make any demand upon the Company.
-21-<PAGE>
SECTION 5.03 Resignation, Removal and Appointment
of Successor.
(a) The Company agrees, for the benefit of the hold-
ers 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 are no longer exercisable.
(b) The Warrant Agent may at any time resign as such
agent by giving written notice to the Company of such intention
on its part, specifying the date on which its desired resigna-
tion shall become effective; provided that such date shall be
not less than three months after the date on which such notice
is given unless the Company otherwise agrees. The Warrant
Agent hereunder may be removed at any time by the filing with
it of an instrument in writing signed by or on behalf of the
Company and specifying such removal and the intended date when
it shall become effective. Such resignation or removal shall
take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent (which shall be a bank
or trust company authorized under the laws of the jurisdiction
of its organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent.
The obligation of the Company under Section 5.02(a) shall con-
tinue to the extent set forth therein, notwithstanding the res-
ignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall
resign, or shall be removed, or shall become incapable of act-
ing, or shall be adjudged bankrupt or insolvent, or shall com-
mence a voluntary case under the Federal bankruptcy laws, as
now or hereafter constituted, or under any other applicable
Federal or state bankruptcy, insolvency or similar law or shall
consent to the appointment of or taking possession by a re-
ceiver, custodian, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Warrant Agent or its prop-
erty or affairs, or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its
debts generally as they become due, or shall take corporate
action in furtherance of any such action, or a decree or order
for relief by a court having jurisdiction in the premises shall
have been entered in respect of the Warrant Agent in an invol-
untary case under the Federal bankruptcy laws, as now or here-
after constituted, or any other applicable Federal or state
bankruptcy, insolvency or similar law, or a decree or order by
a court having jurisdiction in the premises shall have been
entered for the appointment of a receiver, custodian, liquida-
tor, assignee, trustee, sequestrator (or similar official) of
the Warrant Agent or of its property or affairs, or any public
-22-<PAGE>
officer shall take charge or control of the Warrant Agent or of
its property or affairs for the purpose of rehabilitation, con-
servation, winding up or liquidation, a successor Warrant
Agent, qualified as aforesaid, shall be appointed by the Com-
pany by an instrument in writing, filed with the successor War-
rant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the successor Warrant Agent of
such appointment, the Warrant Agent shall cease to be Warrant
Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder
shall execute, acknowledge and deliver to its predecessor and
to the Company an instrument accepting such appointment here-
under, and thereupon such successor Warrant Agent, without any
further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, duties and obligations
of such predecessor with like effect as if originally named as
Warrant Agent hereunder, and such predecessor, upon payment of
its charges and disbursements then unpaid, shall thereupon
become obligated to transfer, deliver and pay over, and such
successor Warrant Agent shall be entitled to receive, all mon-
ies, securities and other property on deposit with or held by
such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent
hereunder may be merged or converted or any corporation with
which the Warrant Agent may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which
the Warrant Agent shall be a party, or any corporation to which
the Warrant Agent shall sell or otherwise transfer all or sub-
stantially all the assets and business of the Warrant Agent,
provided that it shall be qualified as aforesaid, shall be the
successor Warrant Agent under this Agreement without the execu-
tion or filing of any paper or any further act on the part of
any of the parties hereto.
ARTICLE SIX
ACCELERATION OF WARRANTS
SECTION 6.01 Acceleration.
At any time on or after _________, the Company shall
have the right to accelerate any or all Warrants at any time by
causing them to expire at the close of business on the day next
preceding a specified date (the "Acceleration Date"), if the
Market Price (as determined in Section 2.02(d)) of the Common
Stock equals or exceeds _____ percent of the then effective
-23-<PAGE>
Warrant Price, adjusted as if no changes in such Warrant Price
had been made pursuant to Section 2.02, on any 20 trading days
within a period of 30 consecutive trading days ending no more
than five trading days prior to the date on which the Company
gives notice to the Warrant Agent of its election to accelerate
the Warrants.
SECTION 6.02 Acceleration of Portion of Warrants.
In the event of an acceleration of less than all of
the Warrants, the Warrant Agent shall select the Warrants to be
accelerated by lot, pro rata or in such other manner as it
deems, in its discretion, to be fair and appropriate.
SECTION 6.03 Notice.
Notice of an acceleration specifying the Acceleration
Date shall be sent by mailing such notice first class, postage
prepaid, to each registered holder of a Warrant Certificate
representing a Warrant accelerated to such holder's address
appearing on the Warrant register not more than [60 days nor
less than 30 days] before the Acceleration Date. [Such notice
of an acceleration also shall be given no more than [20 days,
and no less than 10 days], prior to the mailing of notice to
registered holders of Warrant pursuant to this Section, by pub-
lication at least once in a newspaper of general circulation in
The City of New York, New York, and in such other cities where
securities exchanges are located on which the Warrants and/or
Warrant Securities are listed if any. Such costs of publica-
tion will be paid by the Company.]
SECTION 6.04 Time of Acceleration.
Any Warrant accelerated may be exercised until 5 P.M.
New York City time on the business day next preceding the
Acceleration Date. The Warrant Price shall be payable as pro-
vided in this Agreement.
ARTICLE SEVEN
MISCELLANEOUS
SECTION 7.01 Notice.
Any notices required or permitted to be given here-
under shall be in writing (including telegraphic, telex or fac-
simile transmission) and shall be duly given if (i) personally
delivered or sent by telegraph, telex or facsimile,
-24-<PAGE>
and (ii) mailed by certified or registered mail, postage
prepaid, return receipt requested, addressed as follows:
If to the Company:
Hecla Mining Company
6500 Mineral Drive
Coeur d'Alene, Idaho 83814
Attention: Vice President and
General Counsel
Facsimile No. (208) 769-4159
If to the Warrant Agent:
______________________________
______________________________
______________________________
Facsimile No. ________________
[If to the Warrantholder:
At the address as it appears on the
books of the Warrant Agent [or on the
register of the Offered Securities
prior to the Detachable Date], or if
such Warrantholder shall have filed
with the Warrant Agent a written
request that notices intended for such
Warrantholder be mailed to some other
address, at the address designated in
such request.]
All such notices shall be effective: (i) if mailed
or personally delivered, when received, or (ii) if sent by
telegraph, telex or facsimile, when sent with evidence of
transmission. The address to which notices hereunder should be
sent may be changed by any party by giving notice of such
change to the others in the manner provided in this Agreement.
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 Cer-
tificate pursuant to the provisions of the Warrant Certifi-
cates, the Warrant Agent shall promptly forward such notice or
demand to the Company.
-25-<PAGE>
SECTION 7.03 Amendment.
This Agreement may be amended by the parties hereto,
without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correct-
ing or supplementing any defective provision contained herein,
or making any other provisions with respect to matters or ques-
tions arising under this Agreement as the Company and the War-
rant Agent may deem necessary or desirable; provided, however,
that such action shall not affect adversely the interests of
the holders of the Warrant Certificates. The Company and the
Warrant Agent may also supplement or amend the Warrant Agree-
ment in any other respect with the approval of the holders of a
majority in number of the Warrants then outstanding; however,
no such supplement or amendment may (i) shorten the expiration
date of the Warrants, (ii) increase the then effective Warrant
Price or reduce the number of shares to be received upon exer-
cise of a Warrant, (iii) change the provisions set forth in
Sections 2.02 and 6.01 hereof, or (iv) change the percentage of
the holders of Warrant Certificates who must consent to such
amendment or supplement, without the consent of each holder
affected thereby.
SECTION 7.04 Saturdays, Sundays, Holidays, etc.
If the last or appointed day for the taking of any
action or the expiration of any right required or granted pur-
suant to this Agreement or the Warrant Certificates shall be a
Saturday, Sunday or legal holiday in the United States, then
such action may be taken or such right may be exercised on the
next succeeding business day that is not a legal holiday.
SECTION 7.05 Applicable 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, and construed in accordance with, the laws of the State of
__________________.
SECTION 7.06 Obtaining of Governmental Approvals.
The Company will from time to time take all reason-
able actions necessary to obtain and keep effective any and all
permits, consents and approvals of governmental agencies and
authorities and securities acts filings under Federal and state
laws (including, without limitation, a registration statement
in respect of the Warrants and Warrant Securities under the
Securities Act of 1933, as amended (the "Securities Act")),
which may be or become requisite in connection with the
-26-<PAGE>
issuance, sale, transfer and delivery of the Warrant Securities
issued upon exercise of the Warrant Certificates, the exercise
of the Warrants, the issuance, sale, transfer and delivery of
the Warrants or upon the expiration of the period during which
the Warrants are exercisable.
If there is no effective registration statement in
respect of the Warrants and Warrant Securities under the Secu-
rities Act, no Warrantholder may sell or transfer any or all of
such Warrants or Warrant Securities, as the case may be, with-
out first providing the Company with an opinion of counsel
(which may be counsel for the Company) to the effect that such
sale or transfer will be exempt from the registration and pro-
spectus delivery requirements of the Securities Act.
SECTION 7.07 Delivery of Prospectus.
If the issuance and sale of the Warrant Securities
are registered under the Securities Act, the Company will fur-
nish to the Warrant Agent sufficient copies of a prospectus
relating to the Warrant Securities deliverable upon exercise of
the Warrants (the "Prospectus"), and the Warrant Agent agrees
that upon the exercise of any Warrant, the Warrant Agent will
deliver a Prospectus to the holder of the Warrant Certificate
evidencing such warrant prior to or concurrently with the
delivery of the Warrant Securities issued upon such exercise.
The Warrant Agent shall not, by reason of any such delivery,
assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 7.08 Persons Having Rights Under
Warrant Agreement.
Nothing in this Agreement shall give to any person
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.
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 as so executed shall be deemed to
-27-<PAGE>
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 Cer-
tificate. The Warrant Agent may require such holder to submit
his Warrant Certificate for inspection by it.
SECTION 7.12 Successors and Assigns.
All the covenants and provisions of this Agreement by
or for the benefit of the Company or the Warrant Agent shall
bind and inure to the benefit of their respective successors
and assigns hereunder.
-28-<PAGE>
IN WITNESS WHEREOF, Hecla Mining Company and
________________ have caused this Agreement to be signed by
their respective duly authorized officers, and their respective
corporate seals to be affixed hereunto, and the same to be
attested by their respective Secretaries or one of their
respective Assistant Secretaries, all as of the day and year
first above written.
HECLA MINING COMPANY
By
Name:
Title:
Attest:
By
Name:
Title:
[Warrant Agent]
By
Name:
Title:
Attest:
By
Name:
Title:
-29-<PAGE>
WLR&K DRAFT
8/9/95
Exhibit 4.3(j)
Exhibit A
FORM OF WARRANT CERTIFICATE*
<TABLE>
[Face of Warrant Certificate]
<CAPTION>
<S> <C>
[Form of Legend if Offered Securities with War- Prior to , this Warrant Certificate can-
rants that are not immediately detachable. not be transferred or exchanged unless attached to
a [Title of Offered Securities].]
[Form of Legend if Warrants are not immediately Prior to , Warrants evidenced by this
exercisable. Warrant Certificate cannot be exercised.]
</TABLE>
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
HECLA MINING COMPANY
WARRANTS TO PURCHASE
COMMON STOCK
VOID AFTER 5 P.M., NEW YORK CITY TIME, ON
No. Warrants
This certifies _________________ or registered
assigns is the registered owner of the above indicated number
of Warrants, each Warrant entitling such owner [if Offered
Securities with Warrants that are not immediately detachable
--, subject to the registered owner qualifying as a "holder" of
this Warrant Certificate, as hereinafter defined] to purchase,
at any time [after 5 P.M., New York City time, on
__________________ and] on or before 5 P.M., New York City
time, on ________________, _____________ shares of Common Stock
(the "Warrant Securities"), of Hecla Mining Company (the "Com-
pany") on the following basis: [during the period from
____________, through and including _____________, each Warrant
shall entitle the holder thereof, subject to the provisions of
the Warrant Agreement under which these Warrants are issued, to
purchase from the Company the number of Warrant Securities
stated above in this Warrant Certificate at the exercise price
of $___________, during the period from __________, through and
including _________________,] the exercise price of each War-
rant will be ____________ (the "Warrant Price"), subject to
such adjustments as provided in Section 2.02 of the Warrant
Agreement (as defined below). Other than as provided in Sec-
tion 2.02 of the Warrant Agreement, no adjustment shall be made
for any dividends on any Warrant Securities issuable upon exer-
cise of any Warrant. The holder may exercise the Warrants evi-
denced hereby by providing certain information set forth on the
back hereof and by paying in full [in lawful money of the
A-1
_____________________
* For Common Stock.<PAGE>
United States of America] [in cash or by certified check or
official bank check or by bank wire transfer, in each case,]
[by bank wire transfer] in [immediately available] [next-day]
funds, the Warrant Price for each Warrant exercised to the War-
rant Agent (as hereinafter defined) and by surrendering this
Warrant Certificate, with the purchase form on the back hereof
duly executed, at the corporate trust office of [name of War-
rant Agent], or its successor as warrant agent (the "Warrant
Agent"), [or ____________], which is, on the date hereof, at
the address specified on the reverse hereof, and upon compli-
ance with and subject to the conditions set forth herein and in
the Warrant Agreement (as hereinafter defined).
The term "holder" as used herein shall mean [if
Offered Securities with Warrants that are not immediately
detachable --, prior to ________ (the "Detachable Date"), the
registered owner of the Company's [title of Offered Securities]
to which this Warrant Certificate is initially attached, and
after such Detachable Date,] the person in whose name at the
time of this Warrant Certificate shall be registered upon the
books to be maintained by the Warrant Agent for that purpose
pursuant to Section 4.01 of the Warrant Agreement.
Any whole number of Warrants evidenced by this War-
rant Certificate may be exercised to purchase Warrant Securi-
ties in registered form. Upon any exercise of fewer than all
of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the holder hereof a new Warrant Certificate
evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in
accordance with the Warrant Agreement dated as of _____________
(the "Warrant Agreement") by and between the Company and the
Warrant Agent and is subject to the terms and provisions con-
tained in the Warrant Agreement, to all of which terms and pro-
visions the holder of this Warrant Certificate consents by
acceptance hereof. Copies of the Warrant Agreement are on file
at the above-mentioned office of the Warrant Agent [and at
_____________].
[If Offered Securities with Warrants that are not
immediately detachable -- Prior to ________________, this War-
rant Certificate may be exchanged or transferred only together
with the [Title of Offered Securities] (the "Offered Securi-
ties") to which this Warrant Certificate was initially
attached, and only for the purpose of effecting, or in conjunc-
tion with, an exchange or transfer of such Offered Security.
After such date, transfer] [if Offered Securities with Warrants
that are immediately detachable -- Transfer] of this Warrant
A-2<PAGE>
Certificate may be registered when this Warrant Certificate is
surrendered at the corporate trust office of the Warrant Agent
[or ___________] by the registered owner or such owner's
assigns, in person or by an attorney duly authorized in writ-
ing, in the manner and subject to the limitations provided in
the Warrant Agreement.]
[If Offered Securities with Warrants that are not
immediately detachable -- Except as provided in the immediately
preceding paragraph, after] [If Offered Securities with War-
rants which are immediately detachable or Warrant alone --
After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certifi-
cate may be exchanged at the corporate trust office of the War-
rant Agent [or ____________] for Warrant Certificates repre-
senting the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder
hereof to any of the rights of a holder of the Warrant Securi-
ties, including, without limitation, the right to receive pay-
ments of dividends or distributions, if any, on the Warrant
Securities or to exercise any voting rights.
A-3<PAGE>
This Warrant Certificate shall not be valid or oblig-
atory for any purpose until countersigned by the Warrant Agent.
Dated as of .
HECLA MINING COMPANY
By
Name:
Title:
Attest:
By
Name:
Title:
Countersigned:
As Warrant Agent
By
Authorized Signature
A-4<PAGE>
[REVERSE OF WARRANT CERTIFICATE]
INSTRUCTIONS FOR EXERCISE OF WARRANT
To exercise the Warrants evidenced hereby, the holder
of this Warrant Certificate must pay in United States dollars
[in cash or by certified check or official bank check or by
bank wire transfer] [by bank wire transfer] in [immediately
available] [next-day] funds the Warrant Price in full for each
of the Warrants exercised to [insert name of Warrant Agent]
[Corporate Trust Department] [insert address of Warrant Agent],
Attn. [or ], which [payment] [wire
transfer] must specify the name of the holder and the number of
Warrants exercised by such holder. In addition, such holder
must complete the information required below and present this
Warrant Certificate in person or by mail (certified or regis-
tered mail is recommended) to the Warrant Agent at the appro-
priate address set forth below. This Warrant Certificate, com-
pleted and duly executed, must be received by the Warrant Agent
within five business days of the [payment] [wire transfer].
TO BE EXECUTED UPON EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise
______ Warrants, evidenced by this Warrant Certificate, to pur-
chase ______ shares of Common Stock (the "Warrant Securities")
of Hecla Mining Company and represents that the undersigned has
tendered payment for such Warrant Securities in Dollars [in
cash or by certified check or official bank check or by bank
wire transfer, in each case] [by bank wire transfer] in [im-
mediately available] [next-day] funds to the order of Hecla
Mining Company, c/o [insert name and address of Warrant Agent],
in the amount of _______ in accordance with the terms hereof.
The undersigned requests that said amount of Warrant Securities
be in fully registered form in the authorized denominations,
registered in such names and delivered all as specified in
accordance with the instructions set forth below.
If the number of Warrants exercised is less than all
of the Warrants evidenced hereby, the undersigned requests that
a new Warrant Certificate representing the remaining Warrants
evidenced hereby be issued and delivered to the undersigned
unless otherwise specified in the instruction below.
A-5<PAGE>
Dated: Name
Address
[Insert Social Security or Other
Identifying Number of Holder (Signature must conform in all
respects to name of holder as
specified on the face of this
Signature Guaranteed Warrant Certificate and must bear a
signature guarantee by a bank, trust
company or member broker of the New
York Stock Exchange)
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at
By mail at
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing
unexercised Warrants -- complete as appropriate.]
A-6<PAGE>
ASSIGNMENT
[FORM OF ASSIGNMENT TO BE EXECUTED IF HOLDER
DESIRES TO TRANSFER WARRANTS EVIDENCED HEREBY]
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
(Please print name) (Please insert social security
or other identifying number)
(Address)
(City, including zip code)
the Warrants represented by the within Warrant Certificate and
does hereby irrevocably constitute and appoint
as Attorney to transfer said Warrant Certificate on the books
of the Warrant Agent with full power of substitution in the
premises.
Dated:
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate and must
bear a signature guarantee by a
bank, trust company or member
broker of the New York Stock
Exchange)
Signature Guaranteed
]
A-7
WLR&K DRAFT
8/8/95
Exhibit 12
<TABLE>
HECLA MINING COMPANY
FIXED CHARGE COVERAGE RATIO CALCULATION
FOR THE YEARS ENDED DECEMBER 31, 1994, 1993, 1992, 1991, 1990
AND THE SIX MONTHS ENDED JUNE 30, 1994 AND 1995
(IN THOUSANDS, EXCEPT RATIOS)
<CAPTION>
six six
months months
1990 1991 1992 1993 1994 1994 1995
<S> <C> <C> <C> <C> <C> <C> <C>
Income (loss) before extraordinary
items, income taxes and cumulative
effect of changes in accounting
principles........................ $(398) $(18,077) $(55,518) $(18,720) $(24,248) $(4,239) $ (85)
Add: Fixed Charges................ 6,224 7,136 7,036 9,385 10,857 6,136 4,862
Less: Capitalized Interest........ (591) (145) (2,070) (3,533) (1,751) (1,751) (376)
Income (loss) before extraordinary
item, income taxes
and cumulative effect of changes
in accounting principles & fixed
charges........................... $ 5,235 $(11,086) $(50,552) $(12,868) $(15,142) $ 146 $(4,401)
Fixed charges:
Preferred stock dividends.......... $ -- $ -- $ -- $4,070 $8,050 $4,025 $4,025
Interest portion of rentals........ -- -- -- -- 166 30 251
Interest expense................... 6,073 6,985 6,905 5,224 2,606 2,047 586
Amortization of Lyons.............. 151 151 131 91 35 34 --
Total fixed charges................ 6,224 7,136 7,036 9,385 10,857 6,136 4,862
Fixed Charge Ratio................. <F1> <F1> <F1> <F1> <F1> <F1> <F1>
Inadequate coverage................ 989 18,222 57,588 22,253 25,999 5,990 461
Writedowns & other non-cash charges:
Depreciation, depletion and
amortization (mining activity).... 25,688 21,161 13,774 13,526 14,233 6,276 11,565
Depreciation, depletion and
amortization (corporate).......... 794 737 851 669 524 362 168
Provision for closed operations... 3,916 3,764 13,608 2,327 11,353 624 227
Reduction in carrying value of
mining properties............... 502 41 30,791 2,561 7,864 -- --
$30,900 $25,703 $59,024 $19,083 $33,974 $7,262 $11,960
<FN>
<F1> Earnings for period inadequate to cover fixed charges.
</FN>
</TABLE>
WLR&K DRAFT
8/8/95
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registra-
tion statement on Form S-3 (File No. 33-59659) of our report,
which includes an explanatory paragraph concerning changes in
accounting for income taxes and post-retirement benefits other
than pensions in 1992, and accounting for investments in 1994,
dated February 3, 1995, except for the penultimate paragraph of
Note 8 as to which the date is March 1, 1995, on our audits of
the consolidated financial statements of Hecla Mining Company
and subsidiaries. We also consent to the reference to our firm
under the caption "Experts."
/s/ COOPERS & LYBRAND L.L.P.
Spokane, Washington
August 9, 1995
WLR&K DRAFT
8/4/95
Exhibit 23.3
[Deloitte & Touche Letterhead]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registra-
tion statement on Form S-3 (File No. 33-59659) of our report
dated February 28, 1994 on our audits of the consolidated fi-
nancial statements of Equinox Resources Ltd. We also consent
to the reference to our firm under the caption "Experts".
/s/ Deloitte & Touche
CHARTERED ACCOUNTANTS
Vancouver, Canada
August 9, 1995
WLR&K DRAFT
8/8/95
Exhibit 23.4
CONSENT OF HAWLEY TROXELL ENNIS & HAWLEY
We hereby consent to the reference to our firm in the
Prospectus constituting part of the Registration Statement on
Form S-3 (Registration No. 33-59659). In giving such consent,
we do not thereby admit that we come within the category of
persons whose consent is required under Section 7 of the Secu-
rities Act of 1933, as amended, or the rules and regulations of
the Securities and Exchange Commission thereunder.
HAWLEY TROXELL ENNIS & HAWLEY
By /s/ Albert P. Barker
Boise, Idaho
August 8, 1995
WLR&K DRAFT
8/8/95
Exhibit 23.5
CONSENT OF EVANS, KEANE
We hereby consent to the reference to our firm in the
Prospectus constituting part of the Registration Statement on
Form S-3 (Registration No. 33-59659). In giving such consent,
we do not thereby admit that we come within the category of
persons whose consent is required under Section 7 of the Secu-
rities Act of 1933, as amended, or the rules and regulations of
the Securities and Exchange Commission thereunder.
EVANS, KEANE
By /s/ Fred M. Gibler
Boise, Idaho
August 9, 1995
