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File No. 333- .
As filed with the Securities and Exchange Commission on January 20, 1998.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
UNITED HEALTHCARE CORPORATION
(Exact name of registrant as specified in its charter)
Minnesota 41-1321939
(State or other juris- (I.R.S. Employer
diction of incorporation Identification No.)
or organization)
David J. Lubben, General Counsel
United HealthCare Corporation
300 Opus Center 300 Opus Center
9900 Bren Road East 9900 Bren Road East
Minnetonka, Minnesota 55343 Minnetonka, Minnesota 55343
(612) 936-1300 (612) 936-1854
(Address, including ZIP Code, and (Name, address, including ZIP Code,
telephone number, including area and telephone number, including area
code, of registrant's principal code, of agent for service)
executive offices)
Copies to:
David J. Lubben, General Counsel James D. Alt
United HealthCare Corporation Dorsey & Whitney LLP
300 Opus Center 220 South Sixth Street
9900 Bren Road East Minneapolis, Minnesota 55402
Minnetonka, Minnesota 55343 (612) 340-2803
(612) 936-1854
Approximate date of commencement of proposed sale of securities to the
public: From time to time after the effective date of this registration
statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or reinvestment plans, check the following box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
reinvestment plans, check the following box. [ X ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Title of each class Proposed maximum
of securities to be Amount to be maximum offering aggregate offering Amount of
registered registered price per unit(1) price(1)(2) registration fee
- ------------------------- --------------- ------------------- ---------------------- ----------------
<S> <C> <C> <C> <C>
Debt Securities (4), $200,000,000(3) 100% $200,000,000(3) $59,000.00
Preferred Stock (5),
Common Stock, $.01
par value per share (5)(6)
</TABLE>
(Footnotes on following 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.
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(1) Not specified as to each class of securities to be registered pursuant to
General Instruction II.D of Form S-3.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(o).
(3) In the case of Debt Securities issued at an original issue discount, such
greater principal amount as shall result in an aggregate offering price of
the amount set forth above.
(4) The Debt Securities to be offered hereunder will consist of one or more
series of Senior Debt Securities or Subordinated Debt Securities, or both,
as more fully described herein.
(5) Such indeterminate number of shares of Preferred Stock and Common Stock as
may be issued from time to time at indeterminate prices.
(6) The aggregate amount of Common Stock registered hereunder is limited,
solely for purposes of any at-the-market offerings, to that which is
permissible under Rule 415(a)(4) of the Securities Act of 1933, as amended.
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SUBJECT TO COMPLETION, DATED JANUARY 20, 1998
PRELIMINARY PROSPECTUS
$200,000,000
UNITED HEALTHCARE CORPORATION
DEBT SECURITIES, PREFERRED STOCK, AND COMMON STOCK
United HealthCare Corporation, a Minnesota corporation ("United
HealthCare") may from time to time offer and sell: (i) its unsecured debt
securities, which may be either senior debt securities ("Senior Debt
Securities") or subordinated debt securities ("Subordinated Debt Securities"
and, together with the Senior Debt Securities, "Debt Securities"); (ii) shares
of its preferred stock, $.001 par value per share ("Preferred Stock"), in one or
more series; and (iii) shares of its common stock, par value $.01 per share
("Common Stock"), for an aggregate initial public offering price of up to
$200,000,000. The Debt Securities and Preferred Stock may be convertible into or
exchangeable for Common Stock. The Debt Securities, Preferred Stock, and Common
Stock (collectively, the "Securities") may be offered directly to one or more
purchasers, through agents designated from time to time, or through underwriters
or dealers. The Securities will be offered to the public at prices and on terms
determined at the time of offering.
The Senior Debt Securities will rank pari passu in right of payment with
all unsecured and unsubordinated debt of United HealthCare. The Subordinated
Debt Securities will be subordinated in the manner and to the extent described
herein and in the applicable Prospectus Supplement to all existing and future
Senior Debt (as defined) of United HealthCare.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement. The Prospectus Supplement accompanying
this Prospectus sets forth (where applicable), with respect to the series or
issue of Securities for which this Prospectus and such Prospectus Supplement are
being delivered: (i) the terms of any Debt Securities offered, including, where
applicable, their title, ranking, aggregate principal amount, maturity, rate of
interest (or method of calculation) and time of payment thereof, any redemption
or repayment terms, any restrictive covenants not described herein, any index,
formula or other method pursuant to which principal, premium, if any, or
interest, if any, may be determined, any conversion or exchange provisions, and
any other specific terms not described in this Prospectus; (ii) the terms of any
Preferred Stock offered, including, where applicable, the specific designation,
number of shares, dividend rate (or method of calculation) and time of payment
thereof, liquidation preference, any redemption or repayment terms, any
conversion or exchange provisions, any voting rights, and any other specific
terms not described in this Prospectus; and (iii) the initial public offering
price and the net proceeds to United HealthCare and other specific terms related
to the offered Securities.
__________
SEE "RISK FACTORS" FOR A DISCUSSION OF CERTAIN RISKS THAT SHOULD
BE CONSIDERED IN CONNECTION WITH A PURCHASE OF SECURITIES.
__________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
__________
The Securities may be offered directly, through agents designated from time
to time, or through underwriters or dealers. If any agents or underwriters are
involved in the sale of any of the Securities, their names, and any applicable
fee, commission, purchase price or discount arrangements with them, will be set
forth, or will be calculable from the information set forth, in the applicable
Prospectus Supplement.
THE DATE OF THIS PROSPECTUS IS ____________, 1998.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL NOR 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.
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AVAILABLE INFORMATION
United HealthCare is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by United HealthCare can be inspected and
copied at the public reference facilities of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the Commission's regional offices at
7 World Trade Center, Suite 1300, New York, New York 10048 and CitiCorp Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
materials can be obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In
addition, the Common Stock of United HealthCare is listed on the New York Stock
Exchange, and reports, proxy statements and other information concerning United
HealthCare can also be inspected at such exchange. This Prospectus does not
contain all the information set forth in the Registration Statement and exhibits
thereto which United HealthCare has filed with the Commission under the
Securities Act of 1933, as amended (the "Securities Act"), and to which
reference is hereby made. The Commission maintains a site on the World Wide Web
that contains reports, proxy and information statements and other information
regarding issuers that file electronically with the Commission. The address of
such site is http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of United HealthCare which have been filed with the
Commission are hereby incorporated by reference in this Prospectus: (a) the
Annual Report on Form 10-K for the year ended December 31, 1996, as amended by
that Form 10-K/A-1 filed June 16, 1997; (b) the Quarterly Reports on Form 10-Q
for the quarters ended March 31, 1997, June 30, 1997 and September 30, 1997; and
(c) the description of the Common Stock contained in the Registration Statement
on Form 8-A dated September 20, 1992, and any amendment or report filed for the
purpose of updating such description filed subsequent to the date of this
Prospectus and prior to the termination of the offering described herein.
All documents filed by United HealthCare pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Shares shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
respective dates of filing of such documents. Any statement contained herein or
in a document all or part of which is incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
United HealthCare will provide without charge to any person to whom this
Prospectus is delivered, upon the written or oral request of such person, a copy
of any or all of the foregoing documents incorporated herein by reference (other
than certain exhibits to such documents). Requests for such copies should be
directed to David J. Lubben, Secretary and General Counsel, United HealthCare
Corporation, 300 Opus Center, 9900 Bren Road East, Minnetonka, Minnesota 55343,
telephone number (612) 936-1300.
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND THE APPLICABLE
PROSPECTUS SUPPLEMENT IN CONNECTION WITH THE OFFER CONTAINED HEREIN AND THEREIN,
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY UNITED HEALTHCARE. THIS PROSPECTUS AND SUCH
PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF
AN OFFER TO BUY, ANY SECURITIES OFFERED HEREBY AND THEREBY IN ANY JURISDICTION
IN WHICH IT IS NOT LAWFUL OR TO ANY PERSON TO WHOM IT IS NOT LAWFUL TO MAKE ANY
SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS AND SUCH
PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER AND THEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT INFORMATION HEREIN AND THEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF AND THEREOF.
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UNITED HEALTHCARE CORPORATION
United HealthCare is a health and well-being company that is a leader in
offering health care coverage and related services through a broad continuum of
products and services nationwide. United HealthCare's products and services
reflect a number of core capabilities, including medical information management,
health benefit administration, risk assessment and pricing, health benefit
design and provider contracting and risk sharing. With these capabilities,
United HealthCare's operating subsidiaries are able to provide comprehensive
managed care services, such as health maintenance organizations, preferred
provider organizations, and insured and self-funded health care coverage
products. United HealthCare also offers unbundled health care management and
cost containment products such as behavioral health services, utilization review
services, specialized provider networks and employee assistance programs.
The principal executive offices of United HealthCare are located at 300
Opus Center, 9900 Bren Road East, Minnetonka, Minnesota 55343, and the telephone
number is (612) 936-1300.
RISK FACTORS
The statements contained in this Prospectus include forward-looking
statements within the meaning of the Private Securities Litigation Reform Act of
1995 (the "PSLRA"). When used in this Prospectus and any Prospectus
Supplements, in filings by United HealthCare with the Commission, in United
HealthCare's press releases, presentations to securities analysts and investors,
and in oral statements made by or with the approval of an executive officer of
United HealthCare, the words or phrases "believes," "anticipates," "intends,"
"will likely result," "estimates," "projects" or similar expressions are
intended to identify such forward-looking statements. Any of these forward-
looking statements involve risks and uncertainties that may cause United
HealthCare's actual results to differ materially from the results discussed in
the forward-looking statements.
The following discussion contains certain cautionary statements regarding
United HealthCare's business and results of operations. These statements
discuss matters which may in part be discussed elsewhere in this Prospectus and
which may have been discussed in other documents prepared by United HealthCare
pursuant to federal or state securities laws. This discussion is intended to
take advantage of the "safe harbor" provisions of the PSLRA. In making these
cautionary statements, United HealthCare is not undertaking to address or update
each factor in future filings with the Commission or communications regarding
United HealthCare's business or results, and is not undertaking to address how
any of these factors may have caused results to differ from discussions or
information contained in previous filings or communications. In addition, any
of the matters discussed below may have affected United HealthCare's past, as
well as current, forward-looking statements about future results, so that United
HealthCare's actual results in the future may differ materially from those
expressed in prior communications.
HEALTH CARE COSTS
A large portion of the revenue received by United HealthCare is used to pay
the costs of health care services or supplies delivered to its enrollees. The
total health care costs incurred by United HealthCare are affected by the number
of individual services rendered and the cost of each service. Much of United
HealthCare's premium revenue is set in advance of the actual delivery of
services and the related incurrence of the cost, usually on a prospective annual
basis. While United HealthCare attempts to base the premiums it charges at
least in part on its estimate of future health care costs over the fixed premium
period, competition, regulations and other circumstances may limit United
HealthCare's ability to fully base premiums on estimated costs. In addition,
many factors may and often do cause actual health care costs to exceed that
estimated and reflected in premiums. These factors may include increased
utilization of services, increased cost of individual services, catastrophes,
epidemics, the introduction of new or costly treatments, general inflation, new
mandated benefits or other regulatory changes and insured population
characteristics. In addition, United HealthCare's earnings as reported for any
particular quarter include estimates of covered services incurred by United
HealthCare's enrollees during that period but for which a claim has not been
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received or processed. These are estimates and therefore, United HealthCare's
earnings may be subject to later adjustment based on the actual costs.
In addition, as a result of changes in the level of health care utilization
during the calendar year, United HealthCare's operating results may be affected
by the seasonal nature of medical costs. Although there are no assurances, per-
member medical costs generally have been higher in the first half of a year than
the second half.
INDUSTRY FACTORS
The managed care industry has recently received significant amounts of
negative publicity. This publicity, in turn, has contributed to increased
legislative activity, regulation and review of industry practices. These
factors may adversely affect United HealthCare's ability to market its products
or services, could necessitate changes in United HealthCare's products and
services, and may increase the regulatory burdens under which United HealthCare
operates, further increasing the costs of doing business and adversely affecting
profitability.
COMPETITION
In any of its geographic or product markets United HealthCare competes with
a number of other entities, some of which may have certain characteristics or
capabilities which give them an advantage in competing with United HealthCare.
United HealthCare believes the barriers to entry in these markets are not
substantial, so that the addition of new competitors can occur relatively
easily. Certain of United HealthCare's customers may decide to perform for
themselves functions or services formerly provided by United HealthCare, which
would result in a decrease in United HealthCare's revenues. Certain of United
HealthCare's providers may decide to market products and services to United
HealthCare customers in competition with United HealthCare. In addition,
significant merger and acquisition activity has occurred in the industry in
which United HealthCare operates as well as in industries which act as suppliers
to United HealthCare, such as the hospital, physician, pharmaceutical and
medical device industries. This activity may create stronger competitors or
result in higher health care costs. To the extent that there is strong
competition or that competition intensifies in any market, United HealthCare's
ability to retain or increase customers, its revenue growth, its pricing
flexibility, its control over medical cost trends and its marketing expenses may
all be adversely affected.
AARP CONTRACT
United HealthCare has an agreement with the American Association of Retired
Persons ("AARP") under which United HealthCare provides Medicare supplement and
hospital indemnity health insurance products to AARP members, effective
January 1, 1998. As a result of this agreement, United HealthCare will
significantly expand the number of members served, the products offered and the
services provided. The success of the AARP arrangement will depend, in part, on
United HealthCare's ability to service these new members, develop additional
products and services and price the products and services competitively.
GOVERNMENT PROGRAMS AND REGULATION
United HealthCare's business is heavily regulated on a federal, state and
local level. The laws and rules governing United HealthCare's business and
interpretations of those laws and rules are subject to frequent change and broad
latitude is given to the agencies administering those regulations. Existing or
future laws and rules could force United HealthCare to change how it does
business, may restrict United HealthCare's revenue and enrollment growth,
increase its health care and administrative costs, and increase United
HealthCare's liability for medical malpractice or other actions. Regulatory
approvals must be obtained and maintained to market many of United HealthCare's
products and services. Delays in obtaining or failure to obtain or maintain
such approvals could adversely affect United HealthCare's revenue or the number
of covered lives, or could increase costs. A significant portion of United
HealthCare's revenues relate to federal, state and local government health care
coverage programs. These types of programs, such as the federal Medicare
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program and the federal and state Medicaid program, are generally subject to
frequent change, including changes which may reduce the number of persons
enrolled or eligible, reduce the revenue received by United HealthCare or
increase United HealthCare's administrative or health care costs under such
programs. Such changes have in the past and may in the future adversely affect
United HealthCare's results and its willingness to participate in such programs.
United HealthCare is also subject to various governmental audits and
investigations. Such activities could result in the loss of licensure or the
right to participate in certain programs, or the imposition of fines, penalties
and other sanctions. In addition, disclosure of any adverse investigation or
audit results or sanctions could negatively affect United HealthCare's
reputation in various markets and make it more difficult for United HealthCare
to sell its products and services.
The National Association of Insurance Commissioners (the "NAIC") has an
effort underway that would impose new minimum capitalization requirements for
health care coverage provided by insurance companies, HMOs and other risk
bearing health care entities. The requirements would take the form of risk-
based capital rules. Currently, similar rules apply only to insurance
companies. There could be an increase in the capital required for certain of
United HealthCare's subsidiaries and there may be some potential for disparate
treatment relative to competing products. Failure of the NAIC to act may result
in some form of federal solvency regulation of companies providing Medicare-
related benefit programs.
PROVIDER RELATIONS
One of the significant techniques United HealthCare uses to manage health
care costs and utilization and monitor the quality of care being delivered is
contracting with physicians, hospitals and other providers. Because of the
geographic diversity of its health plans and the large number of providers with
which most of those health plans contract, United HealthCare currently believes
it has a limited exposure to provider relations issues. In any particular
market, however, providers could refuse to contract with United HealthCare,
demand higher payments or take other actions which could result in higher health
care costs, less desirable products for customers and members or difficulty
meeting regulatory or accreditation requirements.
In some markets, certain providers, particularly hospitals,
physician/hospital organizations or multi-specialty physician groups, may have
significant market positions or near monopolies. In addition, physician or
practice management companies which aggregate physician practices for purposes
of administrative efficiency and marketing leverage, continue to expand. These
providers may compete directly with United HealthCare. If such providers refuse
to contract with United HealthCare, use their market position to negotiate
favorable contracts, or place United HealthCare at a competitive disadvantage,
United HealthCare's ability to market products or to be profitable in those
areas could be adversely affected.
LITIGATION AND INSURANCE
United HealthCare may be a party to a variety of legal actions to which any
corporation may be subject, including employment and employment discrimination-
related suits, employee benefit claims, breach of contract actions, tort claims,
shareholder suits (including for securities fraud), and intellectual property
related litigation. In addition, because of the nature of its business, United
HealthCare is subject to a variety of legal actions relating to its health care
coverage business operations, such as claims relating to the denial of health
care benefits, medical malpractice actions, provider disputes, including
disputes over withheld compensation and termination of provider contracts,
disputes related to self-funded business, including actions alleging claim
administration errors and the failure to disclose network rate discounts and
other fee and rebate arrangements, disputes over copayment calculations, and
claims relating to customer audits and contract performance. Recent court
decisions and legislative activity may have the effect of increasing United
HealthCare's exposure for any of these types of claims. In some cases,
substantial non-economic or punitive damages may be sought. While United
HealthCare currently has insurance coverage for some of these potential
liabilities, others may not be covered by insurance, the insurers may dispute
coverage or the amount of insurance may not be enough to cover the damages
awarded. In addition, certain types of damages, such
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as punitive damages, may not be covered by insurance and insurance coverage
for all or certain forms of liability may become unavailable or prohibitively
expensive in the future.
INFORMATION SYSTEMS
United HealthCare's business is significantly dependent on effective
information systems, and United HealthCare has many different information
systems for its various businesses. United HealthCare's information systems
require an ongoing commitment of resources to maintain and enhance existing
systems and develop new systems. As a result of United HealthCare's acquisition
activities, United HealthCare is in the process of attempting to reduce the
number of systems and also to upgrade and expand its information systems
capabilities. Failure to maintain effective and efficient information systems
could result in loss of existing customers, difficulty in attracting new
customers, customer and provider disputes, regulatory problems, increases in
administrative expenses or other adverse consequences. In addition, United
HealthCare may from time to time obtain significant portions of its systems-
related or other services or facilities from independent third parties, which
may make United HealthCare's operations vulnerable to such third parties'
failure to perform adequately.
THE YEAR 2000
United HealthCare is in the process of modifying its computer systems to
accommodate the year 2000 so as not adversely to affect its operations. United
HealthCare is expensing the costs incurred to make these modifications. The
inability of United HealthCare to complete timely its year 2000 modifications or
the inability of other companies with which United HealthCare does business to
complete timely their year 2000 modifications could adversely affect United
HealthCare's business.
ADMINISTRATION AND MANAGEMENT
Efficient and cost-effective administration of United HealthCare's
operations is integral to United HealthCare's profitability and competitive
positioning. While United HealthCare attempts to effectively manage such
expenses, increases in staff-related and other administrative expenses may occur
from time-to-time due to business or product start-ups or expansions, growth or
changes in business, acquisitions, regulatory requirements or other reasons.
United HealthCare is in the process of reorganizing its operations into six
business units, which reorganization could impose additional administrative
expenses. Such expense increases are not clearly predictable and increases in
administrative expenses may adversely affect results.
United HealthCare currently believes it has a relatively experienced,
capable management staff. The market for management personnel in the healthcare
industry is very competitive. Loss of certain managers or a number of such
managers could adversely affect United HealthCare's ability to administer and
manage its business.
MARKETING
United HealthCare markets its products and services through both employed
sales people and independent sales agents. Although United HealthCare has a
number of such sales employees and agents, if certain key sales employees or
agents or a large subset of such individuals were to leave United HealthCare,
its ability to retain existing customers and members could be impaired. In
addition, certain of United HealthCare's customers or potential customers
consider rating, accreditation or certification of United HealthCare by various
private or governmental bodies or rating agencies necessary or important.
Certain of United HealthCare's health plans or other business units may not have
obtained or may not desire or be able to obtain or to maintain such
accreditation or certification which could adversely affect United HealthCare's
ability to obtain or retain business with such customers.
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RIGHTS TO DATA AND PROPRIETARY INFORMATION
Many of the products that are part of United HealthCare's knowledge and
information-related business depend significantly on the integrity of the data
on which they are based. If the information contained in United HealthCare's
databases were found or perceived to be inaccurate, or if such information were
generally perceived to be unreliable, commercial acceptance of the Company's
database-related products would be materially and adversely affected.
Furthermore, the use of patient data by United HealthCare's knowledge and
information-related business is subject to regulation at federal, state and
local levels. These laws and rules are subject to frequent change by
legislation or administrative interpretation. These restrictions could
adversely affect the revenue from these products of United HealthCare's
knowledge and information-related business and, more generally, its business,
financial condition and results of operations.
The success of United HealthCare's knowledge and information-related
business is also dependent to a significant extent on its ability to maintain
proprietary rights to its products. United HealthCare relies on its agreements
with customers, confidentiality agreements with employees, trade secrets,
copyrights and patents to protect its proprietary rights. There can be no
assurance that the legal protections available to and the precautions taken by
United HealthCare will be adequate to prevent misappropriation of United
HealthCare's proprietary information. In addition, substantial litigation
regarding intellectual property rights exists in the software industry, and
United HealthCare expects that software products may be increasingly subject to
third-party infringement claims as the number of products and competitors in
this industry segment grows and the functionality of products overlaps. Such
claims could have a material adverse effect on United HealthCare's knowledge and
information-related business's ability to market and sell its products and on
its business, financial condition and results of operations.
ACQUISITIONS
United HealthCare has made several large acquisitions in recent years and
has an active, ongoing acquisition program. These acquisitions may entail
certain risks and uncertainties in addition to those present in its ongoing
business operations, unknown liabilities, unforseen administrative needs, or
increased efforts to integrate the acquired operations. Failure to identify
liabilities, to anticipate additional administrative needs or to integrate
effectively acquired operations could result in reduced revenues, increased
administrative and other costs, or customer confusion or dissatisfaction.
STOCK MARKET
The market prices of the securities of certain of the publicly-held
companies in the industry in which United HealthCare operates have shown
volatility and sensitivity in response to many factors, including general market
trends, public communications regarding managed care, legislative or regulatory
actions, health care cost trends, pricing trends, competition, earnings or
membership reports of particular industry participants, and acquisition
activity. There can be no assurances regarding the level or stability of United
HealthCare's share price at any time or of the impact of these or any other
factors on the share price.
USE OF PROCEEDS
Unless otherwise specified in a Prospectus Supplement, the net proceeds to
United HealthCare from the sale of Securities will be used for general corporate
purposes, which may include, without limitation, working capital; redemption or
repurchase of outstanding securities; repayment of outstanding indebtedness; and
business acquisitions. If an allocation of the proceeds from an offering to a
particular use has been made at the date of the related Prospectus Supplement,
the allocation will be described therein.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. Certain
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provisions which apply only to Subordinated Debt Securities are described
below under the heading "--Subordination of Subordinated Debt Securities."
Particular terms of the Debt Securities offered by any Prospectus Supplement
and the extent, if any, to which such general terms and provisions may apply
to the Debt Securities so offered will be described in such Prospectus
Supplement.
The Debt Securities may be issued from time to time in one or more series.
The terms of each series of Debt Securities, including without limitation any
restrictive covenants with respect thereto which are not described herein, will
be established by or pursuant to authority granted by one or more resolutions of
the Board of Directors of United HealthCare and set forth in an officers'
certificate or established by a supplemental indenture.
The Senior Debt Securities and the Subordinated Debt Securities will be
issued under the indentures (the "Senior Indenture" and the "Subordinated
Indenture," respectively) between United HealthCare and the trustee named in the
applicable Prospectus Supplement (each, a "Trustee"). The forms of Senior
Indenture and Subordinated Indenture (collectively, the "Indentures") have been
filed as exhibits to the Registration Statement of which this Prospectus is a
part. The following brief summary of certain provisions of the Indentures does
not purport to be complete and is subject to, and is qualified in its entirety
by reference to, all of the provisions of the Indentures, and is further
qualified by any description contained in the applicable Prospectus Supplement.
Certain capitalized terms used in the following descriptions and not otherwise
defined herein are defined in the Indentures. Wherever particular sections or
defined terms of the Indentures are referred to, such sections or defined terms
are incorporated herein by reference.
GENERAL
The amount of Debt Securities offered by this Prospectus will be limited to
the amount of Securities set forth on the cover of this Prospectus that have not
been otherwise issued or reserved for issuance. The Indentures will not limit
the aggregate principal amount of Debt Securities which may be issued
thereunder. (Indentures Section 101.)
The Senior Debt Securities will be unsecured and will rank pari passu with
other unsecured, unsubordinated indebtedness of United HealthCare. The
Subordinated Debt Securities will be unsecured and will be subordinated in right
of payment to the prior payment in full of the Senior Debt of United HealthCare
as described below under under "-- Subordination of Subordinated Debt
Securities."
The applicable Prospectus Supplement will indicate the form (registered or
bearer) and denominations in which Debt Securities of any series may be issued
if other than denominations of $1,000 or any amount in excess thereof which is
an integral multiple of $1,000. Debt Securities may be issuable in the form of
one or more Global Securities, as described below under "-- Global Securities."
The Debt Securities (other than those issued in the form of a Global Security)
are exchangeable or transferable without any service charge therefor, but United
HealthCare may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith, other than certain
exchanges not involving any transfer, and may require the Holders to furnish
appropriate endorsements and transfer documents. (Indentures Section 305.)
Debt Securities may be issued as original issue discount securities to be
sold at a substantial discount below their principal amount. Special federal
income tax and other considerations applicable to original issue discount Debt
Securities will be described in the Prospectus Supplement relating thereto.
Principal of and any premium and interest on the Debt Securities will be
payable, and the transfer of the Debt Securities will be registrable, at the
office or agency of United HealthCare maintained for such purpose. Unless
otherwise set forth in the applicable Prospectus Supplement, interest on any
Debt Security that is payable will be paid to the Person in whose name that Debt
Security is registered in the Security Register at the close of business on the
regular record date for the applicable interest payment date; provided, that
defaulted interest may be paid to Holders as of special record dates established
in the manner set forth in the Indentures. (Indentures Sections 301, 305 and
307.)
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The applicable Prospectus Supplement will describe the terms of the Debt
Securities offered thereby, including the following: (i) the title of the
offered Debt Securities and whether the offered Debt Securities are Senior Debt
Securities or Subordinated Debt Securities; (ii) any limit on the aggregate
principal amount of the offered Debt Securities; (iii) the Person to whom any
interest on the offered Debt Securities will be payable, if other than the
Person in whose name they are registered on the regular record date for such
interest; (iv) the date or dates, or the method by which such date or dates are
determined or extended, on which the principal or installments of principal and
premium, if any, of the offered Debt Securities is or are payable; (v) the rate
or rates (which may be fixed or variable) at which the offered Debt Securities
will bear interest, if any, or the method by which such rate or rates shall be
determined, the date from which any such interest will accrue, the dates on
which such interest on the offered Debt Securities will be payable and the
regular record dates therefor, the circumstances, if any, in which United
HealthCare may defer interest payments and the basis for calculating interest if
other than a 360-day year of twelve 30-day months; (vi) the place or places
where the principal of and premium, if any, and interest on the offered Debt
Securities will be payable and the offered Debt Securities may be surrendered
for registration of transfer or exchange; (vii) if applicable, the period or
periods within which, the price or prices at which and the terms and conditions
upon which the offered Debt Securities may be redeemed, in whole or in part, at
the option of United HealthCare; (viii) the obligation, if any, of United
HealthCare to redeem or purchase the offered Debt Securities pursuant to any
sinking fund or analogous provisions or at the option of a Holder thereof and
the period or periods within which, the price or prices at which and the terms
and conditions upon which such Debt Securities shall be redeemed or purchased,
in whole or in part, pursuant to such obligation; (ix) whether the offered Debt
Securities will be convertible into or exchangeable for shares of Common Stock,
and if so, the terms and conditions upon which such Debt Securities will be so
convertible or exchangeable, and any deletions from or modifications or
additions to the applicable Indenture to permit or to facilitate the issuance of
such convertible or exchangeable Debt Securities or the administration thereof;
(x) the identity of each Security Registrar and Paying Agent, if other than or
in addition to the Trustee; (xi) if the amount of principal of or any premium or
interest on the offered Debt Securities may be determined by reference to an
index or pursuant to a formula, the manner in which such amounts shall be
determined; (xii) the applicability of, and any addition to or change in, the
covenants and definitions set forth in the applicable Indenture, as described
herein under "-- Certain Covenants;" (xiii) the denominations in which the
offered Debt Securities will be issuable, if other than denominations of $1,000
or any amount in excess thereof which is an integral multiple of $1,000; (xiv)
any other event or events of default applicable with respect to the offered Debt
Securities in addition to or in lieu of those described herein under "-- Events
of Default; Remedies," and any change in the right of the Trustee or the Holders
to declare the principal of or any premium or interest on the offered Debt
Securities due and payable; (xv) if less than the principal amount thereof, the
portion of the principal payable upon acceleration of such Debt Securities
following an Event of Default; (xvi) whether such Debt Securities are to be
issued in whole or in part in the form of one or more Global Securities and, if
so, the identity of the depositary for such Global Security or Securities, and
any circumstances under which any such Global Security may be exchanged for Debt
Securities registered in the name of, and any transfer of such Global Security
may be registered to, a Person other than such depositary or its nominee, if
other than those described herein under "-- Global Securities;" (xvii) if
applicable, that the offered Debt Securities, in whole or in any specified part,
are not defeasible; (xviii) the name and address of the Trustee with respect to
the offered Debt Securities; and (xix) any other terms of the offered Debt
Securities not inconsistent with the provisions of the applicable Indenture.
(Indentures Section 301.)
REDEMPTION
The Prospectus Supplement relating to any offered Debt Securities will
specify the provisions, if any, for redemption of such Debt Securities at the
option of United HealthCare.
Except as set forth in the Prospectus Supplement with respect to any
offered Debt Securities, United HealthCare is not required to make mandatory
redemption or sinking fund payments with respect to the Debt Securities. The
Prospectus Supplement relating to any offered Debt Securities will specify the
provisions, if any, regarding sinking fund provisions related to such Debt
Securities. The Indentures provide that United HealthCare may deliver
Outstanding Debt Securities of like tenor of a series (other than any previously
called for redemption) and may apply as a credit Debt Securities of
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like tenor of a series which have been redeemed either at the election of
United HealthCare pursuant to the terms of such Debt Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Debt Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Debt Securities of like tenor of
such series required to be made pursuant to the terms of such Debt Securities
as provided for by the terms of such series. (Indentures Sections 1102 and
1103.)
The Indentures provide that, if less than all of the Debt Securities of any
series are to be redeemed at any time, selection of Debt Securities for
redemption will be made by the Trustee on a pro rata basis (and in such manner
as complies with applicable legal and stock exchange requirements, if any), or
by such other method as the Trustee shall deem fair and appropriate, and
portions of the Debt Securities selected for redemption shall be in amounts of
$1,000 or whole multiples thereof, except that if all of the Debt Securities of
a Holder are to be redeemed, the entire outstanding amount shall be redeemed.
Notices of redemption shall be mailed by first class mail at least 30 but not
more than 60 days before the redemption date to each Holder of Debt Securities
to be redeemed at its registered address. If any Debt Security is to be
redeemed in part only, the notice of redemption that relates to such Debt
Security shall state the portion of the principal amount thereof to be redeemed.
A new Debt Security of like tenor and series in principal amount equal to the
unredeemed portion thereof, if any, will be issued in the name of the Holder
thereof upon cancellation of the original Debt Security. On and after the
redemption date, interest will cease to accrue on Debt Securities or portions of
them called for redemption unless United HealthCare defaults in the payment of
the redemption price and accrued interest. (Indentures Sections 403, 404, 407
and 408.)
REPURCHASE AT THE OPTION OF HOLDERS
Unless otherwise set forth in the Prospectus Supplement with respect to any
offered Debt Securities, the Indentures do not contain provisions that require
United HealthCare to repurchase Debt Securities at the option of Holders. The
Indentures provide that, if repurchase rights are provided for in a Prospectus
Supplement and amounts deposited in connection with all such repurchase rights
are insufficient to pay the repurchase price of all Debt Securities of the
applicable series having such repurchase rights, the Trustee shall select Debt
Securities to be repurchased on a pro rata basis among all Holders of such
series of Debt Securities having such repurchase rights and exercising the
option to elect repurchase (and in such manner as complies with any applicable
legal and stock exchange requirements. (Indentures Sections 1201 and 1204.)
CONVERSION AND EXCHANGE
If any offered Debt Securities are convertible at the option of the Holders
thereof into Common Stock or exchangeable at the option of United HealthCare for
Common Stock, the Prospectus Supplement relating to such Debt Securities will
set forth the terms and conditions governing such conversions and exchanges.
CERTAIN COVENANTS
Merger, Consolidation, or Sale of Assets. The Indentures provide that
United HealthCare may not consolidate or merge with or into (whether or not
United HealthCare is the surviving corporation), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its properties
or assets in one or more related transactions, to another Person unless (i)
United HealthCare is the surviving Person or the Person formed by or surviving
any such consolidation or merger (if other than United HealthCare) or to which
such sale, assignment, transfer, lease, conveyance or other disposition shall
have been made is a corporation organized or existing under the laws of the
United States, any state thereof or the District of Columbia; (ii) the Person
formed by or surviving any such consolidation or merger (if other than United
HealthCare) or the Person to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made assumes all the obligations
of United HealthCare under the applicable Debt Securities and Indenture pursuant
to a supplemental indenture in a form reasonably satisfactory to the applicable
Trustee; (iii) immediately after such transaction no Default or Event of Default
exists; and (iv) United HealthCare or the Person formed by or surviving any such
consolidation or merger (if other than United HealthCare), or to which such
sale, assignment,
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transfer, lease, conveyance or other disposition shall have been made, will have
Consolidated Net Worth immediately after the transaction equal to or greater
than the Consolidated Net Worth of United HealthCare immediately preceding the
transaction. (Indentures Section 601.)
Reports. The Indentures provide that so long as any Debt Securities are
Outstanding, United HealthCare will file with the applicable Trustee and furnish
to the Holders of Debt Securities all current, quarterly and annual reports on
Forms 8-K, 10-Q and 10-K and all proxy statements that United HealthCare is then
required to file with the Commission. If United HealthCare should cease to be
subject to Section 13 or 15(d) of the Exchange Act, its obligation to provide
such reports to the Trustee and Holders would cease. (Indentures Section 504.)
Absence of Certain Covenants. The Prospectus Supplement relating to any
offered Debt Securities will specify any additional restrictive covenants
applicable to such Debt Securities. Unless otherwise specified in the
applicable Prospectus Supplement, the Indentures do not impose any limitations
on United HealthCare's ability to incur additional indebtedness or any other
financial covenants or restrictions. The Indentures also do not contain
provisions permitting the Holders of Debt Securities to require that United
HealthCare repurchase or redeem such Debt Securities in the event of a takeover,
recapitalization or similar restructuring, highly leveraged transaction, or
downgrading of United HealthCare's debt ratings.
EVENTS OF DEFAULT; REMEDIES
The Indentures provide that each of the following constitutes an Event of
Default with respect to the Debt Securities of any series issued pursuant to the
applicable Indenture: (i) default for 30 days in the payment when due of
interest on the Debt Securities of that series; (ii) default in payment when due
of the principal of or premium, if any, on the Debt Securities of that series;
(iii) failure to deposit any mandatory sinking fund payment, when and as due, in
respect of the Debt Securities of that series; (iv) failure by United HealthCare
to comply with the provisions described above under the caption "-- Certain
Covenants -- Merger, Consolidation or Sale of Assets;" (v) failure by United
HealthCare for 60 days after notice from the Trustee or Holders of at least 25%
of the principal amount of the Outstanding Debt Securities of that series to
comply with any of its other agreements in the Indenture or such Debt
Securities; (vi) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by United HealthCare or any of its Subsidiaries
(or the payment of which is guaranteed by United HealthCare or any of its
Subsidiaries) whether such Indebtedness or guarantee exists at the date of the
applicable Indenture or is created after the date of such Indenture, which
default (a) is caused by a failure to pay principal of or premium, if any, or
interest on such Indebtedness prior to the expiration of the grace period
provided in such Indebtedness on the date of such default (a "Payment Default")
or (b) results in the acceleration of such Indebtedness prior to its express
maturity and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under which
there has been a Payment Default or the maturity of which has been so
accelerated, aggregates in excess of $50 million; (vii) failure by United
HealthCare or any of its Subsidiaries to pay final judgments aggregating in
excess of $50 million, which judgments are not paid, discharged or stayed for a
period of 60 days after their entry; (viii) certain events of bankruptcy or
insolvency with respect to United HealthCare or any of its Subsidiaries and (ix)
any other Event of Default provided with respect to the Debt Securities of that
series. (Indentures Section 701.)
If any Event of Default occurs and is continuing with respect to any series
of Debt Securities, the applicable Trustee, by notice to United HealthCare, or
the Holders of at least 25% in aggregate principal amount of the then
Outstanding Debt Securities of such series, by written notice to United
HealthCare and such Trustee, may declare the unpaid principal amount (or, if any
of the Debt Securities of that series are Original Issue Discount Debt
Securities, such lesser portion of the principal amount of such Debt Securities
as may be specified in the terms thereof), premium, if any, and any accrued and
unpaid interest on all the Debt Securities of such series to be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency with respect to United
HealthCare or any Subsidiary of United HealthCare, all principal, premium, if
any, and interest on Outstanding Debt Securities will become due and payable
without further action or notice. The Trustee may withhold from Holders of the
Debt
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Securities of any series notice of any continuing Default or Event of
Default (except a Default or Event of Default in payment on any Debt Security of
any series or in the payment of any sinking fund installment with respect to
such series) if it determines that withholding notice is in their interest. The
Holders of a majority in principal amount of the Outstanding Debt Securities of
such series by written notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default with respect to such series (except
nonpayment of principal or interest that has become due solely because of the
acceleration) have been cured or waived. (Indentures Sections 702 and 805.)
In the case of any Event of Default with respect to the Debt Securities of
any series occurring by reason of any willful action (or inaction) taken (or not
taken) by or on behalf of United HealthCare or any of its Subsidiaries the
primary purpose of which was avoiding payment of the premium, if any, that
United HealthCare would have had to pay with respect to such series if United
HealthCare then had elected to redeem such Debt Securities pursuant to the
optional redemption provisions, if any, established in accordance with the
applicable Indenture, an equivalent premium shall also become and be immediately
due and payable if such Debt Securities are repaid. (Indentures Section 701.)
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Debt Securities of any series by written notice to the
applicable Trustee may waive an existing Default or Event of Default with
respect to such Debt Securities and its consequences, except a continuing
Default or Event of Default in the payment of the principal of, premium, if any,
or interest on any such Debt Security held by a nonconsenting Holder (other than
a rescission of acceleration of such Debt Securities by the Holders of at least
a majority in aggregate principal amount of such Debt Securities and a waiver of
the payment default resulting from such acceleration). Upon any such waiver,
such Default shall cease to exist, and any Event of Default with respect to such
Debt Securities arising therefrom shall be deemed to have been cured; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon. (Indentures Section 704.)
Holders of a majority in principal amount of the Outstanding Debt
Securities of any series may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee with respect to such series
or exercising any trust or power conferred on the Trustee with respect to such
series. However, the Trustee may refuse to follow any direction that conflicts
with law or the applicable Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of such Debt Securities or that may
involve the Trustee in personal liability. The Trustee may take any other
action which it deems proper which is not inconsistent with any such direction.
(Indentures Section 705.)
No Holder of any Debt Security of any series will have any right to
institute any proceeding, judicial or otherwise, with respect to the applicable
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless: (i) the Holder gives written notice to the applicable
Trustee of a continuing Event of Default with respect to such Debt Securities;
(ii) the Holders of at least 25% in principal amount of the Outstanding Debt
Securities of such series make a written request to such Trustee to pursue the
remedy; (iii) such Holder or Holders offer and, if requested, provide to such
Trustee indemnity satisfactory to the Trustee against any loss, liability or
expense; (iv) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and (v) during such 60-day period the Holders of a majority in
principal amount of the Outstanding Securities of such series do not give the
Trustee a direction inconsistent with the request. The Indentures also provide
that a Holder may not use the applicable Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
(Indentures Section 706.)
United HealthCare is required to deliver to the applicable Trustee annually
a statement regarding compliance with the applicable Indenture, and United
HealthCare is required upon becoming aware of any Default or Event of Default
with respect to a series of Debt Securities, or any event of default under any
other mortgage, indenture or instrument to deliver to such Trustee a statement
specifying such Default or Event of Default and what action United HealthCare is
taking or proposes to take with respect thereto. (Indentures Section 505.)
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CERTAIN PROVISIONS APPLICABLE TO TRUSTEES
The Indentures provide that, except during the continuance of an Event of
Default known to the Trustee with respect to a series of Debt Securities, (i)
the duties of such Trustee shall be determined solely by the express provisions
of the applicable Indenture or the Trust Indenture Act ("TIA") and the Trustee
need perform only those duties that are specifically set forth in such Indenture
or the TIA and no others, and no implied covenants or obligations shall be read
into such Indenture against the Trustee; and (ii) in the absence of bad faith on
its part, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of such
Indenture. However, the Trustee is required to examine such certificates and
opinions to determine whether or not they conform to the requirements of such
Indenture. The Indentures further provide that if an Event of Default has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by 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. (Indentures Section 801.)
The Indentures provide that the Trustee with respect to a series of Debt
Securities may resign at any time or may be removed by United HealthCare or by
the Holders of a majority in principal amount of the Outstanding Debt Securities
of such series by notice delivered to the Trustee and United HealthCare. The
Indentures also provide that the Trustee must resign if it ceases to meet
certain qualifications set forth in the Indentures. In the event of a Trustee's
resignation or removal, United HealthCare or, if it fails to act, the Holders of
a majority in principal amount of the Outstanding Debt Securities of the
applicable series, may appoint a successor Trustee. (Indentures Section 809.)
DEFEASANCE PROVISIONS
United HealthCare may, at its option and at any time, elect to have all of
its obligations discharged with respect to the Outstanding Debt Securities of
any series issued pursuant to an Indenture ("Legal Defeasance"), except for (i)
the rights of Holders of Outstanding Debt Securities of that series to receive
payments in respect of the principal of, premium, if any, and interest on the
Debt Securities of that series when such payments are due from the trust
referred to below, (ii) United HealthCare's obligations with respect to the Debt
Securities concerning registration and transfer of Debt Securities, mutilated,
destroyed, lost or stolen Debt Securities and the maintenance of an office or
agency for payment, (iii) the rights, powers, trusts, duties and immunities of
the Trustee, and United HealthCare's obligations in connection therewith and
(iv) the defeasance provisions of such Indenture. In addition, United
HealthCare may, at its option and at any time, elect to have the obligations of
United HealthCare released with respect to certain covenants that are described
in an Indenture ("Covenant Defeasance") and thereafter any omission to comply
with such obligations shall not constitute a Default or Event of Default with
respect to the Debt Securities of such series. In addition, after United
HealthCare's election to exercise its option regarding Covenant Defeasance
occurs, certain events (not including non-payment, bankruptcy, receivership,
rehabilitation and insolvency events) described above under "-- Events of
Default; Remedies" will no longer constitute an Event of Default with respect to
the Debt Securities of such series. (Indentures Sections 902 and 903.)
In order to exercise either Legal Defeasance or Covenant Defeasance with
respect to any series of Debt Securities issued pursuant to an Indenture, (i)
United HealthCare must irrevocably deposit with the applicable Trustee, in
trust, for the benefit of the Holders of the Debt Securities of such series,
cash in U.S. dollars, non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay (A) the principal of,
premium, if any, and interest on the Outstanding Debt Securities of such series
on the stated maturity or on the applicable redemption date, as the case may be,
and (B) any mandatory sinking fund payments or analogous payments applicable to
the Debt Securities of such series on the day on which such payments are due and
payable; (ii) in the case of Legal Defeasance, United HealthCare shall have
delivered to such Trustee an opinion of counsel in the United States reasonably
acceptable to the Trustee confirming that (A) United HealthCare has received
from, or there has been published by, the Internal Revenue Service a ruling or
(B) since the date of such Indenture, there has been a change in the applicable
federal income tax law, in either case to the effect that, and based thereon
such opinion of counsel shall confirm that, the Holders of the Outstanding Debt
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Securities of such series will not recognize income, gain or loss for federal
income tax purposes as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such Legal Defeasance had not occurred; (iii) in
the case of Covenant Defeasance, United HealthCare shall have delivered to such
Trustee an opinion of counsel in the United States confirming that the Holders
of the Outstanding Debt Securities of such series will not recognize income,
gain or loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax in the same amount, in the
same manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred; (iv) no Default or Event of Default with respect to
such series shall have occurred and be continuing on the date of such deposit or
insofar as Events of Default resulting from bankruptcy or insolvency events are
concerned, at any time in the period ending on the 91st day after the date of
deposit; (v) such Legal Defeasance or Covenant Defeasance will not result in a
breach or violation of, or constitute a default under, such Indenture or any
other material agreement or instrument to which United HealthCare is a party or
by which United HealthCare is bound; (vi) United HealthCare shall have delivered
to such Trustee an opinion of counsel to the effect that after the 91st day
following the deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally; (vii) United HealthCare must deliver to such
Trustee an Officers' Certificate stating that the deposit was not made by United
HealthCare with the intent of preferring the Holders of the Debt Securities of
such series over the other creditors of United HealthCare with the intent of
defeating, hindering, delaying or defrauding creditors of United HealthCare or
others; and (viii) United HealthCare must deliver to such Trustee an Officers'
Certificate and an opinion of counsel, each stating that all conditions
precedent provided for relating to the Legal Defeasance or the Covenant
Defeasance have been complied with. (Indentures Section 904.)
MODIFICATION AND AMENDMENT
Modifications and amendments of an Indenture may be made by United
HealthCare and the applicable Trustee with the consent of the Holders of not
less than a majority in aggregate principal amount of the Outstanding Debt
Securities of all series affected by such modification or amendment (voting as
one class); provided, however, that no such modification or amendment may,
without the consent of the Holder of each Outstanding Debt Security affected
thereby: (i) change the stated maturity of the principal of, or any installment
of principal of or interest on, any Debt Security, reduce the principal amount
of, or premium or interest on, any Debt Security, reduce the amount of principal
of an Original Issue Discount Debt Security due and payable upon acceleration of
the maturity thereof, change the place of payment where or coin or currency in
which the principal of, or any premium or interest on, any Debt Security is
payable, or impair the right to institute suit for the enforcement of any
payment on or after the stated maturity of any Debt Security; or (ii) reduce the
percentage in principal amount of Outstanding Debt Securities of any series, the
consent of the Holders of which is required for modification or amendment of
such Indenture or for waiver of compliance with certain provisions of such
Indenture or for waiver of certain defaults; or (iii) modify any of the various
sections relating to above-described provisions. (Indentures Section 1002.)
The Indentures provide that, in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver thereunder
or whether a quorum is present at a meeting of Holders of Debt Securities, the
principal amount of an Original Issue Discount Debt Security that will be deemed
to be Outstanding will be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
maturity thereof to such date. (Indentures Section 101.)
CERTAIN DEFINITIONS
Set forth below are certain defined terms used in the Indentures.
Reference is made to the Indentures for full definitions of all such terms, as
well as any other capitalized terms used herein for which no definition is
provided. (Indentures Section 101.)
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet in accordance with
GAAP.
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"Capital Stock" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership, partnership interests
(whether general or limited) and (iv) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
"Consolidated Net Worth" means, with respect to any Person as of any date,
the sum of (i) the consolidated equity of the common stockholders of such Person
and its consolidated Subsidiaries as of such date plus (ii) the respective
amounts reported on such Person's balance sheet as of such date with respect to
any series of preferred stock (other than Disqualified Stock) that by its terms
is not entitled to the payment of dividends unless such dividends may be
declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such preferred stock, less (x) all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of tangible
assets of a going concern business made within 12 months after the acquisition
of such business) subsequent to the date of the applicable Indenture in the book
value of any asset owned by such Person or a consolidated Subsidiary of such
Person, and (y) all unamortized debt discount and expense and unamortized
deferred charges as of such date, all of the foregoing determined in accordance
with GAAP.
"Default" means any event that is or with the passage of time or the giving
of notice or both would be an Event of Default.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the Holder thereof, in whole or in part, on or prior to the date
that is 91 days after the date on which the applicable Debt Securities mature.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"Government Securities" means securities issued or directly and fully
guaranteed or insured by the United States government or any agency or
instrumentality thereof.
"Hedging Obligations"" means, with respect to any Person, the obligations
of such Person under (i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements and (ii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates.
"Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any property or representing any Hedging Obligation, except
any such balance that constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, as well as all indebtedness of others
secured by a Lien on any asset of such Person (whether or not such indebtedness
is assumed by such Person) and, to the extent not otherwise included, the
guarantee by such Person of any indebtedness of any other Person.
"Original Issue Discount Debt Security" means any Debt 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.
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"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof), with certain
exceptions.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
The following description sets forth certain provisions and defined terms
which apply only to Subordinated Debt Securities and the Subordinated Indenture.
The following brief summary does not purport to be complete and is subject to,
and is qualified in its entirety by reference to, all of the provisions of the
Subordinated Indenture, and is further qualified by any description contained in
the applicable Prospectus Supplement. The definitions of certain terms used in
the following summary are set forth below under "-- Certain Definitions."
Certain capitalized terms used in the following descriptions and not otherwise
defined herein are defined in the Subordinated Indenture. Wherever particular
sections or defined terms of the Subordinated Indenture are referred to, such
sections or defined terms are incorporated herein by reference.
Subordination. Subordinated Debt Securities will be subordinate and
subject in right of payment, in the manner and to the extent set forth in the
Subordinated Indenture, to the prior payment in full of all Senior Debt. Upon
any distribution to creditors of United HealthCare in a liquidation,
dissolution, winding up, reorganization, assignment for the benefit of
creditors, marshaling of assets and liabilities or any bankruptcy, insolvency or
similar proceeding involving United HealthCare, the holders of Senior Debt will
be entitled to receive payment in full in cash of all Obligations (as defined in
the Subordinated Indenture) due on or to become due on or in respect of all
Senior Debt, before the Holders of Subordinated Debt Securities are entitled to
receive any payment or distribution of any kind, whether in cash, property or
securities, by set off or otherwise (including any payment or distribution which
may be payable or deliverable by reason of the payment of any Junior
Subordinated Debt) on account of the principal of (and premium, if any) or
interest on the Subordinated Debt Securities or on account of any purchase,
redemption or other acquisition of Subordinated Debt Securities by United
HealthCare, any Subsidiary of United HealthCare, the Trustee or any Paying Agent
or on account of any other obligation of United HealthCare in respect of any
Subordinated Debt Securities ("Securities Payments"). Until the Senior Debt is
paid in full, any Securities Payment to which the Holders of Subordinated Debt
Securities or the Trustee for their benefit would be entitled, will be paid or
delivered by United HealthCare or any receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or distribution,
directly to the holders of Senior Debt or their representative or
representatives or the trustee or trustees under any indenture pursuant to which
any instruments evidencing any Senior Debt may have been issued. (Subordinated
Indenture Sections 1301 and 1302.) United HealthCare may not make any payments
on the account of the Subordinated Debt Securities, or on account of the
purchase or redemption or other acquisition of the Subordinated Debt Securities,
if there has occurred and is continuing a default in the payment of the
principal of (or premium, if any) or interest on any Senior Debt (a "Senior
Payment Default"). (Subordinated Indenture Section 1303.)
In the event that the applicable Trustee receives any Securities Payment
prohibited by the subordination provisions of the Subordinated Indenture, such
payment will be held by such Trustee in trust for the benefit of, and will
immediately be paid over upon written request to, the holders of Senior Debt or
their representative or representatives, or the trustee or trustees under any
applicable indenture for application to the payment of Senior Debt.
(Subordinated Indenture Section 1304). Such subordination will not prevent the
occurrence of any Event of Default in respect of the Subordinated Debt
Securities.
For purposes of the foregoing, "Securities Payments" will be deemed not to
include (i) a payment or distribution of stock or securities of United
HealthCare provided for by a plan of reorganization or readjustment authorized
by an order or decree of a court of competent jurisdiction in a reorganization
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proceeding under any applicable bankruptcy law or of any other corporation
provided for by such plan of reorganization or readjustment which stock or
securities are subordinated in right of payment to all then outstanding Senior
Debt to the same extent as, or to a greater extent than, the Subordinated Debt
Securities are so subordinated as provided in this Article; or (ii) payments of
assets from any defeasance trust which have been on deposit for 90 consecutive
days without the occurrence of blockage of payment on any such series of
Subordinated Debt Securities as described above. (Subordinated Indenture
Section 1301.)
By reason of the subordination of the Subordinated Debt Securities, in the
event of the insolvency of United HealthCare, holders of Senior Debt may receive
more, ratably, and Holders of the Subordinated Debt Securities having a claim
pursuant to such securities may receive less, ratably, than the other creditors
of United HealthCare. There may also be interruption of scheduled interest and
principal payments resulting from events of default on Senior Debt.
Certain Definitions. Set forth below are certain defined terms used in the
Subordinated Indenture. Reference is made to the Subordinated Indenture for a
full definition of all such terms, as well as any other capitalized terms used
herein for which no definition is provided. (Subordinated Indenture Section
101.)
"Junior Subordinated Debt" means any Indebtedness of United HealthCare
created or evidenced by an instrument which expressly provides that such
Indebtedness is subordinated in right of payment to the Subordinated Debt
Securities.
"Senior Debt" means all Indebtedness of United HealthCare, except (i)
Indebtedness under the Subordinated Debt Securities, and (ii) Indebtedness
(including, without limitation, any Junior Subordinated Debt) created or
evidenced by an instrument which expressly provides that such Indebtedness is
subordinated in right of payment to any other Indebtedness of United HealthCare.
Notwithstanding anything to the contrary in the foregoing, Senior Debt shall not
include (x) any Indebtedness of United HealthCare to any of its Subsidiaries or
other Affiliates and (y) any Indebtedness incurred for the purchase of goods or
materials or for services obtained in the ordinary course of business (other
than with the proceeds of revolving credit borrowings permitted by the
Subordinated Indenture).
GLOBAL SECURITIES
The following description will apply to any series of Debt Securities
issued, in whole or in part, in the form of a Global Security or Global
Securities deposited with, or on behalf of, The Depository Trust Company ("DTC")
(each such Debt Security represented by a Global Security being herein referred
to as a "Book-Entry Security").
Upon initial issuance, all Book-Entry Securities of the same series and
bearing interest, if any, at the same rate or pursuant to the same formula and
having the same date of issuance, redemption provisions, if any, repayment
provisions, if any, stated maturity and other terms will be represented by a
single Global Security. Each Global Security representing Book-Entry Securities
will be deposited with, or on behalf of, DTC and will be registered in the name
of DTC or a nominee of DTC.
Upon the issuance of a Global Security, DTC will credit accounts held with
it with the respective principal or face amounts of the Book-Entry Securities
represented by such Global Security. The accounts to be credited shall be
designated initially by the agent, underwriter or dealer through which the Debt
Security was sold or, to the extent that such Debt Securities are offered and
sold directly, by United HealthCare. Ownership of beneficial interests in a
Global Security will be limited to institutions that have accounts with DTC
("participants") and to persons that may hold interests through such
participants. Ownership of beneficial interests by participants in a Global
Security will be shown on, and the transfer of that ownership interest will be
effected only through, records maintained by DTC for such Global Security.
Ownership of beneficial interests in such Global Security by persons that hold
through participants will be shown on, and the transfer of that ownership
interest within such participant will be effected only through, records
maintained by such participant.
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Payment of principal of, premium, if any, and interest, if any, on Book-
Entry Securities represented by any such Global Security will be made to DTC or
its nominee, as the case may be, as the sole registered Holder of the Book-Entry
Securities represented thereby for all purposes under the Indentures. None of
United HealthCare, the Trustee, the Paying Agent or any agent of United
HealthCare or the Trustee will have any responsibility or liability for any
aspect of DTC's records relating to or payments made on account of beneficial
ownership interests in a Global Security representing any Book-Entry Securities
or any other aspect of the relationship between DTC and its participants or the
relationship between such participants and the owners of beneficial interests in
a Global Security owning through such participants or for maintaining,
supervising or reviewing any of DTC's records relating to such beneficial
ownership interests.
United HealthCare will have been advised by DTC upon the issuance of Book-
Entry Securities that upon receipt of any payment of principal of, premium, if
any, or interest, if any, on any such Global Security, DTC will immediately
credit, on its book-entry registration and transfer system, the accounts of
participants with payments in amounts proportionate to their respective
beneficial interests in the principal amount of such Global Security as shown on
the records of DTC. Payments by participants to owners of beneficial interests
in a Global Security held through such participants will be governed by standing
instructions and customary practices, as is now the case with securities held by
such participants for customer accounts registered in "street name," and will be
the sole responsibility of such participants.
No Global Security may be transferred except as a whole by a nominee of DTC
to DTC or to another nominee of DTC, or by DTC or any such nominee to a
successor of DTC or a nominee of such successor. (Indentures Section 305.)
A Global Security representing Book-Entry Securities is exchangeable for
certificated Debt Securities of the same series and bearing interest, if any, at
the same rate or pursuant to the same formula, having the same date of issuance,
redemption provisions, if any, repayment provisions, if any, stated maturity and
other terms and of differing authorized denominations aggregating a like amount,
if any, only if (x) DTC notifies United HealthCare that it is unwilling or
unable to continue as depositary for such Global Security or if at any time
United HealthCare determines that DTC is unable to continue as depositary and
United HealthCare thereafter fails to appoint a successor depositary, (y) United
HealthCare in its sole discretion determines that such Global Security shall be
exchangeable for certificated Debt Securities or (z) there shall have occurred
and be continuing an Event of Default with respect to the Book-Entry Securities
which entitles the Holders thereof to accelerate the maturity thereof.
(Indentures Section 305) Such certificated Debt Securities shall be registered
in the names of the owners of the beneficial interests in such Global Security
as provided by DTC's relevant participants (as identified by DTC).
Owners of beneficial interests in a Global Security will not be considered
the registered Holders thereof for any purpose under the applicable Indenture,
and no Global Security representing Book-Entry Securities shall be exchangeable
or transferrable except as described above. Accordingly, each person owning a
beneficial interest in such a Global Security must rely on the procedures of DTC
and, if such person is not a participant, on the procedures of the participant
through which such person owns its interest, to exercise any rights of a
registered Holder under the applicable Indenture. The laws of some
jurisdictions require that certain purchasers of securities take physical
delivery of such securities in certificated form. Such limits and such laws may
impair the ability to transfer beneficial interests in a Global Security.
DTC, as the registered Holder of each Global Security, may appoint agents
and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a
registered Holder is entitled to give or take under the applicable Indenture.
United HealthCare understands that under existing industry practices, in the
event that United HealthCare requests any action of registered Holders or that
an owner of a beneficial interest in such a Global Security desires to give or
take any action which a registered Holder is entitled to give or take under such
Indenture, DTC would authorize the participants holding the relevant beneficial
interests to give or take such action, and such participants would authorize
beneficial owners owning
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through such participants to give or take such action or would otherwise act
upon the instructions of beneficial owners owning through them.
DTC will have advised United HealthCare at the issuance of any Book-Entry
Securities that DTC is a limited-purpose trust company organized under the laws
of the State of New York, 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 under the Exchange Act. DTC was created to hold
the securities of its participants and to facilitate the clearance and
settlement of securities transactions among its participants in such securities
through electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities certificates. DTC's
participants include securities brokers and dealers, banks (which may include
the Trustee named in the applicable Prospectus Supplement), trust companies,
clearing corporations, and certain other organizations some of whom (and/or
their representatives) own DTC. Access to DTC's book-entry system is also
available to others, such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a participant, either
directly or indirectly.
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Stock offered by any Prospectus Supplement will be described in the
Prospectus Supplement relating to such series of the Preferred Stock. If so
indicated in the Prospectus Supplement, the terms of any such series may differ
from the terms set forth below. The description of certain provisions of the
Preferred Stock set forth below and in any Prospectus Supplement does not
purport to be complete and is subject to and qualified in its entirety by
reference to the Certificate of Designations relating to each series of the
Preferred Stock to be filed as an exhibit to a document incorporated by
reference in this Prospectus. A general form of such a Certificate of
Designations has been filed as an exhibit to the Registration Statement of which
this Prospectus is a part.
GENERAL
Pursuant to United HealthCare's second restated articles of incorporation,
as amended, United HealthCare is authorized to issue up to 10,000,000 shares of
its preferred stock, $.001 par value. At the date of this Prospectus, United
HealthCare has outstanding 500,000 shares of its 5.75% Series A Convertible
Preferred Stock (the "Series A Preferred"), a brief description of which is set
forth below under "-- Outstanding Series A Preferred." The Board of Directors
of United HealthCare has the authority, without further shareholder action, to
issue from time to time additional shares of previously unissued preferred stock
("Preferred Stock"), in one or more series and with such relative rights and
preferences and at such times and for such consideration as the Board of
Directors may determine. The authority of the Board of Directors includes, but
is not limited to, the determination or fixing of the following with respect to
shares of any series thereof: (i) the number of shares constituting such series
and the designation of such series; (ii) the dividend rate of such series, the
conditions and dates upon which such dividends shall be payable, the relation
which such dividends shall bear to the dividends payable on any other classes or
series of United HealthCare's capital stock, and whether such dividends shall be
cumulative or noncumulative; (iii) whether the shares of such series shall be
subject to redemption by United HealthCare at the option either of United
HealthCare or the holder or both, or upon the happening of a specified event,
and the terms and conditions of redemption; (iv) the terms and amount of any
sinking fund provided for the purchase or redemption of the shares of such
series; (v) whether or not the shares of such series shall be convertible into,
or exchangeable for, share of any other class, and the terms of such conversion
or exchange; (vi) the restrictions, if any, on the issue or reissue of any
additional preferred stock, including increases or decreases in the number of
shares of any series subsequent to the issue of shares of that series; (vii) the
rights of the holders of the shares of such series upon the voluntary or
involuntary liquidation, dissolution or winding up of United HealthCare; and
(viii) any right to vote with the holders of any series or class.
The Preferred Stock will, when issued, be fully paid and nonassessable. The
Preferred Stock will have no preemptive rights to subscribe for any additional
securities which may be issued by
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United HealthCare. The transfer agent and registrar for the Preferred Stock
will be specified in the applicable Prospectus Supplement.
The Preferred Stock will have the dividend, liquidation, redemption, voting
and conversion and exchange rights set forth below unless otherwise provided in
the Prospectus Supplement relating to a particular series of the Preferred
Stock. Reference is made to the Prospectus Supplement relating to the particular
series of the Preferred Stock offered thereby for specific terms, including (i)
the title and liquidation preference of such Preferred Stock and the number of
shares offered; (ii) the initial public offering price at which such Preferred
Stock will be issued; (iii) the dividend rate or rates (or method of
calculation), the dividend periods, the dates on which dividends shall be
payable and whether such dividends shall be cumulative or noncumulative and, if
cumulative, the dates from which dividends shall commence to cumulate; (iv) any
redemption or sinking fund provisions; (v) any conversion or exchange
provisions; and (vi) any additional dividend, liquidation, redemption, sinking
fund and other rights, preferences, privileges, limitations and restrictions.
DIVIDENDS
Subject to the preferential rights as to dividends of holders of any other
capital stock of United HealthCare ranking prior to any series of the Preferred
Stock, the holders of the Preferred Stock of each series will be entitled to
receive, when, as and if declared by the Board of Directors of United HealthCare
or a duly authorized committee thereof, out of funds legally available therefor,
cash dividends at such rates and on such dates as will be set forth in the
Prospectus Supplement relating to such series. Such rates may be fixed or
variable or both. If variable, the formula used for determining the dividend
rate for each dividend period will be set forth in the Prospectus Supplement.
Dividends will be payable to the holders of record as they appear on the stock
books of United HealthCare on such record dates as will be fixed by the Board of
Directors of United HealthCare or a duly authorized committee thereof.
Dividends on any series of the Preferred Stock may be cumulative or
noncumulative, as provided in the applicable Prospectus Supplement. If the
Board of Directors of United HealthCare fails to declare a dividend payable on a
dividend payment date on any series of the Preferred Stock for which dividends
are noncumulative ("Noncumulative Preferred Stock"), then the holders of such
series will have no right to receive a dividend in respect of the dividend
period ending on such dividend payment date, and United HealthCare will have no
obligation to pay the dividend accrued for such period, whether or not dividends
on such series are declared payable on any future dividend payment dates.
Unless otherwise provided in the Prospectus Supplement relating to an
offered series of Preferred Stock, no dividends or other distributions, other
than dividends payable solely in shares of Common Stock or other capital stock
of United HealthCare ranking junior as to payment of dividends to such Preferred
Stock (such Common Stock and other capital stock being referred to herein
collectively as "Junior Dividend Stock"), shall be paid or set apart for payment
on, and no purchase, redemption or other acquisition shall be made by United
HealthCare of, any shares of Junior Dividend Stock unless and until all
accumulated and unpaid dividends on such Preferred Stock, including the full
dividend for the then-current dividend period, shall have been paid or declared
and set apart for payment.
Unless otherwise provided in the applicable Prospectus Supplement relating
to an offered series of Preferred Stock, if at any time any dividend on any
capital stock of United HealthCare ranking senior as to payment of dividends to
such Preferred Stock (such capital stock being referred to herein as "Senior
Dividend Stock") shall be in default, in whole or in part, no dividend shall be
paid or declared and set apart for payment on such Preferred Stock unless and
until all accumulated and unpaid dividends with respect to the Senior Dividend
Stock, including the full dividend for the then-current dividend period, shall
have been paid or declared and set apart for payment, without interest. No full
dividends shall be paid or declared and set apart for payment on any capital
stock of United HealthCare ranking, as to payment of dividends, on a parity with
the such Preferred Stock (such capital stock being referred to herein as "Parity
Dividend Stock") for any period unless full cumulative dividends have been, or
contemporaneously are, paid or declared and set apart for payment on such
Preferred Stock for all dividend periods terminating on or prior to the date of
payment of such full
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cumulative dividends. No full dividends shall be paid or declared and set
apart for payment on such Preferred Stock for any period unless full
cumulative dividends have been, or contemporaneously are, paid or declared and
set apart for payment on any Parity Dividend Stock for all dividend periods
terminating on or prior to the date of payment of such full cumulative
dividends. When dividends are not paid in full upon such Preferred Stock and
any Parity Dividend Stock, all dividends paid or declared and set apart for
payment upon shares of such Preferred Stock and Parity Dividend Stock shall be
paid or declared and set apart for payment pro rata, so that the amount of
dividends paid or declared and set apart for payment per share on such
Preferred Stock and the Parity Dividend Stock shall in all cases bear to each
other the same ratio that accumulated and unpaid dividends per share on the
shares of such Preferred Stock and Parity Preferred Stock bear to each other.
Any reference to "distribution" above shall not be deemed to include any
distribution made in connection with a liquidation, dissolution or winding up of
United HealthCare, whether voluntary or involuntary.
REDEMPTION AND REPURCHASE
A series of the Preferred Stock may be redeemable, in whole or in part, at
the option of United HealthCare, or may be subject to mandatory redemption
pursuant to a sinking fund or otherwise, or may be subject to repurchase by
United HealthCare at the option of the holders, in each case upon terms, at the
times and at the prices set forth in the Prospectus Supplement relating to such
series. Preferred Stock redeemed by United HealthCare will be restored to the
status of authorized but unissued Preferred Stock.
The Prospectus Supplement relating to a series of the Preferred Stock which
is subject to mandatory redemption will specify the number of shares of such
series of the Preferred Stock which shall be redeemed by United HealthCare in
each year commencing after a date to be specified, at a redemption price per
share to be specified, together with an amount equal to all accrued and unpaid
dividends thereon to the date of redemption. The redemption price may be
payable in cash or other property, as specified in the Prospectus Supplement
relating to such series of the Preferred Stock.
In case of the redemption of less than all of the then outstanding shares
of a series of Preferred Stock, United HealthCare shall designate by lot, or in
such other manner as the Board of Directors may determine, the shares to be
redeemed, or shall effect such redemption pro rata. Notwithstanding the
foregoing, United HealthCare shall not redeem less than all of the shares of
such Preferred Stock at any time outstanding until all dividends accumulated and
in arrears upon all such Preferred Stock then outstanding shall have been paid
for all past dividend periods.
Notice of redemption shall be given by mailing the same to each record
holder of the shares to be redeemed, not less than 30 nor more than 60 days
prior to the date fixed for redemption thereof, to the respective addresses of
such holders as the same shall appear on the stock books of United HealthCare.
Each such notice of redemption shall specify the date fixed for redemption, the
redemption price, the place or places of payment, that payment of the redemption
price will be made upon presentation and surrender of certificates representing
the shares of the applicable series of Preferred Stock, that accumulated but
unpaid dividends to the date fixed for redemption will be paid on the date fixed
for redemption, and that on and after the redemption date, dividends will cease
to accumulate on such shares. Any notice which is mailed as set forth above
shall be conclusively presumed to have been duly given, whether or not a holder
of the applicable series of Preferred Stock receives such notice; and failure so
to give such notice, or any defect in such notice, to the holders of any shares
designated for redemption will not affect the validity of the proceedings for
the redemption of any other shares of such Preferred Stock.
On or after the date fixed for redemption as stated in such notice, each
holder of the shares called for redemption shall surrender the certificate or
certificates evidencing such shares to United HealthCare at the place designated
in such notice and shall thereupon be entitled to receive payment of the
redemption price. If fewer than all the shares represented by any such
surrendered certificate or certificates are redeemed, a new certificate shall be
issued representing the unredeemed shares. If, on the date fixed for
redemption, funds necessary for the redemption shall be available therefor and
shall
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have been irrevocably deposited or set aside, then, notwithstanding that
the certificates evidencing any shares so called for redemption shall not have
been surrendered, the dividends with respect to the shares so called shall cease
to accumulate on and after the date fixed for redemption, such shares shall no
longer be deemed outstanding, the holders thereof shall cease to be
shareholders, and all rights whatsoever with respect to such shares (except the
right of the holders thereof to receive the redemption price without interest
upon surrender of their certificates) shall terminate.
CONVERSION AND EXCHANGE
If any series of Preferred Stock offered hereby is convertible at the
option of the holders thereof into Common Stock or exchangeable at the option of
United HealthCare for Common Stock, the Prospectus Supplement relating to such
series will set forth the terms and conditions governing such conversions and
exchanges.
RIGHTS UPON LIQUIDATION
Unless otherwise provided in the Prospectus Supplement relating to an
offered series of Preferred Stock, in the event of a liquidation, dissolution or
winding up of United HealthCare, whether voluntary or involuntary, the holders
of such Preferred Stock shall be entitled to receive out of the assets of United
HealthCare an amount equal to the dividends accumulated and unpaid thereon to
the date of final distribution to such holders, whether or not declared, without
interest, plus a sum equal to the amount per share set forth in the applicable
Prospectus Supplement as the liquidation preference of such series, and no more,
before any payment shall be made or any assets distributed to the holders of
Common Stock or any other capital stock of United HealthCare ranking junior as
to liquidation rights to the such Preferred Stock (such Common Stock and other
capital stock being referred to herein collectively as "Junior Liquidation
Stock"); provided, that such rights shall accrue to the holders of such
Preferred Stock only in the event that United HealthCare's payments with respect
to the liquidation preferences of the holders of capital stock of United
HealthCare ranking senior as to liquidation rights to such Preferred Stock (such
capital stock being referred to herein as "Senior Liquidation Stock") are fully
met. The entire assets of United HealthCare available for distribution after
the liquidation preferences of any Senior Liquidation Stock are fully met shall
be distributed ratably among the holders of such Preferred Stock and any other
capital stock of United HealthCare which ranks on a parity as to liquidation
rights with such Preferred Stock in proportion to the respective preferential
amounts to which each is entitled (but only to the extent of such preferential
amounts). After payment in full of the liquidation preference of the shares of
such Preferred Stock, the holders of such shares shall not be entitled to any
further participation in any distribution of assets by United HealthCare.
Neither a consolidation or merger of United HealthCare with another corporation
nor a sale or transfer of all or part of the United HealthCare's assets for
cash, securities or other property will be deemed a liquidation, dissolution or
winding up of United HealthCare for purposes of this paragraph.
VOTING RIGHTS
Unless otherwise provided in the Prospectus Supplement relating to an
offered series of Preferred Stock, the holders of such Preferred Stock shall not
have any voting rights except as set forth below or as otherwise from time to
time required by law. If such Preferred Stock is cumulative Preferred Stock,
whenever dividends on such Preferred Stock shall be in arrears in an amount
equal to at least six dividends (whether or not consecutive), the holders of
such Preferred Stock (voting separately as a single class with all other
affected classes or series of Parity Dividend Stock upon which like voting
rights have been conferred and are then exercisable) will be entitled to vote
for and elect two additional directors. Such right of the holders of such
Preferred Stock to vote for the election of such two directors may be exercised
at any annual meeting or at any special meeting called for such purpose as
hereinafter provided or at any adjournment thereof, until dividends in default
on such outstanding shares of such Preferred Stock shall have been paid in full
(or such dividends shall have been declared and funds sufficient therefor set
apart for payment), at which time the term of office of the two directors so
elected shall terminate automatically (subject to revesting in the event of each
and every subsequent default of the character specified in the preceding
sentence and to any continuing rights of holders of such Parity Dividend Stock).
If at any such annual or special meeting or any adjournment
-23-
<PAGE>
thereof the holders of a majority of the then outstanding shares of such
Preferred Stock (and of such Parity Dividend Stock, if any) entitled to vote
in such election shall be present or represented by proxy, then the authorized
number of directors of the Corporation shall be increased by two, and the
holders of such Preferred Stock (voting separately as a single class with all
such Parity Dividend Stock, if any) shall be entitled to elect such two
additional directors. Directors so elected shall serve until the next annual
meeting or until their successors shall be elected and shall qualify, unless
the term of office of the persons so elected as directors shall have
terminated by virtue of the payment in full of all dividends in arrears (or
such dividends shall have been declared and funds sufficient therefor set
apart for payment). In case of any vacancy occurring among the directors so
elected by the holders of such Preferred Stock (and of such Parity Dividend
Stock, if any), the remaining director who shall have been so elected may
appoint a successor to hold office for the unexpired term of the director
whose place shall be vacant, and such successor shall be deemed to have been
elected by the holders of such Preferred Stock (and of such Parity Dividend
Stock, if any). If both directors so elected by the holders of such Preferred
Stock (and of such Parity Dividend Stock, if any) shall cease to serve as
directors before their terms shall expire, the holders of such Preferred Stock
(and of such Parity Dividend Stock, if any) then outstanding and entitled to
vote for such directors may, at a special meeting of such holders called as
provided above, elect successors to hold office for the unexpired terms of the
directors whose places shall be vacant. If holders of such Preferred Stock
become entitled to vote for directors pursuant to the foregoing provisions,
they will not have the right to cumulate their votes.
Unless otherwise provided in the Prospectus Supplement relating to an
offered series of Preferred Stock, United HealthCare will not authorize, create
or issue any shares of any other class or series of capital stock ranking senior
to such Preferred Stock as to dividends or upon liquidation without the consent
or affirmative vote of the holders of at least a majority of the outstanding
shares of such Preferred Stock. A series of the Preferred Stock may also have
other voting rights, for example, upon the occurrence of other specified events
or relative to the taking of other specified actions. Any such special voting
rights will be set forth in the Prospectus Supplement relating to such series of
Preferred Stock.
OUTSTANDING SERIES A PREFERRED
United HealthCare presently has authorized and outstanding 500,000 shares
of Series A Preferred. Holders of Series A Preferred are entitled to receive a
liquidation preference of $1,000 per share plus accrued and unpaid dividends in
the event of any liquidation, dissolution or winding up of United HealthCare,
whether voluntary or involuntary, and to receive cumulative cash dividends,
payable quarterly, at the rate per annum of 5.75% of the Series A Preferred's
liquidation preference.
Series A Preferred is redeemable at the option of United HealthCare on and
after October 1, 1998, at prices declining from 104.025% of the Series A
Preferred's liquidation preference in 1998 to 100% thereof on and after October
1, 2005, plus accrued and unpaid dividends. If the Series A Preferred has not
been redeemed or converted prior to October 1, 2005, United HealthCare is
required to redeem the Series A Preferred on such date at a price equal to 100%
of its liquidation preference plus accrued and unpaid dividends. The Series A
Preferred is convertible into Common Stock at the option of the holder at a
current conversion price of $49.48 per share of Common Stock, subject to
adjustment in certain events.
If the equivalent of six or more quarterly dividends (whether or not
consecutive) on the Series A Preferred are in arrears or if United HealthCare
fails to make certain required mandatory redemptions of the Series A Preferred,
the holders of the Series A Preferred, voting as a separate class, will become
entitled to elect two directors to United HealthCare's Board of Directors.
United HealthCare is not permitted to issue any Preferred Stock which ranks
senior to the Series A Preferred as to dividends or distributions upon
liquidation without the affirmative vote of the holders of at least 66-2/3% of
the outstanding shares of Series A Preferred. The consent of the holders of
Series A Preferred is not required in order for United HealthCare to authorize
or issue Preferred Stock which ranks on a parity with or junior to the Series A
Preferred as to dividends or distributions upon liquidation.
The foregoing is a brief description of the rights and preferences of the
Series A Preferred and is qualified in its entirety reference to the certificate
of designation establishing the Series A Preferred, a
-24-
<PAGE>
copy of which is filed or incorporated by reference as an exhibit to United
HealthCare's most recent Annual Report on Form 10-K.
DESCRIPTION OF COMMON STOCK
A description of United HealthCare's Common Stock is set forth in its
Registration Statement on Form 8-A dated September 20, 1992, which is
incorporated herein by reference. Copies thereof may be obtained in the manner
described under "Incorporation of Certain Documents by Reference."
PLAN OF DISTRIBUTION
United HealthCare may offer and sell the Securities from time to time
directly to one or more purchasers, through agents designated from time to time,
or through underwriters or dealers. The Prospectus Supplement with respect to
an offering of the Securities will set forth the terms of such offering,
including the names of any agents or underwriters, the purchase price of the
Securities, the proceeds to United HealthCare from such sale, any underwriting
discounts or agency fees and other items constituting underwriters' or agents'
compensation, the initial public offering price, any discounts or concessions
allowed or reallowed or paid to dealers, and any securities exchanges on which
the Securities may be listed.
The distribution of Securities may be effected from time to time in one or
more transactions at a fixed price or prices, which may be changed, at market
prices prevailing at the time of sale, at prices related to prevailing market
prices, or at negotiated prices.
If so indicated in the Prospectus Supplement relating to any Securities
offered thereby, United HealthCare will authorize underwriters, dealers and
agents to solicit offers by certain specified institutions to purchase such
Securities from United HealthCare at the public offering price set forth in such
Prospectus Supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. Such contracts will be
subject only to those conditions set forth in such Prospectus Supplement, and
such Prospectus Supplement will set forth the commission payable for
solicitation of such contracts.
Any underwriter, dealer or agent participating in the distribution of
Sscurities may be deemed to be an underwriter, and any discounts or commissions
received by it on the sale or resale of Securities may be deemed to be
underwriting discounts and commissions, under the Securities Act. Underwriters,
dealers or agents may be entitled, under agreements which may be entered into
with United HealthCare, to indemnification by United HealthCare against certain
civil liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments which such persons may be required to make
in respect thereof. Underwriters, dealers, agents and their affiliates may
engage in other transactions with or provide services to United HealthCare in
the ordinary course of business.
Unless otherwise indicated in the applicable Prospectus Supplement, all
Securities (other than Common Stock) will be new issues of securities with no
established trading market. Any underwriters to whom Securities are sold by
United HealthCare for public offering and sale may make a market in such
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given concerning the liquidity of the trading market for any Securities.
-25-
<PAGE>
EXPERTS
The consolidated balance sheets as of December 31, 1996 and 1995, and the
consolidated statements of operations, shareholders' equity and cash flows for
each of the three years in the period ended December 31, 1996, of United
HealthCare Corporation incorporated by reference in this Prospectus have been
audited by Arthur Andersen LLP, independent public accountants, as indicated in
their report with respect thereto, which is incorporated herein by reference in
reliance upon the authority of said firm as experts in giving said report.
With respect to the unaudited interim financial information of United
HealthCare Corporation for the quarters ended March 31, 1997, June 30, 1997 and
September 30, 1997 incorporated by reference in this Prospectus, Arthur Andersen
LLP has applied limited procedures in accordance with professional standards for
a review of that information. However, their separate reports thereon state
that they did not audit and they do not express an opinion on that interim
financial information. Accordingly, the degree of reliance on their reports on
that information should be restricted in light of the limited nature of the
review procedures applied. In addition, the accountants are not subject to the
liability provisions of Section 11 of the Securities Act for their reports on
the unaudited interim financial information because these reports are not
"reports" or "parts" of the Prospectus prepared or certified by the accountants
within the meaning of Sections 7 and 11 of the Securities Act.
LEGAL MATTERS
The validity of the Securities offered hereby has been passed upon for
United HealthCare by the General Counsel of United HealthCare.
-26-
<PAGE>
================================================================================
TABLE OF CONTENTS $200,000,000
PAGE
-----
UNITED HEALTHCARE CORPORATION
Available Information............... 3
Incorporation of Certain Documents
by Reference....................... 3 DEBT SECURITIES,
United HealthCare Corporation....... 4
Risk Factors........................ 4
Use of Proceeds..................... 8 PREFERRED STOCK, AND
Description of Debt Securities...... 8
Description of Preferred Stock...... 20
Description of Common Stock......... 25 COMMON STOCK
Plan of Distribution................ 25
Experts............................. 26
Legal Matters....................... 26
___________
PROSPECTUS
___________
_______________, 1998
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<CAPTION>
<S> <C>
SEC Registration Fee................................... $59,000
Accounting Fees and Expenses........................... $10,000
Legal Fees and Expenses................................ $20,000
Blue Sky, Legal Investment and related fees
and expenses................................... $ 1,000
Miscellaneous (including listing fees, if applicable).. $ 5,000
-------
Total............................................. $95,000
</TABLE>
All fees and expenses other than the SEC Registration Fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 302A.521 of the Minnesota Business Corporation Act provides that a
corporation shall indemnify any person who was or is made or is threatened to be
made a party to any proceeding, by reason of the former or present official
capacity (as defined) of such person, against judgments, penalties, fines,
settlements and reasonable expenses, including attorneys' fees and
disbursements, incurred by such person in connection with the proceeding if
certain statutory standards are met. "Proceeding" means a threatened, pending
or complete civil, criminal, administrative, arbitration or investigative
proceeding, including one by or in the right of the corporation. Section
302A.521 contains detailed terms regarding such right of indemnification and
reference is made thereto for a complete statement of such indemnification
rights.
United HealthCare's Bylaws provide for the indemnification of such persons,
for such expenses and liabilities, in such manner, under such circumstances and
to such extent of permitted by Section 302A.521 of the Minnesota Business
Corporation Act.
United HealthCare maintains a standard policy of officers' and directors'
insurance.
ITEM 16. LIST OF EXHIBITS
1 Form of Underwriting Agreement
4.1 Form of Senior Indenture
4.2 Form of Subordinated Indenture
4.3 Form of Preferred Stock Certificate of Designations
5 Opinion of the General Counsel of United HealthCare
23.1 Consent of Arthur Andersen LLP
23.2 Consent of the General Counsel of United HealthCare (included in
Exhibit 5 to this Registration Statement)
24 Powers of Attorney
25 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of a Corporation Designated to Act as Trustee (to be filed by
amendment)
ITEM 17. UNDERTAKINGS
Reg. S-K, Item 512(a) Undertaking: 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:
II-1
<PAGE>
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
Reg. S-K, Item 512(b) Undertaking: The undersigned registrant hereby
undertakes that, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in 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.
Reg. S-K, Item 512(h) Undertaking: Insofar as indemnification for
liabilities arising under the Securities Act of 1933 may be permitted to
directors, officers, and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that, in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
Reg. S-K, Item 512(j) Undertaking: The undersigned registrant hereby
undertakes to file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of section 310 of the
Trust Indenture Act ("Act") in accordance with the rules and regulations
prescribed by the Commission under section 305(b)(2) of the Act.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Minnetonka, State of Minnesota, on
January 20, 1998.
UNITED HEALTHCARE CORPORATION
By /s/ David J. Lubben
_____________________________________
David J. Lubben, Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on January 20, 1998.
Signature Title
--------- -----
/s/ William W. McGuire, M.D. President, Chief Executive Officer and Director
- ----------------------------
William W. McGuire, M.D. (principal executive officer)
/s/ David P. Koppe Chief Financial Officer (principal financial
- ----------------------------
David P. Koppe officer and principal accounting officer)
* Director
- ----------------------------
William C. Ballard, Jr.
* Director
- ----------------------------
Richard T. Burke
* Director
- ----------------------------
James A. Johnson
Director
- ----------------------------
Thomas H. Kean
* Director
- ----------------------------
Douglas W. Leatherdale
* Director
- ----------------------------
Walter F. Mondale
* Director
- ----------------------------
Mary O. Mundinger
* Director
- ----------------------------
Robert L. Ryan
* Director
- ----------------------------
Kennett L. Simmons
* Director
- ----------------------------
William G. Spears
* Director
- ----------------------------
Gail R. Wilensky
*By /s/ David J. Lubben
-------------------------
David J. Lubben
As Attorney-In-Fact
II-3
<PAGE>
EXHIBIT 1
---------
UNITED HEALTHCARE CORPORATION
UNDERWRITING AGREEMENT
----------------------
1. Introductory. United HealthCare Corporation, a corporation
incorporated under the laws of the State of Minnesota (the "Company"), proposes
to issue and sell from time to time certain of its unsecured debt securities,
preferred stock and common stock of the Company (par value $.01 per share)
("Common Stock") registered under the registration statement referred to in
Section 2(a) ("Registered Securities"). The Registered Securities constituting
debt securities will be issued under a [senior/subordinated] indenture dated as
of ____________________, 199_____, between the Company and _________________, as
trustee, in one or more series, which series may vary as to interest rates,
maturities, redemption, repurchase and conversion provisions, selling prices and
other terms. The Registered Securities constituting preferred stock may be
issued in one or more series, which series may vary as to dividend rates,
redemption, repurchase and conversion provisions, selling prices and other
terms. Particular series or offerings of Registered Securities will be sold
pursuant to a Terms Agreement referred to in Section 3, for resale in accordance
with terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "Offered Securities." The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"Underwriters" of such securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "Representatives;" provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives," as used in this Agreement (other than in Sections
2(b), 5(c) and 6 and the second sentence of Section 3), shall mean the
Underwriters.
2. Representations and Warranties of the Company. The Company, as of the
date of each Terms Agreement referred to in Section 3, represents and warrants
to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333- ), including a
prospectus, relating to the Registered Securities has been filed with the
Securities and Exchange Commission ("Commission") and has become effective.
Such registration statement, as amended at the time of any Terms Agreement
referred to in Section 3, is hereinafter referred to as the "Registration
Statement," and the prospectus included in such Registration Statement, as
supplemented as contemplated by Section 3 to reflect the terms of the
Offered Securities (if they are debt securities or preferred stock) and the
terms of the offering of the Offered Securities, as first filed with the
Commission pursuant to and in
1
<PAGE>
accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act of
1933 ("Act"), including all material incorporated by reference therein, is
hereinafter referred to as the "Prospectus." No document has been or will
be prepared or distributed in reliance on Rule 434 under the Act.
(b) On the effective date of the registration statement relating to
the Registered Securities, such registration statement conformed in all
material respects to the requirements of the Act, the Trust Indenture Act
of 1939 ("Trust Indenture Act") and the rules and regulations of the
Commission thereunder ("Rules and Regulations") and did not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and on the date of each Terms Agreement referred to in
Section 3, the Registration Statement and the Prospectus will conform in
all material respects to the requirements of the Act, the Trust Indenture
Act and the Rules and Regulations, and neither of such documents includes
or will include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does not apply
to statements in or omissions from any of such documents based upon written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Minnesota, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure so to be so qualified would not individually or in the aggregate
have a material adverse effect on the Company and its subsidiaries taken as
a whole.
(d) Each subsidiary of the Company has been duly incorporated and is
an existing corporation in good standing under the laws of the jurisdiction
of its incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus; and
each subsidiary of the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified would not
individually or in the aggregate have a material adverse effect on the
Company and its subsidiaries taken as a whole; all of the issued and
outstanding capital stock of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable; and the
capital stock of each subsidiary owned by
2
<PAGE>
the Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(e) [If the Offered Securities are debt securities:] The Indenture has
been duly authorized and has been duly qualified under the Trust Indenture
Act; the Offered Securities have been duly authorized; and when the Offered
Securities are delivered and paid for pursuant to the Terms Agreement on
the Closing Date (as defined below) or pursuant to Delayed Delivery
Contracts (as hereinafter defined), the Indenture will have been duly
executed and delivered, such Offered Securities will have been duly
executed, authenticated, issued and delivered and will conform to the
description thereof contained in the Prospectus and the Indenture and such
Offered Securities will constitute valid and legally binding obligations of
the Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(e) [If the Offered Securities are preferred stock:] The Offered
Securities have been duly authorized and, when the Offered Securities have
been delivered and paid for in accordance with the Terms Agreement on the
Closing Date (as defined below), such Offered Securities will have been
validly issued, fully paid and nonassessable and will conform to the
description thereof contained in the Prospectus; and the stockholders of
the Company have no preemptive rights with respect to the Offered
Securities.
(e) [If the Offered Securities are Common Stock:] The Offered
Securities and all other outstanding shares of capital stock of the Company
have been duly authorized; all outstanding shares of capital stock of the
Company are, and, when the Offered Securities have been delivered and paid
for in accordance with the Terms Agreement on the Closing Date (as defined
below), such Offered Securities will have been, validly issued, fully paid
and nonassessable and will conform to the description thereof contained in
the Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Offered Securities.
(f) [If the Offered Securities constitute Common Stock or are
convertible into Common Stock:] The outstanding shares of Common Stock are
listed on the New York Stock Exchange (the "Stock Exchange") and the
Offered Securities have been approved for listing on the Stock Exchange,
subject to notice of issuance. [If the Offered Securities are debt
securities or preferred stock:] The Offered Securities have been approved
for listing on the stock exchange, if any, indicated in the Terms
Agreement, subject to notice of issuance.
3
<PAGE>
(g) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance and sale of the Offered Securities by the Company, except such as
have been obtained and made under the Act [and, if the Offered Securities
are debt securities], the Trust Indenture Act and such as may be required
under state securities laws.
(h) [If the Offered Securities are debt securities:] The execution,
delivery and performance of the Indenture, the Terms Agreement (including
the provisions of this Agreement) and any Delayed Delivery Contracts and
the issuance and sale of the Offered Securities [and, if the Offered
Securities are debt securities or preferred stock,] compliance with the
terms and provisions thereof will not result in a breach or violation of
any of the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over the Company or
any subsidiary of the Company or any of their properties, or any material
agreement or instrument to which the Company or any such subsidiary is a
party or by which the Company or any such subsidiary is bound or to which
any of the properties of the Company or any such subsidiary is subject, or
the charter or by-laws of the Company or any such subsidiary, and the
Company has full corporate power and authority to authorize, issue and sell
the Offered Securities as contemplated by the Terms Agreement (including
the provisions of this Agreement).
(i) The Terms Agreement (including the provisions of this Agreement)
[and, if the Offered Securities are debt securities or preferred stock,]
any Delayed Delivery Contracts have been duly authorized, executed and
delivered by the Company.
(j) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and
except as disclosed in the Prospectus, the Company and its subsidiaries
hold any leased real or personal property under valid and enforceable
leases with no exceptions that would materially interfere with the use made
or to be made thereof by them.
(k) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit
4
<PAGE>
that, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse effect on
the Company and its subsidiaries taken as a whole.
(l) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
would have a material adverse effect on the Company and its subsidiaries
taken as a whole.
(m) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a material adverse effect on the condition (financial
or other), business, properties or results of operations of the Company and
its subsidiaries taken as a whole, or would materially and adversely affect
the ability of the Company to perform its obligations under [if the Offered
Securities are debt securities] the Indenture, the Terms Agreement
(including the provisions of this Agreement) or any Delayed Delivery
Contracts, or which are otherwise material in the context of the sale of
the Offered Securities; and no such actions, suits or proceedings are
threatened or, to the Company's knowledge, contemplated.
(n) The financial statements included in the Registration Statement
and Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and, except as otherwise
disclosed in the Prospectus such financial statements have been prepared in
conformity with the generally accepted accounting principles in the United
States applied on a consistent basis; any schedules included in the
Registration Statement present fairly the information required to be stated
therein; and if pro forma financial statements are included in the
Registration Statement and Prospectus, the assumptions used in preparing
the pro forma financial statements included in the Registration Statement
and the Prospectus provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or events
described therein, the related pro forma adjustments give appropriate
effect to those assumptions, and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding historical
financial statement amounts.
(o) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the
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Company and its subsidiaries taken as a whole, and, except as disclosed in
or contemplated by the Prospectus, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock.
(p) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940.
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement in substantially the form attached hereto as Annex II or Annex III, as
applicable, or by exchange of other written communications ("Terms Agreement")
at the time the Company determines to sell the Offered Securities. The Terms
Agreement will incorporate by reference the provisions of this Agreement, except
as otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal amount or number
of shares to be purchased by each Underwriter, the purchase price to be paid by
the Underwriters and [if the Offered Securities are debt securities or preferred
stock] the terms of the Offered Securities not already specified [in the
Indenture, in the case of Offered Securities that are debt securities],
including, but not limited to, interest rate [if debt securities], dividend rate
[if preferred stock], maturity [if debt securities], any redemption, repurchase
or conversion provisions and any sinking fund requirements and whether any of
the Offered Securities may be sold to institutional investors pursuant to
Delayed Delivery Contracts (as defined below). The Terms Agreement will also
specify the time and date of delivery and payment (such time and date, or such
other time not later than seven full business days thereafter as the Underwriter
first named in the Terms Agreement (the "Lead Underwriter") and the Company
agree as the time for payment and delivery, being herein and in the Terms
Agreement referred to as the "Closing Date"), the place of delivery and payment
and any details of the terms of offering that should be reflected in the
prospectus supplement relating to the offering of the Offered Securities. For
purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, the Closing
Date (if later than the otherwise applicable settlement date) shall be the date
for payment of funds and delivery of securities for all the Offered Securities
sold pursuant to the offering, other than Contract Securities (as defined below)
for which payment of funds and delivery of securities shall be as hereinafter
provided. The obligations of the Underwriters to purchase the Offered
Securities will be several and not joint. It is understood that the
Underwriters propose to offer the Offered Securities for sale as set forth in
the Prospectus.
If the Terms Agreement provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Offered Securities pursuant to
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delayed delivery contracts substantially in the form of Annex I attached hereto
("Delayed Delivery Contracts") with such changes therein as the Company may
authorize or approve. Delayed Delivery Contracts are to be with institutional
investors, including commercial and savings banks, insurance companies, pension
funds, investment companies and educational and charitable institutions. On the
Closing Date the Company will pay, as compensation, to the Representatives for
the accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the principal amount or number of shares of Offered Securities to be
sold pursuant to Delayed Delivery Contracts ("Contract Securities"). The
Underwriters will not have any responsibility in respect of the validity or the
performance of Delayed Delivery Contracts. If the Company executes and delivers
Delayed Delivery Contracts, the Contract Securities will be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount or number of shares of Offered Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the principal amount
or number of shares of Offered Securities set forth opposite each Underwriter's
name in such Terms Agreement, except to the extent that the Lead Underwriter
determines that such reduction shall be otherwise than pro rata and so advise
the Company. The Company will advise the Lead Underwriter not later than the
business day prior to the Closing Date of the principal amount or number of
shares of Contract Securities.
[If the Offered Securities are debt securities and the Terms Agreement
specifies "Book-Entry Only" settlement or otherwise states that the provisions
of this paragraph shall apply] The Company will deliver against payment of the
purchase price the Offered Securities in the form of one or more permanent
global securities in definitive form (the "Global Securities") deposited with
the Trustee as custodian for The Depository Trust Company ("DTC") and registered
in the name of Cede & Co., as nominee for DTC. Interests in any permanent global
securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Prospectus. Payment for the Offered
Securities shall be made by the Underwriters (if the Terms Agreement specifies
that the Offered Securities will not trade in DTC's Same Day Funds Settlement
System) by certified or official bank check or checks in New York Clearing House
(next day) funds or (if the Terms Agreement specifies that the Offered
Securities will trade in DTC's Same Day Funds Settlement System) in Federal
(same day) funds by official check or checks or wire transfer to an account in
New York previously designated to the Lead Underwriter by the Company at a bank
acceptable to the Lead Underwriter, in each case drawn to the order of
______________ at the place of payment specified in the Terms Agreement on the
Closing Date, against delivery to the Trustee as custodian for DTC of the Global
Securities representing all of the Offered Securities.
4. Certain Agreements of the Company. The Company agrees with the several
Underwriters that it will furnish to counsel for the Underwriters, one signed
copy of the registration statement relating to the Registered Securities,
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including all exhibits, in the form it became effective and of all amendments
thereto and that, in connection with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b)(2) (or, if applicable and if
consented to by the Lead Underwriter, subparagraph (5)) not later than the
second business day following the execution and delivery of the Terms
Agreement.
(b) The Company will advise the Lead Underwriter promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Lead Underwriter a reasonable opportunity to
comment on any such proposed amendment or supplement; and the Company will
also advise the Lead Underwriter promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of any
part thereof and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company promptly will
notify the Lead Underwriter of such event and will promptly prepare and
file with the Commission, at its own expense, an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance. Neither the Lead Underwriter's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months, after the
date of each Terms Agreement, the Company will make generally available to
its securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the
registration statement relating to the Registered Securities, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such Terms
Agreement and (iii) the date of the Company's most recent Annual Report on
Form 10-K filed with the Commission prior to the date of such Terms
Agreement, which will satisfy the provisions of Section 11(a) of the Act.
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(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as the Lead Underwriter reasonably
requests. The Company will pay the expenses of printing and distributing
to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale and [if the Offered Securities are debt securities or
preferred stock] the determination of their eligibility for investment
under the laws of such jurisdictions as the Lead Underwriter designates and
will continue such qualifications in effect so long as required for the
distribution.
(g) During the period of five years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as practicable
after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under
the Securities Exchange Act of 1934 or mailed to stockholders, and (ii)
from time to time, such other information concerning the Company as the
Lead Underwriter may reasonably request.
(h) The Company will pay all expenses incident to the performance of
its obligations under the Terms Agreement (including the provisions of this
Agreement), any filing fees or other expenses (including fees and
disbursements of counsel) in connection with qualification of the
Registered Securities for sale [if the Offered Securities are debt
securities or preferred stock] any determination of their eligibility for
investment under the laws of such jurisdictions as the Lead Underwriter may
designate and the printing of memoranda relating thereto [if they are debt
securities or preferred stock], any applicable filing fee incident to, and
the reasonable fees and disbursements of counsel for the Underwriters in
connection with, the review by the National Association of Securities
Dealers, Inc. of the Registered Securities, any travel expenses of the
Company's officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective purchasers
of Registered Securities, and expenses incurred in distributing the
Prospectus, any preliminary prospectuses, any preliminary prospectus
supplements or any other amendments or supplements to the Prospectus to the
Underwriters.
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(i) [If the Offered Securities are debt securities or preferred
stock:] The Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to United States dollar-
denominated debt securities issued or guaranteed by the Company and having
a maturity of more than one year from the date of issue [if the Offered
Securities are debt securities] or any series of preferred stock issued or
guaranteed by the Company [if the Offered Securities are preferred stock],
or publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of the Lead
Underwriter for a period beginning at the time of execution of the Terms
Agreement and ending the number of days after the Closing Date specified
under "Blackout" in the Terms Agreement.
5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of delivery
thereof, of Arthur Andersen LLP confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and any schedules
and any summary of earnings examined by them and included in the
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards
No. 71, Interim Financial Information, on any unaudited financial
statements included in the Registration Statement;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of the Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters
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and other specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited financial statements, if any, and any
summary of earnings included in the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations or any material modifications should be made to such
unaudited financial statements and summary of earnings for them
to be in conformity with generally accepted accounting
principles;
(B) if any unaudited "capsule" information is contained in
the Prospectus, the amounts constituting such "capsule"
information and described in such letter do not agree with the
corresponding amounts set forth in the unaudited consolidated
financial statements or were not determined on a basis
substantially consistent with that of the corresponding amounts
in the audited statements of income;
(C) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than three business days prior to the date of the Terms
Agreement, there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt of the
Company and its consolidated subsidiaries or, at the date of the
latest available balance sheet read by such accountants, there
was any decrease in consolidated net current assets or net
assets, as compared with amounts shown on the latest balance
sheet included in the Prospectus; or
(D) for the period from the closing date of the latest
income statement included in the Prospectus to the closing date
of the latest available income statement read by such accountants
there were any decreases, as compared with the corresponding
period of the previous year and with the period of corresponding
length ended the date of the latest income statement included in
the Prospectus, in consolidated net sales, net operating income;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
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(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Prospectus (in each case to the extent that such
dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus
for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business,
properties or results of operations of the Company or its subsidiaries
which, in the judgment of a majority in interest of the Underwriters
including any Representatives, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of trading
in securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of trading
of any securities of the Company on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by U.S. Federal or Minnesota
authorities; or (v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by
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Congress or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the Underwriters
including any Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment
for the Offered Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of David J. Lubben, Esq., General Counsel of the Company, to
the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Minnesota,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification, except where
the failure so to be so qualified would not individually or in the
aggregate have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(ii) [If the Offered Securities are debt securities:] The
Indenture has been duly authorized, executed and delivered by the
Company and has been duly qualified under the Trust Indenture Act; the
Offered Securities have been duly authorized; the Offered Securities
other than any Contract Securities have been duly executed,
authenticated, issued and delivered; the Indenture and the Offered
Securities other than any Contract Securities constitute, and any
Contract Securities, when executed, authenticated, issued and
delivered in the manner provided in the Indenture and sold pursuant to
Delayed Delivery Contracts, will constitute, valid and legally binding
obligations of the Company enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Offered Securities other than any Contract
Securities conform, and any Contract Securities, when so issued and
delivered and sold will conform, to the description thereof contained
in the Prospectus;
(ii) [If the Offered Securities are Preferred Stock:] The Offered
Securities have been duly authorized; the Offered Securities other
than any Contract Securities have been validly issued and are fully
paid and nonassessable; any Contract Securities, when issued,
delivered and sold pursuant to Delayed
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Delivery Contracts, will be validly issued, fully paid and non-
assessable; and the Offered Securities other than any Contract
Securities conform, and any Contract Securities, when so issued,
delivered and sold, will conform, to the description thereof contained
in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Offered Securities;
(ii) [If the Offered Securities are Common Stock:] The Offered
Securities and all other outstanding shares of the Common Stock of the
Company have been duly authorized and validly issued, are fully paid
and nonassessable and conform to the description thereof contained in
the Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Offered Securities;
(iii) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance or sale of the Offered Securities by the Company, except such
as have been obtained and made under the Act and, [if the Offered
Securities are debt securities] the Trust Indenture Act and such as
may be required under state securities laws;
(iv) The execution, delivery and performance of [if the Offered
Securities are debt securities] the Indenture, the Terms Agreement
(including the provisions of this Agreement) and, [if the Offered
Securities are debt securities or preferred stock] any Delayed
Delivery Contracts and the issuance and sale of the Offered Securities
and, [if the Offered Securities are debt securities or preferred
stock] compliance with the terms and provisions thereof will not
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over the Company or any subsidiary of the Company or any
of their properties, or any material agreement or instrument known to
such counsel to which the Company or any such subsidiary is a party or
by which the Company or any such subsidiary is bound or to which any
of the properties of the Company or any such subsidiary is subject, or
the charter or by-laws of the Company or any such subsidiary, and the
Company has full corporate power and authority to authorize, issue and
sell the Offered Securities as contemplated by the Terms Agreement
(including the provisions of this Agreement);
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(v) The Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein, and, to the best of the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceedings for
that purpose have been instituted or are pending or contemplated under
the Act, and the registration statement relating to the Registered
Securities, as of its effective date, the Registration Statement and
the Prospectus, as of the date of the Terms Agreement, and any
amendment or supplement thereto, as of its date, complied as to form
in all material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations; such counsel have no
reason to believe that such registration statement, as of its
effective date, the Registration Statement, as of the date of the
Terms Agreement or as of the Closing Date, or any amendment thereto,
as of its date or as of the Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of the date of the
Terms Agreement or as of such Closing Date, or any amendment or
supplement thereto, as of its date or as of the Closing Date,
contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; the descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown; and such counsel do not know of any
legal or governmental proceedings required to be described in the
Prospectus which are not described as required or of any contracts or
documents of a character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required; it being
understood that such counsel need express no opinion as to the
financial statements or other financial or statistical data contained
in the Registration Statement or the Prospectus; and
(vi) The Terms Agreement (including the provisions of this
Agreement) and, [if the Offered Securities are debt securities or
preferred stock] any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company;
(e) The Representatives shall have received from _________, counsel
for the Underwriters, such opinion or opinions, dated the
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Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities, the Registration Statement, the
Prospectus and other related matters as the Representatives may require,
and the Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters. In
rendering such opinion, ______________________ may rely as to the
incorporation of the Company and all other matters governed by Minnesota
law upon the opinion of David J. Lubben, Esq. referred to above.
(f) The Representatives shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that the representations and warranties of the Company in this Agreement
are true and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, that no stop order suspending the
effectiveness of the Registration Statement or of any part thereof has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission and that, subsequent to the date of the most
recent financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole except as set forth in or contemplated by the Prospectus
or as described in such certificate.
(g) The Representatives shall have received a letter, dated the
Closing Date, of Arthur Andersen LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to
in such subsection will be a date not more than three business days prior
to the Closing Date for the purposes of this subsection.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
6. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment
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or supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in the Terms Agreement.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives, if any, specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the information described as such in the Terms Agreement.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish,
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jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such
18
<PAGE>
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company, to each officer of the Company who
has signed the Registration Statement and to each person, if any, who controls
the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities under the Terms Agreement and
[if debt securities] the aggregate principal amount or [if preferred stock or
Common Stock] number of shares of Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total [if debt securities] principal amount or [if preferred stock or
Common Stock] number of shares of Offered Securities, the Lead Underwriter may
make arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective commitments under the
Terms Agreement (including the provisions of this Agreement), to purchase the
Offered Securities that such defaulting Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the aggregate [if
debt securities] principal amount or [if preferred stock or Common Stock] number
of shares of Offered Securities with respect to which such default or defaults
occur exceeds 10% of the total [if debt securities] principal amount or [if
preferred stock or Common Stock] number of shares of Offered Securities and
arrangements satisfactory to the Lead Underwriter and the Company for the
purchase of such Offered Securities by other persons are not made within 36
hours after such default, the Terms Agreement will terminate without liability
on the part of any non-defaulting Underwriter or the Company, except as provided
in Section 8. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default. [If the
Offered Securities are debt securities or preferred stock] The respective
commitments of the several Underwriters for the purposes of this Section shall
be determined without regard to reduction in the respective Underwriters'
19
<PAGE>
obligations to purchase the [if debt securities] principal amounts or [if
preferred stock] numbers of shares of the Offered Securities set forth opposite
their names in the Terms Agreement as a result of Delayed Delivery Contracts
entered into by the Company.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to the Terms Agreement (including the provisions of this Agreement)
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter,
the Company or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the Offered
Securities. If the Terms Agreement is terminated pursuant to Section 7 or if for
any reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 4 and the respective obligations of the
Company and the Underwriters pursuant to Section 6 shall remain in effect. If
the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of the Terms
Agreement pursuant to Section 7 or the occurrence of any event specified in
clause (iii), (iv) or (v) of Section 5(c), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
9. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
them at their address furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at United HealthCare Corporation, 300 Opus
Center, 9900 Bren Road East, Minnetonka, Minnesota 55343, Attention: General
Counsel.
10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company and such
Underwriters as are identified in the Terms Agreement and their respective
successors and the officers and directors and controlling persons referred to in
Section 6, and no other person will have any right or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act for the
several Underwriters in connection with the offering described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives jointly or by the Lead
Underwriter will be binding upon all the Underwriters.
20
<PAGE>
12. Counterparts. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. APPLICABLE LAW. THIS AGREEMENT AND THE TERMS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
UNITED HEALTHCARE CORPORATION
By:
------------------------------------
Its:
-----------------------------------
[UNDERWRITER/S]
By:
------------------------------------
Its:
-----------------------------------
21
<PAGE>
ANNEX I
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of initial public offering]
United HealthCare Corporation
c/o [Lead Underwriter]
[Address of Lead Underwriter]
Attention:
Gentlemen:
The undersigned hereby agrees to purchase from United HealthCare
Corporation, a Minnesota corporation ("Company"), and the Company agrees to sell
to the undersigned, [if one delayed closing, insert:] as of the date hereof,
for delivery on ______________, 199______ ("Delivery Date"),]
[$] _________ [shares] [principal amount]
of the Company's [insert title of securities] ("Securities"), offered by the
Company's Prospectus dated ______________, 199______ and a Prospectus Supplement
dated ______________, 199______ relating thereto, receipt of copies of which is
hereby acknowledged, at [_______% of the principal amount thereof plus accrued
interest, if any,] [$ per share plus accrued dividends, if any,] and on the
further terms and conditions set forth in this Delayed Delivery Contract
("Contract").
[If two or more delayed closings, insert the following:]
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the [principal] amounts
set forth below:
[Principal Amount] Delivery Date
---------------- -------------
[Number of Shares]
----------------
____________________________ ________
____________________________ ________
[Each of such delivery dates is hereinafter referred to as a Delivery Date.]
22
<PAGE>
Payment for the Securities that the undersigned has agreed to purchase for
delivery on [the] [each] Delivery Date shall be made to the Company or its order
by certified or official bank check in New York Clearing House (next day) funds
at the office of ____________________ at ____.M. On [the] [such] Delivery Date
upon delivery to the undersigned of the Securities to be purchased by the
undersigned [for delivery on such Delivery Date] in definitive [if debt issue,
insert:: fully registered] form and in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days prior to [the]
[such] Delivery Date.
It is expressly agreed that the provisions for delayed delivery and payment
are for the sole convenience of the undersigned; that the purchase hereunder of
Securities is to be regarded in all respects as a purchase as of the date of
this Contract; that the obligation of the Company to make delivery of and
accept payment for, and the obligation of the undersigned to take delivery of
and make payment for, Securities on [the] [each] Delivery Date shall be subject
only to the conditions that (1) investment in the Securities shall not at [the]
such] Delivery Date be prohibited under the laws of any jurisdiction in the
United States to which the undersigned is subject and (2) the Company shall have
sold to the Underwriters the total [principal amount] [number of shares] of the
Securities less the [principal amount] [number of shares] thereof covered by
this and other similar Contracts. The undersigned represents that its
investment in the Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which governs
such investment.
Promptly after completion of the sale to the Underwriters the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by [a copy] [copies] of the opinion[s] of counsel for the
Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
23
<PAGE>
Yours very truly,
___________________________________________
(Name of Purchaser)
By ________________________________________
___________________________________________
(Title of Signatory)
___________________________________________
___________________________________________
(Address of Purchaser)
Accepted, as of the above date.
UNITED HEALTHCARE CORPORATION
By
----------------------------------
[Insert title]
24
<PAGE>
ANNEX II
UNITED HEALTHCARE CORPORATION
("Company")
Debt Securities
TERMS AGREEMENT
---------------
, 19
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. 333- ) ("Underwriting
Agreement"), the following securities ("Offered Securities") on the following
terms:
TITLE: [ %] [Floating Rate] [Senior] [Subordinated] [Notes]
[Debentures] [Bonds] Due .
PRINCIPAL AMOUNT: $ .
INTEREST: [ %] per annum, from , 19 , payable semiannually
on and , commencing , 19 , to holders of record on the
preceding or , as the case may be.] [Zero coupon.]
MATURITY: , 19 .
OPTIONAL REDEMPTION:
SINKING FUND:
REPURCHASE OPTION:
CONVERTIBILITY:
LISTING: [None.] [Stock Exchange.] [The Nasdaq Stock Market Inc.'s
National Market.]
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be
, 19 . Underwriters' fee is % of the principal amount of the
Contract Securities.]
25
<PAGE>
PURCHASE PRICE: % of principal amount, plus accrued interest[, if any,]
from , 19 .
EXPECTED REOFFERING PRICE: % of principal amount, subject to
change by the [Representative[s] [Underwriters].
CLOSING: A.M. on , 19 , at , in Federal (same
day) funds.
SETTLEMENT AND TRADING: [Physical certificated form.] [Book-Entry Only
via DTC. The Offered Securities will trade in DTC's Same Day Funds Settlement
System.]
BLACKOUT: Until days after the Closing Date.
[NAME[S] AND ADDRESS[ES] OF [REPRESENTATIVE[S]] [UNDERWRITER[S]]:]
The respective principal amounts of the Offered Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Offered Securities will be made available for checking and packaging
at the office of at least 24 hours prior to the
Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of the following:
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company one of the counterparts
26
<PAGE>
hereof, whereupon it will become a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
UNITED HEALTHCARE CORPORATION
By
----------------------------------
[Insert title]
The foregoing Terms Agreement
is hereby confirmed and accepted
as of the date first above written.
[If no co-representative, use
first confirmation form. If
co-representative, use second.]
[Lead Underwriter]
By
----------------------------
[Insert title]
[Acting on behalf of itself
and as the Representative of
the several Underwriters.]
[Lead Underwriter]
------------------------------
------------------------------
[Acting on behalf of themselves
and as the Representatives of
the several Underwriters.]
By: [Lead Underwriter]
By
----------------------------
[Insert title]
27
<PAGE>
SCHEDULE A
Principal
Underwriter Amount
----------- -------------
$
Total
28
<PAGE>
ANNEX III
UNITED HEALTHCARE CORPORATION
("Company")
[Preferred] [Common] Stock
TERMS AGREEMENT
---------------
, 19
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. 333- ) ("Underwriting
Agreement"), the following securities ("Offered Securities") on the following
terms:
TITLE:
NUMBER OF SHARES:
[DIVIDEND RATE]
[OPTIONAL REDEMPTION:]
[REPURCHASE OPTION:]
[CONVERTIBILITY:]
[/SINKING FUND:]
LISTING: [None.] [ Stock Exchange.] [The Nasdaq Stock Market.]
[DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be ,
19 . Underwriters' fee is $ per share of the Contract Securities.]]
PURCHASE PRICE: $ per share [If preferred stock issue, insert--plus accrued
dividends[, if any,] from , 19 ].
EXPECTED REOFFERING PRICE: $ per share, subject to change by the
[Representative[s]] [Underwriters].
29
<PAGE>
CLOSING: A.M. on , 19 , at , in New York
Clearing House (next day) funds.
UNDERWRITERS' COMPENSATION: $ payable to the [Representative[s]
for the proportionate accounts of the] Underwriter[s] on the Closing Date.
[BLACKOUT: Until days after the Closing Date.]
[NAME[S] AND ADDRESS[ES] OF [REPRESENTATIVE[S]] [UNDERWRITER[S]]:]
The respective numbers of shares of the Offered Securities to be purchased
by each of the Underwriters are set forth opposite their names in Schedule A
hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Offered Securities will be made available for checking and packaging at
the office of at least 24 hours prior to the Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of the following:
30
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon
it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
UNITED HEALTHCARE CORPORATION
By
----------------------------------
[Insert title]
The foregoing Terms Agreement is
hereby confirmed and accepted as
of the date first above written.
[If no co-representative, use
first confirmation form. If
co-representative, use second.]
[Lead Underwriter]
By
------------------------------
[Insert title]
[Acting on behalf of itself and
as the Representative of the
several Underwriters.]
[Lead Underwriter]
--------------------------------
--------------------------------
[Acting on behalf of themselves
and as the Representatives of the
several Underwriters.]
By: [Lead Underwriter]
By
------------------------------
[Insert title]
31
<PAGE>
SCHEDULE A
Number of
Underwriter Shares
- ----------- ------------
------------
============
32
<PAGE>
Exhibit 4.1
- --------------------------------------------------------------------------------
UNITED HEALTHCARE CORPORATION
to
___________________
as Trustee
_______________
SENIOR DEBT SECURITIES
______________
INDENTURE
Dated as of __________, 199__
- --------------------------------------------------------------------------------
<PAGE>
UNITED HEALTHCARE CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of __________, 199__
CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
------------ -----------------
310 (a)(1)........................................... 812
(a)(2).............................................. 812
(a)(3).............................................. N.A.
(a)(4).............................................. N.A.
(a)(5).............................................. 812
(b).............................................. 809; 812
(c).............................................. N.A.
311 (a).............................................. 813
(b).............................................. 813
(c).............................................. N.A.
312 (a).............................................. 806
(b).............................................. 109
(c).............................................. 109
313 (a).............................................. 807
(b)(1).............................................. N.A.
(b)(2).............................................. 807
(c).............................................. 807
(d).............................................. 807
314 (a).............................................. 504
(b).............................................. N.A.
(c)(1).............................................. 104
(c)(2).............................................. 104
(c)(3).............................................. N.A.
(d).............................................. N.A.
(e).............................................. 104
(f).............................................. N.A.
315 (a).............................................. 801
(b).............................................. 805
(c).............................................. 801
(d).............................................. 801
(e).............................................. 711
i
<PAGE>
316 (a) (last sentence)...................................... 101
(a)(1)(A).............................................. 705
(a)(1)(B).............................................. 704
(a)(2).............................................. N.A.
(b).............................................. 707
(c).............................................. 106
317(a)(1).............................................. 708
(a)(2).............................................. 709
(b).............................................. 503
318 (a).............................................. 1301
(b).............................................. N.A.
(c).............................................. 1301
N.A. means not applicable.
____________________________
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be part of the Indenture.
ii
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE................ 1
Section 101. Definitions..................................... 1
Section 102. Other Definitions............................... 9
Section 103. Incorporation by Reference of TIA............... 9
Section 104. Compliance Certificates and Opinions............ 10
Section 105. Form of Documents Delivered to Trustee.......... 10
Section 106. Acts of Holders................................. 11
Section 107. Notices, Etc., to Trustee and Company........... 13
Section 108. Notice to Holders; Waiver....................... 14
Section 109. Communication by Holders with Other Holders..... 14
Section 110. Rules of Construction........................... 15
ARTICLE 2 SECURITY FORMS............................................ 15
Section 201. Forms Generally................................. 15
Section 202. Form of Trustee's Certificate of Authentication. 15
Section 203. Form of Legend for Global Securities............ 16
ARTICLE 3 THE SECURITIES............................................ 16
Section 301. Amount Unlimited; Issuable in Series............ 16
Section 302. Denominations................................... 19
Section 303. Execution, Authentication, Delivery and Dating.. 20
Section 304. Temporary Securities............................ 22
Section 305. Registration, Registration of Transfer and
Exchange........................................ 23
Section 306. Mutilated, Destroyed, Lost and Stolen Securities. 25
Section 307. Payment of Interest; Interest Rights Preserved.. 26
Section 308. Persons Deemed Owners........................... 27
Section 309. Cancellation.................................... 28
Section 310. Computation of Interest......................... 28
Section 311. CUSIP Number.................................... 28
ARTICLE 4 REDEMPTION OF SECURITIES.................................. 29
Section 401. Applicability of Article........................ 29
Section 402. Notices to Trustee.............................. 29
Section 403. Selection of Securities to Be Redeemed.......... 29
Section 404. Notice of Redemption............................ 30
Section 405. Effect of Notice of Redemption.................. 31
Section 406. Deposit of Redemption Price..................... 31
Section 407. Securities Payable on Redemption Date........... 31
Section 408. Securities Redeemed in Part..................... 32
ARTICLE 5 COVENANTS................................................. 32
iii
<PAGE>
Section 501. Payment of Principal, Premium and Interest...... 32
Section 502. Maintenance of Office or Agency................. 33
Section 503. Money for Securities Payments to Be
Held in Trust................................... 33
Section 504. Commission Reports.............................. 35
Section 505. Compliance Certificate.......................... 35
Section 506. Taxes........................................... 36
Section 507. Stay, Extension and Usury Laws.................. 36
Section 508. Corporate Existence............................. 36
ARTICLE 6 SUCCESSORS................................................ 37
Section 601. Limitations On Mergers, Consolidations or Sales
of Assets....................................... 37
Section 602. Successor Corporation Substituted............... 37
ARTICLE 7 DEFAULTS AND REMEDIES..................................... 38
Section 701. Events of Default............................... 38
Section 702. Acceleration.................................... 40
Section 703. Other Remedies.................................. 41
Section 704. Waiver of Past Defaults......................... 41
Section 705. Control by Majority............................. 41
Section 706. Limitation on Suits............................. 42
Section 707. Rights of Holders to Receive Payment............ 42
Section 708. Collection Suit by Trustee...................... 43
Section 709. Trustee May File Proofs of Claim................ 43
Section 710. Priorities...................................... 44
Section 711. Undertaking for Costs........................... 44
ARTICLE 8 TRUSTEE.................................................... 45
Section 801. Duties of Trustee............................... 45
Section 802. Rights of Trustee............................... 46
Section 803. Individual Rights of Trustee.................... 47
Section 804. Trustee's Disclaimer............................ 47
Section 805. Notice of Defaults.............................. 47
Section 806. Preservation of Information..................... 47
Section 807. Reports by Trustee to Holders................... 47
Section 808. Compensation and Indemnity...................... 48
Section 809. Resignation and Removal; Appointment
of Successor.................................... 49
Section 810. Acceptance of Appointment by Successor.......... 51
Section 811. Merger, Conversion, Consolidation or
Succession to Business......................... 52
Section 812. Eligibility; Disqualification................... 52
Section 813. Preferential Collection of Claims
Against Company................................. 53
Section 814. Appointment of Authenticating Agent............. 53
ARTICLE 9 DISCHARGE OF INDENTURE.................................... 55
iv
<PAGE>
Section 901. Defeasance and Discharge of this Indenture and
the Securities.................................. 55
Section 902. Legal Defeasance and Discharge.................. 55
Section 903. Covenant Defeasance............................. 55
Section 904. Conditions to Legal or Covenant Defeasance...... 56
Section 905. Deposited Money and Government Securities to
be Held in Trust; Other Miscellaneous
Provisions...................................... 58
Section 906. Repayment to Company............................ 59
Section 907. Reinstatement................................... 59
ARTICLE 10 AMENDMENT, SUPPLEMENT AND WAIVER.......................... 59
Section 1001. Without Consent of Holders...................... 59
Section 1002. With Consent of Holders......................... 61
Section 1003. Execution of Supplemental Indentures............ 62
Section 1004. Effect of Supplemental Indentures............... 62
Section 1005. Compliance with TIA............................. 62
Section 1006. Revocation and Effect of Consents............... 63
Section 1007. Reference in Securities to Supplemental
Indentures...................................... 63
Section 1008. Notice of Supplemental Indentures............... 63
ARTICLE 11 SINKING FUNDS............................................. 63
Section 1101. Applicability of Article........................ 63
Section 1102. Satisfaction of Sinking Fund Payments with
Securities...................................... 64
Section 1103. Redemption of Securities for Sinking Fund....... 64
ARTICLE 12 REPURCHASE OF SECURITIES AT OPTION OF HOLDERS............ 65
Section 1201. Applicability of Article........................ 65
Section 1202. Notice of Repurchase Date....................... 65
Section 1203. Deposit of Repurchase Price..................... 66
Section 1204. Securities Payable on Repurchase Date........... 66
Section 1205. Securities Repurchased in Part.................. 67
ARTICLE 13 MISCELLANEOUS............................................ 67
Section 1301. TIA Controls.................................... 67
Section 1302. Rules by Trustee and Agents..................... 67
Section 1303. Legal Holidays.................................. 67
Section 1304. No Personal Liability of Directors, Officers,
Employees and Stockholders...................... 68
Section 1305. Duplicate Originals............................. 68
Section 1306. Governing Law................................... 68
Section 1307. No Adverse Interpretation of Other Agreements... 68
Section 1308. Successors...................................... 68
Section 1309. Severability.................................... 68
Section 1310. Counterpart Originals........................... 69
Section 1311. Table of Contents, Headings, etc................ 69
v
<PAGE>
INDENTURE, dated as of __________, 199__ between UNITED HEALTHCARE
CORPORATION, a corporation duly organized and existing under the laws of the
State of Minnesota (herein called the "Company"), having its principal office at
300 Opus Center, 9900 Bren Road East, Minnetonka, Minnesota 55343, and
___________________, as Trustee (herein called the "Trustee"), having its
principal office at ___________________.
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 notes or other
evidences of indebtedness (herein called the "Securities"), to be issued in one
or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase 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 (including holders from time to time of the Securities of any series
held through a Holder which is a Depositary (as defined herein)), as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 101. Definitions.
"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 purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"Agent" means any Authenticating Agent, Security Registrar, Paying
Agent or co-registrar.
1
<PAGE>
"Board of Directors" means the Board of Directors of the Company or
any duly authorized (generally or in any particular respect) committee appointed
by that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification. Where any provision of this Indenture refers to action to be
taken pursuant to a Board Resolution (including establishment of any series of
the Securities and the forms and terms thereof), such action may be taken by any
committee, officer or employee of the Company authorized to take such action
(generally or in any particular respect) by a Board Resolution.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock, par value $.01 per share, of
the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument, as obligor under the Securities, unless and until
a successor replaces the Company in accordance with Article 6 hereof and
thereafter means such successor.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President,
its Chief Executive Officer, its Chief Operating Officer, its Chief Financial
Officer, a Vice President, its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, or by any other officer of the Company authorized to
sign by Board Resolution, and delivered to the Trustee.
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"Consolidated Net Worth" means, with respect to any Person as of any
date, the sum of (i) the consolidated equity of the common stockholders of such
Person and its consolidated Subsidiaries as of such date, plus (ii) the
respective amounts reported on such Person's balance sheet as of such date with
respect to any series of preferred stock (other than Disqualified Stock) that by
its terms is not entitled to the payment of dividends unless such dividends may
be declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such preferred stock, less (x) all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of tangible
assets of a going concern business made within 12 months after the acquisition
of such business) subsequent to the date of this Indenture in the book value of
any asset owned by such Person or a consolidated Subsidiary of such Person, and
(y) all unamortized debt discount and expense and unamortized deferred charges
as of such date, all of the foregoing determined in accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which at the date of original execution of the Indenture is
______________.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the clearing agency registered under the Exchange Act, specified for
that purpose as contemplated by Section 301 or any successor clearing agency
registered under the Exchange Act as contemplated by Section 305 of the
Indenture, 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 such series.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the Holder thereof, in whole or in part, on or prior to the date
that is 91 days after the date on which the Securities mature.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and
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pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect from time to time.
"Global Security" means a Security bearing the legend specified in
Section 203 evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee, and registered in the name of such
Depositary or nominee.
"Government Securities" means securities issued or directly and fully
guaranteed or insured by the United States government or any agency or
instrumentality thereof.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Holder" means a Person in whose name a Security is registered.
"Indebtedness" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligation,
except any such balance that constitutes an accrued expense or trade payable, if
and to the extent any of the foregoing indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance sheet
of such Person prepared in accordance with GAAP, as well as all indebtedness of
others secured by a Lien on any asset of such Person (whether or not such
indebtedness is assumed by such Person) and, to the extent not otherwise
included, the guarantee by such Person of any indebtedness of any other Person.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument due to the appointment of
one or more separate Trustees for any one or more separate series of Securities
pursuant to Section 809(e), "Indenture" shall mean, with respect to such series
of Securities for which any such Person is Trustee, this instrument as
originally executed or as it may from time to time be supplemented or amended by
one or more indentures
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supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities for which such
Person is Trustee established as contemplated by Section 301, exclusive,
however, of any provisions or terms which relate solely to other series of
Securities for which such Person is not Trustee, regardless of when such terms
or provisions were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and delivered after
such Person had become such Trustee but to which such Person, as such Trustee,
was not a party.
"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.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"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" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary,
any Assistant Secretary and any Vice President of the Company or any Subsidiary,
as the case may be.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, the Chief Executive Officer, the Chief Operating
Officer, the Chief Financial Officer, a Vice President or an Assistant Vice
President of the Company, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company, any Subsidiary or the Trustee.
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"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 702.
"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 canceled 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; 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 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, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 702, and (ii) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledges
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
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"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) and/or interest on any Securities on behalf
of the Company.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including without
limitation the rate or rates of interest (or formula for determining the rate or
rates of interest), if any, thereon, the Stated Maturity or Maturities thereof
and the redemption provisions, if any, with respect thereto, are to be
determined by the Company or its agents upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
(including any subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision or business).
"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/or interest on the Securities of that series are payable.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security, and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security or portion
thereof to be redeemed, means the date fixed for such redemption pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security or portion
thereof to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Repurchase Date", when used with respect to any Security or portion
thereof to be repurchased, means the date fixed for such repurchase pursuant to
this Indenture.
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"Repurchase Price", when used with respect to any Security or portion
thereof to be repurchased, means the price at which it is to be repurchased
pursuant to this Indenture.
"Responsible Officer" when used with respect to the Trustee, means any
officer within the Corporate Trust Division of the Trustee (or any successor
group of the Trustee) 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; provided, however, that if at any time there is more than
one Person acting as Trustee under this Indenture, "Securities" with respect to
the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this Indenture and shall more particularly mean
Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or
(b) the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"TIA" means the Trust Indenture Act of 1939, as amended, as in effect
on the date on which this Indenture is qualified under the TIA.
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"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.
Section 102. Other Definitions.
Defined in
Term Section
---- ---------
"Bankruptcy Law" 701
"Covenant Defeasance" 903
"Custodian" 701
"Event of Default" 701
"Legal Defeasance" 902
"Legal Holiday" 1303
"Notice of Default" 701
"Payment Default" 701
Section 103. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Securities means the Company and any successor
obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by the Commission rule
under the TIA have the meanings so assigned to them.
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Section 104. Compliance Certificates and Opinions.
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, if so requested by the Trustee, an Officers' Certificate stating
that all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, 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.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion whether such covenant or condition has
been complied with; and
(4) a statement whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Every such certificate provided under this Indenture shall be without
personal recourse to the individual executing the same and may include an
express statement to such effect.
Section 105. 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
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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 any 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, opinion or representations
with respect to the matters upon which such officer's 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. Any certificate or opinion of counsel may be stated to be based on the
certificates or opinions of other counsel, in which event it shall be
accompanied by a copy of such other certificates or opinions.
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. All applications, requests, certificates, statements or
other instruments given under this Indenture shall be without personal recourse
to any individual giving the same and may include an express statement to such
effect.
Section 106. Acts of Holders.
(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 (including Persons who hold
their Securities through a Holder which is a Depositary) in person or by an
agent duly appointed in writing, and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 801) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
Without limiting the generality of the foregoing, a Holder, including
a Depositary that is a Holder of a Global Security, may make, give or take, by a
proxy or proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this
Indenture to be made, given or taken by the Holders, and a Depositary that is a
Holder of a Global
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Security may provide its proxy or proxies to the beneficial owners of interest
in any such Global Security.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee may
determine, provided that, in any instance, the Trustee may require further proof
with respect to any matter referred to in this Section.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) The Company may fix any day as the record date for the purpose of
determining the Holders (including Persons who hold Securities through a Holder
which is a Depositary) of Securities of any series entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or taken
by Holders of Securities of such series. If not set by the Company prior to the
first solicitation of a Holder of Securities of such series made by any Person
in respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to TIA (S) 312) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders
(including Persons who hold Securities through a Holder which is a Depositary)
of one or more series of Securities, only the Holders of Securities of such
series on such date (or their duly designated proxies) shall be entitled to give
or take, or vote on, the relevant action.
With regard to any action that may be given or taken hereunder only by
Holders (including Persons who hold their Securities through a Holder which is a
Depositary) of a requisite principal amount of outstanding Securities of any
series (or their duly appointed agents) and for which a record date is set
pursuant to this subsection (d), the Company may, at its option, set an
expiration date after which no such action purported to be given or taken by any
Holder shall be effective hereunder unless given or taken on or prior to such
expiration date by Holders (including Persons who hold Securities through a
Holder which is a Depositary) of the requisite principal amount of outstanding
Securities of such series on such record date (or their duly appointed agents).
On or prior to any expiration date set pursuant to this subsection (d), the
Company may, on one or more occasions at its option, extend such date to any
later date. Nothing in this subsection (d) shall prevent any Holder (or any
duly appointed agent thereof) from giving or taking, after any expiration date,
any action identical to, or, at any time, contrary to or different from any
action given or taken, or purported to have been given and
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taken, hereunder by a Holder on or prior to such date, in which event the
Company may set a record date in respect hereof pursuant to this subsection (d).
Notwithstanding the foregoing, upon receipt by the Trustee, with
respect to Securities of any series, of (i) any Notice of Default pursuant to
Section 701, (ii) any declaration or acceleration, or any rescission and
annulment of any such declaration, pursuant to Section 702, or (iii) any waiver
given pursuant to Section 704 (any such notice, declaration, rescission and
annulment, or waiver being referred to herein as a "Direction"), a record date
shall automatically and without any other action by any Person be set for the
purpose of determining the Holders (including Persons who hold Securities
through a Holder which is a Depositary) of outstanding Securities of such series
entitled to join in such Direction, which record date shall be the close of
business on the day the Trustee receives such Direction. The Holders (including
Persons who hold Securities through a Holder which is a Depositary) of
outstanding Securities of such series on such record date (or their duly
appointed agents), and only such Persons, shall be entitled to join in such
Direction, whether or not such Holders remain Holders after such record date;
provided that, unless such Direction shall have become effective by virtue of
Holders (including Persons who hold Securities through a Holder which is a
Depositary) of the requisite principal amount of outstanding Securities of such
series on such record date (or their duly appointed agents) having joined
therein on or prior to the 90th day after such record date, such Direction shall
automatically and without any action by any Person be canceled and be of no
further effect. Nothing in this paragraph shall prevent a Holder (or duly
appointed agent thereof) from giving, before or after the expiration of such 90-
day period, a Direction contrary to or different from, or, after the expiration
of such period, identical to, a Direction that has been canceled pursuant to the
proviso to the preceding sentence, in which event a new record date in respect
thereof shall be set pursuant to this subsection (d).
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
Section 107. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if
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made, given, furnished or filed in writing to or with a Responsible
Officer of the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument (Attention: General Counsel) or at
any other address previously furnished in writing to the Trustee by the
Company.
Section 108. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder (including
Persons who hold Securities through a Holder which is a Depositary if the name
and address of such beneficial holder has been provided in writing to the Person
required to give such notice prior to the date such notice is given) affected by
such event, at such Holder's address as it appears in the Security Register or
as provided in writing by the Depositary, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice.
In any case where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders. Any notice mailed to the Holder in the manner herein prescribed shall
be conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made by or with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 109. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA (S) 312(b) with other Holders
with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA (S) 312(c).
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Section 110. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE 2
SECURITY FORMS
Section 201. Forms Generally.
The Securities of each series, including Global Securities
representing Securities of such series, shall be in the form established,
without the approval of any Holders or the Trustee, by or pursuant to a Board
Resolution in accordance with Section 301 or by one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities.
The definitive Securities may be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Section 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 designated therein and
issued pursuant to the within-mentioned Indenture.
__________________, as Trustee
By________________________
Authorized Signature
Section 203. Form of Legend for Global Securities.
Any Global Security authenticated and delivered hereunder shall, in
addition to the provisions established by or pursuant to a Board Resolution or
in one or more indentures supplemental hereto in accordance with Section 201,
bear a legend in substantially the following form or such similar form as may be
required by the Depositary:
"Unless this certificate is presented by an authorized
representative of [Depositary] to the issuer or to its agent for
registration of transfer, exchange or payment, and any certificate
issued is registered in the name of [Depositary Nominee] or such other
name as requested by an authorized representative of [Depositary] and
any payment is made to [Depositary Nominee], ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
since the registered owner hereof, [Depositary Nominee], has an interest
herein."
ARTICLE 3
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, without the approval of any Holders or the Trustee, by or pursuant
to authority granted by one or more Board Resolutions, and, subject to Section
303, there shall be set forth in an Officers' Certificate, or established in one
or more indentures supplemental hereto, prior to the initial issuance of
Securities of any series, all or any of the following, as applicable:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series) and the form of the Securities of the series;
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(2) 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 lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 1007 and 1205 and except for
any Securities which, pursuant to Section 303, are deemed never to have
been authenticated and delivered hereunder) and the absence of such
limitation shall mean that the Company may issue from time to time
additional securities of such series without limitation as to aggregate
principal amount;
(3) the Person to whom any interest on a Security of the series
shall be payable, if other than 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;
(4) the date or dates, or the method by which such date or dates
are determined or extended, on which the principal or installments of
principal and premium, if any, of the Securities of the series is or are
payable;
(5) the rate or rates (which may be fixed or variable) at which the
Securities of the series shall bear interest, if any, or the method by
which such rate or rates shall be determined, the date or dates from
which such interest shall accrue, the Interest Payment Dates on which
such interest shall be payable, the Regular Record Date for the interest
payable on any Interest Payment Date and the circumstances, if any in
which the Company may defer interest payments and the basis upon which
interest shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(6) whether the Company shall be required to maintain an office in
the Borough of Manhattan, the City of New York in accordance with
Section 502 hereof and the place or places, if any, where the principal
of (and premium, if any) and interest on Securities of the series shall
be payable, any Securities of the series may be surrendered for
registration of transfer or exchange and notices and demands to or upon
the Company with respect to the Securities of the series and this
Indenture may be served, other than or in addition to the Corporate
Trust Office of the Trustee and any office maintained for such purpose
in the Borough of Manhattan, the City of New York in accordance with
Section 502 hereof;
(7) if applicable, the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of
the series may be redeemed, in whole or in part, at the option of the
Company;
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(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) whether the Securities of the series will be convertible into
or exchangeable for shares of Common Stock, and if so, the terms and
conditions upon which such Securities will be so convertible or
exchangeable, and any deletions from or modifications or additions to
this Indenture to permit or to facilitate the issuance of such
convertible or exchangeable Securities or the administration thereof;
(10) the identity of each Security Registrar and Paying Agent, if
other than or in addition to the Trustee;
(11) if the amount of principal of, or any premium or interest on,
any Securities of the series may be determined by reference to an index
or pursuant to a formula, the manner in which such amounts shall be
determined;
(12) the applicability of, and any addition to or change in, the
covenants and definitions currently set forth in this Indenture;
(13) if other than denominations of $1,000 or any amount in excess
thereof which is an integral multiple of $1,000, the denominations in
which Securities of the series shall be issuable;
(14) any other event or events of default applicable with respect
to Securities of the series in addition to or in lieu of those provided
in Section 701 and any change in the right of the Trustee or the Holders
to declare the principal of or any premium or interest on such
Securities due and payable;
(15) if less 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
702;
(16) whether the Securities of the series shall be issued in whole
or in part in the form of one or more Global Securities and, if so, (a)
the Depositary with respect to such Global Security or Securities and
(b) the circumstances under which any such Global Security may be
exchanged for Securities registered in the name of, and any transfer of
such Global Security may be
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registered to, a Person other than such Depositary or its nominee, if
other than as set forth in Section 305;
(17) if applicable, that the Securities of the series, in whole or
any specified part, shall not be defeasible pursuant to Section 902 or
Section 903 or both such Sections and, if other than by a Company Order,
the manner in which any election by the Company to defend such
Securities shall be evidenced; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 1001(v)).
All Securities of any one series (other than Securities offered in a
Periodic Offering) shall be substantially identical except as to denomination
and except as may otherwise be provided by 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. All Securities of any one series need not be
issued at the same time. Unless otherwise provided, Securities of a single
series may have different terms, and a series may be reopened, without the
consent of the Holders of Securities of such series, for issuance of additional
Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
With respect to Securities of a series offered in a Periodic Offering,
such Board Resolution and Officers' Certificate or supplemental indenture may
provide general terms or parameters for Securities of such series and provide
either that the specific terms of particular Securities of such series shall be
specified in a Company Order or that such terms shall be determined by the
Company or its agents in accordance with other procedures specified in a Company
Order as contemplated by the third paragraph of Section 303.
Section 302. Denominations.
Unless otherwise provided in the applicable Officers' Certificate or
supplemental indenture, the Securities of each series shall be issued in
registered form without coupons in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such provisions with respect
to the Securities
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of any series, the Securities of such series shall be issuable in denominations
of $1,000 or any amount in excess thereof which is an integral multiple of
$1,000.
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 Chief Executive Officer, its Chief
Operating Officer, its Chief Financial Officer or one of its Vice Presidents,
and 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.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, or, in the case of Securities
offered in a Periodic Offering, from time to time in accordance with such other
procedures (including, without limitation, the receipt by the Trustee of
electronic instructions from the Company or its duly authorized agents, promptly
confirmed in writing by the Company) acceptable to the Trustee as may be
specified from time to time by a Company Order for establishing the specific
terms of particular Securities being so offered, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or forms or terms of the Securities of the series have been established by
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 801) shall be
fully protected in relying upon
(a) an Opinion of Counsel stating:
(1) that the form or forms of such Securities have been established
in conformity with the provisions of this Indenture;
(2) that the terms of such Securities have been established in
conformity with the provisions of this Indenture;
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(3) that authentication and delivery of such Securities and the
execution and delivery of the supplemental indenture, if any, by the
Trustee will not violate the terms of the Indenture;
(4) that the Company has the corporate power to issue, and has duly
authorized, such Securities; and
(5) that such Securities, 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 valid
and legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or
transfer and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles;
(b) an executed supplemental indenture, if any;
(c) a copy of a Board Resolution; and
(d) an Officers' Certificate;
provided, however, that, with respect to Securities of a series offered in a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel in connection only with the first authentication of each form of
Securities of such series and that the opinions described in clauses (a)(2) and
(a)(5) above may state, respectively, that
(2) if the terms of such Securities are to be established pursuant
to a Company Order or pursuant to such procedures as may be specified
from time to time by a Company Order, all as contemplated by a Board
Resolution or action taken pursuant thereto, such terms will have been
duly authorized by the Company and established in conformity with the
provisions of this Indenture; and
(5) that such Securities, when executed by the Company, completed,
authenticated and delivered by the Trustee in accordance with this
Indenture, and issued and delivered by the Company and paid for, all in
accordance with any agreement of the Company relating to the offering,
issuance and sale of such Securities, will be duly issued under this
Indenture and will constitute valid and legally binding obligations of
the Company, enforceable against the Company in accordance with their
terms, subject to bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or transfer and other
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laws of general applicability relating to or affecting the enforcement
of creditors' rights and to general equity principles.
With respect to Securities of a series offered in a Periodic Offering,
the Trustee may rely, as to the authorization by the Company of any of such
Securities, the form or forms and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel, Company
Order and other documents delivered pursuant to Sections 201 and 301 and this
Section, as applicable, in connection with the first authentication of a form of
Securities of such series and it shall not be necessary for the Company to
deliver such Opinion of Counsel and other documents (except as may be required
by the specified other procedures, if any, referred to above) at or prior to the
time of authentication of each Security of such series unless and until the
Trustee receives notice that such Opinion of Counsel or other documents have
been superseded or revoked, and may assume compliance with any conditions
specified in such Opinion of Counsel (other than any conditions to be performed
by the Trustee). If such form or forms 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 Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form 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 and is entitled to the
benefits of this Indenture. 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, 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 or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing
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such Securities may determine, as evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary Securities
may be in the form of Global Securities.
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, subject to Section
305, for definitive Securities of like tenor of such series upon surrender of
the temporary Securities of such series at the office or agency of the Company
in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any series
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of the same
series and of like tenor and of any 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 and
tenor.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" of each series of Securities for the
purpose of registering Securities and transfers of Securities as herein provided
at the Corporate Trust Office.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company in any Place of Payment for such
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
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor and bearing a number not contemporaneously
outstanding.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at the office or agency of the Company in any Place of Payment for
such series. 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.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt
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and entitled to the same benefits under this Indenture as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 1007 or 1205 not involving any transfer.
The Company may but shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
403 and ending at the close of business on the day of such mailing, (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part or (iii) to register the transfer of or exchange any certificated
Securities during a period beginning five days before the date of Maturity with
respect to such Security and ending on such date of Maturity.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, no Global Security shall be exchangeable pursuant
to this Section 305 for Securities registered in the name of, and no transfer of
a Global Security of any series may be registered to, any Person other than the
Depositary for such Security or its nominee, unless (i) such Depositary notifies
the Company that it is unwilling or unable to continue as Depositary for such
Global Security or the Company determines that the Depositary is unable to
continue as Depositary and the Company thereafter fails to appoint a successor
Depositary, (ii) the Company provides for such exchange or registration of
transfer pursuant to Section 301 of this Indenture, (iii) the Company executes
and delivers to the Trustee a Company Order that such Global Security shall be
so exchangeable and the transfer thereof so registrable, or (iv) there shall
have occurred and be continuing an Event of Default with respect to the
Securities of such series which entitles the Holders of such Securities to
accelerate the maturity thereof. Upon the occurrence in respect of any Global
Security of any series of any one or more of the conditions specified in clauses
(i), (ii), (iii) or (iv) of the preceding sentence or such other conditions as
may be specified as contemplated by Section 301 for such series, such Global
Security may be exchanged for Securities not bearing the legend specified in
Section 203 and
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registered in the names of such Persons as may be specified by the Depositary
(including Persons other than the Depositary or its nominees).
Notwithstanding any other provision of this Indenture, a Global
Security may not be transferred except as a whole by the Depositary for such
Global Security to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security, including a Global Security, is surrendered
to the Trustee or the Company, together with such security, bond or indemnity as
may be required by the Trustee or the Company to save each of them and any agent
of either of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security, including a new
Global Security if the mutilated Security was a Global Security, of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security, including a Global Security if the destroyed, lost or stolen Security
was a Global Security, and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon its
written request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security, including a Global Security
if the destroyed, lost or stolen Security was a Global Security, of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee), if any, connected
therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen
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Security shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Securities of that series duly issued hereunder. A new Security shall have
such legends as appeared on the old Security unless the Company determines
otherwise.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered in the Security Register at the close of business on
the Regular Record Date for such Interest Payment Date.
Any interest on any Security of any series which is payable but is not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 5 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
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Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Securities of such series at such
Holder's address as it appears in the Security Register, not less than
15 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of, or in exchange
for, or in lieu of, any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered in the Security Register as
the owner of such Security for the purpose of receiving payment of principal of
(and premium, if any) and (subject to Section 307) interest on such Security and
for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depositary (or its nominees) shall have any rights under this
Indenture with respect to such Global security or any Security represented
thereby, and such Depositary may be treated by the Company, the Trustee, and any
agent of the Company or the Trustee as the owner of such Global Security or any
Security represented thereby for all purposes whatsoever. Notwithstanding the
foregoing, with respect to any Global Security, nothing herein shall prevent the
Company, the Trustee, or any agent of the Company or the Trustee, from giving
effect to any written certification, proxy or other authorization furnished by a
Depositary as Holder of such Global Security, or impair, as between a Depositary
and the owners of
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beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of the Depositary (or its
nominees) as Holder of such Global Security.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. The Trustee is
hereby directed by the Company to destroy the canceled Securities held by the
Trustee (subject to the record retention requirements of the Exchange Act), and
the Trustee shall provide the Company with a certificate of a Responsible
Officer certifying as to the destruction of such Securities.
Section 310. Computation of Interest.
Except as otherwise specified pursuant to Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months and no interest will accrue
with respect to the 31st day of any month.
Section 311. CUSIP Number.
The Company in issuing the Securities may use "CUSIP" numbers, and if
it does so, the Trustee shall use the applicable CUSIP number in notices of
redemption or exchange as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the Securities, and
that reliance may be placed only on the other identification numbers printed on
the Securities. The Company will promptly notify the Trustee of any change in
any CUSIP number.
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ARTICLE 4
REDEMPTION OF SECURITIES
Section 401. Applicability of Article.
Unless otherwise specifically provided for in accordance with Section
301 with respect to any series of Securities, the Company shall have no
mandatory redemption or sinking fund obligations with respect to the Securities
of any series. Securities of any series which are redeemable before their
Stated Maturity in accordance with their terms as specifically established in
accordance with Section 301 shall be redeemable in accordance with their terms
and, except as otherwise provided by such terms, in accordance with this
Article.
Section 402. Notices to Trustee.
If the Company elects to redeem any Securities pursuant to any
optional redemption provisions established with respect to such series hereof,
it shall furnish to the Trustee, at least 40 days but not more than 60 days
before the Redemption Date, an Officers' Certificate setting forth (i) such
Redemption Date, (ii) the Redemption Price, (iii) if the Securities of such
series have different terms and less than all of the Securities of such series
are to be redeemed, the terms of the Securities to be redeemed and (iv) if less
than all the Securities of such series with identical terms are to be redeemed,
the principal amount of such Securities 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 403. Selection of Securities to Be Redeemed.
If less than all of the Securities of like tenor of any series are to
be redeemed at any time, the Trustee shall select the particular Securities to
be redeemed among the Holders on a pro rata basis (and in such manner as
complies with applicable legal and stock exchange requirements, if any) or in
such other manner as the Trustee, in the exercise of its reasonable discretion,
deems fair and appropriate. In the event of partial redemption by lot, the
particular Securities to be redeemed from the Outstanding Securities of like
tenor of such series shall be selected, unless otherwise provided herein, not
less than 30 nor more than 60 days prior to the Redemption Date by the Trustee
from the Outstanding Securities of like tenor of such series not previously
called for redemption.
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The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected for
partial redemption, the principal amount thereof to be redeemed. Securities and
portions of them selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Securities of a Holder are to be redeemed, the
entire outstanding amount of Securities held by such Holder, even if not a
multiple of $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
Section 404. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date,
notice of redemption shall be delivered by first-class mail, postage prepaid, to
each Holder whose Securities are to be redeemed at each such Holder's address
appearing in the Security Register.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of like tenor of
any series are to be redeemed, the portion of the principal amount of
any Security of such series to be redeemed and that, after the
redemption date upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion shall be
issued;
(4) the place or places where such Securities are to be surrendered
for payment of the Redemption Price;
(5) that, unless the Company defaults in making such redemption
payment, interest on Securities called for redemption ceases to accrue
on and after the Redemption Date;
(6) the paragraph of the Securities and/or Section of this
Indenture pursuant to which the Securities called for redemption are
being redeemed; and
(7) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Securities.
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At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 40 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph. The notice mailed in the manner herein provided
shall be conclusively presumed to have been duly given whether or not the Holder
receives such notice. In any case, failure to give such notice by mail or any
defect in the notice to the Holder of any Security shall not affect the validity
of the proceeding for the redemption of any other Security.
Section 405. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 404
hereof, Securities called for redemption become due and payable on the
redemption date at the redemption price plus accrued and unpaid interest, if
any, to such date.
Section 406. Deposit of Redemption Price.
At or before 10:00 a.m. Eastern Time on the 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 503) an amount of money, sufficient to pay the redemption
price of and accrued interest on all Securities to be redeemed on that date.
The Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the Redemption Price of (including any applicable
premium), and accrued interest on, all Securities to be redeemed.
Section 407. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, 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 Regular Record Dates according to their terms
and the provisions of Section 307.
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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.
Section 408. Securities Redeemed in Part.
Any Security which is to be redeemed in part shall be surrendered at a
Place of Payment for such series (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 such Holder's attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same series
and of like tenor, 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. To the extent a series
of Securities represented by a Global Security is to be redeemed only in part, a
notation of such redemption shall be made by the Trustee in the schedule of
exchanges on the Global Security.
ARTICLE 5
COVENANTS
Section 501. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of such series in accordance with the
terms of such Securities and this Indenture. Principal of (premium, if any) and
interest on the Securities of any series shall be considered paid on the date
due if the Paying Agent, if other than the Company or a Subsidiary of the
Company, holds as of 10:00 a.m. Eastern Time on the due date money, deposited by
the Company in immediately available funds and designated for and sufficient to
pay all principal, premium, if any, and interest then due. Such Paying Agent
shall return to the Company, no later than one Business Day following the date
of payment, any money (including accrued interest) that exceeds such amount of
principal (premium, if any) and interest paid on the Securities of such series.
The Company shall, unless otherwise provided for as contemplated by
Section 301, pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal of the Securities of any series
at the rate equal to 1% per annum in excess of the interest rate then applicable
to such series to the extent lawful. In addition, the Company shall pay
interest on the Securities of
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any series (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.
Section 502. Maintenance of Office or Agency.
Unless otherwise provided for as contemplated by Section 301, the
Company shall maintain in the Borough of Manhattan, the City of New York, and in
each Place of Payment for any series of securities, an office or agency (which
may be an office of the Trustee or an affiliate of the Trustee, the Security
Registrar or co-registrar) where Securities of such 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 such series and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain such an office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation, unless otherwise
provided for as contemplated by Section 301, to maintain an office or agency in
the Borough of Manhattan, the City of New York and in each Place of Payment for
Securities of any series for such purposes. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
Section 503. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum in the currency in which such series of Securities is payable
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 failure so to act.
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Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of such 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
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:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities of such series in trust
for the benefit of the Holders of such Securities until such sums shall
be paid to such Holders or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal (and premium, if any) or interest on the Securities
of such series; and
(3) during the continuance of any such default by the Company (or
any other obligor upon the Securities of such series) in the making of
any payment of principal (and premium, if any) or interest on the
Securities of such series, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying
Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent, and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all
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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 a newspaper published in the English language, customarily published on
each Business Day and of general circulation in the Borough of Manhattan, the
City of New York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company on Company Request.
Section 504. Commission Reports.
(i) So long as any of the Securities remain Outstanding, the Company
shall cause copies of all current, quarterly and annual financial reports on
Forms 8-K, 10-Q and 10-K, respectively, and all proxy statements, which the
Company is then required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act to be filed with the Trustee and mailed to the Holders
of such series of Securities at their addresses appearing in the Security
Register maintained by the Security Registrar, in each case, within 15 days of
filing with the Commission. The Company shall also comply with the provisions
of TIA (S) 314(a).
(ii) If the Company is required to furnish annual or quarterly reports
to its stockholders pursuant to the Exchange Act, the Company shall cause any
such annual or quarterly report to its stockholders and any other financial
report furnished by it generally to its stockholders to be filed with the
Trustee and mailed to the Holders of each series of Securities Outstanding at
their addresses appearing in the Security Register maintained by the Security
Registrar, and such reports shall be in lieu of the delivery to such Holders of
the reports on Form 10-K and 10-Q described in clause (i) above if they contain
the information required by clause (i) above.
Section 505. Compliance Certificate.
(i) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether each has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to his or her knowledge each entity has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all
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such Defaults or Events of Default of which he or she may have knowledge and
what action each is taking or proposes to take with respect thereto) and that to
his or her knowledge no event has occurred and remains in existence by reason of
which payments on account of the principal of or interest, if any, on the
Securities of any series is prohibited or if such event has occurred, a
description of the event and what action each is taking or proposes to take with
respect thereto.
(ii) The Company shall, so long as any of the Securities of any series
are Outstanding, deliver to the Trustee, forthwith upon any Officer becoming
aware of (a) any Default or Event of Default with respect to such series of
Securities or (b) any event of default under any other mortgage, indenture or
instrument, an Officers' Certificate specifying such Default, Event of Default
or event of default and what action the Company is taking or proposes to take
with respect thereto.
Section 506. Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments and governmental
levies except (i) as contested in good faith by appropriate proceedings and with
respect to which appropriate reserves have been taken, if required, in
accordance with GAAP or (ii) where the failure to effect such payment is not
adverse in any material respect to the Holders.
Section 507. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
Section 508. Corporate Existence.
Subject to Article 6 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of each Subsidiary and (ii) the
rights (charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such
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right, license or franchise, or the corporate, partnership or other existence of
any of its Subsidiaries, if the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Subsidiaries, taken as a whole, and that the loss thereof is not adverse in
any material respect to the Holders.
ARTICLE 6
SUCCESSORS
Section 601. Limitations On Mergers, Consolidations or Sales of Assets.
The Company may not consolidate or merge with or into (whether or not
the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another Person unless:
(i) the Company is the surviving Person or the Person formed by or
surviving any such consolidation or merger (if other than the Company)
or to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District
of Columbia;
(ii) the Person formed by or surviving any such consolidation or
merger (if other than the Company) or the Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have
been made assumes all the obligations of the Company under the
Securities and this Indenture pursuant to a supplemental indenture in a
form reasonably satisfactory to the Trustee;
(iii) immediately after such transaction no Default or Event of
Default exists; and
(iv) the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such
sale, assignment, transfer, lease, conveyance or other disposition shall
have been made will have Consolidated Net Worth immediately after the
transaction equal to or greater than the Consolidated Net Worth of the
Company immediately preceding the transaction.
Section 602. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 601 hereof, the successor corporation
formed
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by such consolidation or into or with which the Company is merged or to which
such sale, assignment, transfer, lease, conveyance or other disposition is made
shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, assignment, transfer, lease, conveyance or
other disposition, the provisions of this Indenture referring to the "Company"
shall refer instead to the successor corporation), and may exercise every right
and power of the Company under this Indenture with the same effect as if such
successor Person has been named as the Company, herein.
ARTICLE 7
DEFAULTS AND REMEDIES
Section 701. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, and unless otherwise provided with respect to Securities of any
series pursuant to Section 301, 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):
(i) a default for 30 days in the payment when due of interest on
any Security of such series;
(ii) a default in payment when due of principal of or premium, if
any, on any Security of such series at Maturity, upon redemption or
otherwise;
(iii) a failure by the Company to deposit any "mandatory sinking
fund payment" (as defined in Section 1101 hereof), when and as due, in
respect of the Securities of such series;
(iv) a default in the performance or breach of Article 6;
(v) failure by the Company for 60 days after notice to comply with
any of its other agreements in this Indenture or any Security of such
series;
(vi) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its
Subsidiaries (or the payment of which is guaranteed by the Company or
any of its Subsidiaries) whether such Indebtedness or guarantee now
exists, or is created after the date of this Indenture, which default
(a) is caused by a failure to pay
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principal of or premium, if any, or interest on such Indebtedness prior
to the expiration of the grace period provided in such Indebtedness on
the date of such default (a "Payment Default") or (b) results in the
acceleration of such Indebtedness prior to its express maturity and, in
each case, the principal amount of any such Indebtedness, together with
the principal amount of any other such Indebtedness under which there
has been a Payment Default or the maturity of which has been so
accelerated, aggregates in excess of $50 million;
(vii) failure by the Company or any of its Subsidiaries to pay
final judgments aggregating in excess of $50 million, which final
judgments remain unpaid, undischarged or unstayed for a period of
60 days after their entry;
(viii) the Company or any Subsidiary of the Company pursuant to or
within the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against
it in an involuntary case in which it is the debtor,
(c) consents to the appointment of a Custodian of it or
for all or substantially all of its property,
(d) makes a general assignment for the benefit of its
creditors, or
(e) admits in writing its inability generally to pay its
debts as the same become due;
(ix) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against the Company or any Subsidiary
of the Company in an involuntary case in which it is the
debtor,
(b) appoints a Custodian of the Company or any Subsidiary
thereof or for all or substantially all of the property of the
Company or any Subsidiary thereof, or
(c) orders the liquidation of the Company or any
Subsidiary of the Company,
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and the order or decree remains unstayed and in effect for 60 days; and
(x) any other Event of Default provided with respect to Securities of
such series pursuant to Section 301.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
A Default under clause (v) is not an Event of Default with respect to
any series of Securities until the Trustee notifies the Company in writing, or
the Holders of at least 25% in principal amount of the then Outstanding
Securities of such series notify the Company and the Trustee in writing, of the
Default and the Company does not cure the Default within 60 days after receipt
of such notice. The written notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default."
In the case of any Event of Default with respect to the Securities of
any series pursuant to the provisions of this Section 701 occurring by reason of
any willful action (or inaction) taken (or not taken) by or on behalf of the
Company or any of its Subsidiaries the primary purpose of which was to allow the
Company to avoid payment of the premium, if any, that the Company would have had
to pay with respect to the Securities of such series if the Company then had
elected to redeem such Securities pursuant to the optional redemption
provisions, if any, established in accordance with this Indenture, an equivalent
premium shall also become and be immediately due and payable if such Securities
are repaid to the extent permitted by law, anything in this Indenture or in the
Securities of such series to the contrary notwithstanding.
Section 702. Acceleration.
If an Event of Default with respect to the Outstanding Securities of
any series (other than an Event of Default specified in clauses (viii) and (ix)
of Section 701) occurs and is continuing, the Trustee by notice to the Company,
or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of such series by written notice to the Company and the
Trustee, may declare the unpaid principal of (or, if any of the Securities of
such series are Original Issue Discount Securities, such lesser portion of the
principal amount of such Securities as may be specified in the terms thereof),
premium, if any, and any accrued and unpaid interest on all the Securities of
that series to be due and payable. Upon such declaration the principal (or
specified portion thereof), premium, if any, and interest shall be due and
payable immediately. If an Event of Default specified in clause (viii) or (ix)
of Section 701 occurs with respect to the Company or any Subsidiary thereof such
an amount shall ipso facto become and be immediately due and
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payable without any declaration or other act on the part of the Trustee or any
Holder. The Holders of a majority in principal amount of the Outstanding
Securities of such series by written notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default with respect to such
series (except nonpayment of principal or interest that has become due solely
because of the acceleration) have been cured or waived.
Section 703. Other Remedies.
If an Event of Default with respect to the Outstanding Securities of
any series occurs and is continuing, the Trustee may pursue any available remedy
(under this Indenture or otherwise) to collect the payment of principal,
premium, if any, or interest on the Securities of such series or to enforce the
performance of any provision of such Securities or this Indenture.
The Trustee may maintain a proceeding with respect to the Outstanding
Securities of any series even if it does not possess any of the Securities of
such series or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of such Securities in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 704. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of any series by written notice to the Trustee may
waive an existing Default or Event of Default with respect to the Securities of
such series and its consequences, except a continuing Default or Event of
Default in the payment of the principal of, premium, if any, or interest on any
Security of such series held by a nonconsenting Holder (other than a rescission
of acceleration of the Securities of such series by the Holders of at least a
majority in aggregate principal amount of the Securities of such series and a
waiver of the payment default resulting from such acceleration). Upon any such
waiver, such Default shall cease to exist, and any Event of Default with respect
to the Securities of such series 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 705. Control by Majority.
Holders of a majority in principal amount of the Outstanding
Securities of any series may direct the time, method and place of conducting any
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proceeding for any remedy available to the Trustee with respect to such series
or exercising any trust or power conferred on the Trustee with respect to such
series. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture that the Trustee determines may be unduly prejudicial
to the rights of other Holders of Securities of such series or that may involve
the Trustee in personal liability. The Trustee may take any other action which
it deems proper which is not inconsistent with any such direction.
Section 706. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(i) the Holder gives to the Trustee written notice of a continuing
Event of Default with respect to the Securities of such series;
(ii) the Holders of at least 25% in principal amount of the
Outstanding Securities of such series make a written request to the
Trustee to pursue the remedy;
(iii) such Holder or Holders offer and, if requested, provide to
the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(v) during such 60-day period the Holders of a majority in
principal amount of the Outstanding Securities of such series do not
give the Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or
to obtain a preference or priority over another Holder.
Section 707. Rights of Holders to Receive Payment.
Notwithstanding any other provision in this Indenture, the Holder of
any Security 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 such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date, or, in the case of a repurchase right at the option of the Holder, if any,
on the Repurchase Date specified
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pursuant to Section 301) 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 708. Collection Suit by Trustee.
If an Event of Default with respect to the Securities of any series
specified in Section 701(i) or (ii) occurs and is continuing, the Trustee is
authorized to recover judgment in its own name and as trustee of an express
trust against the Company or any other obligor for the whole amount of
principal, premium, if any, and interest remaining unpaid on the Securities of
such series and interest on overdue principal and, to the extent lawful,
interest, premium and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
Section 709. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Securities), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian 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 to
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 808 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 808 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties which the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. 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 of any series 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 proceeding.
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Section 710. Priorities.
If the Trustee collects any money with respect to the Securities of
any series pursuant to this Article, it shall pay out the money in the following
order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 808, including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders of the Securities of such series for amounts due
and unpaid on the Securities of such series for principal, premium, if any, and
interest, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities of such series for principal, premium,
if any and interest, respectively;
Third: without duplication, to Holders of the Securities of such
series for any other principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness owing to such Holders under this Indenture or the
Securities of such series; and
Fourth: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders.
Section 711. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 707, or a suit by Holders of more than 10% in principal
amount of the Outstanding Securities of the affected series.
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ARTICLE 8
TRUSTEE
Section 801. Duties of Trustee.
(i) With respect to the Securities of any series, if an Event of
Default has occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(ii) With respect to the Securities of any series, except during the
continuance of an Event of Default known to the Trustee:
(a) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture or the TIA and the Trustee need
perform only those duties that are specifically set forth in this
Indenture or the TIA and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee, and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(iii) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(a) this paragraph does not limit the effect of paragraph (ii) of
this Section;
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 705 hereof.
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(iv) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(i), (ii), and (iii) of this Section.
(v) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee may refuse to perform
any duty or exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense.
(vi) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 802. Rights of Trustee.
(i) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(ii) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order or as otherwise
expressly provided herein and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution.
(iii) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. 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 from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(iv) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(v) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers conferred upon it by this Indenture.
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Section 803. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other
agent. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 812 and 813 hereof.
Section 804. Trustee's Disclaimer.
The Trustee and the Authenticating Agent shall not be responsible for
and makes no representation as to the validity or adequacy of this Indenture or
the Securities of any series, nor shall it or the Authenticating Agent be
accountable for the Company's use of the proceeds from the Securities or any
money paid to the Company or upon the Company's direction under any provision of
this Indenture, nor shall it or the Authenticating Agent be responsible for the
use or application of any money received by any Paying Agent other than the
Trustee, nor shall it be responsible for any statement or recital herein or any
statement in the Securities of any series or any other document in connection
with the sale of the Securities or pursuant to this Indenture other than its
certificate of authentication.
Section 805. Notice of Defaults.
If a Default or Event of Default with respect to the Securities of any
series occurs and is continuing and if it is known to the Trustee, the Trustee
shall mail to Holders of such Securities a notice of the Default or Event of
Default within 90 days after it occurs. Except in the case of a Default or
Event of Default in payment on any Security of any series or in the payment of
any sinking fund installment with respect to the Securities of such series, the
Trustee may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of the Holders of Securities of such series.
Section 806. Preservation of Information.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of such series of Securities
received by the Trustee in its capacity as Security Registrar.
Section 807. Reports by Trustee to Holders.
Within 60 days after May 15 of each year commencing with the later of
May 15, 1999 or the first May 15 after the first issuance of Securities pursuant
to this Indenture, the Trustee shall mail to the Holders of Securities of all
series a brief
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report dated as of such reporting date that complies with TIA (S) 313(a) (but if
no event described in TIA (S) 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA (S) 313(b). The Trustee shall also transmit by mail all
reports as required by TIA (S) 313(c).
A copy of each report at the time of its mailing to the Holders shall
be mailed to the Company and filed with the Commission and each stock exchange
on which the Securities are listed. The Company shall promptly notify the
Trustee when the Securities are listed on any stock exchange.
Section 808. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder
mutually satisfactory to the Company and Trustee. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee promptly upon request for all
reasonable disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance of its duties and the administration of the trusts under this
Indenture, except as set forth below. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee
to so notify the Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim and the Trustee shall cooperate
in the defense. The Trustee may have separate counsel and the Company shall pay
the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made without its consent, which consent shall not be unreasonably
withheld.
The obligations of the Company under this Section 808 shall survive
the satisfaction and discharge of this Indenture.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through its own negligence or bad
faith.
To secure the Company's payment obligations in this Section 808, the
Trustee shall have a Lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on the Securities of any series. Such Lien shall survive the
satisfaction and discharge of this Indenture.
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When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 701(viii) or (ix) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
Section 809. 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 810.
(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 specifying
its intention to resign, the applicable series affected by such resignation, the
reason therefor and the date upon which such resignation shall become effective.
Notwithstanding the foregoing, unless the reason for such resignation is a
conflict pursuant to TIA (S) 310(b) as provided in Section 812 hereof, the
Trustee must resign with respect to all Securities if the Trustee resigns with
respect to any series of Securities. If the instrument of acceptance by a
successor Trustee required by Section 810 shall not have been delivered to the
Trustee within 60 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) The Trustee may be removed with respect to any or all series of
Securities at any time upon 30 days notice by filing with it an instrument in
writing signed on behalf of the Company by a duly authorized officer of the
Company specifying such removal and the date on which it is to become effective.
(e) If at any time:
(1) the Trustee shall fail to comply with TIA (S) 310(b) 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 812 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
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(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to any one or more series of Securities or all Securities,
or (ii) subject to Section 711, 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 such series of Securities and the appointment of
a successor Trustee or Trustees.
(f) 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). If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
810, 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 810, 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.
(g) 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 respect to the Securities of such series and the address of its Corporate
Trust Office.
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Section 810. 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 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. Whenever there is a successor
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Trustee with respect to one or more (but less than all) series of securities
issued pursuant to this Indenture, the terms "Indenture" and "Securities" shall
have the meanings specified in the provisos to the respective definitions of
those terms in Section 101 which contemplate such situation.
(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) and (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 811. 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; in
case any of the Securities shall not have been authenticated by the Trustee then
in office, any successor by merger, conversion or consolidation to such Trustee
may authenticate such Securities either in the name of such predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Securities or
in this Indenture provided that the certificate of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 812. Eligibility; Disqualification.
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 or of any state thereof authorized under such laws to exercise corporate
trustee power, shall be subject to supervision or examination by Federal or
state
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authority and shall have a combined capital and surplus of at least $100 million
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA (S) 310(a)(1), (2) and (5). The Trustee is subject to TIA
(S) 310(b).
Section 813. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated therein.
Section 814. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee,
with the concurrence of the Company, may appoint an Authenticating Agent or
Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series, and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a Corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $100,000,000 and
subject to supervision or examination by Federal, State or District of Columbia
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
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
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Agent, provided such Corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at anytime
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to reimbursement for such payments subject to Section
808.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication an alternate certificate
of authentication in the following form:
This is one of the Securities of the series designated herein and
issued pursuant to the within-mentioned Indenture.
_________________, as Trustee
By_______________________
as Authenticating Agent
By _______________________
Authorized Signature
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ARTICLE 9
DISCHARGE OF INDENTURE
Section 901. Defeasance and Discharge of this Indenture and the Securities.
The Company may, at the option of its Board of Directors evidenced by
a Board Resolution set forth in an Officers' Certificate, at any time, with
respect to the Securities of any series, elect to have either Section 902 or 903
be applied to the Outstanding Securities of such series upon compliance with the
conditions set forth below in this Article 9.
Section 902. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 901 of the option applicable
to this Section 902, the Company shall be deemed to have been discharged from
its obligations with respect to the Outstanding Securities of any series on the
date the conditions set forth below are satisfied with respect to such series
(hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance
means that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the Outstanding Securities of such series, which
shall thereafter be deemed to be "Outstanding" only for the purposes of
Section 905 and the other Sections of this Indenture referred to in clauses (i)
and (ii) of this Section 902, and to have satisfied all its other obligations
under the Securities of such series and this Indenture as it relates to such
series (and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (i) the
rights of Holders of Outstanding Securities of such series to receive solely
from the trust fund described in Section 904, and as more fully set forth in
such Section, payments in respect of the principal of, premium, if any, and
interest on such Securities when such payments are due, (ii) the Company's
obligations with respect to such Securities under Sections 305, 306 and 502,
(iii) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, including, without limitation, the Trustee's rights under Section
808, and the Company's obligations in connection therewith and (iv) this Article
9. Subject to compliance with this Article 9, the Company may exercise its
option under this Section 902 notwithstanding the prior exercise of its option
under Section 903 with respect to the Securities of such series.
Section 903. Covenant Defeasance.
Unless specifically otherwise provided in a Board Resolution,
Officers' Certificate or indenture supplemental hereto provided pursuant to
Section 301, upon the Company's exercise under Section 901 of the option
applicable to this Section 903, the Company shall be released from its
obligations under the covenants
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contained in Sections 504, 505 and 506, Article 6 and Section 301(12) with
respect to the Outstanding Securities of any series on and after the date the
conditions set forth below are satisfied with respect to such series
(hereinafter, "Covenant Defeasance"), and the Securities of such series shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders of such Securities (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder (it being
understood that such Securities shall not be deemed outstanding for accounting
purposes). For this purpose, such Covenant Defeasance means that, with respect
to the Outstanding Securities of any series, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
with respect to such series of Securities under Section 701(iv) or (v) but,
except as specified above, the remainder of this Indenture and such Securities
shall be unaffected thereby. In addition, upon the Company's exercise under
Section 901 of the option applicable to this Section 903, Sections 701(v)
through 701(x) shall not constitute Events of Default.
Section 904. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to application of either Section 902
or Section 903 to the Outstanding Securities of any series:
(i) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 812 who shall agree to comply with the
provisions of this Article 9 applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of
the Securities of such series, (a) cash in U.S. Dollars in an amount, or
(b) non-callable Government Securities which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of
any payment, cash in U.S. Dollars in an amount, or (c) a combination
thereof, in such amounts, as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge (A) the principal of, premium, if any, and
interest on the Outstanding Securities of such series on the Stated
Maturity or on the applicable Redemption Date, as the case may be, of
such principal or installment of principal, premium, if any, or interest
on the day on which
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such payments are due and payable and (B) any mandatory sinking fund
payments or analogous payments applicable to the Securities of such
series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and such Securities;
provided that the Trustee shall have been irrevocably instructed to
apply such money or the proceeds of such non-callable Government
Securities to said payments with respect to the Securities of such
series.
(ii) In the case of an election under Section 902, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably satisfactory to the Trustee confirming that (a) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (b) since the date hereof, there has been a
change in the applicable federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such
Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such Legal Defeasance has not occurred.
(iii) In the case of an election under Section 903, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States to the effect that the Holders of the Outstanding Securities of
such series will not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and will be subject
to Federal income tax in the same amount, in the same manner and at the
same times as would have been the case if such Covenant Defeasance had
not occurred.
(iv) No Default or Event of Default with respect to the Securities
of such series shall have occurred and be continuing on the date of such
deposit or, in so far as Subsection 701(viii) or 701(ix) 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).
(v) Such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company is a party or by which the Company is bound.
(vi) In the case of an election under either Section 902 or 903,
the Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that after the 91st day following the deposit, the trust
funds will not be subject to the effect of any applicable Bankruptcy
Law.
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(vii) In the case of an election under either Section 902 or 903,
the Company shall have delivered to the Trustee an Officers' Certificate
stating that the deposit made by the Company pursuant to its election
under Section 902 or 903 was not made by the Company with the intent of
preferring the Holders of the series of Securities to be defeased over
other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding creditors of the Company or others.
(viii) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel in the United States, each stating
that all conditions precedent provided for relating to either the Legal
Defeasance under Section 902 or the Covenant Defeasance under Section
903 (as the case may be) have been complied with as contemplated by this
Section 904.
Section 905. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 906, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 905, the
"Trustee") pursuant to Section 904 in respect of the Outstanding Securities of
any series shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as Paying
Agent) as the Trustee may determine, to the Holders of the Securities of such
series of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 904 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Outstanding
Securities of such series.
Anything in this Article 9 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the Company's
request any money or non-callable Government Securities held by it as provided
in Section 904 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under
Section 904(i)), are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
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Section 906. Repayment to Company.
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, premium, if any,
or interest on any Security and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 907. Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. Dollars or
non-callable Government Securities in accordance with Section 902 or 903, as the
case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Securities of any series
to be defeased shall be revived and reinstated as though no deposit had occurred
pursuant to Section 902 or 903 until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 902 or 903, as the
case may be; provided, however, that, if the Company makes any payment of
principal of, premium, if any, or interest on any such Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Security to receive such payment from the money held by
the Trustee or Paying Agent.
ARTICLE 10
AMENDMENT, SUPPLEMENT AND WAIVER
Section 1001. Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may amend this Indenture or enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
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(i) 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
(ii) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of
one or more specified series) or to surrender any right or power herein
conferred upon the Company; or
(iii) to add any additional Events of Default (and if such Events
of Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are being included
solely for the benefit of such series); or
(iv) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance
of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities of any series in certificated or
uncertificated form; or
(v) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that
any such addition, change or elimination (i) shall neither (A) apply to
any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor
(B) modify the rights of the Holder of any such Security with respect to
such provision or (ii) shall become effective only when there is no such
Security Outstanding; or
(vi) to secure the Securities of any series; or
(vii) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(viii) 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 810; or
(ix) to cure any ambiguity or defect in or to correct or supplement
any provision herein which may be inconsistent with any other provision
in this Indenture or any Security of any series, or to make any other
provisions
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with respect to matters or questions arising under this Indenture,
provided such action shall not adversely affect the interests of the
Holders of Securities of any series in any material respect; or
(x) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA.
Section 1002. With Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of all series at the time
Outstanding affected by such amendment or supplemental indenture (voting 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 amend this
Indenture or 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 under this Indenture; provided,
however, that no such amendment or supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(i) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any such affected Security,
or reduce the principal amount thereof or the rate of interest thereon
or any premium payable upon the redemption thereof, or reduce the amount
of the principal of an Original Issue Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 702, or change any Place of Payment where,
or the coin or currency in which, any such Security or any premium or
the interest thereon 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 or repayment, on or after the
Redemption Date or any repayment date), or
(ii) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any modifications or amendments to the Indenture with respect to such
series or to the terms and conditions of such series or to approve a
supplemental indenture with respect to such series, or the consent of
whose Holders is required for any waiver with respect to such series of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture, or
(iii) modify any of the provisions of Sections 704 or 707 or this
Section 1002 or Article 8, except to increase any such percentage or to
provide
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that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided however, that this clause shall not be deemed
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section 1002
and Article 8, or the deletion of this proviso, in accordance with the
requirements of Sections 810(b) and 1001(viii).
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 1003. 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 801) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 1004. 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 of the series affected thereby theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby to the extent
provided therein.
Section 1005. Compliance with TIA.
Every amendment or supplement to this Indenture or the Securities of
any series shall be set forth in a supplemental indenture that complies with the
TIA as then in effect.
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Section 1006. Revocation and Effect of Consents.
Until an amendment, supplemental waiver or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. A supplemental indenture, amendment or waiver becomes
effective in accordance with its terms and thereafter binds every Holder of the
series of Securities to which such amendment, supplemental waiver or waiver
relates.
The Company may, but shall not be obligated to, fix a record date for
determining which Holders of the Securities of any series must consent to such
amendment or waiver. If the Company fixes a record date, the record date shall
be fixed at (i) 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 or (ii) such other date as the Company shall
designate.
Section 1007. Reference in Securities to Supplemental Indentures.
Securities 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 a form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
Section 1008. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 1002, the Company
shall give notice thereof to the Holders of each Outstanding Security so
affected, pursuant to Section 108, setting forth in general terms the substance
of such supplemental indenture.
ARTICLE 11
SINKING FUNDS
Section 1101. Applicability of Article.
Unless otherwise specifically provided for in accordance with Section
301 with respect to any series of Securities, the Company shall have no sinking
fund obligations with respect to Securities of any series. The sinking fund
obligations as
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to any series of Securities for which such obligations exist shall be as
provided by the terms of such series of Securities as specifically established
in accordance with Section 301 and, except as otherwise provided by such terms,
as provided in this Article.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1102. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 1102. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of like tenor of a
series (other than any previously called for redemption) and (2) may apply as a
credit Securities of like tenor 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 like tenor of such series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided that such Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly. Such Securities shall be first applied to
the sinking fund payment next due and any excess shall be applied to the
following sinking fund payments in the order they are due.
Section 1103. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
Securities of like tenor of a series, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for such Securities pursuant to the terms of such Securities, the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of like tenor of that series pursuant to Section 1102 and, at the
time of delivery of such Officers' Certificate, 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
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specified in Section 403 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 404. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections 407
and 408.
ARTICLE 12
REPURCHASE OF SECURITIES AT OPTION OF HOLDERS
Section 1201. Applicability of Article.
Unless otherwise specifically provided for in accordance with Section
301 with respect to any series of Securities, the Company shall have no
repurchase obligations with respect to Securities of any series. Securities of
any series which are repurchasable before their Stated Maturity at the option of
the Holders in accordance with their terms as specifically established in
accordance with Section 301 shall be repurchasable in accordance with their
terms and, except as otherwise provided by such terms, in accordance with this
Article.
Section 1202. Notice of Repurchase Date.
Notice of any Repurchase Date with respect to Securities of any series
shall, unless otherwise specified by the terms of such Securities, be given by
the Company not less than 45 nor more than 60 days prior to such Repurchase Date
to each Holder of Securities of such series subject to repurchase in accordance
with Section 108.
The notice as to Repurchase Date shall state:
(1) the Repurchase Date;
(2) the Repurchase Price;
(3) the place or places where such Securities are to be surrendered
for payment of the Repurchase Price and the date by which such
Securities must be so surrendered in order to be repurchased;
(4) a description of the procedure which a Holder must follow to
exercise a repurchase right; and
(5) that exercise of the option to elect repurchase is irrevocable.
No failure of the Company to give the foregoing notice shall limit any Holder's
right to exercise a repurchase right.
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Section 1203. Deposit of Repurchase Price.
On or prior to the Repurchase 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 503) the amounts
required to be deposited in accordance with the applicable repurchase right
provisions or, if no such amount is specified, an amount of money sufficient to
pay the Repurchase Price of and (unless the Repurchase Date shall be an Interest
Payment Date) accrued interest, if any, on all of the Securities of such series
which are to be repurchased on that date.
Section 1204. Securities Payable on Repurchase Date.
The form of option to elect repurchase having been delivered as
specified in the form of Security for such series as provided in Article 2, the
Securities of such series so to be repurchased shall, on the Repurchase Date,
become due and payable at the Repurchase Price applicable thereto and from and
after such date (unless the Company shall default in the payment of the
Repurchase Price and accrued interest) such Securities shall cease to bear
interest. Upon surrender of any such Security for repurchase in accordance with
said notice, such Security shall be paid by the Company at the Repurchase Price
together with accrued interest to the Repurchase Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to such Repurchase
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 Regular and Special Record Dates according to their terms and the
provisions of Section 307.
If the amount deposited in accordance with Section 1203 is
insufficient to pay the Repurchase Price of all of the Securities as to which
the option to elect repurchase exists under this Indenture and has been
exercised, the Trustee shall select the particular Securities to be repurchased
on a pro rata basis among all such Holders of all series of Securities having
such repurchase right and so exercising the option to elect repurchase (and in
such manner as complies with applicable legal and stock exchange requirements,
if any). The Trustee shall promptly notify the Company in writing of the
Securities selected for repurchase and the principal amount thereof. Securities
and portions of them selected shall be in amounts of $1,000 or whole multiples
of $1,000. Except as provided in this paragraph, provisions of this Indenture
that apply to Securities to be repurchased also apply to portions of Securities
to be repurchased.
If any such Security shall not be paid upon surrender thereof for
repurchase, the principal (and premium, if any) shall, until paid, bear interest
from the Repurchase Date at the rate prescribed therefor in such Security.
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Section 1205. Securities Repurchased in Part.
Any Security which by its terms may be repurchased in part at the
option of the Holder and which is to be repurchased only in part, or which is
repurchased only in part in accordance with Section 1204, shall be surrendered
at any office or agency of the Company designated for that purpose pursuant to
Section 502 (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 such Holder's attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series and of like tenor of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unrepurchased portion of the principal
of the Security so surrendered. To the extent a series of Securities
represented by a Global Security is to be repurchased in part only, a notation
of such redemption shall be made by the Trustee in the schedule of exchanges on
the Global Security.
ARTICLE 13
MISCELLANEOUS
Section 1301. TIA Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA (S)318(c), the imposed duties shall control.
Section 1302. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Authenticating Agent, the Security Registrar or the Paying Agent
may make reasonable rules and set reasonable requirements for their respective
functions.
Section 1303. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in The City of New York or Minneapolis, Minnesota or at a place of
payment are authorized or obligated by law, regulation or executive order to
remain closed. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
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Section 1304. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No director, officer, employee, incorporator or stockholder of the
Company, as such, shall have any liability for any obligations of the Company
under the Securities, this Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of the
Securities by accepting a Security waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Securities.
Section 1305. Duplicate Originals.
The parties may sign any number of copies of this Indenture. One
signed copy shall be sufficient to prove this Indenture.
Section 1306. Governing Law.
This Indenture shall be governed by and interpreted under the laws of
the State of New York, and any dispute arising out of, connected with, related
to, or incidental to the relationship established between the Company, the
Trustee and the Holders in connection with this Indenture, and whether arising
in contract, tort, equity or otherwise, shall be resolved in accordance with the
internal laws (as opposed to the conflicts of laws provisions) and decisions of
the State of New York.
Section 1307. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or its Subsidiaries. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
Section 1308. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successor.
Section 1309. Severability.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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Section 1310. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 1311. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
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* * *
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and the respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
UNITED HEALTHCARE CORPORATION
By_______________________
Its _______________________
Attest:
_________________________
Secretary
[SEAL]
__________________, as Trustee
By _______________________
Its _______________________
Attest:
_________________________
Secretary
[SEAL]
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STATE OF )
) SS.
COUNTY OF )
On the ____ day of __________, 199__ before me personally came ___________
to me known, who, being by me duly sworn, did depose and say that he is
___________ of United HealthCare Corporation, 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.
[SEAL] ________________________
Notary Public
STATE OF )
) SS.
COUNTY OF )
On the ____ day of _____________, 199__ 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.
[SEAL] ________________________
Notary Public
71
<PAGE>
Exhibit 4.2
UNITED HEALTHCARE CORPORATION
to
_______________
as Trustee
_______________
SUBORDINATED DEBT SECURITIES
______________
INDENTURE
Dated as of __________, 199__
<PAGE>
UNITED HEALTHCARE CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of __________, 199__
CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
--------------- -----------------
310 (a)(1)............... 812
(a)(2)................... 812
(a)(3)................... N.A.
(a)(4)................... N.A.
(a)(5)................... 812
(b)...................... 809; 812
(c)...................... N.A.
311 (a).................. 813
(b)...................... 813
(c)...................... N.A.
312 (a).................. 106; 806
(b)...................... 109
(c)...................... 109
313 (a).................. 807
(b)(1)................... N.A.
(b)(2)................... 807
(c)...................... 807
(d)...................... 807
314 (a).................. 504
(b)...................... N.A.
(c)(1)................... 104
(c)(2)................... 104
(c)(3)................... N.A.
(d)...................... N.A.
(e)...................... 104
(f)...................... N.A.
315 (a).................. 801
(b)...................... 805
(c)...................... 801
(d)...................... 801
(e)...................... 711
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316 (a) (last sentence).. 101
(a)(1)(A)................ 705
(a)(1)(B)................ 704
(a)(2)................... N.A.
(b)...................... 707
(c)...................... 106
317(a)(1)................ 708
(a)(2)................... 709
(b)...................... 503
318 (a).................. 1401
(b)...................... N.A.
(c)...................... 1401
N.A. means not applicable.
____________________________
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be part of the Indenture.
ii
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE........ 1
Section 101. Definitions....................................... 1
Section 102. Other Definitions................................. 9
Section 103. Incorporation by Reference of TIA................. 10
Section 104. Compliance Certificates and Opinions.............. 10
Section 105. Form of Documents Delivered to Trustee............ 11
Section 106. Acts of Holders................................... 12
Section 107. Notices, Etc., to Trustee and Company............. 14
Section 108. Notice to Holders; Waiver......................... 14
Section 109. Communication by Holders with Other Holders....... 15
Section 110. Rules of Construction............................. 15
ARTICLE 2 SECURITY FORMS.................................... 16
Section 201. Forms Generally................................... 16
Section 202. Form of Trustee's Certificate of Authentication... 16
Section 203. Form of Legend for Global Securities.............. 16
ARTICLE 3 THE SECURITIES.................................... 17
Section 301. Amount Unlimited; Issuable in Series.............. 17
Section 302. Denominations..................................... 20
Section 303. Execution, Authentication, Delivery and Dating.... 20
Section 304. Temporary Securities.............................. 23
Section 305. Registration, Registration of Transfer and
Exchange.......................................... 23
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.. 25
Section 307. Payment of Interest; Interest Rights Preserved.... 26
Section 308. Persons Deemed Owners............................. 28
Section 309. Cancellation...................................... 28
Section 310. Computation of Interest........................... 29
Section 311. CUSIP Number...................................... 29
ARTICLE 4 REDEMPTION OF SECURITIES.......................... 29
Section 401. Applicability of Article.......................... 29
Section 402. Notices to Trustee................................ 29
Section 403. Selection of Securities to Be Redeemed............ 30
Section 404. Notice of Redemption.............................. 30
Section 405. Effect of Notice of Redemption.................... 31
Section 406. Deposit of Redemption Price....................... 31
Section 407. Securities Payable on Redemption Date............. 31
Section 408. Securities Redeemed in Part....................... 32
ARTICLE 5 COVENANTS......................................... 32
iii
<PAGE>
Section 501. Payment of Principal, Premium and Interest........ 32
Section 502. Maintenance of Office or Agency................... 33
Section 503. Money for Securities Payments to Be Held in Trust. 34
Section 504. Commission Reports................................ 35
Section 505. Compliance Certificate............................ 36
Section 506. Taxes............................................. 36
Section 507. Stay, Extension and Usury Laws.................... 36
Section 508. Corporate Existence............................... 37
ARTICLE 6 SUCCESSORS........................................ 37
Section 601. Limitations On Mergers, Consolidations or Sales
of Assets......................................... 37
Section 602. Successor Corporation Substituted................. 38
ARTICLE 7 DEFAULTS AND REMEDIES............................. 38
Section 701. Events of Default................................. 38
Section 702. Acceleration...................................... 41
Section 703. Other Remedies.................................... 41
Section 704. Waiver of Past Defaults........................... 41
Section 705. Control by Majority............................... 42
Section 706. Limitation on Suits............................... 42
Section 707. Rights of Holders to Receive Payment.............. 43
Section 708. Collection Suit by Trustee........................ 43
Section 709. Trustee May File Proofs of Claim.................. 43
Section 710. Priorities........................................ 44
Section 711. Undertaking for Costs............................. 45
ARTICLE 8 TRUSTEE........................................... 45
Section 801. Duties of Trustee................................. 45
Section 802. Rights of Trustee................................. 46
Section 803. Individual Rights of Trustee...................... 47
Section 804. Trustee's Disclaimer.............................. 47
Section 805. Notice of Defaults................................ 47
Section 806. Preservation of Information....................... 48
Section 807. Reports by Trustee to Holders..................... 48
Section 808. Compensation and Indemnity........................ 48
Section 809. Resignation and Removal; Appointment of Successor. 49
Section 810. Acceptance of Appointment by Successor............ 51
Section 811. Merger, Conversion, Consolidation or
Succession to Business........................... 52
Section 812. Eligibility; Disqualification..................... 53
Section 813. Preferential Collection of Claims Against Company. 53
Section 814. Appointment of Authenticating Agent............... 53
ARTICLE 9 DISCHARGE OF INDENTURE............................ 55
iv
<PAGE>
Section 901. Defeasance and Discharge of this Indenture and
the Securities.................................... 55
Section 902. Legal Defeasance and Discharge.................... 55
Section 903. Covenant Defeasance............................... 56
Section 904. Conditions to Legal or Covenant Defeasance........ 56
Section 905. Deposited Money and Government Securities to
be Held in Trust; Other Miscellaneous Provisions. 58
Section 906. Repayment to Company.............................. 59
Section 907. Reinstatement..................................... 59
ARTICLE 10 AMENDMENT, SUPPLEMENT AND WAIVER.................. 60
Section 1001. Without Consent of Holders........................ 60
Section 1002. With Consent of Holders........................... 61
Section 1003. Execution of Supplemental Indentures.............. 62
Section 1004. Effect of Supplemental Indentures................. 63
Section 1005. Compliance with TIA............................... 66
Section 1006. Revocation and Effect of Consents................. 63
Section 1007. Reference in Securities to Supplemental
Indentures........................................ 63
Section 1008. Notice of Supplemental Indentures................. 63
ARTICLE 11 SINKING FUNDS..................................... 64
Section 1101. Applicability of Article.......................... 64
Section 1102. Satisfaction of Sinking Fund Payments with
Securities........................................ 64
Section 1103. Redemption of Securities for Sinking Fund......... 65
ARTICLE 12 REPURCHASE OF SECURITIES AT OPTION OF HOLDERS..... 65
Section 1201. Applicability of Article.......................... 65
Section 1202. Notice of Repurchase Date......................... 65
Section 1203. Deposit of Repurchase Price....................... 66
Section 1204. Securities Payable on Repurchase Date............. 66
Section 1205. Securities Repurchased in Part.................... 67
ARTICLE 13 SUBORDINATION..................................... 67
Section 1301. Agreement to Subordinate.......................... 67
Section 1302. Distribution on Dissolution, Liquidation and
Reorganization.................................... 68
Section 1303. No Payment When Senior Debt in Default............ 69
Section 1304. Payment to Holders of Senior Debt................. 69
Section 1305. Subrogation....................................... 70
Section 1306. Payment on Securities Permitted................... 71
Section 1307. Authorization of Holders to Trustee to Effect
Subordination..................................... 71
Section 1308. No Waiver of Subordination Provisions............. 71
Section 1309. Trustee as Holder of Senior Debt.................. 72
Section 1310. Notices to Trustee................................ 72
v
<PAGE>
Section 1311. No Fiduciary Duty by Trustee to Holders of Senior
Debt.............................................. 73
Section 1312. Paying Agent Treated as Trustee................... 73
ARTICLE 14 MISCELLANEOUS..................................... 73
Section 1401. TIA Controls...................................... 73
Section 1402. Rules by Trustee and Agents....................... 73
Section 1403. Legal Holidays.................................... 73
Section 1404. No Personal Liability of Directors, Officers,
Employees and Stockholders....................... 74
Section 1405. Duplicate Originals............................... 74
Section 1406. Governing Law..................................... 74
Section 1407. No Adverse Interpretation of Other Agreements..... 74
Section 1408. Successors........................................ 74
Section 1409. Severability...................................... 74
Section 1410. Counterpart Originals............................. 75
Section 1411. Table of Contents, Headings, etc.................. 75
vi
<PAGE>
INDENTURE, dated as of __________, 199__ between UNITED HEALTHCARE
CORPORATION, a corporation duly organized and existing under the laws of the
State of Minnesota (herein called the "Company"), having its principal office at
300 Opus Center, 9900 Bren Road East, Minnetonka, Minnesota 55343, and
___________________, as Trustee (herein called the "Trustee"), having its
principal office at ___________________.
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 notes or other
evidences of indebtedness (herein called the "Securities"), to be issued in one
or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase 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 (including holders from time to time of the Securities of any series
held through a Holder which is a Depositary (as defined herein)), as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 101. Definitions.
"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 purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"Agent" means any Authenticating Agent, Security Registrar, Paying
Agent or co-registrar.
1
<PAGE>
"Board of Directors" means the Board of Directors of the Company or
any duly authorized (generally or in any particular respect) committee appointed
by that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification. Where any provision of this Indenture refers to action to be
taken pursuant to a Board Resolution (including establishment of any series of
the Securities and the forms and terms thereof), such action may be taken by any
committee, officer or employee of the Company authorized to take such action
(generally or in any particular respect) by a Board Resolution.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock, par value $.01 per share, of
the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument, as obligor under the Securities, unless and until
a successor replaces the Company in accordance with Article 6 hereof and
thereafter means such successor.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President,
its Chief Executive Officer, its Chief Operating Officer, its Chief Financial
Officer, a Vice President, its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, or by any other officer of the Company authorized to
sign by Board Resolution, and delivered to the Trustee.
2
<PAGE>
"Consolidated Net Worth" means, with respect to any Person as of any
date, the sum of (i) the consolidated equity of the common stockholders of such
Person and its consolidated Subsidiaries as of such date, plus (ii) the
respective amounts reported on such Person's balance sheet as of such date with
respect to any series of preferred stock (other than Disqualified Stock) that by
its terms is not entitled to the payment of dividends unless such dividends may
be declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such preferred stock, less (x) all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of tangible
assets of a going concern business made within 12 months after the acquisition
of such business) subsequent to the date of this Indenture in the book value of
any asset owned by such Person or a consolidated Subsidiary of such Person, and
(y) all unamortized debt discount and expense and unamortized deferred charges
as of such date, all of the foregoing determined in accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which at the date of original execution of the Indenture is
______________.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the clearing agency registered under the Exchange Act, specified for
that purpose as contemplated by Section 301 or any successor clearing agency
registered under the Exchange Act as contemplated by Section 305, 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 such series.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the Holder thereof, in whole or in part, on or prior to the date
that is 91 days after the date on which the Securities mature.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and
3
<PAGE>
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect from time to time.
"Global Security" means a Security bearing the legend specified in
Section 203 evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee, and registered in the name of such
Depositary or nominee.
"Government Securities" means securities issued or directly and fully
guaranteed or insured by the United States government or any agency or
instrumentality thereof.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Holder" means a Person in whose name a Security is registered.
"Indebtedness" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligation,
except any such balance that constitutes an accrued expense or trade payable, if
and to the extent any of the foregoing indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance sheet
of such Person prepared in accordance with GAAP, as well as all indebtedness of
others secured by a Lien on any asset of such Person (whether or not such
indebtedness is assumed by such Person) and, to the extent not otherwise
included, the guarantee by such Person of any indebtedness of any other Person.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument due to the appointment of
one or more separate Trustees for any one or more separate series of Securities
pursuant to Section 809(e), "Indenture" shall mean, with respect to such series
of Securities for which any such Person is Trustee, this instrument as
originally executed or as it may from time to time be supplemented or amended by
one or more indentures
4
<PAGE>
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities for which such
Person is Trustee established as contemplated by Section 301, exclusive,
however, of any provisions or terms which relate solely to other series of
Securities for which such Person is not Trustee, regardless of when such terms
or provisions were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and delivered after
such Person had become such Trustee but to which such Person, as such Trustee,
was not a party.
"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.
"Junior Subordinated Debt" means any Indebtedness of the Company
created or evidenced by an instrument which expressly provides that such
Indebtedness is subordinated in right of payment to the Securities.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"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" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary,
any Assistant Secretary and any Vice President of the Company or any Subsidiary,
as the case may be.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, the Chief Executive Officer, the Chief Operating
Officer, the Chief Financial Officer, a Vice President or an Assistant Vice
President of the Company, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
5
<PAGE>
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company, any Subsidiary or the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 702.
"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 canceled 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; 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 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, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 702, and (ii) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in
6
<PAGE>
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 pledges is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) and/or interest on any Securities on behalf
of the Company.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including without
limitation the rate or rates of interest (or formula for determining the rate or
rates of interest), if any, thereon, the Stated Maturity or Maturities thereof
and the redemption provisions, if any, with respect thereto, are to be
determined by the Company or its agents upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
(including any subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision or business).
"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/or interest on the Securities of that series are payable.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security, and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security or portion
thereof to be redeemed, means the date fixed for such redemption pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security or portion
thereof to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
7
<PAGE>
"Repurchase Date", when used with respect to any Security or portion
thereof to be repurchased, means the date fixed for such repurchase pursuant to
this Indenture.
"Repurchase Price", when used with respect to any Security or portion
thereof to be repurchased, means the price at which it is to be repurchased
pursuant to this Indenture.
"Responsible Officer" when used with respect to the Trustee, means any
officer within the Corporate Trust Division of the Trustee (or any successor
group of the Trustee) 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; provided, however, that if at any time there is more than
one Person acting as Trustee under this Indenture, "Securities" with respect to
the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this Indenture and shall more particularly mean
Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" means all Indebtedness of the Company, except (i)
Indebtedness under the Securities, and (ii) Indebtedness (including, without
limitation, any Junior Subordinated Debt) created or evidenced by an instrument
which expressly provides that such Indebtedness is subordinated in right of
payment to any other Indebtedness of the Company. Notwithstanding anything to
the contrary in the foregoing, Senior Debt shall not include (x) any
Indebtedness of the Company to any of its Subsidiaries or other Affiliates and
(y) any Indebtedness incurred for the purchase of goods or materials or for
services obtained in the ordinary course of business (other than with the
proceeds of revolving credit borrowings permitted hereby).
"Senior Payment Default" means any default in the payment of any
Obligation on any Senior Debt when due, whether at the stated maturity of any
such
8
<PAGE>
payment or by declaration of acceleration, call for redemption, mandatory
repurchase, payment or prepayment or otherwise.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or
(b) the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"TIA" means the Trust Indenture Act of 1939, as amended, as in effect
on the date on which this Indenture is qualified under the TIA.
"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.
Section 102. Other Definitions.
Defined in
Term Section
---- -------------
"Bankruptcy Law" 701
"Covenant Defeasance" 903
"Custodian" 701
"Event of Default" 701
"Legal Defeasance" 902
"Legal Holiday" 1403
"Notice of Default" 701
"Payment Default" 701
"Proceedings" 1302
"Obligations" 1302
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"Securities Payment" 1302
Section 103. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Securities means the Company and any successor
obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by the Commission rule
under the TIA have the meanings so assigned to them.
Section 104. Compliance Certificates and Opinions.
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, if so requested by the Trustee, an Officers' Certificate stating
that all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, 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.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
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(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion whether such covenant or condition has been
complied with; and
(4) a statement whether, in the opinion of each such individual, such
condition or covenant has been complied with.
Every such certificate provided under this Indenture shall be without
personal recourse to the individual executing the same and may include an
express statement to such effect.
Section 105. 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 any 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, opinion or representations
with respect to the matters upon which such officer's 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. Any certificate or opinion of counsel may be stated to be based on the
certificates or opinions of other counsel, in which event it shall be
accompanied by a copy of such other certificates or opinions.
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. All applications, requests, certificates, statements or
other instruments given under this Indenture shall be without personal recourse
to any individual giving the same and may include an express statement to such
effect.
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Section 106. Acts of Holders.
(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 (including Persons who hold
their Securities through a Holder which is a Depositary) in person or by an
agent duly appointed in writing, and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 801) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
Without limiting the generality of the foregoing, a Holder, including
a Depositary that is a Holder of a Global Security, may make, give or take, by a
proxy or proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this
Indenture to be made, given or taken by the Holders, and a Depositary that is a
Holder of a Global Security may provide its proxy or proxies to the beneficial
owners of interest in any such Global Security.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee may
determine, provided that, in any instance, the Trustee may require further proof
with respect to any matter referred to in this Section.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) The Company may fix any day as the record date for the purpose of
determining the Holders (including Persons who hold Securities through a Holder
which is a Depositary) of Securities of any series entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or taken
by Holders of Securities of such series. If not set by the Company prior to the
first solicitation of a Holder of Securities of such series made by any Person
in respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to TIA (S) 312) prior to such first solicitation
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or vote, as the case may be. With regard to any record date for action to be
taken by the Holders (including Persons who hold Securities through a Holder
which is a Depositary) of one or more series of Securities, only the Holders of
Securities of such series on such date (or their duly designated proxies) shall
be entitled to give or take, or vote on, the relevant action.
With regard to any action that may be given or taken hereunder only by
Holders (including Persons who hold their Securities through a Holder which is a
Depositary) of a requisite principal amount of outstanding Securities of any
series (or their duly appointed agents) and for which a record date is set
pursuant to this subsection (d), the Company may, at its option, set an
expiration date after which no such action purported to be given or taken by any
Holder shall be effective hereunder unless given or taken on or prior to such
expiration date by Holders (including Persons who hold Securities through a
Holder which is a Depositary) of the requisite principal amount of outstanding
Securities of such series on such record date (or their duly appointed agents).
On or prior to any expiration date set pursuant to this subsection (d), the
Company may, on one or more occasions at its option, extend such date to any
later date. Nothing in this subsection (d) shall prevent any Holder (or any
duly appointed agent thereof) from giving or taking, after any expiration date,
any action identical to, or, at any time, contrary to or different from any
action given or taken, or purported to have been given and taken, hereunder by a
Holder on or prior to such date, in which event the Company may set a record
date in respect hereof pursuant to this subsection (d).
Notwithstanding the foregoing, upon receipt by the Trustee, with
respect to Securities of any series, of (i) any Notice of Default pursuant to
Section 701, (ii) any declaration or acceleration, or any rescission and
annulment of any such declaration, pursuant to Section 702, or (iii) any waiver
given pursuant to Section 704 (any such notice, declaration, rescission and
annulment, or waiver being referred to herein as a "Direction"), a record date
shall automatically and without any other action by any Person be set for the
purpose of determining the Holders (including Persons who hold Securities
through a Holder which is a Depositary) of outstanding Securities of such series
entitled to join in such Direction, which record date shall be the close of
business on the day the Trustee receives such Direction. The Holders (including
Persons who hold Securities through a Holder which is a Depositary) of
outstanding Securities of such series on such record date (or their duly
appointed agents), and only such Persons, shall be entitled to join in such
Direction, whether or not such Holders remain Holders after such record date;
provided that, unless such Direction shall have become effective by virtue of
Holders (including Persons who hold Securities through a Holder which is a
Depositary) of the requisite principal amount of outstanding Securities of such
series on such record date (or their duly appointed agents) having joined
therein on or prior to the 90th day after such record date, such Direction shall
automatically and without any action by any Person be canceled and be of no
further effect. Nothing in
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this paragraph shall prevent a Holder (or duly appointed agent thereof) from
giving, before or after the expiration of such 90-day period, a Direction
contrary to or different from, or, after the expiration of such period,
identical to, a Direction that has been canceled pursuant to the proviso to the
preceding sentence, in which event a new record date in respect thereof shall be
set pursuant to this subsection (d).
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
Section 107. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing to or with a Responsible Officer
of the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Department, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument (Attention: General Counsel) or at any
other address previously furnished in writing to the Trustee by the
Company.
Section 108. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder (including
Persons who hold Securities through a Holder which is a Depositary if the name
and address of such beneficial holder has been provided in writing to the Person
required to give such notice prior to the date such notice is given) affected by
such event, at such Holder's address as it appears in the Security Register or
as provided in writing by the Depositary, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice.
In any case where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so
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mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Any notice mailed to the Holder in the manner
herein prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made by or with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 109. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA (S) 312(b) with other Holders
with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA (S) 312(c).
Section 110. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
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ARTICLE 2
SECURITY FORMS
Section 201. Forms Generally.
The Securities of each series, including Global Securities
representing Securities of such series, shall be in the form established,
without the approval of any Holders or the Trustee, by or pursuant to a Board
Resolution in accordance with Section 301 or by one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities.
The definitive Securities may be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Section 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 and issued
pursuant to the within-mentioned Indenture.
__________________, as Trustee
By
------------------------
Authorized Signature
Section 203. Form of Legend for Global Securities.
Any Global Security authenticated and delivered hereunder shall, in
addition to the provisions established by or pursuant to a Board Resolution or
in one or more indentures supplemental hereto in accordance with Section 201,
bear a legend in substantially the following form or such similar form as may be
required by the Depositary:
"Unless this certificate is presented by an authorized
representative of [Depositary] to the issuer or to its agent for
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registration of transfer, exchange or payment, and any certificate
issued is registered in the name of [Depositary Nominee] or such other
name as requested by an authorized representative of [Depositary] and
any payment is made to [Depositary Nominee], ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, [Depositary Nominee], has
an interest herein."
ARTICLE 3
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, without the approval of any Holders or the Trustee, by or pursuant
to authority granted by one or more Board Resolutions, and, subject to Section
303, there shall be set forth in an Officers' Certificate, or established in one
or more indentures supplemental hereto, prior to the initial issuance of
Securities of any series, all or any of the following, as applicable:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series) and the form of the Securities of the series;
(2) 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 lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 1007 and
1205 and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder) and
the absence of such limitation shall mean that the Company may issue
from time to time additional securities of such series without
limitation as to aggregate principal amount;
(3) the Person to whom any interest on a Security of the series
shall be payable, if other than 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;
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(4) the date or dates, or the method by which such date or dates
are determined or extended, on which the principal or installments of
principal and premium, if any, of the Securities of the series is or
are payable;
(5) the rate or rates (which may be fixed or variable) at which
the Securities of the series shall bear interest, if any, or the
method by which such rate or rates shall be determined, the date or
dates from which such interest shall accrue, the Interest Payment
Dates on which such interest shall be payable, the Regular Record Date
for the interest payable on any Interest Payment Date and the
circumstances, if any in which the Company may defer interest payments
and the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months;
(6) whether the Company shall be required to maintain an office
in the Borough of Manhattan, the City of New York in accordance with
Section 502 hereof and the place or places, if any, where the
principal of (and premium, if any) and interest on Securities of the
series shall be payable, any Securities of the series may be
surrendered for registration of transfer or exchange and notices and
demands to or upon the Company with respect to the Securities of the
series and this Indenture may be served, other than or in addition to
the Corporate Trust Office of the Trustee and any office maintained
for such purpose in the Borough of Manhattan, the City of New York in
accordance with Section 502 hereof;
(7) if applicable, the period or periods within which, the price
or prices at which and the terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option of
the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) whether the Securities of the series will be convertible into
or exchangeable for shares of Common Stock, and if so, the terms and
conditions upon which such Securities will be so convertible or
exchangeable, and any deletions from or modifications or additions to
this Indenture to permit or to facilitate the issuance of such
convertible or exchangeable Securities or the administration thereof;
(10) the identity of each Security Registrar and Paying Agent, if
other than or in addition to the Trustee;
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(11) if the amount of principal of, or any premium or interest
on, any Securities of the series may be determined by reference to an
index or pursuant to a formula, the manner in which such amounts shall
be determined;
(12) the applicability of, and any addition to or change in, the
covenants and definitions currently set forth in this Indenture;
(13) if other than denominations of $1,000 or any amount in
excess thereof which is an integral multiple of $1,000, the
denominations in which Securities of the series shall be issuable;
(14) any other event or events of default applicable with respect
to Securities of the series in addition to or in lieu of those
provided in Section 701 and any change in the right of the Trustee or
the Holders to declare the principal of or any premium or interest on
such Securities due and payable;
(15) if less 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 702;
(16) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Global Securities and, if
so, (a) the Depositary with respect to such Global Security or
Securities and (b) the circumstances under which any such Global
Security may be exchanged for Securities registered in the name of,
and any transfer of such Global Security may be registered to, a
Person other than such Depositary or its nominee, if other than as set
forth in Section 305;
(17) if applicable, that the Securities of the series, in whole
or any specified part, shall not be defeasible pursuant to Section 902
or Section 903 or both such Sections and, if other than by a Company
Order, the manner in which any election by the Company to defend such
Securities shall be evidenced; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as
permitted by Section 1001(v)).
All Securities of any one series (other than Securities offered in a
Periodic Offering) shall be substantially identical except as to denomination
and except as may otherwise be provided by 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
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supplemental hereto. All Securities of any one series need not be issued at the
same time. Unless otherwise provided, Securities of a single series may have
different terms, and a series may be reopened, without the consent of the
Holders of Securities of such series, for issuance of additional Securities of
such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
With respect to Securities of a series offered in a Periodic Offering,
such Board Resolution and Officers' Certificate or supplemental indenture may
provide general terms or parameters for Securities of such series and provide
either that the specific terms of particular Securities of such series shall be
specified in a Company Order or that such terms shall be determined by the
Company or its agents in accordance with other procedures specified in a Company
Order as contemplated by the third paragraph of Section 303.
Section 302. Denominations.
Unless otherwise provided in the applicable Officers' Certificate or
supplemental indenture, the Securities of each series shall be issued in
registered form without coupons 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 Securities of such series shall be issuable
in denominations of $1,000 or any amount in excess thereof which is an integral
multiple of $1,000.
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 Chief Executive Officer, its Chief
Operating Officer, its Chief Financial Officer or one of its Vice Presidents,
and 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.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
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Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, or, in the case of Securities
offered in a Periodic Offering, from time to time in accordance with such other
procedures (including, without limitation, the receipt by the Trustee of
electronic instructions from the Company or its duly authorized agents, promptly
confirmed in writing by the Company) acceptable to the Trustee as may be
specified from time to time by a Company Order for establishing the specific
terms of particular Securities being so offered, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or forms or terms of the Securities of the series have been established by
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 801) shall be
fully protected in relying upon
(a) an Opinion of Counsel stating:
(1) that the form or forms of such Securities have been
established in conformity with the provisions of this Indenture;
(2) that the terms of such Securities have been established in
conformity with the provisions of this Indenture;
(3) that authentication and delivery of such Securities and the
execution and delivery of the supplemental indenture, if any, by the
Trustee will not violate the terms of the Indenture;
(4) that the Company has the corporate power to issue, and has
duly authorized, such Securities; and
(5) that such Securities, 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 valid
and legally binding obligations of the Company, enforceable against
the Company in accordance with their terms, subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or
transfer and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles;
(b) an executed supplemental indenture, if any;
(c) a copy of a Board Resolution; and
(d) an Officers' Certificate;
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provided, however, that, with respect to Securities of a series offered in a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel in connection only with the first authentication of each form of
Securities of such series and that the opinions described in clauses (a)(2) and
(a)(5) above may state, respectively, that
(2) if the terms of such Securities are to be established
pursuant to a Company Order or pursuant to such procedures as may be
specified from time to time by a Company Order, all as contemplated by
a Board Resolution or action taken pursuant thereto, such terms will
have been duly authorized by the Company and established in conformity
with the provisions of this Indenture; and
(5) that such Securities, when executed by the Company,
completed, authenticated and delivered by the Trustee in accordance
with this Indenture, and issued and delivered by the Company and paid
for, all in accordance with any agreement of the Company relating to
the offering, issuance and sale of such Securities, will be duly
issued under this Indenture and will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or transfer and
other laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity principles.
With respect to Securities of a series offered in a Periodic Offering,
the Trustee may rely, as to the authorization by the Company of any of such
Securities, the form or forms and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel, Company
Order and other documents delivered pursuant to Sections 201 and 301 and this
Section, as applicable, in connection with the first authentication of a form of
Securities of such series and it shall not be necessary for the Company to
deliver such Opinion of Counsel and other documents (except as may be required
by the specified other procedures, if any, referred to above) at or prior to the
time of authentication of each Security of such series unless and until the
Trustee receives notice that such Opinion of Counsel or other documents have
been superseded or revoked, and may assume compliance with any conditions
specified in such Opinion of Counsel (other than any conditions to be performed
by the Trustee). If such form or forms 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 Security shall be dated the date of its authentication.
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No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form 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 and is entitled to the
benefits of this Indenture. 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, 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 or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities. In the case of Securities of any series, such
temporary Securities may be in the form of Global Securities.
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, subject to Section
305, for definitive Securities of like tenor of such series upon surrender of
the temporary Securities of such series at the office or agency of the Company
in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities
of the same series and of like tenor and of any 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 and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of
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Securities and of transfers of Securities. The Trustee is hereby appointed
"Security Registrar" of each series of Securities for the purpose of registering
Securities and transfers of Securities as herein provided at the Corporate Trust
Office.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company in any Place of Payment for such
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
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor and bearing a number not contemporaneously
outstanding.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at the office or agency of the Company in any Place of Payment for
such series. 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.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt and entitled to the same benefits under this Indenture as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 1007 or 1205 not involving any transfer.
The Company may but shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
403 and ending at the close of business on the day of such mailing, (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part or (iii) to register the transfer of or exchange any certificated
Securities during a period beginning five
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days before the date of Maturity with respect to such Security and ending on
such date of Maturity.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, no Global Security shall be exchangeable pursuant
to this Section 305 for Securities registered in the name of, and no transfer of
a Global Security of any series may be registered to, any Person other than the
Depositary for such Security or its nominee, unless (i) such Depositary notifies
the Company that it is unwilling or unable to continue as Depositary for such
Global Security or the Company determines that the Depositary is unable to
continue as Depositary and the Company thereafter fails to appoint a successor
Depositary, (ii) the Company provides for such exchange or registration of
transfer pursuant to Section 301 of this Indenture, (iii) the Company executes
and delivers to the Trustee a Company Order that such Global Security shall be
so exchangeable and the transfer thereof so registrable, or (iv) there shall
have occurred and be continuing an Event of Default with respect to the
Securities of such series which entitles the Holders of such Securities to
accelerate the maturity thereof. Upon the occurrence in respect of any Global
Security of any series of any one or more of the conditions specified in clauses
(i), (ii), (iii) or (iv) of the preceding sentence or such other conditions as
may be specified as contemplated by Section 301 for such series, such Global
Security may be exchanged for Securities not bearing the legend specified in
Section 203 and registered in the names of such Persons as may be specified by
the Depositary (including Persons other than the Depositary or its nominees).
Notwithstanding any other provision of this Indenture, a Global
Security may not be transferred except as a whole by the Depositary for such
Global Security to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security, including a Global Security, is surrendered
to the Trustee or the Company, together with such security, bond or indemnity as
may be required by the Trustee or the Company to save each of them and any agent
of either of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security, including a new
Global Security if the mutilated Security was a Global Security, of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security, including a Global Security if the destroyed, lost or stolen Security
was a Global Security, and (ii) such security or indemnity as may be required by
them to save each of them and any
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agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona fide purchaser,
the Company shall execute and upon its written request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security, including a Global Security if the destroyed, lost or
stolen Security was a Global Security, of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee), if any, connected
therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder. A new
Security shall have such legends as appeared on the old Security unless the
Company determines otherwise.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered in the Security Register at the close of business on
the Regular Record Date for such Interest Payment Date.
Any interest on any Security of any series which is payable but is not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
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Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 5 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Securities of such series at such Holder's
address as it appears in the Security Register, not less than 15 days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to
the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of, or in exchange
for, or in lieu of, any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
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Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered in the Security Register as
the owner of such Security for the purpose of receiving payment of principal of
(and premium, if any) and (subject to Section 307) interest on such Security and
for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depositary (or its nominees) shall have any rights under this
Indenture with respect to such Global security or any Security represented
thereby, and such Depositary may be treated by the Company, the Trustee, and any
agent of the Company or the Trustee as the owner of such Global Security or any
Security represented thereby for all purposes whatsoever. Notwithstanding the
foregoing, with respect to any Global Security, nothing herein shall prevent the
Company, the Trustee, or any agent of the Company or the Trustee, from giving
effect to any written certification, proxy or other authorization furnished by a
Depositary as Holder of such Global Security, or impair, as between a Depositary
and the owners of beneficial interests in such Global Security, the operation of
customary practices governing the exercise of the rights of the Depositary (or
its nominees) as Holder of such Global Security.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. The Trustee is
hereby directed by the Company to destroy the canceled Securities held by the
Trustee (subject to the record retention requirements of the Exchange Act), and
the Trustee shall provide the Company with a certificate of a Responsible
Officer certifying as to the destruction of such Securities.
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Section 310. Computation of Interest.
Except as otherwise specified pursuant to Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months and no interest will accrue
with respect to the 31st day of any month.
Section 311. CUSIP Number.
The Company in issuing the Securities may use "CUSIP" numbers, and if
it does so, the Trustee shall use the applicable CUSIP number in notices of
redemption or exchange as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the Securities, and
that reliance may be placed only on the other identification numbers printed on
the Securities. The Company will promptly notify the Trustee of any change in
any CUSIP number.
ARTICLE 4
REDEMPTION OF SECURITIES
Section 401. Applicability of Article.
Unless otherwise specifically provided for in accordance with Section
301 with respect to any series of Securities, the Company shall have no
mandatory redemption or sinking fund obligations with respect to the Securities
of any series. Securities of any series which are redeemable before their
Stated Maturity in accordance with their terms as specifically established in
accordance with Section 301 shall be redeemable in accordance with their terms
and, except as otherwise provided by such terms, in accordance with this
Article.
Section 402. Notices to Trustee.
If the Company elects to redeem any Securities pursuant to any
optional redemption provisions established with respect to such series hereof,
it shall furnish to the Trustee, at least 40 days but not more than 60 days
before the Redemption Date, an Officers' Certificate setting forth (i) such
Redemption Date, (ii) the Redemption Price, (iii) if the Securities of such
series have different terms and less than all of the Securities of such series
are to be redeemed, the terms of the Securities to be redeemed and (iv) if less
than all the Securities of such series with identical terms are to be redeemed,
the principal amount of such Securities 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
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elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 403. Selection of Securities to Be Redeemed.
If less than all of the Securities of like tenor of any series are to
be redeemed at any time, the Trustee shall select the particular Securities to
be redeemed among the Holders on a pro rata basis (and in such manner as
complies with applicable legal and stock exchange requirements, if any) or in
such other manner as the Trustee, in the exercise of its reasonable discretion,
deems fair and appropriate. In the event of partial redemption by lot, the
particular Securities to be redeemed from the Outstanding Securities of like
tenor of such series shall be selected, unless otherwise provided herein, not
less than 30 nor more than 60 days prior to the Redemption Date by the Trustee
from the Outstanding Securities of like tenor of such series not previously
called for redemption.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected for
partial redemption, the principal amount thereof to be redeemed. Securities and
portions of them selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Securities of a Holder are to be redeemed, the
entire outstanding amount of Securities held by such Holder, even if not a
multiple of $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
Section 404. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date,
notice of redemption shall be delivered by first-class mail, postage prepaid, to
each Holder whose Securities are to be redeemed at each such Holder's address
appearing in the Security Register.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of like tenor of any
series are to be redeemed, the portion of the principal amount of any
Security of such series to be redeemed and that, after the redemption date
upon surrender of such Security, a new Security or Securities in principal
amount equal to the unredeemed portion shall be issued;
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(4) the place or places where such Securities are to be surrendered
for payment of the Redemption Price;
(5) that, unless the Company defaults in making such redemption
payment, interest on Securities called for redemption ceases to accrue on
and after the Redemption Date;
(6) the paragraph of the Securities and/or Section of this Indenture
pursuant to which the Securities called for redemption are being redeemed;
and
(7) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the
Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 40 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph. The notice mailed in the manner herein provided
shall be conclusively presumed to have been duly given whether or not the Holder
receives such notice. In any case, failure to give such notice by mail or any
defect in the notice to the Holder of any Security shall not affect the validity
of the proceeding for the redemption of any other Security.
Section 405. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 404
hereof, Securities called for redemption become due and payable on the
redemption date at the redemption price plus accrued and unpaid interest, if
any, to such date.
Section 406. Deposit of Redemption Price.
At or before 10:00 a.m. Eastern Time on the 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 503) an amount of money, sufficient to pay the redemption
price of and accrued interest on all Securities to be redeemed on that date.
The Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the Redemption Price of (including any applicable
premium), and accrued interest on, all Securities to be redeemed.
Section 407. Securities Payable on Redemption Date.
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Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, 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 Regular Record Dates according to their terms
and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 408. Securities Redeemed in Part.
Any Security which is to be redeemed in part shall be surrendered at a
Place of Payment for such series (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 such Holder's attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same series
and of like tenor, 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. To the extent a series
of Securities represented by a Global Security is to be redeemed only in part, a
notation of such redemption shall be made by the Trustee in the schedule of
exchanges on the Global Security.
ARTICLE 5
COVENANTS
Section 501. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of such series in accordance with the
terms of such Securities and this Indenture. Principal of (premium, if any) and
interest on the
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Securities of any series shall be considered paid on the date due if the Paying
Agent, if other than the Company or a Subsidiary of the Company, holds as of
10:00 a.m. Eastern Time on the due date money, deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due. Such Paying Agent shall
return to the Company, no later than one Business Day following the date of
payment, any money (including accrued interest) that exceeds such amount of
principal (premium, if any) and interest paid on the Securities of such series.
The Company shall, unless otherwise provided for as contemplated by
Section 301, pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal of the Securities of any series
at the rate equal to 1% per annum in excess of the interest rate then applicable
to such series to the extent lawful. In addition, the Company shall pay
interest on the Securities of any series (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
Section 502. Maintenance of Office or Agency.
Unless otherwise provided for as contemplated by Section 301, the
Company shall maintain in the Borough of Manhattan, the City of New York, and in
each Place of Payment for any series of securities, an office or agency (which
may be an office of the Trustee or an affiliate of the Trustee, the Security
Registrar or co-registrar) where Securities of such 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 such series and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain such an office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation, unless otherwise
provided for as contemplated by Section 301, to maintain an office or agency in
the Borough of Manhattan, the City of New York and in each Place of Payment for
Securities of any series for such purposes. The Company shall give prompt
written notice to the
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Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
Section 503. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum in the currency in which such series of Securities is payable
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 failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of such 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
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:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities of such series in
trust for the benefit of the Holders of such Securities until such
sums shall be paid to such Holders or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal (and premium, if any) or interest on the
Securities of such series; and
(3) during the continuance of any such default by the Company (or
any other obligor upon the Securities of such series) in the making of
any payment of principal (and premium, if any) or interest on the
Securities of such series, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying
Agent.
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The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent, and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, the City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company on Company
Request.
Section 504. Commission Reports.
(i) So long as any of the Securities remain Outstanding, the Company
shall cause copies of all current, quarterly and annual financial reports on
Forms 8-K, 10-Q and 10-K, respectively, and all proxy statements, which the
Company is then required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act to be filed with the Trustee and mailed to the Holders
of such series of Securities at their addresses appearing in the Security
Register maintained by the Security Registrar, in each case, within 15 days of
filing with the Commission. The Company shall also comply with the provisions
of TIA (S) 314(a).
(ii) If the Company is required to furnish annual or quarterly reports
to its stockholders pursuant to the Exchange Act, the Company shall cause any
such annual or quarterly report to its stockholders and any other financial
report furnished by it generally to its stockholders to be filed with the
Trustee and mailed to the Holders of each series of Securities Outstanding at
their addresses appearing in the Security Register maintained by the Security
Registrar, and such reports shall be in lieu of the delivery to such Holders of
the reports on Form 10-K and 10-Q
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described in clause (i) above if they contain the information required by clause
(i) above.
Section 505. Compliance Certificate.
(i) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether each has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to his or her knowledge each entity has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action each is taking or proposes
to take with respect thereto) and that to his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Securities of any series is prohibited
or if such event has occurred, a description of the event and what action each
is taking or proposes to take with respect thereto.
(ii) The Company shall, so long as any of the Securities of any series
are Outstanding, deliver to the Trustee, forthwith upon any Officer becoming
aware of (a) any Default or Event of Default with respect to such series of
Securities or (b) any event of default under any other mortgage, indenture or
instrument, an Officers' Certificate specifying such Default, Event of Default
or event of default and what action the Company is taking or proposes to take
with respect thereto.
Section 506. Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments and governmental
levies except (i) as contested in good faith by appropriate proceedings and with
respect to which appropriate reserves have been taken, if required, in
accordance with GAAP or (ii) where the failure to effect such payment is not
adverse in any material respect to the Holders.
Section 507. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the
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performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
Section 508. Corporate Existence.
Subject to Article 6 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of each Subsidiary and (ii) the
rights (charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Subsidiaries, if the Company shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries, taken as a whole, and that the loss thereof
is not adverse in any material respect to the Holders.
ARTICLE 6
SUCCESSORS
Section 601. Limitations On Mergers, Consolidations or Sales of Assets.
The Company may not consolidate or merge with or into (whether or not
the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another Person unless:
(i) the Company is the surviving Person or the Person formed by
or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made is a corporation
organized or existing under the laws of the United States, any state
thereof or the District of Columbia;
(ii) the Person formed by or surviving any such consolidation or
merger (if other than the Company) or the Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall
have been made assumes all the obligations of the Company under the
Securities and this Indenture pursuant to a supplemental indenture in
a form reasonably satisfactory to the Trustee;
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(iii) immediately after such transaction no Default or Event of
Default exists; and
(iv) the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such
sale, assignment, transfer, lease, conveyance or other disposition
shall have been made will have Consolidated Net Worth immediately
after the transaction equal to or greater than the Consolidated Net
Worth of the Company immediately preceding the transaction.
Section 602. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 601 hereof, the successor corporation
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, assignment, transfer, lease, conveyance or
other disposition, the provisions of this Indenture referring to the "Company"
shall refer instead to the successor corporation), and may exercise every right
and power of the Company under this Indenture with the same effect as if such
successor Person has been named as the Company, herein.
ARTICLE 7
DEFAULTS AND REMEDIES
Section 701. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, and unless otherwise provided with respect to Securities of any
series pursuant to Section 301, 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):
(i) a default for 30 days in the payment when due of interest on
any Security of such series;
(ii) a default in payment when due of principal of or premium, if
any, on any Security of such series at Maturity, upon redemption or
otherwise;
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(iii) a failure by the Company to deposit any "mandatory sinking
fund payment" (as defined in Section 1101 hereof), when and as due, in
respect of the Securities of such series;
(iv) a default in the performance or breach of Article 6;
(v) failure by the Company for 60 days after notice to comply
with any of its other agreements in this Indenture or any Security of
such series;
(vi) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of
its Subsidiaries (or the payment of which is guaranteed by the Company
or any of its Subsidiaries) whether such Indebtedness or guarantee now
exists, or is created after the date of this Indenture, which default
(a) is caused by a failure to pay principal of or premium, if any, or
interest on such Indebtedness prior to the expiration of the grace
period provided in such Indebtedness on the date of such default (a
"Payment Default") or (b) results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the
principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated,
aggregates in excess of $50 million;
(vii) failure by the Company or any of its Subsidiaries to pay
final judgments aggregating in excess of $50 million, which final judgments
remain unpaid, undischarged or unstayed for a period of 60 days after their
entry;
(viii) the Company or any Subsidiary of the Company pursuant to
or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it
in an involuntary case in which it is the debtor,
(c) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(d) makes a general assignment for the benefit of its
creditors, or
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(e) admits in writing its inability generally to pay its
debts as the same become due;
(ix) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against the Company or any Subsidiary of
the Company in an involuntary case in which it is the debtor,
(b) appoints a Custodian of the Company or any Subsidiary
thereof or for all or substantially all of the property of the Company
or any Subsidiary thereof, or
(c) orders the liquidation of the Company or any Subsidiary
of the Company,
and the order or decree remains unstayed and in effect for 60 days; and
(x) any other Event of Default provided with respect to
Securities of such series pursuant to Section 301.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
A Default under clause (v) is not an Event of Default with respect to
any series of Securities until the Trustee notifies the Company in writing, or
the Holders of at least 25% in principal amount of the then Outstanding
Securities of such series notify the Company and the Trustee in writing, of the
Default and the Company does not cure the Default within 60 days after receipt
of such notice. The written notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default."
In the case of any Event of Default with respect to the Securities of
any series pursuant to the provisions of this Section 701 occurring by reason of
any willful action (or inaction) taken (or not taken) by or on behalf of the
Company or any of its Subsidiaries the primary purpose of which was to allow the
Company to avoid payment of the premium, if any, that the Company would have had
to pay with respect to the Securities of such series if the Company then had
elected to redeem such Securities pursuant to the optional redemption
provisions, if any, established in accordance with this Indenture, an equivalent
premium shall also become and be immediately due and payable if such Securities
are repaid to the extent permitted by law, anything in this Indenture or in the
Securities of such series to the contrary notwithstanding.
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Section 702. Acceleration.
If an Event of Default with respect to the Outstanding Securities of
any series (other than an Event of Default specified in clauses (viii) and (ix)
of Section 701) occurs and is continuing, the Trustee by notice to the Company,
or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of such series by written notice to the Company and the
Trustee, may declare the unpaid principal of (or, if any of the Securities of
such series are Original Issue Discount Securities, such lesser portion of the
principal amount of such Securities as may be specified in the terms thereof),
premium, if any, and any accrued and unpaid interest on all the Securities of
that series to be due and payable. Upon such declaration the principal (or
specified portion thereof), premium, if any, and interest shall be due and
payable immediately. If an Event of Default specified in clause (viii) or (ix)
of Section 701 occurs with respect to the Company or any Subsidiary thereof such
an amount shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. The Holders
of a majority in principal amount of the Outstanding Securities of such series
by written notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default with respect to such series (except
nonpayment of principal or interest that has become due solely because of the
acceleration) have been cured or waived.
Section 703. Other Remedies.
If an Event of Default with respect to the Outstanding Securities of
any series occurs and is continuing, the Trustee may pursue any available remedy
(under this Indenture or otherwise) to collect the payment of principal,
premium, if any, or interest on the Securities of such series or to enforce the
performance of any provision of such Securities or this Indenture.
The Trustee may maintain a proceeding with respect to the Outstanding
Securities of any series even if it does not possess any of the Securities of
such series or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of such Securities in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 704. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of any series by written notice to the Trustee may
waive an existing Default or Event of Default with respect to the Securities of
such series
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and its consequences, except a continuing Default or Event of Default in the
payment of the principal of, premium, if any, or interest on any Security of
such series held by a nonconsenting Holder (other than a rescission of
acceleration of the Securities of such series by the Holders of at least a
majority in aggregate principal amount of the Securities of such series and a
waiver of the payment default resulting from such acceleration). Upon any such
waiver, such Default shall cease to exist, and any Event of Default with respect
to the Securities of such series 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 705. Control by Majority.
Holders of a majority in principal amount of the Outstanding
Securities of any series may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee with respect to such series
or exercising any trust or power conferred on the Trustee with respect to such
series. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture that the Trustee determines may be unduly prejudicial
to the rights of other Holders of Securities of such series or that may involve
the Trustee in personal liability. The Trustee may take any other action which
it deems proper which is not inconsistent with any such direction.
Section 706. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(i) the Holder gives to the Trustee written notice of a continuing
Event of Default with respect to the Securities of such series;
(ii) the Holders of at least 25% in principal amount of the
Outstanding Securities of such series make a written request to the Trustee
to pursue the remedy;
(iii) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(iv) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
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(v) during such 60-day period the Holders of a majority in principal
amount of the Outstanding Securities of such series do not give the Trustee
a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or
to obtain a preference or priority over another Holder.
Section 707. Rights of Holders to Receive Payment.
Notwithstanding any other provision in this Indenture, the Holder of
any Security 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 such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date, or, in the case of a repurchase right at the option of the Holder, if any,
on the Repurchase Date specified pursuant to Section 301) 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 708. Collection Suit by Trustee.
If an Event of Default with respect to the Securities of any series
specified in Section 701(i) or (ii) occurs and is continuing, the Trustee is
authorized to recover judgment in its own name and as trustee of an express
trust against the Company or any other obligor for the whole amount of
principal, premium, if any, and interest remaining unpaid on the Securities of
such series and interest on overdue principal and, to the extent lawful,
interest, premium and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
Section 709. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Securities), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian 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 to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and
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counsel, and any other amounts due the Trustee under Section 808 hereof. To the
extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 808 hereof out of the estate in any such proceeding, shall
be denied for any reason, payment of the same shall be secured by a Lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other properties which the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. 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 of any series 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 proceeding.
Section 710. Priorities.
If the Trustee collects any money with respect to the Securities of
any series pursuant to this Article, it shall pay out the money in the following
order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 808, including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders of the Securities of such series for amounts due
and unpaid on the Securities of such series for principal, premium, if any, and
interest, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities of such series for principal, premium,
if any and interest, respectively;
Third: without duplication, to Holders of the Securities of such
series for any other principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness owing to such Holders under this Indenture or the
Securities of such series; and
Fourth: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders.
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Section 711. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 707, or a suit by Holders of more than 10% in principal
amount of the Outstanding Securities of the affected series.
ARTICLE 8
TRUSTEE
Section 801. Duties of Trustee.
(i) With respect to the Securities of any series, if an Event of
Default has occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(ii) With respect to the Securities of any series, except during the
continuance of an Event of Default known to the Trustee:
(a) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture or the TIA and the Trustee need
perform only those duties that are specifically set forth in this
Indenture or the TIA and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee, and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.
(iii) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
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(a) this paragraph does not limit the effect of paragraph (ii) of
this Section;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 705 hereof.
(iv) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(i), (ii), and (iii) of this Section.
(v) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee may refuse to perform
any duty or exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense.
(vi) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 802. Rights of Trustee.
(i) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(ii) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order or as otherwise
expressly provided herein and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution.
(iii) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. 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 from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
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(iv) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(v) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers conferred upon it by this Indenture.
Section 803. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other
agent. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 812 and 813 hereof.
Section 804. Trustee's Disclaimer.
The Trustee and the Authenticating Agent shall not be responsible for
and makes no representation as to the validity or adequacy of this Indenture or
the Securities of any series, nor shall it or the Authenticating Agent be
accountable for the Company's use of the proceeds from the Securities or any
money paid to the Company or upon the Company's direction under any provision of
this Indenture, nor shall it or the Authenticating Agent be responsible for the
use or application of any money received by any Paying Agent other than the
Trustee, nor shall it be responsible for any statement or recital herein or any
statement in the Securities of any series or any other document in connection
with the sale of the Securities or pursuant to this Indenture other than its
certificate of authentication.
Section 805. Notice of Defaults.
If a Default or Event of Default with respect to the Securities of any
series occurs and is continuing and if it is known to the Trustee, the Trustee
shall mail to Holders of such Securities a notice of the Default or Event of
Default within 90 days after it occurs. Except in the case of a Default or
Event of Default in payment on any Security of any series or in the payment of
any sinking fund installment with respect to the Securities of such series, the
Trustee may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of the Holders of Securities of such series.
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Section 806. Preservation of Information.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of such series of Securities
received by the Trustee in its capacity as Security Registrar.
Section 807. Reports by Trustee to Holders.
Within 60 days after May 15 of each year commencing with the later of
May 15, 1999 or the first May 15 after the first issuance of Securities pursuant
to this Indenture, the Trustee shall mail to the Holders of Securities of all
series a brief report dated as of such reporting date that complies with TIA
(S) 313(a) (but if no event described in TIA (S) 313(a) has occurred within the
twelve months preceding the reporting date, no report need be transmitted). The
Trustee also shall comply with TIA (S) 313(b). The Trustee shall also transmit
by mail all reports as required by TIA (S) 313(c).
A copy of each report at the time of its mailing to the Holders shall
be mailed to the Company and filed with the Commission and each stock exchange
on which the Securities are listed. The Company shall promptly notify the
Trustee when the Securities are listed on any stock exchange.
Section 808. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder
mutually satisfactory to the Company and Trustee. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee promptly upon request for all
reasonable disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance of its duties and the administration of the trusts under this
Indenture, except as set forth below. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee
to so notify the Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim and the Trustee shall cooperate
in the defense. The Trustee may have separate counsel and the Company shall pay
the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made without its consent, which consent shall not be unreasonably
withheld.
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The obligations of the Company under this Section 808 shall survive
the satisfaction and discharge of this Indenture.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through its own negligence or bad
faith.
To secure the Company's payment obligations in this Section 808, the
Trustee shall have a Lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on the Securities of any series. Such Lien shall survive the
satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 701(viii) or (ix) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
Section 809. 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 810.
(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 specifying
its intention to resign, the applicable series affected by such resignation, the
reason therefor and the date upon which such resignation shall become effective.
Notwithstanding the foregoing, unless the reason for such resignation is a
conflict pursuant to TIA (S) 310(b) as provided in Section 812 hereof, the
Trustee must resign with respect to all Securities if the Trustee resigns with
respect to any series of Securities. If the instrument of acceptance by a
successor Trustee required by Section 810 shall not have been delivered to the
Trustee within 60 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) The Trustee may be removed with respect to any or all series of
Securities at any time upon 30 days notice by filing with it an instrument in
writing
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signed on behalf of the Company by a duly authorized officer of the Company
specifying such removal and the date on which it is to become effective.
(e) If at any time:
(1) the Trustee shall fail to comply with TIA (S) 310(b) 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 812 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to any one or more series of Securities or all Securities,
or (ii) subject to Section 711, 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 such series of Securities and the appointment of
a successor Trustee or Trustees.
(f) 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). If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
810, 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
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required by Section 810, 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.
(g) 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 respect to the Securities of such series and the address of its Corporate
Trust Office.
Section 810. 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
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or in such supplemental indenture shall constitute such Trustees co-trustees of
the same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates. Whenever there is a successor Trustee with
respect to one or more (but less than all) series of securities issued pursuant
to this Indenture, the terms "Indenture" and "Securities" shall have the
meanings specified in the provisos to the respective definitions of those terms
in Section 101 which contemplate such situation.
(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) and (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 811. 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; in
case any of the Securities shall not have been authenticated by the Trustee then
in office, any successor by merger, conversion or consolidation to such Trustee
may authenticate such Securities either in the name of such predecessor
hereunder or in the name of the successor Trustee; and in all
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such cases such certificates shall have the full force which it is anywhere in
the Securities or in this Indenture provided that the certificate of the Trustee
shall have; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
Section 812. Eligibility; Disqualification.
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 or of any state thereof authorized under such laws to exercise corporate
trustee power, shall be subject to supervision or examination by Federal or
state authority and shall have a combined capital and surplus of at least $100
million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA (S) 310(a)(1), (2) and (5). The Trustee is subject to TIA
(S) 310(b).
Section 813. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated therein.
Section 814. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee,
with the concurrence of the Company, may appoint an Authenticating Agent or
Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series, and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a Corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $100,000,000 and
subject to supervision or examination by Federal, State or District of Columbia
authority. If such Authenticating Agent publishes reports of condition at least
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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
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 anytime
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to reimbursement for such payments subject to Section
808.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication an alternate certificate
of authentication in the following form:
This is one of the Securities of the series designated herein and
issued pursuant to the within-mentioned Indenture.
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, as Trustee
-----------------
By
-----------------------
as Authenticating Agent
By
-----------------------
Authorized Signature
ARTICLE 9
DISCHARGE OF INDENTURE
Section 901. Defeasance and Discharge of this Indenture and the Securities.
The Company may, at the option of its Board of Directors evidenced by
a Board Resolution set forth in an Officers' Certificate, at any time, with
respect to the Securities of any series, elect to have either Section 902 or 903
be applied to the Outstanding Securities of such series upon compliance with the
conditions set forth below in this Article 9.
Section 902. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 901 of the option applicable
to this Section 902, the Company shall be deemed to have been discharged from
its obligations with respect to the Outstanding Securities of any series on the
date the conditions set forth below are satisfied with respect to such series
(hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance
means that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the Outstanding Securities of such series, which
shall thereafter be deemed to be "Outstanding" only for the purposes of
Section 905 and the other Sections of this Indenture referred to in clauses (i)
and (ii) of this Section 902, and to have satisfied all its other obligations
under the Securities of such series and this Indenture as it relates to such
series (and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (i) the
rights of Holders of Outstanding Securities of such series to receive solely
from the trust fund described in Section 904, and as more fully set forth in
such Section, payments in respect of the principal of, premium, if any, and
interest on such Securities when such payments are due, (ii) the Company's
obligations with respect to such Securities under Sections 305, 306 and 502,
(iii) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, including, without limitation, the Trustee's rights under Section
808, and the
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Company's obligations in connection therewith and (iv) this Article 9. Subject
to compliance with this Article 9, the Company may exercise its option under
this Section 902 notwithstanding the prior exercise of its option under Section
903 with respect to the Securities of such series.
Section 903. Covenant Defeasance.
Unless specifically otherwise provided in a Board Resolution,
Officers' Certificate or indenture supplemental hereto provided pursuant to
Section 301, upon the Company's exercise under Section 901 of the option
applicable to this Section 903, the Company shall be released from its
obligations under the covenants contained in Sections 504, 505 and 506, Article
6 and Section 301(12) with respect to the Outstanding Securities of any series
on and after the date the conditions set forth below are satisfied with respect
to such series (hereinafter, "Covenant Defeasance"), and the Securities of such
series shall thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders of such Securities
(and the consequences of any thereof) in connection with such covenants, but
shall continue to be deemed "Outstanding" for all other purposes hereunder (it
being understood that such Securities shall not be deemed outstanding for
accounting purposes). For this purpose, such Covenant Defeasance means that,
with respect to the Outstanding Securities of any series, the Company may omit
to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default with respect to such series of Securities under Section 701(iv) or
(v) but, except as specified above, the remainder of this Indenture and such
Securities shall be unaffected thereby. In addition, upon the Company's
exercise under Section 901 of the option applicable to this Section 903,
Sections 701(v) through 701(x) shall not constitute Events of Default.
Section 904. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to application of either Section 902
or Section 903 to the Outstanding Securities of any series:
(i) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 812 who shall agree to comply with the provisions of this
Article 9 applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of such
series, (a) cash in U.S. Dollars in an amount, or (b) non-callable
Government Securities which through the
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scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment, cash in U.S. Dollars in an amount, or (c) a
combination thereof, in such amounts, as will be sufficient, in the opinion
of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge (A) the principal of, premium, if any, and
interest on the Outstanding Securities of such series on the Stated
Maturity or on the applicable Redemption Date, as the case may be, of such
principal or installment of principal, premium, if any, or interest on the
day on which such payments are due and payable and (B) any mandatory
sinking fund payments or analogous payments applicable to the Securities of
such series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and such Securities; provided
that the Trustee shall have been irrevocably instructed to apply such money
or the proceeds of such non-callable Government Securities to said payments
with respect to the Securities of such series.
(ii) In the case of an election under Section 902, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
reasonably satisfactory to the Trustee confirming that (a) the Company has
received from, or there has been published by, the Internal Revenue Service
a ruling or (b) since the date hereof, there has been a change in the
applicable federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal Defeasance
and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Legal
Defeasance has not occurred.
(iii) In the case of an election under Section 903, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States to
the effect that the Holders of the Outstanding Securities of such series
will not recognize income, gain or loss for federal income tax purposes as
a result of such Covenant Defeasance and will be subject to Federal income
tax in the same amount, in the same manner and at the same times as would
have been the case if such Covenant Defeasance had not occurred.
(iv) No Default or Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such
deposit or, in so far as Subsection 701(viii) or 701(ix) is concerned, at
any time in the period ending on the 91st day after the date of such
deposit (it being
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understood that this condition shall not be deemed satisfied until the
expiration of such period).
(v) Such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which the Company is bound.
(vi) In the case of an election under either Section 902 or 903, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that after the 91st day following the deposit, the trust funds will
not be subject to the effect of any applicable Bankruptcy Law.
(vii) In the case of an election under either Section 902 or 903, the
Company shall have delivered to the Trustee an Officers' Certificate
stating that the deposit made by the Company pursuant to its election under
Section 902 or 903 was not made by the Company with the intent of
preferring the Holders of the series of Securities to be defeased over
other creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others.
(viii) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel in the United States, each stating
that all conditions precedent provided for relating to either the Legal
Defeasance under Section 902 or the Covenant Defeasance under Section 903
(as the case may be) have been complied with as contemplated by this
Section 904.
Section 905. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 906, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 905, the
"Trustee") pursuant to Section 904 in respect of the Outstanding Securities of
any series shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as Paying
Agent) as the Trustee may determine, to the Holders of the Securities of such
series of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 904 or the principal and
interest received in
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respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities of such series.
Anything in this Article 9 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the Company's
request any money or non-callable Government Securities held by it as provided
in Section 904 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under
Section 904(i)), are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 906. Repayment to Company.
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, premium, if any,
or interest on any Security and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 907. Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. Dollars or
non-callable Government Securities in accordance with Section 902 or 903, as the
case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Securities of any series
to be defeased shall be revived and reinstated as though no deposit had occurred
pursuant to Section 902 or 903 until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 902 or 903, as the
case may be; provided, however, that, if the Company makes any payment of
principal of, premium, if any, or interest on any such Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such
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Security to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE 10
AMENDMENT, SUPPLEMENT AND WAIVER
Section 1001. Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may amend this Indenture or enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(i) 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
(ii) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of one or
more specified series) or to surrender any right or power herein conferred
upon the Company; or
(iii) to add any additional Events of Default (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are being included solely for the
benefit of such series); or
(iv) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities of any series in certificated or uncertificated
form; or
(v) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective only when there is no such Security
Outstanding; or
(vi) to secure the Securities of any series; or
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(vii) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(viii) 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 810; or
(ix) to cure any ambiguity or defect in or to correct or supplement
any provision herein which may be inconsistent with any other provision in
this Indenture or any Security of any series, or to make any other
provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the interests of
the Holders of Securities of any series in any material respect; or
(x) to comply with requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the TIA.
Section 1002. With Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of all series at the time
Outstanding affected by such amendment or supplemental indenture (voting 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 amend this
Indenture or 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 under this Indenture; provided,
however, that no such amendment or supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(i) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any such affected Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
702, or change any Place of Payment where, or the coin or currency in
which, any such Security or any premium or the interest thereon is payable,
or impair the right to institute suit for the enforcement of any such
payment on or after
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the Stated Maturity thereof (or, in the case of redemption or repayment, on
or after the Redemption Date or any repayment date), or
(ii) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
modifications or amendments to the Indenture with respect to such series or
to the terms and conditions of such series or to approve a supplemental
indenture with respect to such series, or the consent of whose Holders is
required for any waiver with respect to such series of compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences provided for in this Indenture, or
(iii) modify any of the provisions of Sections 704 or 707 or this
Section 1002 or Article 8, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be modified
or waived without the consent of the Holder of each Outstanding Security
affected thereby; provided however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the references
to "the Trustee" and concomitant changes in this Section 1002 and Article
8, or the deletion of this proviso, in accordance with the requirements of
Sections 810(b) and 1001(viii).
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 1003. 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 801) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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Section 1004. 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 of the series affected thereby theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby to the extent
provided therein.
Section 1005. Compliance with TIA.
Every amendment or supplement to this Indenture or the Securities of
any series shall be set forth in a supplemental indenture that complies with the
TIA as then in effect.
Section 1006. Revocation and Effect of Consents.
Until an amendment, supplemental waiver or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. A supplemental indenture, amendment or waiver becomes
effective in accordance with its terms and thereafter binds every Holder of the
series of Securities to which such amendment, supplemental waiver or waiver
relates.
The Company may, but shall not be obligated to, fix a record date for
determining which Holders of the Securities of any series must consent to such
amendment or waiver. If the Company fixes a record date, the record date shall
be fixed at (i) 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 or (ii) such other date as the Company shall
designate.
Section 1007. Reference in Securities to Supplemental Indentures.
Securities 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 a form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
Section 1008. Notice of Supplemental Indentures.
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Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 1002, the Company
shall give notice thereof to the Holders of each Outstanding Security so
affected, pursuant to Section 108, setting forth in general terms the substance
of such supplemental indenture.
ARTICLE 11
SINKING FUNDS
Section 1101. Applicability of Article.
Unless otherwise specifically provided for in accordance with Section
301 with respect to any series of Securities, the Company shall have no sinking
fund obligations with respect to Securities of any series. The sinking fund
obligations as to any series of Securities for which such obligations exist
shall be as provided by the terms of such series of Securities as specifically
established in accordance with Section 301 and, except as otherwise provided by
such terms, as provided in this Article.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1102. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 1102. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of like tenor of a
series (other than any previously called for redemption) and (2) may apply as a
credit Securities of like tenor 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 like tenor of such series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided that such Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly. Such Securities shall be first applied to
the sinking fund payment next due and any
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excess shall be applied to the following sinking fund payments in the order they
are due.
Section 1103. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
Securities of like tenor of a series, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for such Securities pursuant to the terms of such Securities, the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of like tenor of that series pursuant to Section 1102 and, at the
time of delivery of such Officers' Certificate, 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 403 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 404. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 407 and 408.
ARTICLE 12
REPURCHASE OF SECURITIES AT OPTION OF HOLDERS
Section 1201. Applicability of Article.
Unless otherwise specifically provided for in accordance with Section
301 with respect to any series of Securities, the Company shall have no
repurchase obligations with respect to Securities of any series. Securities of
any series which are repurchasable before their Stated Maturity at the option of
the Holders in accordance with their terms as specifically established in
accordance with Section 301 shall be repurchasable in accordance with their
terms and, except as otherwise provided by such terms, in accordance with this
Article.
Section 1202. Notice of Repurchase Date.
Notice of any Repurchase Date with respect to Securities of any series
shall, unless otherwise specified by the terms of such Securities, be given by
the Company not less than 45 nor more than 60 days prior to such Repurchase Date
to each Holder of Securities of such series subject to repurchase in accordance
with Section 108.
The notice as to Repurchase Date shall state:
(1) the Repurchase Date;
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(2) the Repurchase Price;
(3) the place or places where such Securities are to be surrendered
for payment of the Repurchase Price and the date by which such Securities
must be so surrendered in order to be repurchased;
(4) a description of the procedure which a Holder must follow to
exercise a repurchase right; and
(5) that exercise of the option to elect repurchase is irrevocable.
No failure of the Company to give the foregoing notice shall limit any Holder's
right to exercise a repurchase right.
Section 1203. Deposit of Repurchase Price.
On or prior to the Repurchase 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 503) the amounts
required to be deposited in accordance with the applicable repurchase right
provisions or, if no such amount is specified, an amount of money sufficient to
pay the Repurchase Price of and (unless the Repurchase Date shall be an Interest
Payment Date) accrued interest, if any, on all of the Securities of such series
which are to be repurchased on that date.
Section 1204. Securities Payable on Repurchase Date.
The form of option to elect repurchase having been delivered as
specified in the form of Security for such series as provided in Article 2, the
Securities of such series so to be repurchased shall, on the Repurchase Date,
become due and payable at the Repurchase Price applicable thereto and from and
after such date (unless the Company shall default in the payment of the
Repurchase Price and accrued interest) such Securities shall cease to bear
interest. Upon surrender of any such Security for repurchase in accordance with
said notice, such Security shall be paid by the Company at the Repurchase Price
together with accrued interest to the Repurchase Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to such Repurchase
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 Regular and Special Record Dates according to their terms and the
provisions of Section 307.
If the amount deposited in accordance with Section 1203 is
insufficient to pay the Repurchase Price of all of the Securities as to which
the option to elect repurchase exists under this Indenture and has been
exercised, the Trustee shall
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select the particular Securities to be repurchased on a pro rata basis among all
such Holders of all series of Securities having such repurchase right and so
exercising the option to elect repurchase (and in such manner as complies with
applicable legal and stock exchange requirements, if any). The Trustee shall
promptly notify the Company in writing of the Securities selected for repurchase
and the principal amount thereof. Securities and portions of them selected shall
be in amounts of $1,000 or whole multiples of $1,000. Except as provided in this
paragraph, provisions of this Indenture that apply to Securities to be
repurchased also apply to portions of Securities to be repurchased.
If any such Security shall not be paid upon surrender thereof for
repurchase, the principal (and premium, if any) shall, until paid, bear interest
from the Repurchase Date at the rate prescribed therefor in such Security.
Section 1205. Securities Repurchased in Part.
Any Security which by its terms may be repurchased in part at the
option of the Holder and which is to be repurchased only in part, or which is
repurchased only in part in accordance with Section 1204, shall be surrendered
at any office or agency of the Company designated for that purpose pursuant to
Section 502 (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 such Holder's attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series and of like tenor of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unrepurchased portion of the principal
of the Security so surrendered. To the extent a series of Securities
represented by a Global Security is to be repurchased in part only, a notation
of such redemption shall be made by the Trustee in the schedule of exchanges on
the Global Security.
ARTICLE 13
SUBORDINATION
Section 1301. Agreement to Subordinate.
The Company covenants and agrees, and each Holder of Securities of
each series, by such Holder's acceptance thereof, likewise covenants and agrees,
that the indebtedness evidenced by the Securities of each series and the payment
of the principal thereof, premium, if any, sinking fund requirements therefor
and interest thereon shall be subordinate and subject in right of payment, to
the extent and in the manner hereinafter set forth, to the prior payment in full
in cash or cash equivalents of all Senior Debt.
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Section 1302. Distribution on Dissolution, Liquidation and Reorganization.
Upon any distribution to creditors of the Company in a liquidation,
dissolution or winding up of the Company, whether voluntary or involuntary, or
in a bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its properties, or upon an assignment for the benefit
of creditors or any other marshaling of the assets and liabilities of the
Company (each such event, if any, herein sometimes referred to as a
"Proceeding"):
(a) all principal of, premium, if any, interest (including interest
after the commencement of any such Proceeding at the rate specified in the
applicable Senior Debt) and commitment fees (the "Obligations") due on, or
to become due on or in respect of, all Senior Debt shall first be paid in
full in cash or cash equivalents before any payment or distribution of any
kind or character, whether in cash, property or securities, by set off or
otherwise (including any payment or distribution which may be payable or
deliverable by reason of the payment of any Junior Subordinated Debt), on
account of the principal of (and premium, if any) or interest on any
Securities or on account of any purchase, redemption, retirement or other
acquisition of Securities by the Company, any Subsidiary of the Company,
the Trustee or any Paying Agent or on account of any other obligation of
the Company in respect of any Securities (all such payments, distributions,
purchases, redemptions, retirements and acquisitions, whether or not in
connection with a Proceeding, herein referred to, individually and
collectively, as a "Securities Payment"), or before the Holders of the
Securities shall be entitled to retain any assets so paid or distributed in
respect thereof; and
(b) until the Senior Debt is paid in full in cash or cash equivalents
(as provided in subsection (a) above), any Securities Payment to which the
Holders of the Securities or the Trustee for their benefit would be
entitled except for the provisions of this Section 1302, shall be paid or
delivered by the Company or any receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or
distribution directly to the holders of Senior Debt or their representative
or representatives or the trustee or trustees under any indenture pursuant
to which any instruments evidencing any Senior Debt may have been issued,
as their respective interests may appear.
For purposes of this Article 13 only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include (i) a payment or distribution of stock or
securities of the Company provided for by a plan of reorganization or
readjustment authorized by an order or decree of a court of competent
jurisdiction in a reorganization proceeding under any applicable bankruptcy law
or of any other corporation provided for by
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such plan of reorganization or readjustment which stock or securities are
subordinated in right of payment to all then outstanding Senior Debt to the same
extent as, or to a greater extent than, the Securities are so subordinated as
provided in this Article; or (ii) any deposit, or payment made therefrom,
pursuant to Article 9, with respect to any series of Securities; provided that,
in the case of any such payment from a defeasance trust, the assets deposited in
trust to fund such payment have been so deposited for any period of at least 90
consecutive days without the occurrence of a blockage of payment on such series
of Securities pursuant to this Section 1302 or Section 1303 hereof. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the conveyance
or transfer of all or substantially all of its properties and assets as an
entirety to another Person upon the terms and conditions set forth in Article 6
shall not be deemed a Proceeding for the purposes of this Section if the Person
formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer such properties and assets as an
entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions set forth in Article 6.
Section 1303. No Payment When Senior Debt in Default.
In the event that any Senior Payment Default shall have occurred, then
no Securities Payment shall be made unless and until such Senior Payment Default
shall have been cured or waived in writing or shall have ceased to exist or all
Obligations in respect of such Senior Debt shall have been paid in full in cash
or cash equivalents.
The provisions of this Section shall not apply to any Securities
Payment with respect to which Section 1302 hereof would be applicable.
Section 1304. Payment to Holders of Senior Debt.
Subject to the provisions of Section 1306, in the event that,
notwithstanding the provisions of Section 1302 or Section 1303, any Securities
Payment shall be received by the Trustee on behalf of the Holders of the
Securities (i) from the Company in violation of such provisions, or (ii) from
any other Person under such circumstances that such payment would, if made
directly by the Company, be in violation of such provisions, such payment or
distribution shall be held by the Trustee in trust for the benefit of, and shall
immediately be paid over by the Trustee, upon written request by a Person
entitled to give notice on behalf of such Senior Debt as specified in Section
1310, to the holders of Senior Debt or their representative or representatives,
or to the trustee or trustees under any indenture under which any instrument
evidencing any of such Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of Senior Debt.
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Upon any payment or distribution of assets or securities of the
Company referred to in Sections 1302 and 1303, the Trustee and the Holders of
the Securities shall be entitled to rely upon any order or decree of a court of
competent jurisdiction, or upon any certificate of any liquidating trustee or
agent or other similar Person making any payment or distribution to the Trustee
or to the Holders of the Securities, for the purpose of ascertaining the persons
entitled to participate in such payment or distribution, the holders of the
Senior Debt, the amount thereof or payment thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
13. 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 Debt to participate in any payment or distribution referred to in
Sections 1302 and 1303, the Trustee may request such Person to furnish evidence
to the reasonable satisfaction of the Trustee as to the amount of Senior Debt
held by such Person, as to the extent to which such Person is entitled to
participation in such payment or distribution, and as to other facts pertinent
to the rights of such Person under Sections 1302 and 1303, 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 1305. Subrogation.
Subject to the payment in full in cash or cash equivalents of all
Senior Debt at the time outstanding, the Holders of the Securities shall be
subrogated to the rights of each holder of Senior Debt (to the extent of the
payments or distributions made to such holder pursuant to the provisions of
Sections 1302, 1303 and 1304) to receive payments or distributions of cash,
assets or securities of the Company applicable to the Senior Debt until the
Securities shall be paid in full. No payments or distributions to holders of
Senior Debt of cash, assets or securities of the Company to which Holders of
Securities would be entitled except for the provisions of this Article 13, and
no payment over pursuant to the provisions of this Article 13 to holders of such
Senior Debt by the Holders of Securities shall, as among the Company, its
creditors other than the holders of Senior Debt, and the Holders of the
Securities, be deemed to be a payment by the Company on account of the Senior
Debt, it being understood that the provisions of this Article 13 are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of the Senior Debt, on the other
hand, and nothing contained in this Article 13 or elsewhere in this Indenture,
or in the Securities, is intended to or shall impair, as between the Company,
its creditors other than the holders of Senior Debt, and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of, premium, if any, and
interest on the Securities, as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other than
the holders of Senior Debt, nor shall anything
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herein or therein prevent the Trustee or the Holder of any Securities from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article 13 of the
holders of Senior Debt in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
Section 1306. Payment on Securities Permitted.
Nothing contained in this Article 13 or elsewhere in this Indenture,
or in any of the Securities, shall prevent the Company from making payment of
the principal of, sinking fund, if any, premium, if any, or interest on the
Securities, at any time, except under the conditions described in Section 1303
and except during the pendency of any Proceeding within the meaning of Section
1302. Nothing contained in this Article 13 or elsewhere in this Indenture, or
in any of the Securities, shall prevent the application by the Trustee of any
moneys deposited with it hereunder for the purpose, to the payment of or on
account of the principal of, sinking fund, if any, or premium, if any, or
interest on the Securities, unless the Trustee shall have received written
notice, directed to it at its Corporate Trust Office as provided in Section
1310.
Section 1307. Authorization of Holders to Trustee to Effect Subordination.
Each Holder of Securities, by such Holder's acceptance thereof,
authorizes and directs the Trustee in such Holder's behalf to take such action
as may be necessary or appropriate to effectuate, as between the Holders of the
Securities and the holders of Senior Debt, the subordination provided in this
Article 13 and appoints the Trustee his attorney-in-fact for any and all such
purposes.
Section 1308. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt 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 by any such holder, or by any noncompliance by the Company
with 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 Debt may, at any time and from time to time without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior Debt, do any
one or more of the following: (i) change the manner, place or terms of payment
or
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extend the time of payment of, or renew or alter, Senior Debt, or otherwise
amend or supplement in any manner Senior Debt or any instrument evidencing the
same or any agreement under which Senior Debt is outstanding; (ii) permit the
Company to borrow, repay and then reborrow any or all of the Senior Debt; (iii)
sell, exchange, release or otherwise deal with any property pledged, mortgaged
or otherwise securing Senior Debt; (iv) release any Person liable in any manner
for the collection of Senior Debt; (v) exercise or refrain from exercising any
rights against the Company and any other Person; and (vi) apply any sums
received by them to Senior Debt.
Section 1309. Trustee as Holder of Senior Debt.
The Trustee shall be entitled to all the rights set forth in this
Article 13 in respect of any Senior Debt at any time held by it, to the same
extent as any other holder of Senior Debt, and nothing in Section 813 or
elsewhere in this Indenture shall deprive or be construed to deprive the Trustee
of its rights as such holder.
Nothing in this Article 13 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 808 hereof.
Section 1310. Notices to Trustee.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities, but failure to give such notice
shall not affect the subordination of the Securities to the extent herein
provided if notice is otherwise given as hereinafter provided in this Section
1310. 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, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof from the Company, any holder
of Senior Debt or any trustee, fiduciary or agent therefor; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Section 801 hereof, shall be entitled in all respects to assume that no such
facts exist. Any notice required or permitted to be given to the Trustee by a
holder of Senior Debt or a trustee, fiduciary or transfer agent therefor shall
be in writing and shall be sufficient for every purpose hereunder in writing and
either (i) sent via facsimile to the Trustee, the receipt of which shall be
confirmed via telephone, or (ii) mailed, first class postage prepaid, or sent
overnight carrier, to the Trustee addressed to it at the address of its
principal office specified in the first paragraph of this instrument or at any
other address furnished in writing to such holder of the Senior Debt by the
Trustee. Notwithstanding anything else contained herein, no notice, request or
other communication to or with the Trustee
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shall be deemed given unless received by a Responsible Officer at the Trustee's
principal corporate trust office.
Section 1311. No Fiduciary Duty by Trustee to Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and shall not be liable to any such holders if it shall
in good faith mistakenly pay over or distribute to Holders of Securities or the
Company or any other Person moneys or assets to which any holders of Senior Debt
shall be entitled by virtue of this Article 13 or otherwise.
Section 1312. Paying Agent Treated as Trustee.
In case at any time any Paying 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 13 shall in such case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article 13 in place of the Trustee.
ARTICLE 14
MISCELLANEOUS
Section 1401. TIA Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA (S)318(c), the imposed duties shall control.
Section 1402. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Authenticating Agent, the Security Registrar or the Paying Agent
may make reasonable rules and set reasonable requirements for their respective
functions.
Section 1403. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in The City of New York or Minneapolis, Minnesota or at a place of
payment are authorized or obligated by law, regulation or executive order to
remain closed. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
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Section 1404. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No director, officer, employee, incorporator or stockholder of the
Company, as such, shall have any liability for any obligations of the Company
under the Securities, this Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of the
Securities by accepting a Security waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Securities.
Section 1405. Duplicate Originals.
The parties may sign any number of copies of this Indenture. One
signed copy shall be sufficient to prove this Indenture.
Section 1406. Governing Law.
This Indenture shall be governed by and interpreted under the laws of
the State of New York, and any dispute arising out of, connected with, related
to, or incidental to the relationship established between the Company, the
Trustee and the Holders in connection with this Indenture, and whether arising
in contract, tort, equity or otherwise, shall be resolved in accordance with the
internal laws (as opposed to the conflicts of laws provisions) and decisions of
the State of New York.
Section 1407. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or its Subsidiaries. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
Section 1408. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successor.
Section 1409. Severability.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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Section 1410. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 1411. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
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* * *
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and the respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
UNITED HEALTHCARE CORPORATION
By
-------------------------------
Its
------------------------------
Attest:
- -----------------------------
Secretary
[SEAL]
, as Trustee
------------------
By
-------------------------------
Its
------------------------------
Attest:
- -----------------------------
Secretary
[SEAL]
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STATE OF )
) SS.
COUNTY OF )
On the ____ day of __________, 199__ before me personally came ___________
to me known, who, being by me duly sworn, did depose and say that he is
___________ of United HealthCare Corporation, 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.
[SEAL]
------------------------
Notary Public
STATE OF )
) SS.
COUNTY OF )
On the ____ day of _____________, 199__ 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.
[SEAL]
------------------------
Notary Public
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EXHIBIT 4.3
UNITED HEALTHCARE CORPORATION
---------------------------------
CERTIFICATE OF DESIGNATIONS
FOR
$________ PREFERRED STOCK, SERIES [ ]
(PURSUANT TO MINNESOTA STATUTES, SECTION 302A.401, SUBD. 3(B))
---------------------------------
The undersigned, being the [corporate title] of United HealthCare
Corporation (the "Corporation"), a corporation organized and existing under the
Minnesota Business Corporation Act, in accordance with the provisions of
Minnesota Statutes, Section 302A.401, Subd. 3(b), does hereby certify that:
Pursuant to the authority vested in the Board of Directors of the
Corporation by the Second Restated Articles of Incorporation of the Corporation,
the Board of Directors on [specify date], in accordance with Minnesota Statutes,
Section 302A.401, Subd. 3, duly adopted the following resolution establishing a
series of [number] shares of the Corporation's Preferred Stock, to be designated
as its $________ Preferred Stock, Series [ ]:
RESOLVED, that pursuant to the authority vested in the Board of Directors
of the Corporation (the "Board of Directors") by the Second Restated Articles of
Incorporation of the Corporation, the Board of Directors hereby establishes a
series of $_______ Preferred Stock, Series [ ], of the Corporation and hereby
states the designation and number of shares, and fixes the relative rights and
preferences, of such series of shares as follows:
$_______ PREFERRED STOCK, SERIES [ ]
SECTION 1. DESIGNATION; NUMBER OF SHARES. The shares of such
series shall be designated as "$______ Preferred Stock, Series [ ]" (the
"Series [ ] Preferred Stock"), and the number of shares constituting the
Series [ ] Preferred Stock shall be [number].
SECTION 2. PAR VALUE; NO CUMULATIVE VOTING; NO PREEMPTIVE RIGHTS. As
provided in Article 3(a) of the Corporation's Second Restated Articles of
Incorporation, the Series [ ] Preferred Stock shall have a par value of
$0.001 per share. As provided in Articles 3(d) and 3(e) of the Corporation's
Second Restated Articles of Incorporation, holders of Series [ ] Preferred
Stock shall not be entitled to cumulate their votes in any election of directors
in which they are entitled to vote and shall not be entitled to any preemptive
rights to acquire shares of any class or series of capital stock of the
Corporation.
<PAGE>
SECTION 3. RANK. The Series [ ] Preferred Stock shall rank prior to
all of the Corporation's Common Stock, par value $.01 per share (the "Common
Stock"), now outstanding or hereafter issued, both as to payment of dividends
and as to distributions of assets upon the liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary. The Series [ ]
Preferred Stock shall rank on a parity with the Company's 5.75% Series A
Convertible Preferred Stock, both as to payment of dividends and as to
distributions of assets upon the liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary.
SECTION 4. DIVIDENDS AND DISTRIBUTIONS. The holders of shares of Series
[ ] Preferred Stock shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds legally available for such purpose,
dividends at the rate of $______ per annum per share, and no more. Such
dividends shall be fully cumulative, shall accumulate without interest from
the date of original issuance of the Series [ ] Preferred Stock and shall be
payable quarterly in arrears in cash on each January 1, April 1, July 1 and
October 1 commencing [specify first payment date] (provided, that if any such
date is a Saturday, Sunday or legal holiday in the place where such dividend
is to be paid, then such dividend shall be payable without interest on the
next day that is not a Saturday, Sunday or legal holiday) to holders of record
as they appear on the stock books of the Corporation on such record dates as
shall be fixed by the Board of Directors. Such record dates shall be not more
than 60 nor less than 10 days preceding the respective dividend payment dates.
The amount of dividends payable per share of Series [ ] Preferred Stock for
each full quarterly dividend period shall be computed by dividing the annual
dividend amount by four. The amount of dividends payable for the initial
dividend period and for any other period shorter than a full quarterly
dividend period shall be computed on the basis of a 360-day year of twelve 30-
day months. No dividends or other distributions, other than dividends payable
solely in shares of Common Stock or other capital stock of the Corporation
ranking junior as to payment of dividends to the Series [ ] Preferred Stock
(such Common Stock and other capital stock being referred to herein
collectively as "Junior Dividend Stock"), shall be paid or set apart for
payment on, and no purchase, redemption or other acquisition shall be made by
the Corporation of, any shares of Junior Dividend Stock unless and until all
accumulated and unpaid dividends on the Series [ ] Preferred Stock, including
the full dividend for the then-current quarterly dividend period, shall have
been paid or declared and set apart for payment.
If at any time any dividend on any capital stock of the Corporation ranking
senior as to payment of dividends to the Series [ ] Preferred Stock (such
capital stock being referred to herein as "Senior Dividend Stock") shall be in
default, in whole or in part, no dividend shall be paid or declared and set
apart for payment on the Series [ ] Preferred Stock unless and until all
accumulated and unpaid
2
<PAGE>
dividends with respect to the Senior Dividend Stock, including the full
dividend for the then-current dividend period, shall have been paid or
declared and set apart for payment, without interest. No full dividends shall
be paid or declared and set apart for payment on any capital stock
of the Corporation ranking, as to payment of dividends, on a parity with
the Series [ ] Preferred Stock (such capital stock being referred to herein
as "Parity Dividend Stock") for any period unless full cumulative dividends have
been, or contemporaneously are, paid or declared and set apart for payment on
the Series [ ] Preferred Stock for all dividend periods terminating on or
prior to the date of payment of such full cumulative dividends. No full
dividends shall be paid or declared and set apart for payment on the Series [
] Preferred Stock for any period unless full cumulative dividends have been, or
contemporaneously are, paid or declared and set apart for payment on any Parity
Dividend Stock for all dividend periods terminating on or prior to the date of
payment of such full cumulative dividends. When dividends are not paid in full
upon the Series [ ] Preferred Stock and any Parity Dividend Stock, all
dividends paid or declared and set apart for payment upon shares of Series [
] Preferred Stock and Parity Dividend Stock shall be paid or declared and set
apart for payment pro rata, so that the amount of dividends paid or declared and
set apart for payment per share on the Series [ ] Preferred Stock and the
Parity Dividend Stock shall in all cases bear to each other the same ratio that
accumulated and unpaid dividends per share on the shares of Series [ ]
Preferred Stock and Parity Preferred Stock bear to each other.
Any reference to "distribution" contained in this Section 4 shall not be
deemed to include any distribution made in connection with a liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary.
SECTION 5. LIQUIDATION PREFERENCE. In the event of a liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
the holders of Series [ ] Preferred Stock shall be entitled to receive out of
the assets of the Corporation an amount equal to the dividends accumulated and
unpaid thereon to the date of final distribution to such holders, whether or not
declared, without interest, plus a sum equal to $[ ] per share, and no
more, before any payment shall be made or any assets distributed to the holders
of Common Stock or any other capital stock of the Corporation ranking junior as
to liquidation rights to the Series [ ] Preferred Stock (such Common
Stock and other capital stock being referred to herein collectively as "Junior
Liquidation Stock"); provided, that such rights shall accrue to the
holders of Series [ ] Preferred Stock only in the event that the Corporation's
payments with respect to the liquidation preferences of the holders of capital
stock of the Corporation ranking senior as to liquidation rights to the Series
[ ] Preferred Stock (such capital stock being referred to herein as "Senior
Liquidation Stock") are fully met. The entire assets of the Corporation
available for distribution after the liquidation preferences of any Senior
Liquidation Stock are
3
<PAGE>
fully met shall be distributed ratably among the holders of the Series [ ]
Preferred Stock and any other capital stock of the Corporation which ranks on
a parity as to liquidation rights with the Series [ ] Preferred Stock in
proportion to the respective preferential amounts to which each is entitled
(but only to the extent of such preferential amounts). After payment in full
of the liquidation preference of the shares of the Series [ ] Preferred Stock,
the holders of such shares shall not be entitled to any further participation
in any distribution of assets by the Corporation. Neither a consolidation or
merger of the Corporation with another corporation nor a sale or transfer of
all or part of the Corporation's assets for cash, securities or other property
will be deemed a liquidation, dissolution or winding up of the Corporation for
purposes of this Section 5.
SECTION 6. REDEMPTION AT OPTION OF THE CORPORATION. The Corporation may
not redeem the Series [ ] Preferred Stock prior to January 1, [ ]. The
Corporation, at its option, may, on or after January 1, [ ], redeem at
any time all, or from time to time any portion, of the Series [ ] Preferred
Stock on any date set by the Board of Directors, at the following cash
redemption prices per share if redeemed during the periods specified below:
Twelve Months
Beginning January 1, Redemption Price
-------------------- ----------------
[ ] $
[ ] $
[ ] $
[ ] $
[ ] and thereafter $ ,
plus, in each case, an amount per share in cash equal to all dividends on the
Series [ ] Preferred Stock accumulated and unpaid on such share, whether or
not declared, to the date fixed for redemption (such sum being hereinafter
referred to as the "Redemption Price").
In case of the redemption of less than all of the then outstanding Series
[ ] Preferred Stock, the Corporation shall designate by lot, or in such other
manner as the Board of Directors may determine, the shares to be redeemed, or
shall effect such redemption pro rata. Notwithstanding the foregoing, the
Corporation shall not redeem less than all of the Series [ ] Preferred Stock
at any time outstanding until all dividends accumulated and in arrears upon all
Series [ ] Preferred Stock then outstanding shall have been paid for all past
dividend periods.
Not more than 60 nor less than 30 days prior to the redemption date, notice
by first class mail, postage prepaid, shall be given to the holders of record of
the Series
4
<PAGE>
[ ] Preferred Stock to be redeemed, addressed to such shareholders at their
last addresses as shown on the stock books of the Corporation. Each such notice
of redemption shall specify the date fixed for redemption, the redemption price,
the place or places of payment, that payment of the Redemption Price will be
made upon presentation and surrender of certificates representing the shares of
Series [ ] Preferred Stock, that accumulated but unpaid dividends to the date
fixed for redemption will be paid on the date fixed for redemption, and that on
and after the redemption date, dividends will cease to accumulate on such
shares.
Any notice which is mailed as herein provided shall be conclusively
presumed to have been duly given, whether or not a holder of the Series [ ]
Preferred Stock receives such notice; and failure so to give such notice, or any
defect in such notice, to the holders of any shares designated for redemption
shall not affect the validity of the proceedings for the redemption of any other
shares of Series [ ] Preferred Stock. On or after the date fixed for
redemption as stated in such notice, each holder of the shares called for
redemption shall surrender the certificate or certificates evidencing such
shares to the Corporation at the place designated in such notice and shall
thereupon be entitled to receive payment of the Redemption Price. If fewer than
all the shares represented by any such surrendered certificate or certificates
are redeemed, a new certificate shall be issued representing the unredeemed
shares. If, on the date fixed for redemption, funds necessary for the
redemption shall be available therefor and shall have been irrevocably deposited
or set aside, then, notwithstanding that the certificates evidencing any shares
so called for redemption shall not have been surrendered, the dividends with
respect to the shares so called shall cease to accumulate on and after the date
fixed for redemption, such shares shall no longer be deemed outstanding, the
holders thereof shall cease to be shareholders, and all rights whatsoever with
respect to such shares (except the right of the holders thereof to receive the
Redemption Price without interest upon surrender of their certificates) shall
terminate.
SECTION 7. SERIES [ ] PREFERRED STOCK NOT REDEEMABLE AT OPTION OF
HOLDERS, EXCHANGEABLE OR CONVERTIBLE; NO SINKING FUND. The Series [ ]
Preferred Stock shall not be redeemable upon the request of holders thereof or
exchangable for other capital stock or indebtedness of the Corporation or other
property. The Series [ ] Preferred Stock shall not be convertible into other
capital stock of the Corporation. The Series [ ] Preferred Stock shall not
be subject to the operation of a purchase, retirement or sinking fund.(1)
SECTION 8. VOTING RIGHTS. The holders of Series [ ] Preferred Stock
shall not have any voting rights except as set forth below or as otherwise from
time to time
- -----------------------
(1) Add appropriate sections if the preferred stock is to be redeemable upon
request of holders, exchangeable, convertible, or subject to a sinking fund.
5
<PAGE>
required by law. Whenever dividends on the Series [ ] Preferred Stock
shall be in arrears in an amount equal to at least six quarterly dividends
(whether or not consecutive), the holders of the Series [ ] Preferred Stock
(voting separately as a single class with all other affected classes or series
of Parity Dividend Stock upon which like voting rights have been conferred and
are then exercisable) will be entitled to vote for and elect two additional
directors. Such right of the holders of Series [ ] Preferred Stock to vote
for the election of such two directors may be exercised at any annual meeting or
at any special meeting called for such purpose as hereinafter provided or at any
adjournment thereof, until dividends in default on such outstanding shares of
Series [ ] Preferred Stock shall have been paid in full (or such dividends
shall have been declared and funds sufficient therefor set apart for payment),
at which time the term of office of the two directors so elected shall terminate
automatically (subject to revesting in the event of each and every subsequent
default of the character specified in the preceding sentence and to any
continuing rights of holders of such Parity Dividend Stock). So long as such
right to vote continues, the Secretary of the Corporation shall call, upon the
written request of the holders of record of at least 10% of the outstanding
shares of Series [ ] Preferred Stock addressed to him or her at the principal
office of the Corporation or, if such a request is not made, upon his or her own
motion, a special meeting of the holders of such shares (and of such Parity
Dividend Stock, if any) for the election of such two directors, as provided
herein. Such meeting shall be held not less than 45 or more than 90 days after
the accrual of such right, at the place and upon the notice provided by law and
in the by-laws of the Corporation for the holding of meetings of shareholders.
No such special meeting or adjournment thereof shall be held on a date less than
30 days before an annual meeting of shareholders or any special meeting in lieu
thereof; provided, that at such annual meeting appropriate provisions are made
to allow the holders of the Series [ ] Preferred Stock (and of such Parity
Dividend Stock, if any) to exercise such right at such meeting. If at any such
annual or special meeting or any adjournment thereof the holders of a majority
of the then outstanding shares of Series [ ] Preferred Stock (and of such
Parity Dividend Stock, if any) entitled to vote in such election shall be
present or represented by proxy, then the authorized number of directors of the
Corporation shall be increased by two, and the holders of Series [ ]
Preferred Stock (voting separately as a single class with all such Parity
Dividend Stock, if any) shall be entitled to elect such two additional
directors. Directors so elected shall serve until the next annual meeting or
until their successors shall be elected and shall qualify, unless the term of
office of the persons so elected as directors shall have terminated by virtue of
the payment in full of all dividends in arrears (or such dividends shall have
been declared and funds sufficient therefor set apart for payment). In case of
any vacancy occurring among the directors so elected by the holders of Series [
] Preferred Stock (and of such Parity Dividend Stock, if any), the remaining
director who shall have been so elected may appoint a successor to hold office
for the unexpired term of the director whose place shall be vacant, and such
successor shall
6
<PAGE>
be deemed to have been elected by the holders of Series [ ] Preferred
Stock (and of such Parity Dividend Stock, if any). If both directors
so elected by the holders of Series [ ] Preferred Stock (and of such Parity
Dividend Stock, if any) shall cease to serve as directors before their terms
shall expire, the holders of Series [ ] Preferred Stock (and of such Parity
Dividend Stock, if any) then outstanding and entitled to vote for such directors
may, at a special meeting of such holders called as provided above, elect
successors to hold office for the unexpired terms of the directors whose places
shall be vacant.
SECTION 9. CERTAIN ACTIONS NOT TO BE TAKEN WITHOUT VOTE OF HOLDERS OF
SERIES [ ] PREFERRED STOCK. Without the consent or affirmative vote of the
holders of at least a majority of the outstanding shares of Series [ ]
Preferred Stock, voting separately as a class, the Corporation shall not
authorize, create or issue any shares of any other class or series of capital
stock ranking senior to the Series [ ] Preferred Stock as to dividends or
upon liquidation. [The affirmative vote or consent of the holders of at least a
majority of the outstanding shares of the Series [ ] Preferred Stock, voting
separately as a class, shall be required for any amendment, alteration or
repeal, whether by merger or consolidation or otherwise, of the Corporation's
Articles of Incorporation (including any certificate of designations
establishing any class or series of Preferred Stock of the Corporation) if the
amendment, alteration or repeal adversely affects the rights or preferences of
the Series [ ] Preferred Stock; provided, however, that any increase in the
authorized Preferred Stock of the Corporation or the creation and issuance of
any other capital stock of the Corporation ranking on a parity with or junior to
the Series [ ] Preferred Stock shall not be deemed to materially affect such
powers, preferences or special rights.](2)
SECTION 10. OUTSTANDING SHARES. For purposes of this Certificate of
Designations, all shares of Series [ ] Preferred Stock shall be deemed
outstanding except for (a) shares of Series [ ] Preferred Stock held of
record or beneficially by the Corporation or any subsidiary of the Corporation,
and (b) from the date fixed for redemption pursuant to Section 6, all shares of
Series [ ] Preferred Stock which have been called for redemption, provided
that funds necessary for such redemption are available therefor and have been
irrevocably deposited or set aside for such purpose.(3)
SECTION 11. STATUS OF SERIES [ ] PREFERRED STOCK UPON RETIREMENT.
Shares of Series [ ] Preferred Stock which are acquired or redeemed by the
Corporation shall
- ----------------------
(2) Use the bracketed language if stronger protection is desired than is
provided by Minnesota Statutes, Section 302A.137.
(3) If shares are exchangeable or convertible, add appropriate references in
this paragraph to such events.
7
<PAGE>
return to the status of authorized and unissued shares of Preferred Stock
of the Corporation without designation as to series. Upon the acquisition
or redemption by the Corporation of all outstanding shares of Series
[ ] Preferred stock, all provisions of this Certificate of Designations shall
cease to be of further effect. Upon the occurrence of such event, the Board of
Directors of the Corporation shall have the power, pursuant to Minnesota
Statutes, Section 302A.133 or any successor provision and without shareholder
action, to cause restated articles of incorporation of the Corporation or other
appropriate documents to be prepared and filed with the Secretary of State of
the State of Minnesota which reflect such removal of all provisions relating to
the Series [ ] Preferred Stock and/or the cancellation of this Certificate of
Designations.(4)
IN WITNESS WHEREOF, United HealthCare Corporation has caused this
certificate to be signed by [name of officer], its [title], this _________
day of ___________________________, 199____.
UNITED HEALTHCARE CORPORATION
By______________________________________________
[Name of signer]
[Title of signer]
- -----------------------------
(4) If shares are exchangeable or convertible, add appropriate references in
this paragraph to such events.
8
<PAGE>
[Letterhead of David J. Lubben, Esq.]
Exhibit 5
Board of Directors
United HealthCare Corporation
300 Opus Center
9900 Bren Road East
Minnetonka, Minnesota 55343
Re: Registration Statement on Form S-3 (Universal Shelf)
Ladies and Gentlemen:
As General Counsel of United HealthCare Corporation, a Minnesota
corporation (the "Company"), I am familiar with the affairs of the Company.
This opinion is being delivered in connection with a Registration Statement on
Form S-3 (the "Registration Statement") to be filed with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, relating to the offer and sale from time to time by the Company of (i)
its unsecured debt securities, which may be either senior debt securities (the
"Senior Debt Securities") or subordinated debt securities (the "Subordinated
Debt Securities" and, together with the Senior Debt Securities, the "Debt
Securities"), in one or more series; (ii) shares of its preferred stock, $.001
par value per share (the "Preferred Stock"), in one or more series; and (iii)
shares of its common stock, par value $.01 per share (the "Common Stock"), for
an aggregate initial public offering price of up to $200,000,000. The Debt
Securities, Preferred Stock, and Common Stock are referred to herein
collectively as the "Securities."
I and members of my staff have examined such documents, including
resolutions adopted by the Board of Directors with respect to the Registration
Statement and the Securities (the "Resolutions"), and have reviewed such
questions of law, as I have deemed necessary for the purposes of rendering the
opinions set forth below. In rendering the opinions set forth below, I have
assumed, with respect
<PAGE>
to all parties to agreements or instruments relevant hereto other than the
Company, that such parties had or will have the requisite power and authority
(corporate and otherwise) to execute, deliver and perform such agreements or
instruments, that such agreements or instruments have been or will have been
duly authorized by all requisite action (corporate and otherwise), executed and
delivered by such parties and that such agreements or instruments are or will be
the valid, binding and enforceable obligations of such parties. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to them in the forms of Indentures filed as Exhibits 4.1 and 4.2 to the
Registration Statement (each, an "Indenture").
Based on the foregoing, I am of the opinion that:
1. When the issuance of a series of Debt Securities has been
authorized by the Board of Directors or has been authorized by officers of the
Company pursuant to authority granted in the Resolutions, the applicable
Indenture has been executed and delivered by the Company and the applicable
Trustee in substantially the form filed as an exhibit to the Registration
Statement, and the specific terms of such series of Debt Securities have been
specified in a supplemental indenture or an Officer's Certificate which has been
executed and delivered to such Trustee by an authorized officer of the Company
in accordance with the terms of such Indenture, such series of Debt Securities
will have been duly authorized by all requisite corporate action and, when
executed and authenticated as specified in such Indenture and delivered against
payment therefor pursuant to the terms described in the Registration Statement,
will constitute valid and binding obligations of the Company, enforceable in
accordance with the terms of such series.
2. When the issuance of a series of Preferred Stock has been
authorized by the Board of Directors or has been authorized by officers of the
Company pursuant to authority granted in the Resolutions, the rights and
preferences of such series of Preferred Stock have been specified in a
Certificate of Designations duly adopted by the Board of Directors in
substantially the form filed as an exhibit to the Registration Statement, and
such Certificate of Designations has been duly filed with the Secretary of State
of the State of Minnesota, such series of Preferred Stock will have been duly
authorized by all requisite corporate action and, upon issuance, delivery and
payment therefor as described in the Registration Statement, will be validly
issued, fully paid and nonassessable.
3. When a particular issuance of shares of Common Stock has been
authorized by the Board of Directors or has been authorized by officers of the
Company pursuant to authority granted in the Resolutions, such Common Stock will
have been duly authorized by all requisite corporate action and, upon issuance,
delivery and payment therefor as described in the Registration Statement, will
be validly issued, fully paid and nonassessable.
<PAGE>
The opinions set forth above are subject to the following
qualifications and exceptions:
(a) The opinions in paragraph 1 above are subject to the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium or
other similar law of general application affecting creditors' rights, and
to the effect of general principles of equity, including (without
limitation) concepts of materiality, reasonableness, good faith and fair
dealing, and other similar doctrines affecting the enforceability of
agreements generally (regardless of whether considered in a proceeding in
equity or at law).
(b) In rendering the opinions set forth above, I have assumed
that, at the time of the issuance and delivery of a series of Securities,
the Resolutions will not have been modified or rescinded and there will
not have occurred any change in the law affecting the authorization,
execution, delivery, validity or enforceability of the Securities.
The opinions expressed above are limited to the laws of the State of
Minnesota and the federal laws of the United States of America.
I hereby consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to me under the caption " Legal
Matters" contained in the Prospectus included therein.
Dated: January 20, 1998
Very truly yours,
/s/ David J. Lubben
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accounts, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-3 of our report dated
February 28, 1997 incorporated by reference United HealthCare Corporation's
Annual Report on Form 10-K for the year ended December 31, 1996 and to all
references to our firm included in this Registration Statement.
Minneapolis, Minnesota
January 20, 1998
<PAGE>
Exhibit 24
POWER OF ATTORNEY
(Form S-3 Universal Shelf)
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints David J. Lubben and William W.
McGuire, M.D., his or her true and lawful attorneys-in-fact and agents, with
full powers of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities to execute a Registration
Statement on Form S-3 to be filed under the Securities Act of 1933, as amended,
for the registration of the debt and equity securities referred to therein, and
any and all pre- and post-effective amendments thereto, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform to all intents and purposes as
he or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do or
cause to be done by virtue hereof.
Dated: January 20, 1998
/s/ William C. Ballard, Jr. /s/ Mary O. Mundinger
- -------------------------------------- ----------------------------------------
William C. Ballard, Jr. Mary O. Mundinger
/s/ Richard T. Burke /s/ Robert L. Ryan
- -------------------------------------- ----------------------------------------
Richard T. Burke Robert L. Ryan
/s/ James A. Johnson /s/ Kennett L. Simmons
- -------------------------------------- ----------------------------------------
James A. Johnson Kennett L. Simmons
/s/ William G. Spears
- -------------------------------------- ----------------------------------------
Thomas H. Kean William G. Spears
/s/ Douglas W. Leatherdale /s/ Gail R. Wilensky
- -------------------------------------- ----------------------------------------
Douglas W. Leatherdale Gail R. Wilensky
/s/ Walter F. Mondale
- --------------------------------------
Walter F. Mondale
