As filed with the Securities and Exchange Commission on May 18, 1994
Registration No. 33-
Post Effective Amendement No. 1 to Registration Statement No. 33-33592
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-3
REGISTRATION STATEMENT
AND POST-EFFECTIVE AMENDMENT
UNDER
THE SECURITIES ACT OF 1933
NYNEX CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 1113 Westchester Avenue 13-3180909
(State or other White Plains, New York 10604 (I.R.S. Employer
jurisdiction or (914) 644-6400 Identification No.)
organization) (Address, including zip code,
and telephone number
including area code, or registrant's
principal executive offices)
P.M. Ciccone
Vice President and
Comptroller
NYNEX Corporation
1113 Westchester Avenue
White Plains, New York 10604
(914) 644-6400
(Name, address including zip code, and
telephone number, including area code of
agent of service)
Please address a copy of all communications to:
Raymond F. Burke ESQ. Raymond W. Wagner, ESQ.
Executive Vice President and General Counsel Simpson Thacher & Bartlett
NYNEX Corporation 425 Lexington Avenue
1113 Westchester Avenue New York, New York 10017
White Plains, New York 10604
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement as determined
by market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestement plans, please check the
following box. / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. / X /
<TABLE>
CALCULATIONS OF REGISTRATION FEE
<CAPTION>
Title of Each Class Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of
of Securities to Registered (1)(2)(3) Price per Unit (2)(4)(5) Offering Price (5) Registration Fee
be Registered
<S> <C> <C> <C> <C>
Common Stock (6)
Preferred Stock
Debt Securities $900,00,000 100% $9000,000,000(7) $310,347
<F01>
(1) This Registration Statement also covers such indeterminate amount of
securities as may be issued in exchange for, or upon conversion of, as
the case may be, the Preferred Stock or Debt Securities registered
hereunder.
<F02>
(2) Not specified as to each class of securities to be registered pursuant
to General Instruction II(D) to Form S-3 under the Securities Act of 1933,
as amended.
<F03>
(3) The aggregate principal amount of the Debt Securities may be increased
if any Debt Securities are issued at an original issue discount by an
amount such that the gross proceeds to be received by NYNEX Corporation
shall be equal to the above amount to be registered. Any offering of Debt
Securities denominated other than in U.S. dollars will be treated as the
equivalent of U.S. dollars based on the exchange rate applicable to the
purchase of such Debt Securities at the time of initial offering.
<F04>
(4) The proposed maximum offering price per unit will be determined from
time to time by the Registrant in connection with, and at the time of, the
issuance by the Registrant of the securities registered hereunder.
<F05>
(5) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) of the Rules and Regulations of the
Securities and Exchange Commission under the Securities Act of 1933,
as amended.
<F06>
(6) Includes Junior Participating Preferred Stock and related purchase
rights, which prior to the occurrence of certain events will not be
exercisable or evidenced separately from the Common Stock.
<F07>
(7) No separate consideration will be received for any securities registered
hereunder that are issued in exchange for, or upon conversion of, as the
case may be, the Preferred Stock or Debt Securities registered hereunder.
</TABLE>
Pursuant to Rule 429 under the Securities Act of 1933, as amended,
the Prospectus contained herein also relates to Registration Statement
No. 33-33592, previously filed by the Registrant on Form S-3 and
declared effective on March 5, 1990 and under which $50,000,000 of debt
securities remains to be issued. This Registration Statement is a new
Registration Statement and also constitutes Post-Effective Amendment
No. 1 to Registration Statement No. 33-33592.
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, as amended,
or until the Registration Statement shall become effective on such date
as the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
A 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.
<PAGE>
SUBJECT TO COMPLETION, DATED MAY __, 1994
PROSPECTUS
$950,000,000
NYNEX CORPORATION
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
____________________
NYNEX Corporation ("NYNEX") may issue and sell from time to time
(i) shares of common stock, $1.00 par value per share (the "Common Stock"),
accompanied by rights to purchase Junior Participating Preferred Stock (the
"Rights"), (ii) shares of preferred stock, $1.00 par value per share, in
one or more series (the "Preferred Stock") and (iii) unsecured senior debt
securities in one or more series (the "Debt Securities"). The Common Stock,
Preferred Stock and Debt Securities (collectively, the "Securities") will
be limited to $950,000,000 aggregate public offering price.
The specific terms of the particular Securities to be issued will be
set forth in a supplement to this Prospectus (a "Prospectus Supplement")
which will be delivered together with this Prospectus, including, where
applicable, (i) in the case of Common Stock, the number of shares, (ii) in
the case of Preferred Stock, the specific designation, number of shares and
liquidation value thereof and the dividend, liquidation, redemption, voting
and other rights, including conversion or exchange rights, if any, and any
other special terms, and (iii) in the case of Debt Securities, the specific
designation, aggregate principal amount, authorized denominations,
maturity, interest rate (or manner of calculation thereof) and time of
payment of interest, if any, and redemption or repayment terms, the
currency, currencies or currency unit or units in which the Debt Securities
shall be payable, any other rights, including conversion or exchange
rights, if any, and any other special terms. The Prospectus Supplement will
also contain information regarding the initial public offering price, the
net proceeds to NYNEX and, where applicable, the United States Federal
income tax considerations relating to the Securities covered by the
Prospectus Supplement.
NYNEX may sell Securities to or through one or more underwriters, and
may also sell Securities directly to other purchasers or through agents.
See "Plan of Distribution." The accompanying Prospectus Supplement sets
forth the names of any underwriters, dealers or agents involved in the sale
of the Securities in respect of which this Prospectus is being delivered,
and any applicable fee, commission or discount arrangements with them.
NYNEX's Common Stock is listed on the New York, Boston, Chicago,
Pacific and Philadelphia Stock Exchanges under the symbol "NYN". The
Prospectus Supplement will contain information about any listing on a
securities exchange of the Securities covered by the Prospectus Supplement.
____________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
_______________________
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF SECURITIES UNLESS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
, 1994
<PAGE>
No person has been authorized to give any information or to make any
representations not contained or incorporated by reference in this
Prospectus or in the Prospectus Supplement in connection with the offer
made by this Prospectus or the Prospectus Supplement and, if given or made,
such information or representations must not be relied upon as having been
authorized by NYNEX or by any underwriter, dealer or agent. This Prospectus
and the Prospectus Supplement do not constitute an offer to sell or a
solicitation of an offer to buy any of the Securities offered hereby or
thereby in any jurisdiction to any person to whom it is unlawful to make
such offer or solicitation in such jurisdiction. This Prospectus and the
Prospectus Supplement do not constitute an offer to sell or a solicitation
of an offer to buy any Securities other than those to which they relate.
The delivery of this Prospectus or the Prospectus Supplement at any time
does not imply that the information herein or therein is correct as of any
time subsequent to its date.
______________________
AVAILABLE INFORMATION
NYNEX is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and
Exchange Commission (the "SEC"). Such reports and other information filed
by NYNEX can be inspected and copied at the public reference facilities of
the SEC, Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, DC
20549, as well as at the following SEC Regional Offices: Seven World Trade
Center, New York, NY 10048; and Northwestern Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, IL 60601-2511. Copies can be obtained
from the SEC by mail at prescribed rates. Requests should be directed to
the SEC's Public Reference Section, Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, DC 20549.
NYNEX has filed with the SEC Registration Statements on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities
Act"), covering the Securities offered hereby. This Prospectus does not
contain all of the information set forth in the Registration Statement,
certain parts of which are omitted from the Prospectus in accordance with
the rules and regulations of the SEC. For further information, reference is
made to the Registration Statement.
______________________
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated herein by reference:
(1) NYNEX's Annual Report on Form 10-K for the year ended December
31, 1993, as amended;
(2) NYNEX's Quarterly Report on Form 10-Q for the quarter ended March
31, 1994, as amended;
(3) NYNEX's Current Reports on Form 8-K dated December 24, 1993,
January 24, 1994, March 3, 1994 and March 24, 1994; and
(4) The description of NYNEX's Common Stock on Form 10 dated November
15, 1983 Form 8-A dated October 20, 1989, as amended.
All documents filed 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 shall be deemed to be incorporated by reference
in this Prospectus and to be part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is
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.
Copies of the above documents (excluding exhibits to such documents,
unless such exhibits are specifically incorporated by reference therein)
may be obtained upon written or oral request without charge
<PAGE>
by each person to whom this Prospectus is delivered from the Treasurer of
NYNEX, 1113 Westchester Avenue, White Plains, NY 10604 (telephone number
(914) 644-6400).
NYNEX CORPORATION
NYNEX was incorporated on October 7, 1983 under the laws of the State
of Delaware and has its principal executive offices at 1113 Westchester
Avenue, White Plains, NY 10604 (telephone number (914) 644-6400). NYNEX is
a holding company with various subsidiaries engaged in the provision of
telecommunications products and services, directory publishing and other
business services.
NYNEX provides products and services in several industry segments.
NYNEX's dominant industry segment is Telecommunications, which includes New
York Telephone Company, New England Telephone and Telegraph Company and
their subsidiaries (collectively, the "Telephone Companies"). The Telephone
Companies provided NYNEX with 86% of its operating revenues in 1993.
In addition to Telecommunications, NYNEX has wholly-owned subsidiaries
in the following industry segments: Cellular (NYNEX Mobile Communications
Company), Publishing (NYNEX Information Resources Company), Financial
Services (NYNEX Credit Company, NYNEX Capital Funding Company and NYNEX
Trade Finance Company) and Other Diversified Operations (including NYNEX
Network Systems Company and NYNEX CableComms Limited, among others).
Because NYNEX is a holding company, the right of NYNEX and thus the
right of creditors and stockholders of NYNEX (including holders of the
Securities) to participate in any distribution of the assets or earnings of
any subsidiary is subject to the prior claims of creditors of each such
subsidiary (including the Telephone Companies), except to the extent that
any claims of NYNEX itself as a creditor of a subsidiary may be recognized.
As a holding company, NYNEX's principal source of funds is dividends from
the Telephone Companies. The right of creditors and stockholders of NYNEX
(including holders of the Securities) to participate in the distribution of
stock of the Telephone Companies would be, and, under certain
circumstances, the ability of NYNEX to obtain cash from the Telephone
Companies may be, subject to the approval of the regulatory commissions
having jurisdiction over such subsidiaries (including the Federal
Communications Commission).
<TABLE>
RATIO OF EARNINGS TO FIXED CHARGES
<CAPTION>
The following table sets forth the ratio of earnings to fixed charges
of NYNEX for the periods indicated:
Three Months
Ended
March 31,
1994 Year Ended December 31,
(unaudited) 1993 1992 1991 1990 1989
<S> <C> <C> <C> <C> <C>
3.29 .42* 3.34 1.93 2.60 2.33
_______________
* Earnings were inadequate to cover fixed charges by $445.1 million for
the year ended December 31, 1993 as a result of $2.1 billion of fourth
quarter 1993 business restructuring charges.
For the purpose of this ratio, (i) earnings have been calculated by
adding Interest expense and the estimated interest portion of rentals to
Earnings (loss) before income taxes and cumulative effect of change in
accounting principle; and (ii) fixed charges are comprised of Interest
expense and the estimated interest portion of rentals.
</TABLE>
<PAGE>
USE OF PROCEEDS
Unless otherwise indicated in the accompanying Prospectus Supplement,
the net proceeds from the sale of the Securities will be used to provide
funds for NYNEX and/or non-Telephone Companies of NYNEX.
DESCRIPTION OF COMMON STOCK
The following description of the terms of the Common Stock summarizes
certain provisions of the General Corporation Law of the State of Delaware
(the "Delaware General Corporation Law"), the Restated Certificate of
Incorporation of NYNEX (the "Restated Certificate of Incorporation") and
the Rights Agreement (the "Rights Agreement") between NYNEX and The First
National Bank of Boston, as successor Rights Agent (the "Rights Agent") and
is subject to and qualified in its entirety by reference to such provisions
and documents.
The authorized capital stock of NYNEX consists of 750,000,000 shares
of Common Stock, par value $1.00 per share, and 75,000,000 shares of
Preferred Stock. At April 30, 1994, NYNEX had outstanding 417,882,505
shares of Common Stock (not including shares held in treasury) and no
shares of Preferred Stock.
The Common Stock will, when issued, be fully paid and nonassessable.
Dividend Rights
Subject to the preferences applicable to any shares of preferred stock
then outstanding, the holders of Common Stock are entitled to dividends,
when, as and if declared by the Board of Directors of NYNEX (the "Board of
Directors") out of funds legally available therefor.
Voting Rights
The holders of Common Stock are entitled to one vote for each share of
Common Stock. Subject to the rights, if any, of the holders of any series
of preferred stock then outstanding, all voting rights are vested in the
holders of shares of Common Stock. The holders of Common Stock have no
cumulative voting rights.
Rights Upon Liquidation
In the event of liquidation, dissolution or winding up of NYNEX, after
there have been paid or set aside for the holders of all series of
preferred stock then outstanding the full preferential amounts to which
such holders are entitled, the holders of Common Stock will be entitled to
share equally in any assets of NYNEX remaining after the payment of all
debts and liabilities of NYNEX.
Change of Control
The following provisions of the Restated Certificate of Incorporation,
the NYNEX By-Laws and the Delaware General Corporation Law could make more
difficult the acquisition of NYNEX by means of a tender offer, a proxy
contest or otherwise. These provisions may have the effect of delaying,
deferring or preventing a change in control of NYNEX and may discourage
bids for the Common Stock at a premium over the market price of the Common
Stock.
Fair Price Provisions. The Restated Certificate of Incorporation
contains provisions designed to discourage any person who is, or was at any
time within two years prior to the date in question, the beneficial owner
of 10% or more of the then outstanding shares of capital stock of NYNEX
entitled to vote generally in the election of directors (the "Voting
Shares") (or certain assignees) (an "Interested Stockholder"), from
utilizing two-tier pricing and similar tactics in an attempted change of
control, and to help assure that all NYNEX stockholders are treated
similarly if certain types of business combinations are effected (the "Fair
Price Provisions").
The Fair Price Provisions require, in addition to any affirmative vote
required by the Delaware General Corporation Law, the affirmative vote of
the holders of at least 75% of the voting power of the Voting Shares,
voting as a single class, in order to approve certain mergers,
consolidations, security issuances, liquidations, recapitalizations and any
sale, lease or transfer of any assets valued at $50 million or more
<PAGE>
("Business Combinations") with, or proposed by or on behalf of, an
Interested Stockholder or any of its affiliates or associates, unless
either (A) the Business Combination is approved by 75% of those directors,
other than the Interested Stockholder or its affiliates or associates, who
were directors prior to the time the Interested Stockholder became such (or
certain of such directors' successors) ("Continuing Directors") (provided
that the Continuing Directors constitute at least three members of the
Board of Directors at the time of such approval), or (B) all of the
requirements described in paragraphs (i), (ii), (iii), (iv) and (v) below
are satisfied with respect to each class of voting stock:
(i) In a Business Combination where the holders of shares
of a particular class of voting stock are to receive payment, the
consideration to be received by holders of shares of such class must be
either cash or, if the consideration previously paid by the Interested
Stockholder in connection with its acquisition of Voting Shares consisted,
in whole or in part, of consideration other than cash, then in the same
form as such consideration. If such payment was made in varying forms of
consideration, then such consideration must be either cash or the same form
of consideration used by the Interested Stockholder or any of its
affiliates or associates in acquiring the largest number of shares of such
class previously acquired by such Interested Stockholder.
(ii) In a Business Combination where the holders of shares
of Common Stock are to receive payment, such holders are entitled to
receive, on or before the date of consummation of the Business Combination
("Consummation Date"), consideration for their shares having an aggregate
fair market value within five days prior to the Consummation Date at least
equal to the higher of the following two alternatives: (a) the highest per
share price (including brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by the Interested Stockholder, or by any of its
affiliates or associates, for any shares of Common Stock within the two-
year period immediately prior to the first public announcement of the
proposed Business Combination (the "Announcement Date"), or the per share
price paid by the Interested Stockholder, or by any of its affiliates or
associates, in the transaction in which it became an Interested
Stockholder, whichever is higher; or (b) the fair market value per share of
Common Stock on the Announcement Date or on the date such Interested
Stockholder became an Interested Stockholder, whichever is higher. In the
case of payments to holders of any class of voting stock other than Common
Stock, the consideration must be at least equal to the higher of (x) the
highest per share price determined with respect to such class in the same
manner as described above with respect to Common Stock or (y) the highest
preferential amount per share, if any, to which the holders of shares of
such class of voting stock would be entitled as of the Consummation Date in
the event of any voluntary or involuntary liquidation, dissolution or
winding up of NYNEX.
(iii) After the Interested Stockholder becomes an Interested
Stockholder and through the Consummation Date, unless approved by a
majority of the Continuing Directors, there shall have been (subject to
certain exceptions) (a) no failure to declare or pay at the regular date
therefor any full dividends on the outstanding preferred stock of NYNEX, if
any; (b) no reduction in the annual rate of dividends paid on the Common
Stock; (c) an increase in such annual rate of dividends as necessary to
reflect any reclassification, recapitalization or similar transaction which
has the effect of reducing the number of outstanding shares of Common
Stock; and (d) no increase in the number of Voting Shares beneficially
owned by the Interested Stockholder or any of its affiliates or associates.
(iv) After the Interested Stockholder becomes an Interested
Stockholder, neither such Interested Stockholder nor any affiliate or
associate thereof, whether in connection with the proposed Business
Combination or otherwise, shall receive the benefit of any loans or other
financial assistance or tax advantages provided by NYNEX (other than
proportionately as a stockholder).
(v) A proxy or information statement complying with the
requirements of the proxy rules promulgated under the Exchange Act and
disclosing the terms and conditions of the proposed Business Combination
shall be mailed to all stockholders at least 30 days prior to the
Consummation Date.
Moreover, if the transaction does not involve the receipt of cash or
other property by any stockholders other than the Interested Stockholder,
as in the case of a sale of assets or an issuance of NYNEX securities to an
Interested Stockholder, the form of consideration, minimum price and
procedural requirements would not apply and approval by holders of 75% of
the voting power of the Voting Shares would be required under the Fair
Price Provisions unless the transaction were to be approved by 75% of the
Continuing Directors.
<PAGE>
The Fair Price Provisions require the affirmative vote of 75% of the
voting power of the Voting Shares in order to amend, alter or repeal, or
adopt any provision inconsistent with, such provisions.
Anti-Takeover Statute. Section 203 of the Delaware General
Corporation Law generally prohibits a publicly held Delaware corporation
from engaging in a "Business Combination" with an "interested stockholder"
for a period of three years after the date of the transaction in which the
person became an interested stockholder, unless (i) prior to the date such
stockholder became an interested stockholder, either the business
combination or such transaction is approved by the board of directors of
the corporation, (ii) upon consummation of the transaction which resulted
in the stockholder becoming an interested stockholder, the interested
stockholder owns at least 85% of the outstanding voting stock, or (iii) on
or after the date such stockholder became an interested stockholder, the
business combination is approved by the board of directors and by the
affirmative vote of at least 66 2/3% of the outstanding voting stock which
is not owned by the interested stockholder. A "business combination"
includes mergers, certain asset sales and certain other transactions
resulting in a financial benefit to the stockholder. An "interested
stockholder" is a person who, together with affiliates and associates, owns
(or within three years, did own) 15% or more of the corporation's voting
stock.
Other. The Restated Certificate of Incorporation provides that
NYNEX's directors, other than those who may be elected by the holders of
preferred stock under certain specified circumstances, are divided into
three classes. The terms of office of each class expire at the third
succeeding annual meeting of stockholders after the election of such class,
the initial terms of the three classes having expired in 1988, 1989 and
1990, respectively. Subject to the rights of the holders of preferred
stock, any director may be removed only for cause and only by the
affirmative vote of the holders of 75% of the voting power of the
outstanding shares of capital stock entitled to vote generally in the
election of directors. The foregoing and certain other provisions in the
Restated Certificate of Incorporation relating to the Board of Directors
may be altered, amended or repealed only by the affirmative vote of the
holders of at least 75% of the voting power of the outstanding shares of
capital stock entitled to vote generally in the election of directors.
The Restated Certificate of Incorporation also provides that any
action to be taken at any meeting of stockholders by written consent in
lieu of a meeting must be signed by the holders of all the shares of
capital stock that would be entitled to vote at such a meeting. Further,
special meetings of the stockholders of NYNEX may be called only by the
Board of Directors or at the request in writing of stockholders owning at
least two-thirds of the outstanding shares entitled to vote.
The Board of Directors, without further action by the stockholders, is
also authorized to issue up to 75,000,000 shares of Preferred Stock in one
or more series with such designations, preferences and relative,
participating, optional or other special rights and such qualifications,
limitations or restrictions thereof, as shall be expressed in the
resolution or resolutions providing for the issue of such series adopted by
the Board of Directors and as are not inconsistent with the Restated
Certificate of Incorporation or any amendment thereto, and as may be
permitted by the Delaware General Corporation Law. See "Description of
Preferred Stock."
Rights Plan
On October 19, 1989, the Board of Directors declared a dividend
distribution of one Right for each outstanding share of Common Stock of
NYNEX to stockholders of record at the close of business on October 31,
1989 (the "Record Date"). Except as described below, each Right, when
exercisable, entitles the registered holder thereof to purchase from NYNEX
one one-hundredth of a share of Series A Junior Participating Preferred
Stock, par value $1.00 per share (the "Junior Preferred Stock"), at a price
of $250 per one one-hundredth of a share (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are set forth in the
Rights Agreement.
Initially, the Rights will be attached to all Common Stock
certificates representing shares then outstanding, and no separate
certificate will be distributed with respect to any Rights. Until the
earlier to occur of (i) 10 days following a public announcement that a
person or group of affiliated or associated persons (an "Acquiring Person")
has acquired, or obtained the right to acquire, beneficial ownership of 15%
or more of the outstanding shares of Common Stock (the "Stock Acquisition
Date"), or (ii) 10 business days (or such later date as may be determined
by action of a majority of the Board of Directors) following the
commencement of (or a public announcement of an intention to make) a tender
or exchange offer if, upon consummation thereof, such person or group would
<PAGE>
be the beneficial owner of 15% or more of such outstanding shares of Common
Stock (the earlier of such dates being called the "Distribution Date"), the
Rights will be evidenced, with respect to any of the Common Stock
certificates outstanding as of the Record Date, by such Common Stock
certificate. The Rights Agreement provides that, until the Distribution
Date, the Rights will be transferred with and only with Common Stock
certificates. From as soon as practicable after the Record Date and until
the Distribution Date (or earlier redemption, expiration or termination of
the Rights), new Common Stock certificates issued after the Record Date
upon transfer or new issuance of the Common Stock will contain a notation
incorporating the Rights Agreement by reference. Until the Distribution
Date (or earlier redemption, expiration or termination of the Rights), the
surrender for transfer of any certificate for Common Stock will also
constitute the transfer of the Rights associated with the Common Stock
represented by such certificate. As soon as practicable following the
Distribution Date, separate certificates evidencing the Rights (each a
"Right Certificate") will be mailed to holders of record of the Common
Stock as of the close of business on the Distribution Date and, thereafter,
such separate Right Certificate alone will evidence the Rights.
The Rights are not exercisable until after the Distribution Date and
will expire at the earliest of (i) October 31, 1999, (ii) upon redemption
by NYNEX as described below and (iii) upon exchange by NYNEX as described
below.
In the event that any person (other than NYNEX and its affiliates)
becomes the beneficial owner of 15% or more of the then outstanding shares
of Common Stock (a "Section 11(a)(ii) Event"), proper provision will be
made so that each holder of a Right will thereafter have the right to
receive, upon exercise at the then current exercise price of the Right,
Common Stock (or, in certain circumstances, cash, property or other
securities of NYNEX) having a value equal to two times the exercise price
of the Right.
In the event that, at any time following the Distribution Date, NYNEX
is acquired in a merger or other business combination transaction or 50% or
more of NYNEX's assets or earning power is sold (a "Section 13(a) Event"),
proper provision will be made so that each holder of a Right will
thereafter have the right to receive, upon exercise at the then current
exercise price of the Right, common stock of the acquiring or surviving
company having a value equal to two times the exercise price of the Right.
Notwithstanding the foregoing, following the occurrence of a Section
11(a)(ii) Event or a Section 13(a) Event (collectively, "Triggering
Events"), any Rights that are, or (under certain circumstances specified in
the Rights Agreement) were, beneficially owned by any Acquiring Person will
immediately become null and void.
The Purchase Price payable, and the number of shares of Junior
Preferred Stock or other securities or property issuable, upon exercise of
the Rights are subject to adjustment from time to time to prevent dilution
(i) in the event of a stock dividend on, or a subdivision, combination or
reclassification of, the Junior Preferred Stock, (ii) upon the grant to
holders of the Junior Preferred Stock of certain rights or warrants to
subscribe for Junior Preferred Stock or convertible securities at less than
the current market price of the Junior Preferred Stock, or (iii) upon the
distribution to holders of the Junior Preferred Stock of evidences of
indebtedness or assets (excluding regular quarterly cash dividends) or of
subscription rights or warrants (other than those referred to above).
At any time after the acquisition by a person or group of affiliated
or associated persons of beneficial ownership of 15% or more of the then
outstanding shares of Common Stock and prior to the acquisition by such
person or group of 50% or more of the outstanding Common Stock, the Board
of Directors may exchange the Rights (other than Rights owned by such
person or group which will have become void), in whole or in part, at an
exchange ratio of one share of Common Stock per Right (subject to
adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1%
in the Purchase Price. No fractional shares of Junior Preferred Stock
(other than fractions in multiples of one one-hundredths of a share) will
be issued and, in lieu thereof, an adjustment in cash will be made based on
the market price of the Junior Preferred Stock on the last trading date
prior to the date of exercise.
At any time after the date of the Rights Agreement until the earliest
of (i) the Stock Acquisition Date, (ii) the date of any Section 13(a) Event
and (iii) October 31, 1999, NYNEX may redeem the Rights in whole, but not
in part, at a price of $.01 per Right (the "Redemption Price"). Immediately
upon the action of the Board of Directors ordering redemption of the
Rights, the Rights will terminate and the only right of the holders of
Rights will be to receive the Redemption Price.
<PAGE>
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of NYNEX, including, without limitation, the right
to vote or to receive dividends.
The provisions of the Rights Agreement may be amended by NYNEX, except
that NYNEX may not amend the Rights Agreement to (i) reduce the Redemption
Price, (ii) provide for an earlier Final Expiration Date (as defined in the
Rights Agreement), (iii) alter the procedure required to redeem the Rights
or (iv) if at the time of such amendment the Rights are not redeemable,
extend the time during which the Rights may be redeemed. In addition, any
amendment from and after such time as there is an Acquiring Person may not
adversely affect the interests of holders of Rights.
The Rights Agreement is intended to protect stockholders in the event
of unsolicited offers or attempts to acquire NYNEX, including offers that
do not treat all stockholders equally, acquisition in the open market of
shares constituting control without offering fair value to all stockholders
and other coercive or unfair takeover tactics that would impair the Board
of Directors' ability to represent stockholders' interests fully.
Anti-Greenmail Provisions
The Restated Certificate of Incorporation contains provisions designed
to discourage the discriminatory impact of "greenmail," which could involve
the purchase by NYNEX of a substantial block of NYNEX shares at a more
favorable price to the stock purchaser than would be available to other
stockholders (the "Anti-Greenmail Provisions").
The Anti-Greenmail Provisions require that any purchase by NYNEX or
any of its subsidiaries of any equity securities of NYNEX from a holder of
more than 5% of the outstanding Voting Shares (or any affiliate or
associate thereof) who has beneficially owned such securities for less than
two years must be approved by the affirmative vote of holders of at least a
majority of the voting power of the Voting Shares, excluding Voting Shares
beneficially owned by the more than 5% holder, voting as a single class.
The Anti-Greenmail Provisions do not require a majority vote with respect
to (i) a purchase of securities as part of a tender or exchange offer by
NYNEX made on the same terms to all holders of such securities complying
with the Exchange Act, (ii) a purchase made pursuant to an open market
purchase program approved by a majority of the directors then in office or
(iii) a purchase approved by a majority of the directors then in office and
which is made at no more than the market price on the date that the
understanding with the 5% holder with respect to the purchase is reached.
Because the Anti-Greenmail Provisions are designed to discourage
accumulations of large blocks of NYNEX shares by purchasers whose objective
is to have such securities repurchased by NYNEX at a premium, such
provisions could tend to reduce any temporary rise in the market price of
the Common Stock which might be caused by accumulation of a large block.
Thus, some stockholders could be deprived of possible opportunities to sell
their shares at a temporarily higher market price.
Directors' Liability
NYNEX has included in the Restated Certificate of Incorporation
provisions to (i) eliminate the personal liability of its directors for
monetary damages resulting from breaches of their fiduciary duty except for
liability for breach of the duty of loyalty, for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation
of law, for violations under Section 174 of the Delaware General
Corporation Law or for any transaction from which the director derived an
improper personal benefit, and (ii) indemnify its directors and officers to
the fullest extent permitted by Section 145 of the Delaware General
Corporation Law.
Preemptive Rights
The holders of Common Stock have no preemptive rights to subscribe for
or purchase shares of capital stock.
Transfer Agent and Registrar
<PAGE>
Transfer Agent and Registrar
The First National Bank of Boston is the transfer agent, registrar and
dividend disbursing agent for the Common Stock.
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 terms of a 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 following description of the
Preferred Stock summarizes certain provisions of the Restated Certificate
of Incorporation and the form of Certificate of Designations filed as an
exhibit to the Registration Statement to which this Prospectus relates and
is subject to and qualified in its entirety by reference to the Restated
Certificate of Incorporation and such Certificate of Designations which
will be filed with the SEC promptly after the offering of such series of
Preferred Stock.
General
Under the Restated Certificate of Incorporation, the Board of
Directors is authorized to provide for the issuance from time to time of up
to 75,000,000 shares of Preferred Stock, par value $1.00 per share, in one
or more series with such designations, preferences and relative,
participating, optional or other special rights, and such qualifications,
limitations or restrictions thereof, as shall be expressed in the
resolution or resolutions providing for the issue of such series adopted by
the Board of Directors and as are not inconsistent with the Restated
Certificate of Incorporation or any amendment thereto, and as may be
permitted by the Delaware General Corporation Law.
As of the date of this Prospectus, NYNEX has no shares of Preferred
Stock outstanding. As of the date hereof, 5,000,000 shares of Preferred
Stock, designated as Series A Junior Participating Preferred Stock, were
reserved for issuance pursuant to the Rights Agreement described under
"Description of Common Stock--Rights Plan." NYNEX may amend from time to
time the Restated Certificate of Incorporation to increase the number of
authorized shares of Preferred Stock. The holders of any series of
Preferred Stock are not entitled to vote on any such amendment except as
provided in the Prospectus Supplement relating to any such series. See "--
Voting Rights" below.
The Preferred Stock will have the dividend, liquidation, redemption
and voting 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 designation of such Preferred Stock, the number
of shares offered and the liquidation value thereof; (ii) the price at
which such Preferred Stock will be issued; (iii) the dividend rate (or
method of calculation), the dates on which dividends shall be payable,
whether such dividends shall be cumulative or noncumulative and, if
cumulative, the dates from which dividends shall commence to accumulate;
(iv) the liquidation preference thereof; (v) any redemption or sinking fund
provisions; (vi) any conversion or exchange provisions of such Preferred
Stock; and (vii) any additional dividend, liquidation, redemption, sinking
fund and other rights, preferences, limitations and restrictions of such
Preferred Stock.
The Preferred Stock will, when issued, be fully paid and
nonassessable. Unless otherwise specified in the Prospectus Supplement
relating to a particular series of the Preferred Stock, each series of the
Preferred Stock will rank on a parity as to dividends and distributions in
the event of a liquidation with each other series of the Preferred Stock,
if any, and senior to the Series A Junior Participating Preferred Stock.
Holders of Preferred Stock will have no preemptive rights to subscribe for
or purchase shares of capital stock.
Dividend Rights
Holders of the Preferred Stock of each series will be entitled to
receive, when, as and if declared by the Board of Directors, out of assets
of NYNEX legally available therefor, cash dividends at such rates and on
such dates as are set forth in the Prospectus Supplement relating to such
series of the Preferred Stock. Such rate may be fixed or variable or both.
Each such dividend will be payable to the holders of record as they appear
<PAGE>
on the stock books of NYNEX on such record dates as will be fixed by the
Board of Directors or a duly authorized committee thereof. Dividends on any
series of the Preferred Stock may be cumulative or noncumulative, as
provided in the Prospectus Supplement relating thereto. If the Board of
Directors fails to declare a dividend payable on a dividend payment date on
any series of Preferred Stock for which dividends are noncumulative, then
the right to receive a dividend in respect of the dividend period ending on
such dividend payment date will be lost, and NYNEX shall have no obligation
to pay the dividend accrued for that period, whether or not dividends are
declared for any future period.
No full dividends will be declared or paid or set apart for payment on
preferred stock of any series ranking, as to dividends, on a parity with or
junior to any series of Preferred Stock for any period unless full
dividends have been or contemporaneously are declared and paid, or declared
and a sum sufficient for the payment thereof set apart for such payment on
such series of Preferred Stock for the then-current dividend period and, if
such Preferred Stock is cumulative, all other dividend periods terminating
on or before the date of payment of such full dividends. When dividends are
not paid in full upon any series of the Preferred Stock and any other
preferred stock ranking on a parity as to dividends with such series of the
Preferred Stock, all dividends declared upon such series of the Preferred
Stock and any other preferred stock ranking on a parity as to dividends
will be declared pro rata so that the amount of dividends declared per
share on such series of the Preferred Stock and such other preferred stock
will in all cases bear to each other the same ratio that accrued dividends,
including, in the case of cumulative Preferred Stock, accumulations, if
any, in respect of prior dividend periods, per share on such series of the
Preferred Stock and such other preferred stock bear to each other. Except
as provided in the preceding sentence, unless full dividends, including, in
the case of cumulative Preferred Stock, accumulations, if any, in respect
of prior dividend periods, on all outstanding shares of any series of the
Preferred Stock have been paid or declared and set aside for payment, no
dividends (other than a dividend or distribution paid in shares of, or
warrants, rights or options exercisable for or convertible into, Common
Stock or another stock ranking junior to such series of the Preferred Stock
as to dividends and upon liquidation) will be declared or paid or set aside
for payment or other distributions made upon the Common Stock or any other
stock of NYNEX ranking junior to or on a parity with the Preferred Stock as
to dividends or upon liquidation, nor will any Common Stock or any other
stock of NYNEX ranking junior to or on a parity with such series of the
Preferred Stock as to dividends or upon liquidation be redeemed, purchased
or otherwise acquired for any consideration (or any moneys be paid to or
made available for a sinking fund for the redemption of any shares of any
such stock) by NYNEX (except by conversion into or exchange for stock of
NYNEX ranking junior to such series of the Preferred Stock as to dividends
and upon liquidation). No interest, or sum of money in lieu of interest,
shall be payable in respect of any dividend payment or payments which may
be in arrears.
Except as set forth in the Prospectus Supplement relating to a series
of Preferred Stock, the amount of dividends payable for each dividend
period will be computed by annualizing the applicable dividend rate and
dividing by the number of dividend periods in a year, except that the
amount of dividends payable for the initial dividend period or any period
longer or shorter than a full dividend period shall be computed on the
basis of 30-day months and a 360-day year.
Each series of Preferred Stock will be entitled to dividends as
described in the Prospectus Supplement relating to such series, which may
be based upon one or more methods of determination. Different series of the
Preferred Stock may be entitled to dividends at different dividend rates or
based upon different methods of determination.
Rights Upon Liquidation
In the event of any voluntary or involuntary liquidation, dissolution
or winding up of NYNEX, the holders of each series of Preferred Stock will
be entitled to receive out of assets of NYNEX available for distribution to
stockholders, before any distribution of assets is made to holders of
Common Stock or any other class of stock ranking junior to such series of
the Preferred Stock upon liquidation, liquidating distributions in the
amount set forth in the Prospectus Supplement relating to such series of
the Preferred Stock plus an amount equal to accrued and unpaid dividends
for the then-current dividend period and, if such series of the Preferred
Stock is cumulative, for all dividend periods prior thereto. If, upon any
voluntary or involuntary liquidation, dissolution or winding up of NYNEX,
the amounts payable with respect to the Preferred Stock of any series and
any other shares of stock of NYNEX ranking as to any such distribution on a
parity with such series of the Preferred Stock are not paid in full, the
holders of the Preferred Stock of such series and of such other shares will
share ratably in any such distribution of assets of NYNEX in proportion to
<PAGE>
the full respective preferential amounts to which they are entitled. After
payment of the full amount of the liquidating distribution to which they
are entitled, the holders of such series of Preferred Stock will have no
right or claim to any of the remaining assets of NYNEX. Neither the sale of
all or substantially all the property or business of NYNEX nor the merger
or consolidation of NYNEX into or with any other corporation shall be
deemed to be a dissolution, liquidation or winding up, voluntary or
involuntary, of NYNEX.
Redemption
A series of the Preferred Stock may be redeemable, in whole or in
part, at the option of NYNEX, and may be subject to mandatory redemption
pursuant to a sinking fund, in each case upon terms, at the times and at
the redemption prices set forth in the Prospectus Supplement relating to
such series.
The Prospectus Supplement relating to a series of Preferred Stock
which is subject to mandatory redemption will specify the number of shares
of such series of Preferred Stock which will be redeemed by NYNEX 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 any accrued and
unpaid dividends thereon to the date of redemption. The redemption price
may be payable in cash, capital stock or in cash received from the net
proceeds of the issuance of capital stock of NYNEX, as specified in the
Prospectus Supplement relating to such series of Preferred Stock.
If fewer than all the outstanding shares of any series of the
Preferred Stock are to be redeemed, whether by mandatory or optional
redemption, the selection of the shares to be redeemed will be determined
by lot or pro rata as may be determined by the Board of Directors or a duly
authorized committee thereof, or by any other method which may be
determined by the Board of Directors or such committee to be equitable.
From and after the date of redemption (unless default shall be made by
NYNEX in providing for the payment of the redemption price), dividends
shall cease to accrue on the shares of Preferred Stock called for
redemption and all rights of the holders thereof (except the right to
receive the redemption price) shall cease.
In the event that full dividends, including accumulations in the case
of cumulative Preferred Stock, on any series of the Preferred Stock have
not been paid, such series of the Preferred Stock may not be redeemed in
part and NYNEX may not purchase or acquire any shares of such series of the
Preferred Stock otherwise than pursuant to a purchase or exchange offer
made on the same terms to all holders of such series of the Preferred
Stock.
Conversion or Exchange Rights
The Prospectus Supplement for any series of the Preferred Stock will
state the terms, if any, on which shares of such series are convertible
into, or exchangeable for, securities of NYNEX or another person.
Voting Rights
Unless otherwise determined by the Board of Directors and indicated in
the Prospectus Supplement relating to a particular series of Preferred
Stock, the holders of the Preferred Stock will not be entitled to vote,
except as set forth below or except as expressly required by applicable
law. In the event NYNEX issues shares of any series of Preferred Stock with
voting rights, including any voting rights in the case of dividend
arrearages, unless otherwise specified in the Prospectus Supplement
relating to a particular series of Preferred Stock, each such share will be
entitled to one vote on matters on which holders of such series of the
Preferred Stock are entitled to vote. In the case of any series of
Preferred Stock having one vote per share on matters on which holders of
such series are entitled to vote, the voting power of such series, on
matters on which holders of such series and holders of other series of
preferred stock are entitled to vote as a single class, will depend on the
number of shares in such series, not on the aggregate liquidation
preference or initial offering price of the shares of such series of
Preferred Stock.
Except as set forth in the Prospectus Supplement relating to a series
of Preferred Stock, if at any time dividends on any series of Preferred
Stock shall be in arrears in an amount equal to six quarterly dividends
thereon, (which, with respect to any series of Preferred Stock whose
dividend periods are other than quarterly, shall be deemed to be a number
of dividend periods containing not less than 540 days), all holders of
Preferred Stock on which dividends are in arrears and as to which similar
voting rights have been conferred, voting as a class, irrespective of
<PAGE>
series, shall have the right to elect two directors. Directors so elected
by such holders of Preferred Stock shall continue in office until their
successors shall have been elected or until such time as all accrued and
unpaid dividends for all previous dividend periods and for any current
dividend period on all shares of such Preferred Stock then outstanding
shall have been declared and paid or set apart for payment.
The affirmative vote or consent of the holders of at least a majority
of the outstanding shares of any series of Preferred Stock, voting as a
separate class, will be required for any amendment, alteration or repeal,
whether by merger, consolidation or otherwise, of the Restated Certificate
of Incorporation (or any certificate amendatory thereof or supplemental
thereto relating to any series of the Preferred Stock) which will adversely
affect the powers, preferences or other special rights of such series of
the Preferred Stock; provided, however, that any increase in the number of
the authorized shares of Preferred Stock, or the creation and issuance of
any other class or series of preferred stock, or any increase in the number
of authorized shares of any preferred stock of any class or series, in each
case ranking on a parity with or junior to the Preferred Stock with respect
to the payment of dividends and the distribution of assets upon
liquidation, dissolution or winding up of the affairs of NYNEX will not be
deemed to adversely affect such powers, preferences or other special
rights. The affirmative vote or consent of the holders of shares
representing at least a majority of the voting power of the outstanding
shares of any series of Preferred Stock and any other series of preferred
stock of NYNEX ranking on a parity with such series of the Preferred Stock
as to dividends or upon liquidation, voting as a single class without
regard to series, will be required to authorize, effect or validate (i) the
creation, authorization or issuance of, (ii) the reclassification of any
authorized stock of NYNEX into, or (iii) the creation, authorization or
issuance of, any obligation or security convertible into or evidencing the
right to purchase, any additional class or series of stock ranking prior to
such series of the Preferred Stock as to dividends or upon liquidation.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities of NYNEX are to be issued under an Indenture dated
as of March 1, 1990, as supplemented by a First Supplemental Indenture, and
as the same may be further amended or supplemented (the "Indenture"), from
NYNEX to Marine Midland Bank, as Trustee (the "Trustee"). Copies of the
Indenture and any amendments or supplements are filed or incorporated by
reference as exhibits to the Registration Statement. The following
description summarizes certain provisions of the Debt Securities and the
Indenture and is subject to the detailed provisions of the Debt Securities
and the Indenture. Whenever any particular section of the Indenture or any
term defined therein is referred to, such section or definition is
incorporated herein by reference, and the statement in connection with
which such reference is made is qualified in its entirety by such
reference.
General
The Indenture does not limit the amount of Debt Securities which can
be issued thereunder and provides that additional Debt Securities may be
issued thereunder up to the aggregate principal amount which may be
authorized from time to time by the Board of Directors. Reference is made
to the Prospectus Supplement for the following terms of the particular
series of Debt Securities being offered thereby: (i) the title and
aggregate principal amount of the series; (ii) whether such Debt Securities
are issuable as Registered Securities, Bearer Securities or both; (iii) the
maturity dates or the manner of determination thereof; (iv) the interest
rate or rates or the manner of determination thereof and the dates on and
manner in which, including record dates, interest shall be paid; (v) the
places for payments on, registration of transfer of, or surrender for
exchange of, such Debt Securities; (vi) the periods within which, prices at
which, the currency or currency unit in which, and the other terms and
conditions upon which, such Debt Securities may be redeemed at the option
of NYNEX; (vii) the obligation, if any, of NYNEX to redeem or purchase such
Debt Securities pursuant to any sinking fund or analogous provision, or at
the option of the holder thereof, and any related periods, prices, currency
or currency unit and other terms and conditions for any such redemption or
purchase; (viii) the minimum denominations if other than $1,000, in the
case of Registered Securities, and $5,000, in the case of Bearer
Securities; (ix) the amount payable upon acceleration, if other than the
principal amount of such Debt Securities; (x) any Events of Default and
covenants, whether or not consistent with the Events of Default or
covenants set forth in the Indenture; (xi) any Trustee other than Marine
Midland Bank; (xii) if other than U.S. dollars, the currency or currency
unit (including any composite currency) for payments on such Debt
Securities or in which such Debt Securities shall be denominated; (xiii)
whether NYNEX or the holder of such Debt Security may elect to change the
currency or currency unit of payment, the periods within which such
election may be made, and the terms and conditions of and the manner for
<PAGE>
determining the exchange rate relating to any such election; (xiv) the
designation of any agent of NYNEX for purposes of making determinations or
calculations with respect to such Debt Securities or otherwise; (xv) the
manner, if applicable, for determining payments on such Debt Securities if
payments on such Debt Securities are to be determined by reference to the
relationship between two or more currencies or composite currencies, to the
price of one or more specified securities or commodities or to one or more
securities or commodities exchange indices or other indices or by other
similar methods or formulas ("Indexed Securities"); (xvi) any provisions
for satisfaction and discharge of the Indenture with respect to such Debt
Securities if other than as provided in the Indenture; (xvii) the date of
any Bearer Securities or any Global Security if other than the date of
original issuance of the first of such Debt Securities, if any; (xviii) the
application, if any, to such Debt Securities of the provisions described
below under "Payment of Additional Amounts" and "Defeasance - Defeasance of
Certain Covenants and Certain Events of Default," and, if applicable, any
additional covenants provided for such Debt Securities with which NYNEX may
omit compliance pursuant to the provisions described below in the second
paragraph under "Meetings, Modification and Waiver" or upon exercise of the
option described below under "Defeasance - Defeasance of Certain Covenants
and Certain Events of Default"; (xix) whether any Global Securities shall
be issued, whether in whole or part or in permanent or temporary form, and
any related Depositary, Global Exchange Agent and Exchange Date; (xx) the
circumstances for any exchange of temporary Global Securities for
definitive securities, whether such securities will be Registered
Securities or Bearer Securities and the terms and conditions relating to
the payment of interest to any clearing organization; (xxi) applicable
subordination provisions, if any; (xxii) if NYNEX has the option of making
any scheduled payment on such Debt Securities in either of two currencies
("Dual Currency Securities"), the two currencies in either of which such
payments may be made, and any other special terms with respect to such Dual
Currency Securities; (xxiii) if interest and principal on such Debt
Securities are payable according to an amortization schedule ("Amortizing
Securities"), such amortization schedule, and any other special terms with
respect to such Amortizing Securities; (xxiv) whether such Debt Securities
shall be convertible into, or exchangeable for, securities of NYNEX or
another person; and (xxv) any other terms of such Debt Securities not
inconsistent with the Indenture. (Section 301)
The Debt Securities will be unsecured and, unless otherwise specified
in the applicable Prospectus Supplement, will rank equally with NYNEX's
other unsecured senior indebtedness.
If the purchase price of any of the Debt Securities is denominated in
one or more foreign currencies or currency units, including any composite
currency (each a "Foreign Currency"), or if the principal of (and premium,
if any) or interest, if any, on any series of Debt Securities is payable in
one or more Foreign Currencies, the restrictions, elections, tax
consequences, specific terms and other information with respect to such
issue of Debt Securities and such Foreign Currencies will be set forth in
the applicable Prospectus Supplement relating thereto.
Some of the Debt Securities may be issued as Discounted Securities
(bearing no interest or interest at a rate which at the time of issuance is
below market rates) to be sold at a substantial discount below their stated
principal amount. Federal income tax consequences and other special
considerations applicable to any Discounted Securities will be described in
the Prospectus Supplement relating thereto.
Denominations, Registration and Transfer
The Debt Securities of a series will be issuable as Registered
Securities, Bearer Securities or both. Debt Securities of a series may be
issuable in the form of one or more Global Securities, as described below
under "Global Securities." Unless otherwise provided in an applicable
Prospectus Supplement with respect to a series of Debt Securities,
Registered Securities denominated in U.S. dollars will be issued only in
denominations of $1,000 or any integral multiple thereof and Bearer
Securities denominated in U.S. dollars will be issued only in denominations
of $5,000 with coupons attached. A Global Security will be issued in a
denomination equal to the aggregate principal amount of Outstanding Debt
Securities of the series represented by such Global Security. The
Prospectus Supplement relating to a series of Debt Securities denominated
in a Foreign Currency will specify the denominations thereof. (Sections
201, 301, 302 and 305)
In connection with its sale during the "restricted period" as defined
in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury regulations
(generally, the first 40 days after the closing date and, with respect to
unsold allotments, until sold), no Bearer Security shall be mailed or
otherwise delivered to any location in the United States (as defined below
under "Limitations on Issuance of Bearer Securities"), and any such Bearer
Security (other than a temporary Global Security in bearer form) may be
delivered only if the person entitled to receive such Bearer Security
<PAGE>
furnishes written certification, in the form required by the Indenture, to
the effect that such Bearer Security is not being acquired by or on behalf
of a United States person (as defined below under "Limitations on Issuance
of Bearer Securities"), or, if a beneficial interest in such Bearer
Security is being acquired by or on behalf of a United States person, that
such United States person is a person described in Section
1.163-5(c)(2)(i)(D)(6) of the United States Treasury regulations or is a
financial institution who has purchased such Bearer Security for resale
during the restricted period and who certifies that it has not acquired
such Bearer Security for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its
possessions. See "Global Securities" and "Limitations on Issuance of Bearer
Securities."
Generally, Registered Securities of any series will be exchangeable
for other Registered Securities of the same series and of a like aggregate
principal amount and tenor of different authorized denominations. In
addition, if Debt Securities of any series are issuable as both Registered
Securities and as Bearer Securities, at the option of the holder upon
request confirmed in writing, and subject to the terms of the Indenture,
Bearer Securities (with all unmatured coupons, except as provided below,
and all matured coupons in default) of such series will be exchangeable for
Registered Securities of the same series of any authorized denominations
and of a like aggregate principal amount and tenor. Unless otherwise
indicated in an applicable Prospectus Supplement, any Bearer Security
surrendered in exchange for a Registered Security between a Regular Record
Date or a Special Record Date and the relevant date for payment of interest
will be surrendered without the coupon relating to such date for payment of
interest and interest will not be payable on such date for payment of
interest in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the holder of such coupon when
due in accordance with the terms of the Indenture. (Section 305) Except as
provided in an applicable Prospectus Supplement, Bearer Securities will not
be issued in exchange for Registered Securities.
Debt Securities may be presented for exchange as provided above, and
Registered Securities (other than a Global Security) may be presented for
registration of transfer (with the form of transfer duly executed), at the
office of the Security Registrar or at the office of any transfer agent
designated by NYNEX for such purpose with respect to any series of Debt
Securities and referred to in the applicable Prospectus Supplement, without
service charge and upon payment of any taxes and other governmental charges
as described in the Indenture. Such transfer or exchange will be effected
upon the Security Registrar or such transfer agent, as the case may be,
being satisfied with the documents of title and identity of the person
making the request. NYNEX has initially appointed the Trustee as Security
Registrar under the Indenture. (Section 305) If a Prospectus Supplement
refers to any transfer agent (in addition to the Security Registrar)
initially designated by NYNEX with respect to any series of Debt
Securities, NYNEX may at any time rescind the designation of any such
transfer agent or approve a change in the location through which any such
transfer agent acts, except that, if Debt Securities of a series are
issuable only as Registered Securities, NYNEX will be required to maintain
a transfer agent in each Place of Payment for such series and, if Debt
Securities of a series are issuable as Bearer Securities, NYNEX will be
required to maintain (in addition to the Security Registrar) a transfer
agent in a Place of Payment for such series located outside the United
States. NYNEX may at any time designate additional transfer agents with
respect to any series of Debt Securities. (Section 1002)
In the event of any redemption in part, NYNEX shall not be required to
(i) issue, register the transfer of or exchange Debt 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 Debt Securities of that
series selected to be redeemed and ending at the close of business on (A)
if Debt Securities of the series are issuable only as Registered
Securities, the day of mailing of the relevant notice of redemption and (B)
if Debt Securities of the series are issuable as Bearer Securities, the day
of the first publication of the relevant notice of redemption or, if Debt
Securities of that series are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption;
(ii) register the transfer of or exchange any Registered Security, or
portion thereof, called for redemption; or (iii) exchange any Bearer
Security called for redemption, except to exchange such Bearer Security for
a Registered Security of that series and like tenor which is immediately
surrendered for redemption, except as provided with respect to redemptions
discussed under "Tax Redemption; Special Tax Redemption." (Section 305)
Payment and Paying Agents
Unless otherwise indicated in an applicable Prospectus Supplement,
payment of principal of (and premium, if any) and interest, if any, on
Registered Securities (other than a Global Security) will be made at the
office of such Paying Agent or Paying Agents as NYNEX may designate from
time to time, except that at the option of NYNEX, payment of any interest
<PAGE>
may be made (i) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or (ii) by
transfer to an account maintained by the payee with a bank located inside
the United States. (Sections 305, 307 and 1002) Unless otherwise indicated
in an applicable Prospectus Supplement, payment of any installment of
interest on Registered Securities will be made to the Person in whose name
such Registered Security is registered at the close of business on the
Regular Record Date for such interest payment; provided, however, that
interest, if any, payable at maturity or upon earlier redemption or
repayment shall be payable to the Person to whom principal shall be
payable. (Section 307)
Unless otherwise indicated in an applicable Prospectus Supplement,
payment of principal of (and premium, if any) and interest, if any, on
Bearer Securities will be payable, subject to any applicable laws and
regulations, at the offices of such Paying Agents outside the United States
as NYNEX may designate from time to time, except that at the option of
NYNEX, payment of any interest may be made by transfer to an account
maintained by the payee outside the United States. (Sections 307 and 1002)
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of interest on Bearer Securities on any Interest Payment Date will be made
only against surrender of the coupon relating to such Interest Payment
Date. (Section 1001) No payment of interest on a Bearer Security will be
made unless on the earlier of the date of the first such payment by NYNEX
or the date of delivery by NYNEX of a definitive Bearer Security, including
a permanent Global Security, a written certification, in the form required
by the Indenture, is provided to NYNEX stating that on such date the Bearer
Security is not owned by or on behalf of a United States person (as defined
below under "Limitations on Issuance of Bearer Securities"), or, if a
beneficial interest in such Bearer Security is being acquired by or on
behalf of a United States person, that such United States person is a
person described in Section 1.163-5(c)(2)(i)(D)(6) of the United States
Treasury regulations or is a financial institution who has purchased such
Bearer Security for resale during the restricted period and who certifies
that it has not acquired such Bearer Security for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions. No payment with respect to any Bearer
Security will be made at any office or agency of NYNEX in the United States
or by check mailed to any address in the United States or by transfer to an
account maintained in the United States. Payments will not be made in
respect of Bearer Securities or coupons appertaining thereto pursuant to
presentation to NYNEX or its designated Paying Agents within the United
States or any other demand for payment to NYNEX or its designated Paying
Agents within the United States. Notwithstanding the foregoing, payment of
principal of (and premium, if any) and interest, if any, on Bearer
Securities denominated and payable in U.S. dollars will be made at the
office of NYNEX's Paying Agent in the United States if, and only if,
payment of the full amount thereof in U.S. dollars at all offices or
agencies outside the United States is illegal or effectively precluded by
exchange controls or other similar restrictions. (Section 1002)
Unless otherwise indicated in an applicable Prospectus Supplement, the
principal office of the Trustee in the City of New York will be designated
as NYNEX's sole Paying Agent for payments with respect to Debt Securities
which are issuable solely as Registered Securities. Any Paying Agents
outside the United States and any other Paying Agents in the United States
initially designated by NYNEX for the Debt Securities will be named in the
related Prospectus Supplement. NYNEX may at any time designate additional
Paying Agents or rescind the designation of any Paying Agents or approve a
change in the office through which any Paying Agent acts, except that, if
Debt Securities of a series are issuable only as Registered Securities,
NYNEX will be required to maintain a Paying Agent in each Place of Payment
for such series, and if the Debt Securities of a series may be issuable as
Bearer Securities, NYNEX will be required to maintain (i) a Paying Agent in
a Place of Payment for that series in the United States for payments with
respect to any Registered Securities of that series (and for payments with
respect to Bearer Securities of that series in the circumstances described
above, but not otherwise), (ii) a Paying Agent in a Place of Payment
located outside the United States where Debt Securities of such series and
any coupons appertaining thereto may be presented and surrendered for
payment; provided that if the Debt Securities of such series are listed on
the Luxembourg Stock Exchange or any other stock exchange located outside
the United States and such stock exchange shall so require, NYNEX will
maintain a Paying Agent in Luxembourg or any other required city located
outside the United States, as the case may be, for the Debt Securities of
such series, and (iii) a Paying Agent in a Place of Payment located outside
the United States where (subject to applicable laws) Registered Securities
of such series may be surrendered for registration of transfer or exchange
and where notices and demands to or upon NYNEX may be served. (Section
1002)
All moneys paid by NYNEX to a Paying Agent for the payment of
principal of (and premium, if any) and interest, if any, on any Debt
Security which remain unclaimed at the end of three years after such
<PAGE>
principal, premium or interest shall have become due and payable will be
repaid to NYNEX, and the holder of such Debt Security or any coupon will
thereafter look only to NYNEX for payment thereof. (Section 1003)
Global Securities
The Debt Securities of a series may be issued in whole or in part in
the form of one or more Global Securities that will be deposited with, or
on behalf of, a Depositary identified in the Prospectus Supplement relating
to such series. Global Securities may be issued in either registered or
bearer form and in either temporary or permanent form. Unless and until it
is exchanged for Registered Securities in definitive form, a temporary
Global Security representing all or a part of the Registered Securities of
a series may not be transferred except as a whole by the Depositary for
such Global Security to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or
by such Depositary or any such nominee to a successor of such Depositary or
a nominee of such successor. (Section 305)
The specific terms of the depositary arrangement with respect to a
series of Debt Securities will be described in the Prospectus Supplement
relating to such series. NYNEX anticipates that the following provisions
will apply to all depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit the accounts of persons held with it
with the respective principal amounts of the Debt Securities represented by
such Global Security. Such accounts shall be designated by the underwriters
or agents with respect to such Debt Securities or by NYNEX if such Debt
Securities are offered and sold directly by NYNEX. Ownership of beneficial
interests in a Global Security will be limited to persons that have
accounts with the Depositary for such Global Security or its nominee
("participants") or persons that may hold interests through participants.
Ownership of beneficial interests in such Global Security will be shown on,
and the transfer of that ownership will be effected only through, records
maintained by the Depositary or its nominee (with respect to interests of
participants) and on the records of participants (with respect to interests
of persons other than participants). The laws of some states require that
certain purchasers of securities take physical delivery of such securities
in definitive form. Such limits and such laws may impair the ability to
transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is
the registered owner of such Global Security, such Depositary or such
nominee, as the case may be, will be considered the sole owner or holder of
the Debt Securities represented by such Global Security for all purposes
under the Indenture governing such Debt Securities. Except as provided
below, owners of beneficial interests in a Global Security will not be
entitled to have Debt Securities of the series represented by such Global
Security registered in their names, will not receive or be entitled to
receive physical delivery of Debt Securities of such series in definitive
form and will not be considered the owners or holders thereof under the
Indenture governing such Debt Securities.
Principal, premium, if any, and interest payments on Debt Securities
registered in the name of a Depositary or its nominee will be made to the
Depositary or its nominee, as the case may be, as the registered owner of
the Global Security representing such Debt Securities. Neither NYNEX, the
Trustee for such Debt Securities, any Paying Agent nor the Security
Registrar for such Debt Securities will have any responsibility or
liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests in the Global Security for such
Debt Securities or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
NYNEX expects that the Depositary for a series of Debt Securities or
its nominee, upon receipt of any payment of principal, premium or interest,
will credit immediately participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the principal
amount of the Global Security for such Debt Securities as shown on the
records of such Depositary or its nominee. NYNEX also expects that payments
by participants to owners of beneficial interests in such Global Security
held through such participants will be governed by standing instructions
and customary practices, as is now the case with securities held for the
accounts of customers in bearer form or registered in "street name", and
will be the responsibility of such participants. Receipt by owners of
beneficial interests in a temporary Global Security of payments in respect
of such temporary Global Security will be subject, in the case of a
temporary Global Security in which interests are exchangeable for Bearer
Securities, to the furnishing of the certificate described above under
"Payment and Paying Agents."
<PAGE>
If a Depositary for a series of Debt Securities is at any time
unwilling or unable to continue as depositary or is no longer eligible to
act as depositary under the Indenture, and a successor depositary is not
appointed by NYNEX within 90 days, NYNEX will issue Debt Securities of such
series in definitive form in exchange for the entire Global Security
representing such series of Debt Securities. In addition, NYNEX may at any
time and in its sole discretion determine not to have the Registered
Securities of a series represented by a Global Security and, in such event,
will issue Registered Securities of such series in definitive form in
exchange for the Global Security representing such series of Registered
Securities. Further, if NYNEX so specifies with respect to the Debt
Securities of a series, an owner of a beneficial interest in a Global
Security representing Debt Securities of such series may, on terms
acceptable to NYNEX and the Depositary for such Global Security, receive
Debt Securities of such series in definitive form. In any such instance, an
owner of a beneficial interest in a Global Security will be entitled to
physical delivery in definitive form of Debt Securities of the series
represented by such Global Security equal in principal amount to such
beneficial interest and to have such Debt Securities registered in its name
(if the Debt Securities of such series are issuable as Registered
Securities). Debt Securities of such series so issued in definitive form
will be issued (a) as Registered Securities in denominations, unless
otherwise specified by NYNEX, of $1,000 or any integral multiple of $1,000
if the Debt Securities of such series are issuable as Registered
Securities, (b) as Bearer Securities in the denomination, unless otherwise
specified by NYNEX, of $5,000 if the Debt Securities of such series are
issuable as Bearer Securities or (c) as either Registered or Bearer
Securities, if the Debt Securities of such series are issuable in either
form. (Section 305) Notwithstanding the foregoing, no Bearer Security in
definitive form (including an interest in a permanent Global Security in
bearer form) will be delivered unless the beneficial owner thereof has
provided the certificate described above under "Payment and Paying Agents."
Limitations on Issuance of Bearer Securities
In compliance with United States federal tax laws and regulations,
Bearer Securities may not be offered, or sold during the restricted period
(as defined under "Denominations, Registration and Transfer") or delivered
in connection with their sale during the restricted period in the United
States or its possessions or to United States persons (each as defined
below) except to the extent permitted under Section 1.163-5(c)(2)(i)(D) of
the United States Treasury regulations (the "D Rules"), and any
underwriters, agents and dealers participating in the offering of Debt
Securities must agree that they will not offer for sale or resale, or sell
Bearer Securities in the United States or its possessions or to United
States persons, except to the extent permitted under the D Rules, nor
deliver Bearer Securities within the United States.
Bearer Securities and any coupons appertaining thereto will bear a
legend substantially to the following effect: "Any United States person who
holds this obligation will be subject to limitations under the United
States income tax laws, including the limitations provided in Sections
165(j) and 1287(a) of the Internal Revenue Code." Under Sections 165(j)
and 1287(a) of the Internal Revenue Code of 1986, as amended (the "Code"),
holders that are United States persons (as defined below), with certain
exceptions, will not be entitled to deduct any loss on Bearer Securities
and must treat as ordinary income any gain realized on the sale or other
disposition (including the receipt of principal) of Bearer Securities.
As used herein, "United States person" means a citizen or resident of
the United States, a corporation, partnership or other entity created or
organized in or under the laws of the United States and an estate or trust
the income of which is subject to United States federal income taxation
regardless of its source, and "United States" means the United States of
America (including the States and the District of Columbia), and its
"possessions" which include Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and Northern Mariana Islands. The term "United
States Alien" means any corporation, partnership, individual or fiduciary
that is, for United States federal income tax purposes, a foreign
corporation, a nonresident alien individual, a nonresident fiduciary of a
foreign estate or trust, or a foreign partnership one or more of the
members of which is, for United States federal income tax purposes, a
foreign corporation, a nonresident alien individual or a nonresident
fiduciary of a foreign estate or trust.
Lien On Assets
If at any time, NYNEX mortgages, pledges, or otherwise subjects to any
lien the whole or any part of any property or assets now owned or hereafter
acquired by it, except as hereinafter provided, NYNEX will secure the
outstanding Debt Securities, and any other benefit of a covenant similar in
<PAGE>
effect to this covenant, equally and ratably with the indebtedness or
obligations secured by such mortgage, pledge, or lien, for as long as any
such indebtedness or obligation is so secured. The foregoing covenant does
not apply to the creation, extension, renewal or refunding of
purchase-money mortgages or liens, or other liens to which any property or
asset acquired by NYNEX is subject as of the date of its acquisition by
NYNEX or to the making of any deposit or pledge to secure public or
statutory obligations or with any governmental agency at any time required
by law in order to qualify NYNEX to conduct its business or any part
thereof or in order to entitle it to maintain self-insurance or to obtain
the benefits of any law relating to workers' compensation, unemployment
insurance, old age pensions or other social security, or with any court,
board, commission, or governmental agency as security incident to the
proper conduct of any proceeding before it. Nothing contained in the
Indenture prevents any Person other than NYNEX from mortgaging, pledging,
or subjecting to any lien any of its property or assets, whether or not
acquired by such Person from NYNEX. (Section 1009)
Tax Redemption; Special Tax Redemption
If and to the extent specified in an applicable Prospectus Supplement,
the Debt Securities of a series will be subject to redemption at any time,
as a whole but not in part, at a redemption price equal to the principal
amount thereof together with accrued and unpaid interest to the date fixed
for redemption, upon publication of a notice as described below, if (x)
NYNEX determines that (a) as a result of any change in or amendment to the
laws (or any regulations or rulings promulgated thereunder) of the United
States or of any political subdivision or taxing authority thereof or
therein affecting taxation, or any change in official position regarding
application or interpretation of such laws, regulations or rulings
(including a holding by a court of competent jurisdiction), which change or
amendment is announced or becomes effective on or after a date specified in
the applicable Prospectus Supplement, NYNEX has or will becomeobligated to
pay, on the next succeeding Interest Payment Date, additional amounts with
respect to any Debt Security of such series as described below under
"Payment of Additional Amounts" or (b) on or after a date specified in the
applicable Prospectus Supplement, any action has been taken by any taxing
authority of, or any decision has been rendered by a court of competent
jurisdiction in, the United States or any political subdivision or taxing
authority thereof or therein, including any of those actions specified in
(a) above, whether or not such action was taken or decision was rendered
with respect to NYNEX, or any change, amendment, application or
interpretation shall be officially proposed, which, in any such case, in
the opinion of legal counsel to NYNEX, will result in a material
probability that NYNEX will become obligated to pay additional amounts with
respect to any Debt Security of such series on the next succeeding Interest
Payment Date, and (y) in any such case NYNEX in its business judgment
determines that such obligation cannot be avoided by the use of reasonable
measures available to NYNEX. (Section 1108)
If NYNEX shall determine that any payment made outside the United
States by NYNEX or any Paying Agent of principal or interest due in respect
of any Bearer Security (an "Affected Security") or any coupon appertaining
thereto would, under any present or future laws or regulations of the
United States, be subject to any certification, information or other
reporting requirement of any kind, the effect of which requirement is the
disclosure to NYNEX, any Paying Agent or any governmental authority of the
nationality, residence or identity (as distinguished from, for example,
status as a United States Alien) of a beneficial owner of such Affected
Security of such series or coupon who is a United States Alien (other than
such a requirement which (a) would not be applicable to a payment made (i)
directly to the beneficial owner or (ii) to a custodian, nominee or other
agent of the beneficial owner, (b) can be satisfied by such custodian,
nominee or other agent certifying to the effect that such beneficial owner
is a United States Alien, provided that in each case referred to in items
(a)(ii) and (b), payment by such custodian, nominee or other agent to such
beneficial owner is not otherwise subject to any such requirement (other
than a requirement which is imposed on a custodian, nominee or other agent
described in (d) of this sentence), (c) would not be applicable to a
payment made by at least one other Paying Agent of NYNEX or (d) is
applicable to a payment to a custodian, nominee or other agent of the
beneficial owner who is a United States person, a controlled foreign
corporation for United States tax purposes, a foreign person 50% or more of
whose gross income for the three-year period ending with the close of its
taxable year preceding the year of payment is effectively connected with a
United States trade or business, or is otherwise related to the United
States), NYNEX shall either (x) redeem the Affected Securities of such
series, as a whole, at a redemption price equal to the principal amount
thereof, together with interest accrued to the date fixed for redemption,
or (y) if the conditions of the next succeeding paragraph are satisfied,
pay the additional amounts specified in such paragraph. NYNEX shall make
such determination and election as soon as practicable and give prompt
notice thereof (the "Determination Notice") stating the effective date of
such certification, information or reporting requirements, whether NYNEX
has elected to redeem the Affected Securities of such series or to pay the
<PAGE>
additional amounts specified in the next succeeding paragraph, and (if
applicable) the last date by which the redemption of the Affected
Securities of such series must take place. If NYNEX elects to redeem the
Affected Securities of such series, such redemption shall take place on
such date, not later than one year after the publication of the
Determination Notice, as NYNEX shall elect by notice to the Trustee given
not less than 45 nor more than 75 days before the date fixed for
redemption. Notice of such redemption of the Affected Securities of such
series will be given to the holders thereof not less than 30 nor more than
60 days prior to the date fixed for redemption. Notwithstanding the
foregoing, NYNEX shall not redeem the Affected Securities of such series if
NYNEX subsequently determines, not less than 30 days prior to the date
fixed for redemption, that subsequent payments would not be subject to any
such requirement, in which case NYNEX shall give prompt notice of such
determination and any earlier redemption notice shall be revoked and of no
further effect. The right of the holders of Affected Securities called for
redemption to exchange such Affected Securities for Registered Securities
(which Registered Securities will remain outstanding following such
redemption) will terminate on the fifteenth day prior to the date fixed for
redemption, and no further exchanges of Affected Securities for Registered
Securities shall be permitted unless NYNEX shall have made the subsequent
determination and given the notice referred to in the preceding sentence.
(Section 1108)
If and so long as the certification, information or other reporting
requirements referred to in the preceding paragraph would be fully
satisfied by payment of a withholding tax, backup withholding tax or
similar charge, NYNEX may elect to pay such additional amounts as may be
necessary so that every net payment made outside the United States
following the effective date of such requirements by NYNEX or any Paying
Agent of principal (or premium, if any) or interest, if any, due in respect
of any Affected Security of such series or any coupon to a holder who
certifies that the beneficial owner is a United States Alien (but without
any requirement that the nationality, residence or identity of such
beneficial owner be disclosed to NYNEX, any Paying Agent or any
governmental authority), after deduction or withholding for or on account
of such withholding tax, backup withholding tax or similar charge (other
than a withholding tax, backup withholding tax or similar charge which (a)
is the result of a certification, information or other reporting
requirement described in the second parenthetical clause of the first
sentence of the preceding paragraph or (b) is imposed as a result of
presentation of such Affected Security or coupon for payment more than 10
days after the date on which such payment becomes due and payable or on
which payment thereof is duly provided for, whichever occurs later), will
not be less than the amount provided for in such Affected Security or
coupon to be then due and payable. In the event NYNEX elects to pay such
additional amounts, NYNEX will have the right, at its sole option, at any
time, to redeem the Affected Securities of such series as a whole, but not
in part, at a redemption price equal to the principal amount thereof,
together with accrued and unpaid interest to the date fixed for redemption.
If NYNEX has made the determination described in the preceding paragraph
with respect to certification, information or other reporting requirements
applicable only to interest and subsequently makes a determination in the
manner and of the nature referred to in such preceding paragraph with
respect to such requirements applicable to principal, NYNEX will redeem the
Affected Securities of such series in the manner and on the terms described
in the preceding paragraph unless NYNEX elects to have the provisions of
this paragraph apply rather than the provisions of the immediately
preceding paragraph. If in such circumstances the Affected Securities of
such series are to be redeemed, NYNEX shall have no obligation to pay
additional amounts pursuant to this paragraph with respect to principal (or
premium, if any) or interest, if any, accrued and unpaid after the date of
the notice of such determination indicating such redemption, but will be
obligated to pay such additional amounts with respect to interest accrued
and unpaid to the date of such determination. If NYNEX elects to pay
additional amounts pursuant to this paragraph and the condition specified
in the first sentence of this paragraph should no longer be satisfied, then
NYNEX shall promptly redeem such Affected Securities in whole but not in
part. (Section 1108)
In the event that NYNEX elects or is required to redeem the Debt
Securities of such series pursuant to the provisions set forth in the
preceding three paragraphs, NYNEX shall deliver to the Trustee a
certificate, signed by an authorized officer, stating that NYNEX is
entitled to redeem the Debt Securities of such series pursuant to their
terms.
Notice of intention to redeem the Debt Securities of such series and
all other notices in accordance with the provisions of the preceding
paragraphs will be given in accordance with "Notices" below. In the case of
a redemption, notice will be given once not more than 60 nor less than 30
days prior to the date fixed for redemption and will specify the date fixed
for redemption.
<PAGE>
Payment of Additional Amounts
If and to the extent specified in an applicable Prospectus Supplement,
NYNEX will, subject to the exceptions and limitations set forth below, pay
to the holder of any Debt Security or coupon who is a United States Alien
such additional amounts as may be necessary in order that every net payment
on such Debt Security or coupon, after withholding by NYNEX or any of its
Paying Agents for or on account of any present or future tax, assessment or
other governmental charge imposed upon or as a result of such payment by
the United States (or any
political subdivision or taxing authority thereof or therein), will not be
less than the amount provided for in such
Debt Security or in such coupon to be then due and payable. However, NYNEX
will not be required to make any payment of additional amounts for or on
account of:
(1) any tax, assessment or other governmental charge that would
not have been so imposed but for (i) the existence of any present or
former connection between such holder (or between a fiduciary, settlor
or beneficiary of, or a person holding a power over, such holder, if
such holder is an estate or trust, or a member or shareholder of such
holder, if such holder is a partnership or corporation) and the United
States, including, without limitation, such holder (or such fiduciary,
settlor, beneficiary, person holding a power, member or shareholder)
being or having been a citizen, resident or treated as a resident
thereof or being or having been engaged in a trade or business or
present therein or having or having had a permanent establishment
therein, or (ii) such holder's present or former status as a personal
holding company, foreign personal holding company, controlled foreign
corporation or passive foreign investment company with respect to the
United States or as a corporation that accumulates earnings to avoid
United States federal income tax;
(2) any tax, assessment or other governmental charge which would
not have been so imposed but for the presentation by the holder of
such Debt Security or coupon for payment on a date more than 10 days
after the date on which such payment became due and payable or the
date on which payment thereof is duly provided for, whichever occurs
later;
(3) any estate, inheritance, gift, sales, transfer, personal
property tax or any similar tax, assessment or other governmental
charge;
(4) any tax, assessment or other governmental charge required to
be withheld by any Paying Agent from any payment on a Debt Security or
coupon if such payment can be made without such withholding by at
least one other Paying Agent;
(5) any tax, assessment or other governmental charge that is
payable otherwise than by withholding from a payment on a Debt
Security or coupon;
(6) any tax, assessment or other governmental charge imposed on
a holder of a Debt Security or coupon that actually or constructively
owns 10% or more of the total combined voting power of all classes of
stock of NYNEX entitled to vote within the meaning of Section
871(h)(3) of the Code or that is a controlled foreign corporation
related to NYNEX through stock ownership;
(7) any tax, assessment or other governmental charge imposed as
a result of the failure to comply with applicable certification,
information, documentation or other reporting requirements concerning
the nationality, residence, identity or connection with the United
States of the holder or beneficial owner of a Debt Security or coupon,
if such compliance is required by statute, or by regulation of the
United States, as a precondition to relief or exemption from such tax,
assessment or other governmental charge;
(8) any tax, assessment or other governmental charge imposed on
the holder of a Debt Security or a coupon as a result of Section
881(c)(3)(A) of the Code (relating to banks receiving interest on an
extension of credit made pursuant to a loan agreement entered into in
the ordinary course of business); or
(9) any combination of items (1), (2), (3), (4), (5), (6), (7)
and (8);
<PAGE>
nor will additional amounts be paid with respect to any payment on a Debt
Security or coupon to a holder who is a fiduciary or partnership or other
than the sole beneficial owner of such payment to the extent such payment
would be required by the laws of the United States (or any political
subdivision thereof) to be included in the income for federal income tax
purposes of a beneficiary or settlor with respect to such fiduciary or a
member of such partnership or a beneficial owner who would not have been
entitled to payment of the additional amounts had such beneficiary,
settlor, member or beneficial owner been the holder of such Debt Security
or coupon. (Section 1004)
Mergers and Sales of Assets by NYNEX
NYNEX may consolidate with or merge into any other corporation, and
NYNEX may sell or transfer all or substantially all of its assets to
another corporation, provided, among other things, that (a) the corporation
formed by or resulting from any such consolidation or merger or the
transferee of such assets shall be a corporation organized and existing
under the laws of the United States, any State thereof or the District of
Columbia and shall expressly assume by supplemental indenture payment of
the principal of (and premium, if any) and interest, if any, on the Debt
Securities and the performance and observance of the Indenture, (b) after
giving effect to the transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become an Event of Default,
shall have occurred and be continuing, and (c) certain other conditions are
met. (Section 801)
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of NYNEX substantially as an entirety in accordance
with the preceding paragraph, the successor corporation formed by such
consolidation or into which NYNEX is merged or to which such conveyance or
transfer is made shall be substituted for NYNEX with the same effect as if
such successor corporation had been named as NYNEX. Thereafter NYNEX shall
be relieved of all obligations and covenants under the Indenture and NYNEX
may thereupon or any time thereafter be dissolved, wound up, or liquidated.
(Section 802)
Events of Default
The following events are defined in the Indenture as "Events of
Default" with respect to a series of Debt Securities: (i) default in the
payment of any installment of interest on any Debt Securities of such
series and any related coupons for 30 days after becoming due; (ii) default
in the payment of the principal of (or premium, if any, on) any Debt
Securities of such series when due; (iii) default in the performance of any
other covenant for 90 days after notice; (iv) certain events of bankruptcy,
insolvency or reorganization; and (v) any other Event of Default provided
in the terms of the Debt Securities of such series, any such other Event of
Default to be described in the applicable Prospectus Supplement. (Section
501) If an Event of Default shall occur and be continuing with respect to a
series of Debt Securities, either the Trustee or the holders of at least
25% in principal amount of the outstanding Debt Securities of such series
may declare the entire principal amount (or, in the case of Discounted
Securities, Dual Currency Securities or Indexed Securities, such lesser
amount as may be provided for in such Discounted Securities, Dual Currency
Securities or Indexed Securities) of all the Debt Securities of such series
to be immediately due and payable. (Section 502)
The Indenture provides that the Trustee shall, within 90 days after
the occurrence of a default with respect to a particular series of Debt
Securities, give the holders of the Debt Securities of such series notice
of such default known to it (the term default to mean the events specified
above without grace periods); provided that, except in the case of a
default in the payment of principal of (or premium, if any) or interest, if
any, on any of the Debt Securities of such series, the Trustee shall be
protected in withholding such notice if it in good faith determines that
the withholding of such notice is in the interest of the holders of the
Debt Securities of such series. (Section 602)
NYNEX is required to furnish the Trustee annually a statement by
certain officers of NYNEX to the effect that to the best of their knowledge
NYNEX is not in default in the fulfillment of any of its obligations under
the Indenture or, if there has been a default in the fulfillment of any
such obligation, specifying each such default. (Section 1007)
The holders of a majority in principal amount of a particular series
of Debt Securities outstanding have the right, subject to certain
limitations, to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee with respect to such
series or exercising any trust or power conferred on the Trustee, and to
waive certain defaults. (Sections 512 and 513) The Indenture provides that
<PAGE>
in case an Event of Default shall occur and be continuing, the Trustee
shall exercise such of its rights and powers under the Indenture, and use
the same degree of care and skill in its exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(Section 601) Subject to such provisions, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at
the request of any of the holders of the Debt Securities unless they shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request. (Section 603) The Debt Securities will be governed by
and construed in accordance with the laws of the State of New York. Courts
in the United States customarily have not rendered judgments for money
damages denominated in any currency other than U.S. dollars. Under New York
law, any judgment with respect to a Debt Security or any related coupon
denominated in a Foreign Currency will be rendered in such Foreign Currency
and converted into U.S. dollars at a rate of exchange prevailing on the
date of entry of the judgment or decree. In the event an action based on
Debt Securities or related coupons denominated in a Foreign Currency were
commenced in a court in the United States outside New York, the currency of
judgment and/or applicable exchange rate may differ. The Indenture provides
that if it is necessary for the purpose of obtaining a judgment in any
court to convert any currency into any other currency, such conversion
shall be made at a rate of exchange prevailing on the date NYNEX makes
payment to any person in satisfaction of the judgment. If pursuant to any
judgment, conversion is to be made on a date other than the payment date,
the Indenture provides that NYNEX shall pay any additional amounts
necessary to indemnify such person for any change between the rate of
exchange prevailing on the payment date and the rate of exchange prevailing
on such other date. NYNEX will not, however, be required to pay more in the
currency or currency unit due under such Debt Security or coupon at the
spot rate prevailing when payment is made than the amount of currency or
currency unit stated to be due under such Debt Security or coupon, and
NYNEX will be entitled to withhold (or be reimbursed for, as the case may
be) any excess of the amount actually realized upon any such conversion
over the amount due and payable on the date of payment. (Section 516)
Defeasance
Satisfaction and Discharge. Except as may otherwise be set forth in
the Prospectus Supplement relating to a series of Debt Securities, the
Indenture provides that NYNEX shall be discharged from its obligations
under the Debt Securities of such series (with certain exceptions) at any
time prior to the Stated Maturity or redemption thereof when (a) NYNEX has
irrevocably deposited with the Trustee, in trust, (i) sufficient funds in
the currency, currencies, currency unit or units in which the Debt
Securities of such series are payable to pay the principal of (and premium,
if any) and interest, if any, to Stated Maturity (or redemption) on, the
Debt Securities of such series, or (ii) such amount of direct obligations
of, or obligations the principal of (and premium, if any) and interest, if
any, on which are fully guaranteed by, the government which issued the
currency, and are payable in the currency, in which the Debt Securities of
such series are payable, and which are not subject to prepayment,
redemption or call, as will, together with the predetermined and certain
income to accrue thereon without consideration of any reinvestment thereof,
be sufficient to pay when due the principal of (and premium, if any) and
interest, if any, to Stated Maturity (or redemption) on, the Debt
Securities of such series, or (iii) any combination of funds or government
obligations referred to in (i) or (ii), (b) NYNEX has paid all other sums
payable with respect to the Debt Securities of such series and (c) certain
other conditions are met. Upon such discharge, the holders of the Debt
Securities of such series shall no longer be entitled to the benefits of
the Indenture, except for certain rights, including registration of
transfer and exchange of the Debt Securities of such series and replacement
of mutilated, destroyed, lost or stolen Debt Securities, and shall look
only to such deposited funds or obligations. (Sections 401 and 403)
To effect the discharge described in the preceding paragraph, NYNEX is
required to deliver to the Trustee an opinion of legal counsel (which may
be based on a ruling from or published by the Internal Revenue Service), to
the effect that such discharge will not cause holders of Debt Securities to
recognize income, gain or loss for United States federal income tax
purposes, and that such holders of Debt Securities will be subject to
United States federal income tax on the same amount and in the same manner
and at the same time as would have been the case if such discharge had not
occurred.
Defeasance of Certain Covenants and Certain Events of Default. If the
terms of the Debt Securities of any series so provide, NYNEX may omit to
comply with the restrictive covenants in Section 801 (Consolidation,
Merger, Conveyance or Transfer), Section 1009 (Lien on Assets) and, if so
provided in the terms of the Debt Securities of any series and specified in
the applicable Prospectus Supplement, any other covenant provided for the
Debt Securities of such series, and any such omission to comply with
respect to such covenants shall not be an Event of Default with respect to
<PAGE>
such Debt Securities, if (a) NYNEX deposits or causes to be deposited with
the Trustee for such Debt Securities in trust an amount of (i) cash in the
currency or currency unit in which such Debt obligations of the type
referred to under "Satisfaction and Discharge" or (iii) a combination of
such cash and government obligations, which amount, in the case of (ii) or
(iii), together with the predetermined and certain income to accrue on any
such government obligations when due (without the consideration of any
reinvestment thereof), is sufficient to pay and discharge when due such
Debt Securities and any related coupons for unpaid principal (and premium,
if any) and interest, if any, to the Stated Maturity or any Redemption
Date, as the case may be and (b) certain other conditions are met. The
obligations of NYNEX under the Indenture and the Debt Securities other than
with respect to the covenants referred to above shall remain in full force
and effect. (Section 1011)
In the event NYNEX exercises its option to omit to comply with certain
covenants of the Indenture with respect to the Debt Securities of any
series as described above and the Debt Securities of such series are
declared due and payable because of the occurrence of any Event of Default,
the amount of cash and/or government obligations on deposit with the
Trustee will be sufficient to pay amounts due on the Debt Securities of
such series on their Stated Maturity or Redemption Date, but may not be
sufficient to pay amounts due on such Debt Securities at the time of the
acceleration resulting from such Event of Default. However, NYNEX shall
remain liable for such payments.
Meetings, Modification and Waiver
Modifications and amendments of the Indenture may be made by NYNEX and
the Trustee with the consent of the holders of more than 50% in principal
amount of the Outstanding Debt Securities of each series issued under the
Indenture affected by such modification or amendment; provided, however,
that no such modification or amendment may, without the consent of the
holder of each Outstanding Debt Security affected thereby, (a) change the
Stated Maturity of the principal of, or any installment of principal of or
interest, if any, on any Debt Security, (b) reduce the principal amount of
(or premium, if any) or interest, if any, on any Debt Security, (c) change
any obligation of NYNEX to pay additional amounts as set forth under
"Payment of Additional Amounts", (d) reduce the amount of principal of a
Discounted Security, an Indexed Security or a Dual Currency Security
payable upon acceleration of the maturity thereof, (e) change the Place of
Payment, (f) change the currency or currency unit of payment of principal
of (or premium, if any) or interest, if any, on any Debt Security, (g)
impair the right to institute suit for the enforcement of any payment on or
with respect to any Debt Security on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or (h)
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 the Indenture or for waiver of compliance with
certain provisions of the Indenture or for waiver of certain defaults.
(Section 902)
The holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the holders of
all Debt Securities of that series and any coupons appertaining thereto
waive any past default under the Indenture with respect to that series,
except a default in the payment of the principal of (or premium, if any)
and interest, if any, on any Debt Security of that series or in respect of
a provision which under the Indenture cannot be modified or amended without
the consent of the holder of each Outstanding Debt Security of that series
affected. (Section 513) The holders of not less than a majority in
principal amount of the Outstanding Debt Securities of any series may, on
behalf of the holders of all Debt Securities of such series, waive, insofar
as that series is concerned, compliance by NYNEX with certain restrictive
provisions of the Indenture. (Section 1010)
The Indenture contains provisions for convening meetings of the
holders of Debt Securities of a series if Debt Securities of that series
are issuable as Bearer Securities. A meeting may be called at any time by
the Trustee, and also, upon request, by NYNEX or the holders of at least
10% in principal amount of the Outstanding Debt Securities of such series,
in any such case upon notice given in accordance with "Notices" below.
(Section 1402) Any resolution passed or decision taken at any meeting of
holders of Debt Securities of any series duly held in accordance with the
Indenture will be binding on all holders of Debt Securities of that series
and the related coupons. The quorum at any meeting called to adopt a
resolution, and at any reconvened meeting, will be persons holding or
representing a majority in principal amount of the Outstanding Debt
Securities of a series. (Section 1404)
<PAGE>
Notices
Except as may otherwise be set forth in an applicable Prospectus
Supplement relating to a series of Debt Securities, notices to holders of
Bearer Securities will be given by publication in a daily newspaper in the
English language of general circulation in the City of New York and in
London, and so long as such Bearer Securities are listed on the Luxembourg
Stock Exchange and the Luxembourg Stock Exchange shall so require, in a
daily newspaper of general circulation in Luxembourg or, if not practical,
elsewhere in Western Europe. Such publication is expected to be made in The
Wall Street Journal, the Financial Times and the Luxemburger Wort. Notices
to holders of Registered Securities will be given by mail to the addresses
of such holders as they appear in the Security Register. (Sections 101 and
106)
Title
Title to any Bearer Securities and any coupons appertaining thereto
will pass by delivery. NYNEX, the Trustee and any agent of NYNEX or the
Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon and the registered owner of any Registered Security as the absolute
owner thereof (whether or not such Debt Security or coupon shall be overdue
and notwithstanding any notice to the contrary) for the purpose of making
payment and for all other purposes. (Section 308)
Governing Law
The Indenture and the Debt Securities are governed by and construed in
accordance with the laws of the State of New York.
Concerning the Trustee
NYNEX and its subsidiaries have customary banking relationships with
Marine Midland Bank, which is the Trustee under the Indenture.
RISK FACTORS RELATING TO CURRENCIES
Debt Securities denominated or payable in foreign currencies may
entail significant risks. These risks include, without limitation, the
possibility of significant fluctuations in the foreign currency markets,
the imposition or modification of foreign exchange controls and potential
illiquidity in the secondary market. These risks will vary depending upon
the currency or currencies involved. These risks will be more fully
described in the Prospectus Supplement relating to any such Debt
Securities.
PLAN OF DISTRIBUTIONPLAN OF DISTRIBUTION
General
NYNEX may sell the Securities being offered hereby: (i) directly to
purchasers, (ii) through agents, (iii) through underwriters, (iv) through
dealers or (v) through a combination of any such methods of sale.
The distribution of the Securities may be effected from time to time
in one or more transactions either (i) at a fixed price or prices, which
may be changed; (ii) at market prices prevailing at the time of sale; (iii)
at prices related to such prevailing market prices; or (iv) at negotiated
prices.
Offers to purchase Securities may be solicited directly by NYNEX or by
agents designated by NYNEX from time to time. Any such agent, which may be
deemed to be an underwriter, as such term is defined in the Securities Act,
involved in the offer or sale of the Securities in respect of which this
Prospectus is delivered will be named, and any commissions payable by NYNEX
to such agent will be set forth, in the Prospectus Supplement. Unless
otherwise indicated in the Prospectus Supplement, any such agent will be
acting on a best efforts basis for the period of its appointment. Agents
may be customers of, engage in transactions with, or perform services for,
NYNEX and/or certain affiliates thereof in the ordinary course of business.
An agent may resell a Security purchased by it as principal to another
broker-dealer at a discount.
<PAGE>
If an underwriter or underwriters are utilized in the sale, NYNEX will
execute an underwriting agreement with such underwriters at the time of
sale to them and the names of the underwriters and the terms of the
transaction will be set forth in the Prospectus Supplement which will be
used by the underwriters to make resales of the Securities.
Except as otherwise indicated in the applicable Prospectus Supplement,
if a dealer is utilized in the sale of the Securities in respect of which
this Prospectus is delivered, NYNEX will sell such Securities to the
dealer, as principal. The dealer may then resell such Securities to the
public at varying prices to be determined by such dealer at the time of
resale.
Underwriters, dealers, agents and other persons may be entitled, under
agreements which may be entered into with NYNEX, to indemnification
against, or contribution with respect to, certain civil liabilities under
the Securities Act.
Each underwriter, dealer and agent participating in the distribution
of any Securities that are issuable as Bearer Securities will agree that it
will not offer, sell or deliver, directly or indirectly, Bearer Securities
in the United States or to United States persons (other than qualifying
financial institutions) in connection with the original issuance of such
Debt Securities.
Delayed Delivery Arrangements
If so indicated in the Prospectus Supplement, NYNEX will authorize
agents and underwriters to solicit offers by certain institutions to
purchase Securities from NYNEX at the public offering price set forth in
the Prospectus Supplement pursuant to Delayed Delivery Contracts (the
"Contracts") providing for payment and delivery on the date stated in the
Prospectus Supplement. Each Contract will be for an amount not less than,
and unless NYNEX otherwise agrees, the aggregate principal amount of
Securities sold pursuant to Contracts shall be not less nor more than, the
respective amounts stated in the Prospectus Supplement. Institutions with
whom Contracts, when authorized, may be made include commercial and savings
banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and other institutions, but shall
in all cases be subject to the approval of NYNEX. Contracts will be not
subject to any conditions except that the purchase by an institution of the
Securities covered by its Contract shall not at the time of delivery be
prohibited under the laws of any jurisdiction in the United States to which
such institution is subject. A commission indicated in the Prospectus
Supplement will be paid to underwriters and agents soliciting purchases of
Securities pursuant to Contracts accepted by NYNEX.
The place and time of delivery for the Securities in respect of which
this Prospectus is delivered are set forth in the accompanying Prospectus
Supplement.
EXPERTS
The consolidated financial statements and related financial statement
schedules of NYNEX and its subsidiaries included or incorporated by
reference in NYNEX's Annual Report on Form 10-K for the year ended December
31, 1993, have been audited by Coopers & Lybrand, independent accountants,
as set forth in the report of such firm. The consolidated financial
statements and financial statement schedules referred to above are
incorporated by reference herein in reliance upon the report of Coopers &
Lybrand given upon the authority of that firm as experts in accounting and
auditing.
LEGAL MATTERS
The legality of the Securities to be offered hereby will be passed
upon for NYNEX by Raymond F. Burke, Executive Vice President and General
Counsel of NYNEX, and for any agent or underwriter, by Simpson Thacher &
Bartlett (a partnership which includes professional corporations), 425
Lexington Avenue, New York, New York 10017. Simpson Thacher & Bartlett from
time to time has acted as counsel in certain matters for NYNEX and certain
of its subsidiaries.
<PAGE>
No dealer, salesperson or
other individual has been
authorized to give any
information or to make any
representations not contained
or incorporated by reference
in this Prospectus Supplement
or the accompanying Prospectus
and, if given or made, such
information or representations
must not be relied upon as NYNEX CORPORATION
having been authorized by
NYNEX or any underwriter, [NYNEX LOGO]
dealer or agent. Neither this
Prospectus Supplement nor the
accompanying Prospectus
constitutes an offer to sell
or a solicitation of an offer
to buy any of the securities __________________
offered hereby or thereby in
any jurisdiction to any person PROSPECTUS
to whom it is unlawful to make
such offer in such __________________
jurisdiction. Neither the
delivery of this Prospectus
Supplement and the
accompanying Prospectus nor
any sale made hereunder or
thereunder shall, under any
circumstances, create any
implication that the
information herein or therein
is correct as of any time
subsequent to the date hereof
or thereof or that there has
been no change in the affairs
of NYNEX since such date.
_________________
Table of Contents
Page
Available Information 2
Incorporation of Documents
by Reference 2
NYNEX Corporation 3
Ratio of Earnings to
Fixed Charges 3
Use of Proceeds 4
Description of Common Stock 4
Description of Preferred Stock 9
Description of Debt Securities 12
Risk Factors Relating to
Currencies 24
Plan of Distribution 24
Experts 25
Legal Matters 25
,1994
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Securities and Exchange Commission Filing Fee $310,347
Rating Agency Fees 243,000*
Printing and Distributing Registration Statement,
Prospectus, Prospectus Supplement, Underwriting
Agreement, Securities and Miscellaneous
Material 60,000*
Accountants' Fees and Expenses 100,000*
Legal Fees and Expenses 40,000*
Blue Sky Fees and Expenses 10,000*
Miscellaneous Expenses 26,400*
Total $789,747
____________________
*Estimated.
Item 15. Indemnification of Directors and Officers.
Section 145, as amended, of the Delaware General Corporation Law
provides that a Delaware corporation may indemnify, among others, its
officers, directors, employees and agents under the circumstances described
in the statute. Article 9, as amended May 6, 1987, of the Restated
Certificate of Incorporation of NYNEX provides for indemnification of NYNEX
directors and officers as follows:
"9.1 The corporation shall indemnify any person who was or is a
party or witness, or is threatened to be made a party or witness, to
any threatened, pending or completed action, suit or proceeding
(including, without limitation, an action, suit or proceeding by or in
the right of the corporation), whether civil, criminal, administrative
or investigative (including a grand jury proceeding), by reason of the
fact that he or she (a) is or was a director or officer of the
corporation or, (b) as a director or officer of the corporation, is or
was serving at the request of the corporation as a director, officer,
employee, agent, partner or trustee (or in any similar position) of
another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, to the fullest extent authorized or
permitted by the General Corporation Law of Delaware and any other
applicable law, as the same exists or may hereafter be amended (but,
in the case of any such amendment, only to the extent that such
amendment permits the corporation to provide broader indemnification
rights than said law permitted the corporation to provide prior to
such amendment), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit
or proceeding, or in connection with any appeal thereof; provided,
however, that, except as provided in Section 9.2 of this Article with
respect to proceedings to enforce rights to indemnification, the
corporation shall indemnify any such person in connection with an
action, suit or proceeding (or part thereof) initiated by such person
only if the initiation of such action, suit or proceeding (or part
thereof)was authorized by the Board of Directors. Such right to
indemnification shall include the right to payment by the corporation
of expenses incurred in connection with any such action, suit or
proceeding in advance of its final disposition; provided, however,
that the payment of such expenses incurred by a director or officer in
advance of the final disposition of such action, suit or proceeding
shall be made only upon delivery to the corporation of an undertaking,
by or on behalf of such director or officer, to repay all amounts so
advanced if it should be determined ultimately that such director or
officer is not entitled to be indemnified under this Article or
otherwise.
<PAGE>
9.2 Any indemnification or advancement of expenses required
under this Article shall be made promptly, and in any event within
sixty days, upon the written request of the person entitled thereto.
If a determination by the corporation that the person is entitled to
indemnification pursuant to this Article is required, and the
corporation fails to respond within sixty days to a written request
for indemnity, the corporation shall be deemed to have approved such
request. If the corporation denies a written request for indemnity or
advancement of expenses, in whole or in part, or if payment in full
pursuant to such request is not made within sixty days, the right to
indemnification and advancement of expenses as granted by this Article
shall be enforceable by the person in any court of competent
jurisdiction. Such person's costs and expenses incurred in connection
with successfully establishing his or her right to indemnification, in
whole or in part, in any such action or proceeding shall also be
indemnified by the corporation. It shall be a defense to any such
action (other than an action brought to enforce a claim for the
advancement of expenses pursuant to this Article where the required
undertaking has been received by the corporation) that the claimant
has not met the standard of conduct set forth in the General
Corporation Law of Delaware, but the burden of proving such defense
shall be on the corporation. Neither the failure of the corporation
(including the Board of Directors, independent legal counsel or the
stockholders) to have made a determination prior to the commencement
of such action that indemnification of the claimant is proper in the
circumstances because he or she has met the applicable standard of
conduct set forth in the General Corporation Law of Delaware, nor the
fact that there has been an actual determination by the corporation
(including the Board of Directors, independent legal counsel or the
stockholders) that the claimant has not met such applicable standard
of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
9.3 The indemnification and advancement of expenses provided
by, or granted pursuant to, this Article shall not be deemed exclusive
of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement,
vote of stockholders or disinterested directors or otherwise, both as
to action in his or her official capacity and as to action in another
capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent, and shall
inure to the benefit of the heirs, executors and administrators of
such a person. Any repeal or modification of the provisions of this
Article 9 shall not affect any obligations of the corporation or any
rights regarding indemnification and advancement of expenses of a
director, officer, employee or agent with respect to any threatened,
pending or completed action, suit or proceeding for which
indemnification or the advancement of expenses is requested, in which
the alleged cause of action accrued at any time prior to such repeal
or modification.
9.4 The corporation may purchase and maintain insurance, at its
expense, to protect itself and any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against any liability
asserted against him or her and incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not
the corporation would have the power to indemnify him or her against
such liability under the provisions of this Article, the General
Corporation Law of Delaware or otherwise.
9.5 If this Article or any portion thereof shall be invalidated
on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each director and officer of
the corporation as to expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement
with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including, without
limitation, a grand jury proceeding and an action, suit or proceeding
by or in the right of the corporation, to the fullest extent permitted
by any applicable portion of this Article that shall not have been
invalidated, by the General Corporation Law of Delaware or by any
other applicable law."
Substantially identical indemnification provisions are contained in
NYNEX's By-Laws.
The directors and officers of NYNEX are covered by insurance policies
indemnifying against certain liabilities, including certain liabilities
arising under the Securities Act of 1933, which might be incurred by them
in such capacities and against which they cannot be indemnified by NYNEX.
<PAGE>
Item 16. Exhibits.
1(a) Form of Underwriting Agreement (Common Stock).
(b) Form of Underwriting Agreement (Preferred Stock).
(c) Form of Underwriting Agreement (Debt Securities).
4(a) Indenture, dated as of March 1, 1990, from NYNEX Corporation
to Marine Midland Bank (formerly Marine Midland Bank, N.A.),
Trustee (Exhibit 4(a) to Current Report on Form 8-K dated
March 19, 1990).
(b) Form of First Supplemental Indenture to Indenture, dated as of
March 1, 1990, from NYNEX Corporation to Marine Midland Bank,
Trustee.
(c) Form of Certificate of Designations for Preferred Stock.
(d) Restated Certificate of Incorporation of NYNEX Corporation, dated
May 6, 1987 (Exhibit 3(a) to Form SE, dated March 24, 1988, File
No. 1-8608).
(e) By-Laws of NYNEX Corporation, dated October 12, 1983, as amended
October 17, 1991 (Exhibit 3 (b) to Quarterly Report on Form 10-Q
for the quarter ended September 30, 1991, File No. 1-8608).
(f) Rights Agreement to Purchase Series A Junior Participating
Preferred Stock between NYNEX Corporation and The First
National Bank of Boston, as successor Rights Agent, dated as of
October 19, 1989.
(g) The form or forms of Securities with respect to each particular
series of Securities registered hereunder will be filed as an
exhibit to a Current Report of the Registrant on Form 8-K and
incorporated herein by reference.
5(a) Opinion of Raymond F. Burke, Executive Vice President and General
Counsel of NYNEX Corporation.
12 Computation of Ratio of Earnings to Fixed Charges (Exhibit 12 to
Quarterly Report on Form 10-Q for the quarter ended March 31,
1994, File No. 1-8608).
23(a) Consent of Coopers & Lybrand, independent accountants.
23(b) Consent of Raymond F. Burke, Executive Vice President and
General Counsel of NYNEX Corporation, is contained in his opinion
filed as Exhibit 5(a).
24 Powers of Attorney.
25 Statement of Eligibility of Trustee on Form T-1.
<PAGE>
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this 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
herein, 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in
this registration statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
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 such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, NYNEX
Corporation 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 or amendment thereto to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of New York and
State of New York, on the 13th day of May, 1994.
NYNEX CORPORATION
By P. M. Ciccone
P. M. Ciccone, Vice President and Comptroller)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or amendment thereto has been signed below by the
following persons in the capacities and on the date indicated.
Principal Executive Officer:
W. C. Ferguson* Chairman of the Board and
Chief Executive Officer
Principal Financial Officer:
F. V. Salerno* Vice Chairman
Finance and Development
Principal Accounting Officer:
P. M. Ciccone* Vice President and Comptroller
A Majority of Directors:
John Brademas*
Randolph W. Bromery*
John J. Creedon*
William C. Ferguson*
Stanley P. Goldstein*
Helene L. Kaplan* *By P. M. Ciccone
Elizabeth T. Kennan* (P. M. Ciccone, asattorney-in-fact
Edward E. Phillips* and on his own behalf as
Frederic V. Salerno* Principal Accounting Officer)
Ivan Seidenberg*
Walter V. Shipley* May 13, 1994
John R. Stafford*
Exhibit 1(a)
FORM OF
NYNEX CORPORATION
COMMON STOCK
UNDERWRITING AGREEMENT
New York, New York
, 199
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
NYNEX Corporation, a Delaware corporation (the "Company"),
may issue and sell from time to time its Common Stock, par value
$1.00 per share (the "Common Stock"), registered under the
registration statement referred to in Paragraph 1(a) hereof (the
"Securities" and individually a "Security"). The Company
proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters") for whom you are acting as representatives
(the "Representative"), the number of Securities specified in
Schedule I hereto (the "Firm Underwritten Securities" and
individually a "Firm Underwritten Security"). In addition, the
Company proposes to grant to the Underwriters an option to
purchase up to the number of additional Securities specified in
Schedule I hereto on the terms and for the purposes set forth in
Paragraph 2 hereof (the "Option Underwritten Securities"). The
Firm Underwritten Securities and the Option Underwritten
Securities, if purchased, are hereinafter collectively called the
"Underwritten Securities." If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and
"Representative" shall each be deemed to refer to such firm or
firms.
1. The Company represents, warrants and agrees that:
(a) A registration statement [(No. 33- ) and a
registration statement (No. 33- ) on Form S-3, including
a prospectus, with respect to the Securities [has] [have]
been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended
("Act"), and the rules and regulations ("Rules and
Regulations") of the Securities and Exchange Commission
("Commission") thereunder and [has] [each of such
registration statements have] become effective. As used in
this Agreement, (i) such registration statement [(No. 33-
) and such registration statement (No. 33- ),] [each],
as amended and supplemented to the date hereof [is] [are]
hereinafter referred to as the "Registration Statement,"
["Initial Registration Statement" and the "Last Registration
Statement," respectively, singly as a "Registration
Statement" and collectively as the "Registration
Statements,"] (ii) "Preliminary Prospectus" means each
prospectus (including all documents incorporated therein by
reference) included in the [Registration Statement] [Last
Registration Statement], or amendments or supplements
thereof, before it became effective under the Act, including
any prospectus filed with the Commission pursuant to Rule
<PAGE>
424(a) of the Rules and Regulations; (iii) "Basic
Prospectus" means the prospectus (including all documents
incorporated therein by reference) included in the
[Registration Statement] [Last Registration Statement]; and
(iv) "Prospectus" means the Basic Prospectus, together with
any prospectus amendment or supplement (including in each
case all documents incorporated therein by reference)
specifically relating to the Underwritten Securities, as
filed with the Commission pursuant to paragraph (b) of Rule
424 of the Rules and Regulations. The Commission has not
issued any order preventing or suspending the use of any
Prospectus.
(b) The Registration Statement[s] and each Prospectus
contain[s], and (in the case of any amendment or supplement
to any such document, or any material incorporated by
reference in such document, filed with the Commission after
the date as of which this representation is being made) will
contain at all times during the period specified in
Paragraph 6(c) hereof, all statements which are required by
the Act, the Securities Exchange Act of 1934, as amended
("Exchange Act") and the rules and regulations of the
Commission under such Acts; and the Registration
Statement[s] and each Prospectus do not, and (in the case of
any amendment or supplement to any such document, or any
material incorporated by reference in any such document,
filed with the Commission after the date as of which this
representation is being made) will not, at any time during
the period specified in Paragraph 6(c) hereof, contain 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; provided, that
the Company makes no representation or warranty as to
information contained in or omitted from the Registration
Statement[s] or any Prospectus in reliance and based upon
written information furnished to the Company through the
Representative by or on behalf of any Underwriter.
(c) Neither the Company nor any of the subsidiaries of
the Company is in violation of its corporate charter or
by-laws or in default under any agreement, indenture or
instrument, the effect of which violation or default would
be material to the Company; the execution, delivery and
performance of this Agreement and the issuance and delivery
of the Underwritten Securities will not conflict with,
result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company or any
subsidiary of the Company pursuant to the terms of, or
constitute a default under, any agreement, indenture or
instrument, or result in a violation of the corporate
charter or by-laws of the Company or any subsidiary of the
Company or any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company or
any subsidiary of the Company or their respective
properties; and except as required by the Act, the Exchange
Act and applicable state securities laws, no consent,
authorization or order of, or filing or registration with,
any court or governmental agency is required for the
execution, delivery and performance of this Agreement,
except such as have been obtained under the Act and such
other approvals as have been obtained.
(d) All the outstanding shares of capital stock of New
York Telephone Company and New England Telephone and
Telegraph Company (the "Telephone Companies") have been duly
and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the
Prospectus, all outstanding shares of capital stock of the
Telephone Companies are owned by the Company directly, free
and clear of any security interests, claims, liens or
encumbrances.
(e) Except as described in or contemplated by the
Registration Statement[s] and each Prospectus, there has not
been any material adverse change in, or any adverse
development which materially affects, the business,
properties, financial condition, results of operations or
prospects of the Company from the dates as of which
information is given in the Registration Statement[s] and
each Prospectus.
<PAGE>
(f) Coopers & Lybrand, whose report appears in the
Company's most recent Annual Report on Form 10-K which is
incorporated by reference in each Prospectus, are
independent public accountants as required by the Act and
the Rules and Regulations.
(g) On each Delivery Date (as defined in Paragraph 5
hereof) (i) the Underwritten Securities will have been duly
and validly authorized and, upon payment for the
Underwritten Securities as provided in this Agreement, will
be duly and validly issued, fully paid and nonassessable and
(ii) the Underwritten Securities will conform to the
descriptions thereof contained in the Prospectus.
(h) The Company has been duly incorporated, is validly
existing and in good standing under the laws of its
jurisdiction of incorporation, is duly qualified to do
business and in good standing as a foreign corporation in
each jurisdiction in which its ownership of property or
conduct of its business requires such qualification (except
where the failure to so qualify would not have a material
adverse effect upon the Company), and has power and
authority necessary to own or hold its properties and to
conduct the business in which it is engaged.
(i) Except as described in each Prospectus, there is
no material litigation or governmental proceeding pending
or, to the knowledge of the Company, threatened against the
Company or any subsidiary of the Company which might result
in any material adverse change in the financial condition,
results of operations, business or prospects of the Company
or which is required to be disclosed in the Registration
Statement[s].
(j) The financial statements filed as part of the
Registration Statement[s] or included in any Preliminary
Prospectus or Prospectus present, or (in the case of any
amendment or supplement to any such document, or any
material incorporated by reference in any such document,
filed with the Commission after the date as of which this
representation is being made) will present at all times
during the period specified in Paragraph 6(c) hereof,
fairly, the financial condition and results of operations of
the entities purported to be shown thereby, at the dates and
for the periods indicated, and have been, and (in the case
of any amendment or supplement to any such document, or any
material incorporated by reference in any such document,
filed with the Commission after the date as of which this
representation is being made) will be at all times during
the period specified in Paragraph 6(c) hereof, prepared in
conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods
involved.
(k) The documents incorporated by reference into any
Preliminary Prospectus or Prospectus have been, and (in the
case of any amendment or supplement to any such document, or
any material incorporated by reference in any such document,
filed with the Commission after the date as of which this
representation is being made) will be at all times during
the period specified in Paragraph 6(c) hereof, prepared by
the Company in conformity with the applicable requirements
of the Act and the Rules and Regulations and the Exchange
Act and the rules and regulations of the Commission
thereunder and such documents have been, or (in the case of
any amendment or supplement to any such document, or any
material incorporated by reference in any such document,
filed with the Commission after the date as of which this
representation is being made) will be at all times during
the period specified in Paragraph 6(c) hereof, timely filed
as required thereby.
(l) There are no contracts of other documents which
are required to be filed as exhibits to the Registration
Statement[s] by the Act or by the Rules and Regulations, or
which were required to be filed as exhibits to any document
incorporated by reference in any Prospectus by the Exchange
<PAGE>
Act or the rules and regulations of the Commission
thereunder, which have not been filed as exhibits to the
Registration Statement[s] or to such document or
incorporated therein by reference as permitted by the Rules
and Regulations or the rules and regulations of the
Commission under the Exchange Act as required.
(m) The Company has good and valid title to all or
substantially all of its properties, except as otherwise
indicated in the Prospectus.
2. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set
forth, the Company agrees to sell the number of Firm
Underwritten Securities set forth in Schedule I hereto to
the several Underwriters, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at
the purchase price and on the other terms set forth in
Schedule I hereto, the respective number of Firm
Underwritten Securities set forth opposite its name in
Schedule II hereto.
In addition, the Company grants to the Underwriters an
option to purchase up to the number of additional Option
Underwritten Securities specified in Schedule I hereto.
Such option is granted solely for the purpose of covering
over-allotments in the sale of Firm Underwritten Securities
and is exercisable as provided in Paragraph 5 hereof.
Option Underwritten Securities shall be purchased severally
for the account of the Underwriters in proportion to the
number of Firm Underwritten Securities set forth opposite
the name of such Underwriters in Schedule II hereto. The
respective purchase obligations of each Underwriter with
respect to the Option Underwritten Securities shall be
adjusted by the Representative so that no Underwriter shall
be obligated to purchase Option Underwritten Securities
other than in 100 share amounts. The price of both the Firm
Underwritten Securities and any Option Underwritten
Securities shall be identical, as set forth in Schedule I
hereto.
3. The Company shall not be obligated to deliver any
of the Underwritten Securities to be delivered on the First
Delivery Date or the Second Delivery Date (as hereinafter
defined), as the case may be, except upon payment for all
the Underwritten Securities to be purchased on such Delivery
Date as provided herein.
4. If, on either Delivery Date, any Underwriter
defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting Underwriters shall
be obligated to purchase the Underwritten Securities which
the defaulting Underwriter agreed but failed to purchase on
such Delivery Date in the respective proportions which the
number of Firm Underwritten Securities set forth in Schedule
II hereto to be purchased by each remaining non-defaulting
Underwriter set forth therein bears to the total number of
Firm Underwritten Securities set forth therein to be
purchased by all remaining non-defaulting Underwriters;
provided that the remaining non-defaulting Underwriters
shall not be obligated to purchase any Underwritten
Securities on such Delivery Date if the total number of
Underwritten Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase exceeds 9.09% of
the total number of Underwritten Securities to be purchased
on such Delivery Date, and any remaining non-defaulting
Underwriter shall not be obligated to purchase more than
110% of the number of Underwritten Securities set forth in
Schedule II hereto to be purchased by it on such Delivery
Date. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters, or those other underwriters
satisfactory to the Representative who so agree, shall have
the right, but shall not be obligated, to purchase, in such
proportions as may be agreed upon among them, all the
Underwritten Securities to be purchased on such Delivery
Date. If the remaining Underwriters or other underwriters
satisfactory to the Representative do not elect to purchase
the Underwritten Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase on such
<PAGE>
Delivery Date, this Agreement (or, with respect to the
Second Delivery Date, the obligation of the Underwriters to
purchase, and of the Company to sell, the Option
Underwritten Securities) shall terminate without liability
on the part of any non-defaulting Underwriter or the
Company, except that the Company will continue to be liable
for the payment of expenses as set forth in Paragraph 6(k)
hereof.
Nothing contained in this Paragraph 4 shall relieve a
defaulting Underwriter of any liability it may have to the
Company for damages caused by its default. If other
underwriters are obligated or agree to purchase the
Underwritten Securities of a defaulting or withdrawing
Underwriter, either the Representative or the Company may
postpone the Delivery Date for up to seven full business
days in order to effect any changes that in the opinion of
counsel for the Company or counsel for the Underwriters may
be necessary in the Registration Statement[s], any
Prospectus or in any other document or arrangement.
5. Delivery of and payment for the Firm Underwritten
Securities shall be made at such address, date and time as
may be specified in Schedule I hereto. This date and time
are sometimes referred to as the "First Delivery Date." On
the First Delivery Date, the Company shall deliver the Firm
Underwritten Securities to the Representative for the
account of each Underwriter against payment to or upon the order
of the Company of the purchase price by certified or official
bank check or checks payable in next-day funds settled through the
New York Clearing House. Time shall be of the essence, and delivery
at the time and place specified pursuant to this Agreement is a
further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Firm Underwritten Securities
shall be in fully registered form. Firm Underwritten
Securities shall be in such authorized denominations and
registered in such names as the Representative shall request
in writing not less than two full business days prior to the
First Delivery Date. For the purpose of expediting the
checking and packaging of the Firm Underwritten Securities,
the Company shall make the Firm Underwritten Securities
available for inspection by the Representative in New York,
New York, not later than 2:00 P.M., local time, on the
business day prior to the First Delivery Date.
At any time on or before the thirtieth day after the
date of this Agreement, the option granted in Paragraph 2
may be exercised by written notice being given to the
Company by the Representative. Such notice shall set forth
the aggregate number of Option Underwritten Securities as to
which the option is being exercised, the names in which the
Option Underwritten Securities are to be registered, the
denominations in which the Option Underwritten Securities
are to be issued and the date and time, as determined by the
Representative, when the Option Underwritten Securities are
to be delivered; provided, however, that this date and time
shall not be earlier than the First Delivery Date nor
earlier than the second business day after the date on which
the option shall have been exercised nor later than the
fifth business day after the date on which the option shall
have been exercised. The date and time the Option
Underwritten Securities are delivered are sometimes referred
to as the "Second Delivery Date" and the First Delivery Date
and the Second Delivery Date are sometimes each referred to
as a "Delivery Date".
Delivery of and payment for the Option Underwritten
Securities shall be made at the same address specified in
Schedule I for the delivery of the Firm Underwritten
Securities (or at such other place as shall be determined by
agreement between the Representative and the Company) on the
Second Delivery Date. On the Second Delivery Date, the
Company shall deliver the Option Underwritten Securities to
the Representative for the account of each Underwriter
against payment to or upon the order of the Company of the
purchase price by certified or official bank check or checks
payable in next-day funds settled through the New York
Clearing House. Time shall be of the essence, and delivery
at the time and place specified pursuant to this Agreement
is a further condition of the obligation of each Underwriter
<PAGE>
hereunder. Upon delivery, the Option Underwritten
Securities shall be in fully registered form. Option
Underwritten Securities shall be in such authorized
denominations and registered in such names as the
Representative shall request in writing not less than two
full business days prior to the Second Delivery Date. For
the purpose of expediting the checking and packaging of the
Option Underwritten Securities, the Company shall make the
Option Underwritten Securities available for inspection by
the Representative in New York, New York, not later than
2:00 P.M., local time, on the business day prior to the
Second Delivery Date.
6. The Company agrees:
(a) To furnish promptly to the Representative and to
counsel for the Underwriters a conformed copy of [the]
[each] Registration Statement as originally filed and each
amendment or supplement thereto filed prior to the date
hereof or relating to or covering the Underwritten
Securities, and a copy of each Prospectus filed with the
Commission, including all documents incorporated therein by
reference and all consents and exhibits filed therewith;
(b) To deliver promptly to the Representative such
reasonable number of the following documents as the
Representative may request: (i) conformed copies of [the]
[each] Registration Statement (excluding exhibits other than
the computation of per share earnings and this Agreement),
(ii) each Prospectus and (iii) any documents incorporated by
reference in any Prospectus;
(c) To file with the Commission, during such period
following the date hereof as, in the opinion of counsel for
the Underwriters, any Prospectus that is required by law to
be delivered, any amendment or supplement to [the] [any]
Registration Statement or any Prospectus that may, in the
judgment of the Company or the Representative, be required
by the Act or requested by the Commission and not
disapproved by the Representative;
(d) Prior to filing with the Commission during the
period referred to in (c) above (i) any amendment or
supplement to [the] [any] Registration Statement, (ii) any
Prospectus or any amendment or supplement thereto or (iii)
any document incorporated by reference in any of the
foregoing or any amendment or supplement to such
incorporated document, to furnish a copy thereof to the
Representative and to counsel for the Underwriters and not
to file any document that shall have been disapproved by the
Representative;
(e) To advise the Representative promptly (i) when any
post-effective amendment to [the] [any] Registration
Statement relating to or covering the Underwritten
Securities becomes effective, (ii) of any request or
proposed request by the Commission for an amendment or
supplement to [the] [any] Registration Statement (insofar as
the amendment or supplement relates to or covers the
Underwritten Securities), to any Prospectus, to any document
incorporated by reference in any of the foregoing or for any
additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of
[the] [any] Registration Statement or any order directed to
any Prospectus or any document incorporated therein by
reference or the initiation or threat of any stop order
proceeding or of any challenge to the accuracy or adequacy
of any document incorporated by reference in any Prospectus,
(iv) of receipt by the Company of any notification with
respect to the suspension of the qualification of the
Underwritten Securities for sale in any jurisdiction or the
initiation or threat of any proceeding for that purpose and
(v) of the happening of any event which makes untrue any
statement of a material fact made in [the] [any]
Registration Statement (insofar as [the] [any such]
Registration Statement relates to or covers the Underwritten
Securities) or any Prospectus or which requires the making
<PAGE>
of a change in [the] [any such] Registration Statement or
any Prospectus in order to make any material statement
therein not misleading;
(f) If, during the period referred to in (c) above,
the Commission shall issue a stop order suspending the
effectiveness of [the] [any] Registration Statement, to make
every reasonable effort to obtain the lifting of that order
at the earliest possible time;
(g) As soon as practicable, to make generally
available to its security holders and to deliver to the
Representative an earnings statement, conforming with the
requirements of Section 11(a) of the Act, covering a period
of at least twelve months beginning after the latest of (i)
the [most recent] effective date of [the] [any] Registration
Statement, (ii) the effective date of the most recent
post-effective amendment to [the] [any] Registration
Statement that became effective prior to the date of this
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 this Agreement;
(h) So long as any of the Underwritten Securities are
outstanding, to furnish to the Representative copies of all
reports and financial statements furnished by the Company to
each securities exchange on which securities issued by the
Company may be listed pursuant to requirements of or
agreements with such exchange or to the Commission pursuant to the Exchange
Act or any rule or regulation of the Commission thereunder;
(i) To endeavor to qualify the Underwritten Securities
for offer and sale under the securities laws of such
jurisdictions as the Representative may reasonably request;
(j) To use its best efforts to obtain the listing of
the Underwritten Securities on the securities exchange, if
any, set forth in Schedule I (the "Stock Exchange") on or
prior to the First Delivery Date, and to cause such listing
to be continued so long as any number of the Securities
remains outstanding; to furnish from time to time any and
all documents, instruments, information and undertakings
that may be necessary in order to effect such listing; and
to maintain the same until none of the Underwritten
Securities is outstanding; provided that if the Company can
no longer reasonably maintain such listing, the Company
shall use its best efforts to obtain and maintain the
quotation for, or listing of, the Underwritten Securities on
such other securities exchange or exchanges as the Company
may, with the approval of the Representative, determine;
(k) To pay the costs incident to the authorization,
issuance, sale and delivery of the Underwritten Securities
and any taxes payable in that connection; the costs incident
to the preparation, printing and filing under the Act of
[the] [each] Registration Statement and any amendments,
supplements and exhibits thereto; the costs incident to the
preparation, printing and filing of any, document and any
amendments and exhibits thereto required to be filed by the
Company under the Exchange Act; the costs of distributing
[the] [each] Registration Statement as originally filed and
each amendment and post-effective amendment thereof
(including exhibits), any Preliminary Prospectus, each
Prospectus and any documents incorporated by reference in
any of the foregoing documents; the costs of printing this
Agreement; the costs of any filings with the National
Association of Securities Dealers, Inc.; the fees and
expenses of qualifying the Underwritten Securities under the
securities laws of the several jurisdictions as provided in
this paragraph and of preparing and printing a Blue Sky
Memorandum (including fees of counsel to the Underwriters);
the cost of listing the Underwritten Securities on the Stock
Exchange; and all other costs and expenses incident to the
performance of the Company's obligations under this
Agreement, provided that, except as provided in this
paragraph and in Paragraph 10 hereof, the Underwriters shall
pay their own costs and expenses, including the fees and
expenses of their counsel, any transfer taxes on the
Underwritten Securities which they may sell and the expenses
of advertising any offering of the Underwritten Securities
made by the Underwriters;
<PAGE>
(l) Until the termination of the offering of the
Underwritten Securities, to timely file all documents, and
any amendments to previously filed documents, required to be
filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act; and
(m) During the period beginning on the date hereof and
continuing for a period of ____ days after the last Delivery
Date, without the consent of the Representative, the Company
shall not issue or announce the proposed issuance of any
shares of its capital stock (except for reservations, grants
and agreements pursuant to employee benefit and compensation
plans and dividend reinvestment plans of the Company).
7. (a) The Company shall indemnify and hold harmless
each Underwriter and each person, if any, who controls any
Underwriter within the meaning of the Act from and against any
loss, claim, damage or liability, joint or several, and any
action in respect thereof, to which that Underwriter or
controlling person may become subject, under the Act or
otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, [the] [any] Registration Statement or any
Prospectus, or arises out of, or is 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 shall reimburse each Underwriter and such
controlling person for any legal and other expenses reasonably
incurred by that Underwriter or controlling person in
investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses
are incurred; provided that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, [the] [any]
Registration Statement or any Prospectus in reliance and based
upon written information furnished to the Company through the
Representative by or on behalf of any Underwriter; and provided
further that as to any Preliminary Prospectus this indemnity
agreement shall not inure to the benefit of any Underwriter or
any person controlling that Underwriter on account of any loss,
claim, damage, liability or action arising from the sale of
Underwritten Securities to any person by that Underwriter if that
Underwriter failed to send or give a copy of any Prospectus, as
the same may be amended or supplemented, to that person within
the time required by the Act, and the untrue statement or alleged
untrue statement of a material fact or omission or alleged
omission to state a material fact in such Preliminary Prospectus
was corrected in such Prospectus, unless such failure resulted
from noncompliance by the Company with Paragraph 6(b) hereof.
For purposes of the second proviso to the immediately preceding
sentence, the term Prospectus shall not be deemed to include the
documents incorporated therein by reference, and no Underwriter
shall be obligated to send or give any supplement or amendment to
any document incorporated by reference in any Preliminary
Prospectus or any Prospectus of any person other than a person to
whom such Underwriter has delivered such incorporated documents
in response to a written request therefor. The foregoing
indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or controlling
person.
(b) Each Underwriter shall indemnify and hold harmless the
Company, each of its directors, each of its officers who signed
[the] [any] Registration Statement and any person who controls
the Company within the meaning of the Act from and against any
loss, claim, damage or liability, joint or several, and any
action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under
the Act or otherwise, insofar as such loss, claim, damage,
liability or action, arises out of, or is based upon, any untrue
statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, [the] [any] Registration
Statement or any Prospectus, or arises out of, or is based upon,
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
<PAGE>
therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance and to and upon written
information furnished to the Company through the Representative
by or on behalf of that Underwriter, and shall reimburse the
Company for any legal and other expenses reasonably incurred by
the Company or any such director, officer or controlling person
in investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses
are incurred. The foregoing indemnity agreement is in addition
to any liability which any Underwriter may otherwise have to the
Company or any of its directors, officers or controlling persons.
(c) Promptly after receipt by an indemnified party under this
Paragraph 7 of notice of any claim or the
commencement of any action, the indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying
party under this Paragraph 7, notify the indemnifying party in
writing of the claim or the commencement of that action, provided
that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have to an indemnified
party otherwise than under this Paragraph 7. If any such claim
or action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein, and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this
Paragraph 7 for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense thereof
other than reasonable costs of investigation, provided that the
Representative shall have the right to employ one counsel to
represent the Representative, those other Underwriters and their
respective controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be
sought by the Underwriters against the Company under this
Paragraph 7 if, in the reasonable judgment of the Representative,
it is advisable for the Representative, those Underwriters and
controlling persons to be represented by separate counsel, and in
that event the fees and expenses of such separate counsel shall
be paid by the Company. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be
a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel
as contemplated by this Paragraph 7, the indemnifying party
agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such
settlement is entered into more than 60 days after receipt by
such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement
of any pending or threatened proceeding 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 claims that are the
subject matter of such proceeding.
(d) If the indemnification provided for in this Paragraph 7
shall for any reason be unavailable to an indemnified party under
Paragraph 7(a) or 7(b) hereof in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred
to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect thereof,
in such proportion as shall be 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 Underwritten
Securities and the relative fault of the Company on the one hand
and the Underwriters on the other with respect to the statements
or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other
<PAGE>
relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on
the other with respect to such offering shall be deemed to be in
the same proportion as the total net proceeds from the offering
of the Underwritten Securities (before deducting expenses)
received by the Company bear to the total underwriting discounts
and commissions received by the Underwriters with respect to such
offering. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters, the
intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement
or omission. The amount paid or payable by an indemnified party
as a result of the loss, claim, damage or liability, or action in
respect thereof, referred to above in this Paragraph 7(d) shall
be deemed to include, for purposes of this Paragraph 7(d), any
legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this
Paragraph 7(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at
which the Underwritten Securities underwritten by it and
distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise paid
or become liable to pay by reason of any 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 to contribute as provided in this
Paragraph 7(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) The indemnity agreements contained in this Paragraph 7
and the representations, warranties and agreements of the Company
in Paragraph 1 and Paragraph 6 hereof shall survive the delivery
of the Underwritten Securities and shall remain in full force and
effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any
indemnified party.
8. The obligations of the Underwriters under this
Agreement may be terminated by the Representative, in its
absolute discretion, by notice given to and received by the
Company prior to the delivery of and payment for the Firm
Underwritten Securities, if, during the period beginning on the
date hereof to and including the First Delivery Date, (a) there
shall have been any decrease in the ratings of any of the
Company's debt securities by Moody's Investors Service, Inc. or
Standard & Poor's Corporation, (b) trading in the Company's
Common Stock shall have been suspended by the Commission or the
New York Stock Exchange or trading in securities generally on the
New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such Exchange, (c)
a banking moratorium shall have been declared by either Federal
or New York State authorities or (d) there shall have occurred
any outbreak or material escalation of hostilities the effect of
which on the financial markets or the United States is such as to
make it, in the reasonable judgment of the Representative,
impracticable to market the Underwritten Securities, or (e) any
change or any development involving a prospective change, in or
affecting the business or properties of the Company and its
subsidiaries, taken as a whole, shall have occurred the effect of
which is, in the reasonable judgment of the Underwriters, so
material and adverse as to make it impracticable or inadvisable
to proceed with the delivery of the Underwritten Securities.
9. The respective obligations of the Underwriters under
this agreement with respect to the Underwritten Securities are
subject to the accuracy, on the date hereof and on each Delivery
Date, of the representations and warranties of the Company
contained herein, to performance by the Company of its
obligations hereunder, and to each of the following additional
terms and conditions applicable to the Underwritten Securities:
(a) At or before such Delivery Date, no stop order
suspending the effectiveness of [the] [any] Registration
Statement nor any order directed to any document
<PAGE>
incorporated by reference in any Prospectus shall have been
issued and prior to that time no stop order proceeding shall
have been initiated or threatened by the Commission and no
challenge shall have been made to the accuracy or adequacy
of any document incorporated by reference in any Prospectus;
any request of the Commission for inclusion of additional
information in [the] [any] Registration Statement or any
Prospectus or otherwise shall have been complied with; and
after the date hereof the Company shall not have filed with
the Commission any amendment or supplement to [the] [any]
Registration Statement or any Prospectus (or any document
incorporated by reference therein) that shall have been
disapproved by the Representative.
(b) No Underwriter shall have discovered and disclosed
to the Company on or prior to such Delivery Date that [the]
[any] Registration Statement or any Prospectus contains an
untrue statement of a fact which, in the opinion of counsel
for the Underwriters, is material or omits to state a fact
which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the
statements therein not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this
Agreement, the Underwritten Securities and the form of [the]
[any] Registration Statement, each Prospectus (other than
financial statements and other financial data) and all other
legal matters relating to this Agreement and the
transactions contemplated hereby shall be satisfactory in
all respects to Simpson Thacher & Bartlett, counsel for the
Underwriters, and the Company shall have furnished to such
counsel all documents and information that such counsel may
reasonably request to enable it to pass upon such matters.
(d) Raymond F. Burke, Executive Vice President and
General Counsel of the Company, shall have furnished to the
Representative his opinion addressed to the Underwriters and
dated such Delivery Date, as Executive Vice President and
General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing under the laws of
the State of Delaware;
(ii) The Company is duly qualified to do business
and is in good standing as a foreign corporation in all
jurisdictions in which its ownership of property or the
conduct of its business requires such qualification
(except where the failure to so qualify would not have
a material adverse effect upon the Company), and has
all power and authority necessary to own its properties
and conduct the business in which it is engaged as
described in the Prospectus;
(iii) All the outstanding shares of capital
stock of the Telephone Companies have been duly and
validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in
the Prospectus, all outstanding shares of capital stock
of the Telephone Companies are owned by the Company
directly, free and clear of any perfected security
interest and, to the knowledge of such counsel, after
due inquiry, any other security interests, claims,
liens or encumbrances;
(iv) The Company has an authorized capitalization
as set forth in the Prospectus, and all of the issued
shares of capital stock of the Company (including the
Underwritten Securities being delivered on such
Delivery Date) have been duly and validly authorized
and issued, are fully paid and nonassessable and
conform to the description thereof contained in the
Prospectus;
<PAGE>
(v) There are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon
the voting or transfer of, any of the Underwritten
Securities pursuant to the Company's charter or by-laws
or any agreement or other instrument known to such
counsel;
(vi) The statements made in each Prospectus under
the caption "Description of Common Stock" (or a
comparable caption), insofar as they purport to
constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of
such documents in all material respects;
(vii) [The] [Each] Registration Statement is
effective under the Act and, to the knowledge of such
counsel, no stop order suspending its effectiveness has
been issued and no proceeding for that purpose is
pending or threatened by the Commission;
(viii) No order issued by the Commission
directed to any document incorporated by reference in
any Prospectus has been issued and, to the knowledge of
such counsel, no challenge has been made by the
Commission to the accuracy or adequacy of any such
document;
(ix) Such counsel does not know of any litigation
or any governmental proceeding pending or threatened
against the Company or any of its subsidiaries which
would affect the subject matter of this Agreement or is
required to be disclosed in any Prospectus (including
the documents incorporated by reference therein) which
is not disclosed and correctly summarized therein;
(x) To the best of such counsel's knowledge,
neither the Company nor any of its subsidiaries is in
violation of its corporate charter or by-laws, or in
default under any material agreement, indenture or
instrument;
(xi) This Agreement has been duly authorized,
executed and delivered by the Company;
(xii) The execution, delivery and performance of
this Agreement, and the issuance and sale of the
Underwritten Securities being delivered on such
Delivery Date by the Company, will not conflict with,
or result in the creation or imposition of any lien,
charge or encumbrance upon any of the assets of the
Company or any of its subsidiaries pursuant to the
terms of, or constitute a default under, any agreement,
indenture or instrument known to such counsel, or
result in a violation of the corporate charter or
by-laws of the Company or any of its subsidiaries or
any order, rule or regulation of any court or
governmental agency having jurisdiction over the
Company or any of its subsidiaries or their respective
properties; and
(xiii) No consent, approval, authorization or order
of any court or governmental agency or body is required
for the consummation of the transactions contemplated
herein except such as have been obtained under the Act
and such other approvals (specified in such opinion) as
have been obtained.
In giving such opinion, such counsel need not express
any opinion regarding any order, consent or other
authorization or approval which may be legally required
pursuant to any state securities law.
<PAGE>
Such opinion shall also state that [the] [each]
Registration Statement and each Prospectus, as of their
respective effective or issue dates, or if a post-effective
amendment to [the] [any such] Registration Statement has
become effective, as of the effective date of the last such
post-effective amendment thereto to become effective,
complied as to form in all material respects with the
requirements of the Act and the rules and regulations of the
Commission under the Act (except that no opinion need be
expressed as to the financial statements and other financial
data contained therein) and each document incorporated by
reference in each Prospectus as filed under the Exchange Act
complied when so filed as to form in all material respects
with the applicable requirements of the Exchange Act and the
rules and regulations of the Commission thereunder (except
that no opinion need be expressed as to the financial
statements and other financial data contained therein).
Such opinion shall also contain a statement that such
counsel has no reason to believe that (i) [the] [any]
Registration Statement, on the date it became effective, or
if a post-effective amendment to [the] [any such]
Registration Statement has become effective, as of the
effective date of the last such post-effective amendment
thereto to become effective (or, with respect to [the] [any]
Registration Statement, if the Company has filed an Annual
Report on Form 10-K since such effective date, the date of
the Company's most recent Annual Report on Form 10-K),
contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading (except that no belief need be expressed as to
the financial statements and other financial data contained
therein), or (ii) the Prospectus contains an untrue
statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading (except that no belief need be expressed as to
the financial statements and other financial data contained
therein);
(e) The Company shall have furnished to the
Representative on such Delivery Date a certificate, dated
such Delivery Date, of the Chairman of the Board, a Vice
Chairman of the Board, the President or a Vice President and
a financial or accounting officer of the Company (which
signatories shall not be employed in the same department)
stating that:
(i) The representations, warranties and
agreements of the Company in Paragraph 1 hereof are
true and correct as of such Delivery Date; the Company
has complied with all its agreements contained herein;
and the conditions set forth in Paragraph 9(a) hereof
have been fulfilled;
(ii) They have carefully examined [the] [each]
Registration Statement and each Prospectus and, in
their opinion, (A) as of the date of each Prospectus,
the Registration Statement[s] and the Prospectus did
not include any untrue statement of a material fact and
did not omit to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading, and (B) since the date of each
Prospectus, no event has occurred which should have
been set forth in a supplement to or amendment of the
Prospectus which has not been set forth in such a
supplement or amendment.
(f) The Company shall have furnished to the
Representative (i) a letter of Coopers & Lybrand,
addressed to the Underwriters and dated the date hereof of
the type described in the American Institute of Certified
Public Accountants' Statement on Auditing Standards No. 72
and covering such specified financial statement items as
counsel for the Underwriters may reasonably have requested
and (ii) a letter of Coopers & Lybrand, addressed to the
Underwriters and dated such Delivery Date, stating, as of
the date of such letter (or, with respect to matters
<PAGE>
involving changes or developments since the respective dates
as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to
the date of such letter), the conclusions and findings of
such firm with respect to the financial information and
other matters covered by its letter referred to in subclause
(i) above, confirming in all material respects the
conclusions and findings set forth in such prior letter.
(g) Simpson Thacher & Bartlett shall have furnished to
the Representative its opinion addressed to the Underwriters
and dated such Delivery Date, as counsel for the
Underwriters, covering the matters set forth in Paragraph
9(d), except clauses (ii), (iii), (iv), (v), (vii), (viii),
(ix), (x), (xii) and (xiii) thereof.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in
compliance with the provisions hereof only if they are in form
and substance satisfactory to counsel for the Underwriters.
10. If the Company shall fail to tender the Underwritten
Securities for delivery to the Underwriters for any reason
permitted under this Agreement, or if the Underwriters shall
decline to purchase the Underwritten Securities for any reason
permitted under this Agreement (other than pursuant to Paragraph
4 hereof), the Company shall reimburse the Underwriters for the
reasonable fees and expenses of their counsel and for such other
out-of-pocket expenses as shall have been incurred by them in
connection with this Agreement and the proposed purchase of
Underwritten Securities, and upon demand the Company shall pay
the full amount thereof to the Representative. If this Agreement
is terminated pursuant to Paragraph 4 hereof by reason of the
default of one or more Underwriters, the Company shall not be
obligated to reimburse any defaulting Underwriter on account of
those expenses.
11. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement by, or on behalf of, the
Representative. Any notice by the Company to the Underwriters
shall be sufficient if given in writing or by telegraph addressed
to the Representative at its address set forth in Schedule I
hereto and any notice by the Underwriters to the Company shall be
sufficient if given in writing or by telegraph addressed to the
Company at 1113 Westchester Avenue, White Plains, New York 10604,
Attention: Treasurer.
12. This Agreement shall be binding upon the Underwriters,
the Company and their respective successors. This Agreement and
the terms and provisions hereof are for the sole benefit of only
those persons, except that (a) the representations, warranties,
indemnities and agreements of the Company contained in this
Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any Underwriter within the
meaning of Section 15 of the Act, and (b) the indemnity agreement
of the Underwriters contained in Paragraph 7 hereof shall be
deemed to be for the benefit of directors of the Company,
officers of the Company who have signed [the] [any] Registration
Statement and any person controlling the Company. Nothing in
this Agreement is intended or shall be construed to give any
person, other than the persons referred to in this paragraph, any
legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
13. For purposes of this Agreement, (a) "business day"
means any day on which the New York Stock Exchange, Inc. is open
for trading and (b) "subsidiary" has the meaning set forth in
Rule 405 of the Rules and Regulations.
14. This Agreement shall be governed by and construed in
accordance with the laws of New York.
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed
duplicate hereof, whereupon this Agreement shall represent a
binding agreement among the Company and the several underwriters.
Very truly yours,
NYNEX Corporation
By ____________________
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
[Name of Representative]
By [Name of Representative]
By____________________
Title:
For itself and as Representative
of the several Underwriters
named in Schedule II to the
foregoing Agreement.
<PAGE>
SCHEDULE I
Underwriting Agreement dated , 199
Registration Statement[s] No. 33-
Representatives and Addresses:
Underwritten Securities:
Number:
Purchase Price:
Public Offering Price:
Stock Exchange Listing:
First Delivery Date, Time and Location: , 199 at
10 a.m. at the
office of NYNEX
Corporation,
New York, NY
Maximum Number of Option
Underwritten Securities:
<PAGE>
SCHEDULE II
Number of Firm
Underwritten
Name of Underwriters
Securities
$
Total _______________
Exhibit 1(b)
FORM OF
NYNEX CORPORATION
PREFERRED STOCK
UNDERWRITING AGREEMENT
New York, New York
, 199
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
NYNEX Corporation, a Delaware corporation (the
"Company"), may issue and sell from time to time one or more
series of its preferred stock, par value $1.00 per share (the
"Preferred Stock"), registered under the registration statement
referred to in Paragraph 1(a) hereof (the "Securities" and
individually a "Security"). The Company proposes to sell to the
underwriters named in Schedule II hereto (the "Underwriters") for
whom you are acting as representatives (the "Representative"), a
series of Securities with the title, terms and in the number of
shares specified in Schedule I hereto (the "Firm Underwritten
Securities" and individually a "Firm Underwritten Security"). In
addition, the Company proposes to grant to the Underwriters an
option to purchase up to the number of additional Securities
specified in Schedule I hereto on the terms and for the purposes
set forth in Paragraph 2 hereof (the "Option Underwritten
Securities"). The Firm Underwritten Securities and the Option
Underwritten Securities, if purchased, are hereinafter
collectively called the "Underwritten Securities." [The
Underwritten Securities are convertible into shares of Common
Stock, par value $1.00 per share (the "Common Stock"), of the
Company, upon the terms and subject to the conditions and
adjustments set forth in the Certificate of Designations relating
thereto (the "Certificate of Designations"), at the conversion
price per share specified in Schedule I hereto.] If the firm or
firms listed in Schedule II hereto include only the firm or firms
listed in Schedule I hereto, then the terms "Underwriters" and
"Representative" shall each be deemed to refer to such firm or
firms.
1. The Company represents, warrants and agrees that:
(a) A registration statement [(No. 33- ) and
a registration statement] (No. 33- )
on Form S-3, including a prospectus, with respect to the
Securities [has] [have] been prepared by the Company in
conformity with the requirements of the Securities Act of
1933, as amended ("Act"), and the rules and regulations
("Rules and Regulations") of the Securities and Exchange
Commission ("Commission") thereunder and [has] [each of such
registration statements have] become effective. As used in
this Agreement, (i) such registration statement [(No. 33-
___) and such registration statement] No. 33____), [each],
as amended and supplemented to the date hereof [is] [are]
hereinafter referred to as the "registration Statement,"
<PAGE>
[Initial Registration Statement" and the "Last Registration
Statement," respectively, singly as a "Registration
Statement," and collectively as "Registration Statements']
(ii) "Preliminary Prospectus" means each prospectus
(including all documents incorporated therein by reference)
included in the [Registration Statement] [Last Registration
Statement], or amendments or supplements thereof, before it
became effective under the Act, including any prospectus
filed with the Commission pursuant to Rule 424(a) of the
Rules and Regulations; (iii) "Basic Prospectus" means the
prospectus (including all documents incorporated therein by
reference) included in the [Registration Statement] [Last
Registration Statement]; and (iv) "Prospectus" means the
Basic Prospectus, together with any prospectus amendment or
supplement (including in each case all documents
incorporated therein by reference) specifically relating to
the Underwritten Securities, as filed with the Commission
pursuant to paragraph (b) of Rule 424 of the Rules and
Regulations. The Commission has not issued any order
preventing or suspending the use of any Prospectus.
(b) The Registration Statement [s] and each Prospectus
contain[s], and (in the case of any amendment or supplement
to any such document, or any material incorporated by
reference in such document, filed with the Commission after
the date as of which this representation is being made) will
contain at all times during the period specified in
Paragraph 6(c) hereof, all statements which are required by
the Act, the Securities Exchange Act of 1934, as amended
("Exchange Act") and the rules and regulations of the
Commission under such Acts; and the Registration
Statement[s] and each Prospectus do not, and (in the case of
any amendment or supplement to any such document, or any
material incorporated by reference in any such document,
filed with the Commission after the date as of which this
representation is being made) will not, at any time during
the period specified in Paragraph 6(c) hereof, contain 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; provided, that
the Company makes no representation or warranty as to
information contained in or omitted from the Registration
Statement[s] or any Prospectus in reliance and based upon
written information furnished to the Company through the
Representative by or on behalf of any Underwriter.
(c) Neither the Company nor any of the subsidiaries of
the Company is in violation of its corporate charter or
by-laws or in default under any agreement, indenture or
instrument, the effect of which violation or default would
be material to the Company; the execution, delivery and
performance of this Agreement, the compliance by the Company
with the provisions of the Underwritten Securities and the
issuance and delivery of the Underwritten Securities [and
the Common Stock issuable upon conversion of the
Underwritten Securities] will not conflict with, result in
the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company or any
subsidiary of the Company pursuant to the terms of, or
constitute a default under, any agreement, indenture or
instrument, or result in a violation of the corporate
charter or by-laws of the Company or any subsidiary of the
Company or any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company or
any subsidiary of the Company or their respective
properties; and except as required by the Act, the Exchange
Act and applicable state securities laws, no consent,
authorization or order of, or filing or registration with,
any court or governmental agency is required for the
execution, delivery and performance of this Agreement,
except such as have been obtained under the Act and such
other approvals as have been obtained.
(d) All the outstanding shares of capital stock of New
York Telephone Company and New England Telephone and
Telegraph Company (the "Telephone Companies") have been duly
and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the
Prospectus, all outstanding shares of capital stock of the
Telephone Companies are owned by the Company directly, free
and clear of any security interests, claims, liens or
encumbrances.
<PAGE>
(e) Except as described in or contemplated by the
Registration Statement[s] and each Prospectus, there has not
been any material adverse change in, or any adverse
development which materially affects, the business,
properties, financial condition, results of operations or
prospects of the Company from the dates as of which
information is given in the Registration Statement[s] and
each Prospectus.
(f) Coopers & Lybrand, whose report appears in the
Company's most recent Annual Report on Form 10-K which is
incorporated by reference in each Prospectus, are
independent public accountants as required by the Act and
the Rules and Regulations.
(g) On each Delivery Date (as defined in Paragraph 5
hereof) (i) the Underwritten Securities will have been duly
and validly authorized and, upon payment for the
Underwritten Securities as provided in this Agreement, will
be duly and validly issued, fully paid and nonassessable [,
(ii) all of the shares of Common Stock issuable upon conversion of the
Underwritten Securities have been duly and validly authorized and
reserved for issuance upon such conversion and, when issued
and delivered in accordance with the terms of the
Certificate of Designations, will be duly and validly
issued, fully paid and nonassessable] and (iii) the
Underwritten Securities [and the Common Stock issuable upon
conversion of the Underwritten Securities] will conform to
the descriptions thereof contained in the Prospectus.
(h) The Company has been duly incorporated, is validly
existing and in good standing under the laws of its
jurisdiction of incorporation, is duly qualified to do
business and in good standing as a foreign corporation in
each jurisdiction in which its ownership of property or
conduct of its business requires such qualification (except
where the failure to so qualify would not have a material
adverse effect upon the Company), and has power and
authority necessary to own or hold its properties and to
conduct the business in which it is engaged.
(i) Except as described in each Prospectus, there is
no material litigation or governmental proceeding pending
or, to the knowledge of the Company, threatened against the
Company or any subsidiary of the Company which might result
in any material adverse change in the financial condition,
results of operations, business or prospects of the Company
or which is required to be disclosed in the Registration
Statement[s].
(j) The financial statements filed as part of the
Registration Statement[s] or included in any Preliminary
Prospectus or Prospectus present, or (in the case of any
amendment or supplement to any such document, or any
material incorporated by reference in any such document,
filed with the Commission after the date as of which this
representation is being made) will present at all times
during the period specified in Paragraph 6(c) hereof,
fairly, the financial condition and results of operations of
the entities purported to be shown thereby, at the dates and
for the periods indicated, and have been, and (in the case
of any amendment or supplement to any such document, or any
material incorporated by reference in any such document,
filed with the Commission after the date as of which this
representation is being made) will be at all times during
the period specified in Paragraph 6(c) hereof, prepared in
conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods
involved.
(k) The documents incorporated by reference into any
Preliminary Prospectus or Prospectus have been, and (in the
case of any amendment or supplement to any such document, or
any material incorporated by reference in any such document,
filed with the Commission after the date as of which this
representation is being made) will be at all times during
the period specified in Paragraph 6(c) hereof, prepared by
the Company in conformity with the applicable requirements
<PAGE>
of the Act and the Rules and Regulations and the Exchange
Act and the rules and regulations of the Commission
thereunder and such documents have been, or (in the case of
any amendment or supplement to any such document, or any
material incorporated by reference in any such document,
filed with the Commission after the date as of which this
representation is being made) will be at all times during
the period specified in Paragraph 6(c) hereof, timely filed
as required thereby.
(l) There are no contracts of other documents which
are required to be filed as exhibits to the Registration
Statement[s] by the Act or by the Rules and Regulations, or
which were required to be filed as exhibits to any document
incorporated by reference in any Prospectus by the Exchange
Act or the rules and regulations of the Commission
thereunder, which have not been filed as exhibits to the
Registration Statement[s] or to such document or
incorporated therein by reference as permitted by the Rules
and Regulations or the rules and regulations of the
Commission under the Exchange Act as required.
(m) The Company has good and valid title to all or
substantially all of its properties, except as otherwise
indicated in the Prospectus.
2. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set
forth, the Company agrees to sell the number of Firm Underwritten
Securities set forth in Schedule I hereto to the several
Underwriters, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price and
on the other terms set forth in Schedule I hereto, the respective
number of Firm Underwritten Securities set forth opposite its
name in Schedule II hereto.
In addition, the Company grants to the Underwriters an
option to purchase up to the number of additional Option
Underwritten Securities specified in Schedule I hereto. Such
option is granted solely for the purpose of covering over
allotments in the sale of Firm Underwritten Securities and is
exercisable as provided in Paragraph 5 hereof. Option
Underwritten Securities shall be purchased severally for the
account of the Underwriters in proportion to the number of Firm
Underwritten Securities set forth opposite the name of such
Underwriters in Schedule II hereto. The respective purchase
obligations of each Underwriter with respect to the Option
Underwritten Securities shall be adjusted by the Representative
so that no Underwriter shall be obligated to purchase Option
Underwritten Securities other than in 100 share amounts. The
price and other terms of both the Firm Underwritten Securities
and any Option Underwritten Securities shall be identical, as set
forth in Schedule I hereto.
3. The Company shall not be obligated to deliver any
of the Underwritten Securities to be delivered on the First
Delivery Date or the Second Delivery Date (as hereinafter
defined), as the case may be, except upon payment for all the
Underwritten Securities to be purchased on such Delivery Date as
provided herein.
4. If, on either Delivery Date, any Underwriter
defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting Underwriters shall be
obligated to purchase the Underwritten Securities which the
defaulting Underwriter agreed but failed to purchase on such
Delivery Date in the respective proportions which the number of
Firm Underwritten Securities set forth in Schedule II hereto to
be purchased by each remaining non-defaulting Underwriter set
forth therein bears to the total number of Firm Underwritten
Securities set forth therein to be purchased by all remaining
non-defaulting Underwriters; provided that the remaining
non-defaulting Underwriters shall not be obligated to purchase
any Underwritten Securities on such Delivery Date if the total
number of Underwritten Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase exceeds
9.09% of the total number of Underwritten Securities to be
purchased on such Delivery Date, and any remaining non-defaulting
<PAGE>
Underwriter shall not be obligated to purchase more than 110% of
the number of Underwritten Securities set forth in Schedule II
hereto to be purchased by it on such Delivery Date. If the
foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the
Representative who so agree, shall have the right, but shall not
be obligated, to purchase, in such proportions as may be agreed
upon among them, all the Underwritten Securities to be purchased
on such Delivery Date. If the remaining Underwriters or other
underwriters satisfactory to the Representative do not elect to
purchase the Underwritten Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such
Delivery Date, this Agreement (or, with respect to the Second
Delivery Date, the obligation of the Underwriters to purchase,
and of the Company to sell, the Option Underwritten Securities)
shall terminate without liability on the part of any
non-defaulting Underwriter or the Company, except that the
Company will continue to be liable for the payment of expenses as set forth in
Paragraph 6(k) hereof.
Nothing contained in this Paragraph 4 shall relieve a
defaulting Underwriter of any liability it may have to the
Company for damages caused by its default. If other underwriters
are obligated or agree to purchase the Underwritten Securities of
a defaulting or withdrawing Underwriter, either the
Representative or the Company may postpone the Delivery Date for
up to seven full business days in order to effect any changes
that in the opinion of counsel for the Company or counsel for the
Underwriters may be necessary in the Registration Statement[s],
any Prospectus or in any other document or arrangement.
5. Delivery of and payment for the Firm Underwritten
Securities shall be made at such address, date and time as may be
specified in Schedule I hereto. This date and time are sometimes
referred to as the "First Delivery Date." On the First Delivery
Date, the Company shall deliver the Firm Underwritten Securities
to the Representative for the account of each Underwriter against
payment to or upon the order of the Company of the purchase price
by certified or official bank check or checks payable in next-day
funds settled through the New York Clearing House. Time shall be
of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the
obligation of each Underwriter hereunder. Upon delivery, the
Firm Underwritten Securities shall be in fully registered form.
Firm Underwritten Securities shall be in such authorized
denominations and registered in such names as the Representative
shall request in writing not less than two full business days
prior to the First Delivery Date. For the purpose of expediting
the checking and packaging of the Firm Underwritten Securities,
the Company shall make the Firm Underwritten Securities available
for inspection by the Representative in New York, New York, not
later than 2:00 P.M., local time, on the business day prior to
the First Delivery Date.
At any time on or before the thirtieth day after the
date of this Agreement, the option granted in Paragraph 2 may be
exercised by written notice being given to the Company by the
Representative. Such notice shall set forth the aggregate number
of Option Underwritten Securities as to which the option is being
exercised, the names in which the Option Underwritten Securities
are to be registered, the denominations in which the Option
Underwritten Securities are to be issued and the date and time,
as determined by the Representative, when the Option Underwritten
Securities are to be delivered; provided, however, that this date
and time shall not be earlier than the First Delivery Date nor
earlier than the second business day after the date on which the
option shall have been exercised nor later than the fifth
business day after the date on which the option shall have been
exercised. The date and time the Option Underwritten Securities
are delivered are sometimes referred to as the "Second Delivery
Date" and the First Delivery Date and the Second Delivery Date
are sometimes each referred to as a "Delivery Date".
Delivery of and payment for the Option Underwritten
Securities shall be made at the same address specified in
Schedule I for the delivery of the Firm Underwritten Securities
(or at such other place as shall be determined by agreement
between the Representative and the Company) on the Second
Delivery Date. On the Second Delivery Date, the Company shall
deliver the Option Underwritten Securities to the Representative
<PAGE>
for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price by certified or
official bank check or checks payable in next-day funds settled
through the New York Clearing House. Time shall be of the
essence, and delivery at the time and place specified pursuant to
this Agreement is a further condition of the obligation of each
Underwriter hereunder. Upon delivery, the Option Underwritten
Securities shall be in fully registered form. Option
Underwritten Securities shall be in such authorized denominations
and registered in such names as the Representative shall request
in writing not less than two full business days prior to the
Second Delivery Date. For the purpose of expediting the checking
and packaging of the Option Underwritten Securities, the Company
shall make the Option Underwritten Securities available for
inspection by the Representative in New York, New York, not later
than 2:00 P.M., local time, on the business day prior to the
Second Delivery Date.
6. The Company agrees:
(a) To furnish promptly to the Representative and to
counsel for the Underwriters a conformed copy of [the]
[each] Registration Statement as originally filed and each
amendment or supplement thereto filed prior to the date
hereof or relating to or covering the Underwritten
Securities, and a copy of each Prospectus filed with the
Commission, including all documents incorporated therein by
reference and all consents and exhibits filed therewith;
(b) To deliver promptly to the Representative such
reasonable number of the following documents as the
Representative may request: (i) conformed copies of [the]
[each] Registration Statement (excluding exhibits other than
the computation of the ratio of earnings to combined fixed
charges and preferred stock dividends, the computation of
per share earnings, the Certificate of Designations and this
Agreement), (ii) each Prospectus and (iii) any documents
incorporated by reference in any Prospectus;
(c) To file with the Commission, during such period
following the date hereof as, in the opinion of counsel for
the Underwriters, any Prospectus that is required by law to
be delivered, any amendment or supplement to [the] [any]
Registration Statement or any Prospectus that may, in the
judgment of the Company or the Representative, be required
by the Act or requested by the Commission and not
disapproved by the Representative;
(d) Prior to filing with the Commission during the
period referred to in (c) above (i) any amendment or
supplement to [the] [any] Registration Statement, (ii) any
Prospectus or any amendment or supplement thereto or (iii)
any document incorporated by reference in any of the
foregoing or any amendment or supplement to such
incorporated document, to furnish a copy thereof to the
Representative and to counsel for the Underwriters and not
to file any document that shall have been disapproved by the
Representative;
(e) To advise the Representative promptly (i) when any
post-effective amendment to [the] [any] Registration
Statement relating to or covering the Underwritten
Securities becomes effective, (ii) of any request or
proposed request by [the] [any] Commission for an amendment
or supplement to the Registration Statement (insofar as the
amendment or supplement relates to or covers the
Underwritten Securities), to any Prospectus, to any document
incorporated by reference in any of the foregoing or for any
additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of
[the] [any] Registration Statement or any order directed to
any Prospectus or any document incorporated therein by
reference or the initiation or threat of any stop order
proceeding or of any challenge to the accuracy or adequacy
of any document incorporated by reference in any Prospectus,
(iv) of receipt by the Company of any notification with
respect to the suspension of the qualification of the
Underwritten Securities for sale in any jurisdiction or the
initiation or threat of any proceeding for that purpose and
<PAGE>
(v) of the happening of any event which makes untrue any
statement of a material fact made in [the] [any]
Registration Statement (insofar as [the] [any such]
Registration Statement relates to or covers the Underwritten
Securities) or any Prospectus or which requires the making
of a change in [the] [any such] Registration Statement or
any Prospectus in order to make any material statement
therein not misleading;
(f) If, during the period referred to in (c) above,
the Commission shall issue a stop order suspending the effectiveness of
[the] [any such] Registration Statement, to make every reasonable effort to
obtain the lifting of that order at the earliest possible
time;
(g) As soon as practicable, to make generally
available to its security holders and to deliver to the
Representative an earnings statement, conforming with the
requirements of Section 11(a) of the Act, covering a period
of at least twelve months beginning after the latest of (i)
the [most recent] effective date of [the] [any] Registration
Statement, (ii) the effective date of the most recent
post-effective amendment to [the] [any] Registration
Statement that became effective prior to the date of this
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 this Agreement;
(h) So long as any of the Underwritten Securities are
outstanding, to furnish to the Representative copies of all
reports and financial statements furnished by the Company to
each securities exchange on which securities issued by the
Company may be listed pursuant to requirements of or
agreements with such exchange or to the Commission pursuant
to the Exchange Act or any rule or regulation of the
Commission thereunder;
(i) To endeavor to qualify the Underwritten Securities
[and the Common Stock issuable upon conversion of the
Underwritten Securities] for offer and sale under the
securities laws of such jurisdictions as the Representative
may reasonably request;
(j) To use its best efforts to obtain [(i)] the
listing of the Underwritten Securities on the securities
exchange, if any, set forth in Schedule I (the "Stock
Exchange") on or prior to the First Delivery Date [and (ii)
the listing of the Common Stock issuable upon conversion of
the Underwritten Securities on such Stock Exchange prior to
the initial issuance of such Common Stock], and to cause
such listing[s] to be continued so long as any number of the
Securities [or the Common Stock issuable upon conversion of
the Underwritten Securities] remains outstanding; to furnish
from time to time any and all documents, instruments,
information and undertakings that may be necessary in order
to effect such listing; and to maintain the same until none
of the Underwritten Securities [or the Common Stock issuable
upon conversion of the Underwritten Securities] is
outstanding or until such time as payment of principal of
and premium, if any, and interest on all the Underwritten
Securities has been duly provided for, whichever is earlier;
provided that if the Company can no longer reasonably
maintain such listing[s], the Company shall use its best
efforts to obtain and maintain the quotation for, or listing
of, the Underwritten Securities [and the Common Stock
issuable upon conversion of the Underwritten Securities] on
such other securities exchange or exchanges as the Company
may, with the approval of the Representative, determine;
(k) To pay the costs incident to the authorization,
issuance, sale and delivery of the Underwritten Securities
[and any Common Stock issuable upon conversion of the
Underwritten Securities] and any taxes payable in that
connection; the costs incident to the preparation, printing
and filing under the Act of [the] [each] Registration
Statement and any amendments, supplements and exhibits
thereto; the costs incident to the preparation, printing and
filing of any, document and any amendments and exhibits
thereto required to be filed by the Company under the
<PAGE>
Exchange Act; the costs of distributing [the] [each]
Registration Statement as originally filed and each
amendment and post-effective amendment thereof (including
exhibits), any Preliminary Prospectus, each Prospectus and
any documents incorporated by reference in any of the
foregoing documents; the costs of printing this Agreement;
the costs of any filings with the National Association of
Securities Dealers, Inc.; fees paid to rating agencies in
connection with the rating of the Securities, including the
Underwritten Securities; the fees and expenses of qualifying
the Underwritten Securities [and any Common Stock issuable
upon conversion of the Underwritten Securities] under the
securities laws of the several jurisdictions as provided in
this paragraph and of preparing and printing a Blue Sky
Memorandum [and a Legal Investment Survey] (including fees
of counsel to the Underwriters); the cost of listing the
Underwritten Securities [and the Common Stock issuable upon
conversion of the Underwritten Securities] on the Stock
Exchange; and all other costs and expenses incident to the
performance of the Company's obligations under this
Agreement, provided that, except as provided in this
paragraph and in Paragraph 10 hereof, the Underwriters shall
pay their own costs and expenses, including the fees and
expenses of their counsel, any transfer taxes on the
Underwritten Securities which they may sell and the expenses
of advertising any offering of the Underwritten Securities
made by the Underwriters;
(l) Until the termination of the offering of the
Underwritten Securities, to timely file all documents, and
any amendments to previously filed documents, required to be
filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act; and
(m) During the period beginning on the date hereof and
continuing for a period of ____ days after the last Delivery
Date, without the consent of the Representative, [neither]
the Company [nor any subsidiary of the Company which has
entered into a support agreement with the Company] shall
issue or announce the proposed issuance of any shares of its
capital stock which is preferred as to the payment of
dividends or as to the distribution of assets upon any
liquidation or dissolution of the Company, over shares of
any other class of capital stock of the Company.
7. (a) The Company shall indemnify and hold harmless
each Underwriter and each person, if any, who controls any
Underwriter within the meaning of the Act from and against any
loss, claim, damage or liability, joint or several, and any
action in respect thereof, to which that Underwriter or
controlling person may become subject, under the Act or
otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, [the] [any] Registration Statement or any
Prospectus, or arises out of, or is 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 shall reimburse each Underwriter and such
controlling person for any legal and other expenses reasonably
incurred by that Underwriter or controlling person in
investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses
are incurred; provided that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, [the] [any]
Registration Statement or any Prospectus in reliance and based
upon written information furnished to the Company through the
Representative by or on behalf of any Underwriter; and provided
further that as to any Preliminary Prospectus this indemnity
agreement shall not inure to the benefit of any Underwriter or
any person controlling that Underwriter on account of any loss,
claim, damage, liability or action arising from the sale of
Underwritten Securities to any person by that Underwriter if that
Underwriter failed to send or give a copy of any Prospectus, as
the same may be amended or supplemented, to that person within
the time required by the Act, and the untrue statement or alleged
untrue statement of a material fact or omission or alleged
omission to state a material fact in such Preliminary Prospectus
was corrected in such Prospectus, unless such failure resulted
from noncompliance by the Company with Paragraph 6(b) hereof.
<PAGE>
For purposes of the second proviso to the immediately preceding sentence,
the term Prospectus shall not be deemed to include the documents
incorporated therein by reference, and no Underwriter shall be
obligated to send or give any supplement or amendment to any
document incorporated by reference in any Preliminary Prospectus
or any Prospectus of any person other than a person to whom such
Underwriter has delivered such incorporated documents in response
to a written request therefor. The foregoing indemnity agreement
is in addition to any liability which the Company may otherwise
have to any Underwriter or controlling person.
(b) Each Underwriter shall indemnify and hold harmless
the Company, each of its directors, each of its officers who
signed [the] [any] Registration Statement and any person who
controls the Company within the meaning of the Act from and
against any loss, claim, damage or liability, joint or several,
and any action in respect thereof, to which the Company or any
such director, officer or controlling person may become subject,
under the Act or otherwise, insofar as such loss, claim, damage,
liability or action, arises out of, or is based upon, any untrue
statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, [the] [any] Registration
Statement or any Prospectus, or arises out of, or is 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, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance and to and upon written
information furnished to the Company through the Representative
by or on behalf of that Underwriter, and shall reimburse the
Company for any legal and other expenses reasonably incurred by
the Company or any such director, officer or controlling person
in investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses
are incurred. The foregoing indemnity agreement is in addition
to any liability which any Underwriter may otherwise have to the
Company or any of its directors, officers or controlling persons.
(c) Promptly after receipt by an indemnified party
under this Paragraph 7 of notice of any claim or the commencement
of any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this
Paragraph 7, notify the indemnifying party in writing of the
claim or the commencement of that action, provided that the
failure to notify the indemnifying party shall not relieve it
from any liability which it may have to an indemnified party
otherwise than under this Paragraph 7. If any such claim or
action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein, and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this
Paragraph 7 for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense thereof
other than reasonable costs of investigation, provided that the
Representative shall have the right to employ one counsel to
represent the Representative, those other Underwriters and their
respective controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be
sought by the Underwriters against the Company under this
Paragraph 7 if, in the reasonable judgment of the Representative,
it is advisable for the Representative, those Underwriters and
controlling persons to be represented by separate counsel, and in
that event the fees and expenses of such separate counsel shall
be paid by the Company. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be
a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel
as contemplated by this Paragraph 7, the indemnifying party
agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such
settlement is entered into more than 60 days after receipt by
such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such
<PAGE>
settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement
of any pending or threatened proceeding 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 claims that are the
subject matter of such proceeding.
(d) If the indemnification provided for in this
Paragraph 7 shall for any reason be unavailable to an indemnified
party under Paragraph 7(a) or 7(b) hereof in respect of any loss,
claim, damage or liability, or any action in respect thereof,
referred to therein, then each indemnifying party shall, in lieu
of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect thereof,
in such proportion as shall be 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 Underwritten
Securities and the relative fault of the Company on the one hand
and the Underwriters on the other with respect to the statements
or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, 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 with respect to such offering shall be deemed to be in
the same proportion as the total net proceeds from the offering
of the Underwritten Securities (before deducting expenses)
received by the Company bear to the total underwriting discounts
and commissions received by the Underwriters with respect to such
offering. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters, the
intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement
or omission. The amount paid or payable by an indemnified party
as a result of the loss, claim, damage or liability, or action in
respect thereof, referred to above in this Paragraph 7(d) shall
be deemed to include, for purposes of this Paragraph 7(d), any
legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this
Paragraph 7(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at
which the Underwritten Securities underwritten by it and
distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise paid
or become liable to pay by reason of any 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 to contribute as provided in this
Paragraph 7(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) The indemnity agreements contained in this
Paragraph 7 and the representations, warranties and agreements of
the Company in Paragraph 1 and Paragraph 6 hereof shall survive
the delivery of the Underwritten Securities and shall remain in
full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on
behalf of any indemnified party.
8. The obligations of the Underwriters under this
Agreement may be terminated by the Representative, in its
absolute discretion, by notice given to and received by the
Company prior to the delivery of and payment for the Firm
Underwritten Securities, if, during the period beginning on the
date hereof to and including the First Delivery Date, (a) there
shall have been any decrease in the ratings of any of the
Company's debt securities by Moody's Investors Service, Inc. or
Standard & Poor's Corporation, (b) trading in the Company's
Common Stock shall have been suspended by the Commission or the
New York Stock Exchange or trading in securities generally on the
New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such Exchange, (c)
a banking moratorium shall have been declared by either Federal
or New York State authorities or (d) there shall have occurred
<PAGE>
any outbreak or material escalation of hostilities the effect of
which on the financial markets or the United States is such as to
make it, in the reasonable judgment of the Representative,
impracticable to market the Underwritten Securities, or (e) any
change or any development involving a prospective change, in or
affecting the business or properties of the Company and its
subsidiaries, taken as a whole, shall have occurred the effect of
which is, in the reasonable judgment of the Underwriters, so
material and adverse as to make it impracticable or inadvisable
to proceed with the delivery of the Underwritten Securities.
9. The respective obligations of the Underwriters
under this agreement with respect to the Underwritten Securities
are subject to the accuracy, on the date hereof and on each
Delivery Date, of the representations and warranties of the
Company contained herein, to performance by the Company of its
obligations hereunder, and to each of the following additional
terms and conditions applicable to the Underwritten Securities:
(a) At or before such Delivery Date, no stop order
suspending the effectiveness of [the] [any] Registration
Statement nor any order directed to any document
incorporated by reference in any Prospectus shall have been
issued and prior to that time no stop order proceeding shall
have been initiated or threatened by the Commission and no
challenge shall have been made to the accuracy or adequacy
of any document incorporated by reference in any Prospectus;
any request of the Commission for inclusion of additional
information in [the] [any] Registration Statement or any
Prospectus or otherwise shall have been complied with; and
after the date hereof the Company shall not have filed with
the Commission any amendment or supplement to [the] [any]
Registration Statement or any Prospectus (or any document
incorporated by reference therein) that shall have been
disapproved by the Representative.
(b) No Underwriter shall have discovered and disclosed
to the Company on or prior to such Delivery Date that [the]
[any] Registration Statement or any Prospectus contains an
untrue statement of a fact which, in the opinion of counsel
for the Underwriters, is material or omits to state a fact
which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the
statements therein not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this
Agreement, the Underwritten Securities, the Certificate of
Designations, [the Common Stock issuable upon conversion of
the Underwritten Securities] and the form of [the] [any]
Registration Statement, each Prospectus (other than
financial statements and other financial data) and all other
legal matters relating to this Agreement and the
transactions contemplated hereby shall be satisfactory in
all respects to Simpson Thacher & Bartlett, counsel for the
Underwriters, and the Company shall have furnished to such
counsel all documents and information that such counsel may
reasonably request to enable it to pass upon such matters
(d) Raymond F. Burke, Executive Vice President and
General Counsel of the Company, shall have furnished to the
Representative his opinion addressed to the Underwriters and
dated such Delivery Date, as Executive Vice President and
General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated
and is validly existing and in good standing under the
laws of the State of Delaware;
(ii) The Company is duly qualified to do
business and is in good standing as a foreign
corporation in all jurisdictions in which its ownership
of property or the conduct of its business requires
such qualification (except where the failure to so
qualify would not have a material adverse effect upon
the Company), and has all power and authority necessary
<PAGE>
to own its properties and conduct the business in which
it is engaged as described in the Prospectus;
(iii) All the outstanding shares of capital
stock of the Telephone Companies have been duly and
validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in
the Prospectus, all outstanding shares of capital stock
of the Telephone Companies are owned by the Company
directly, free and clear of any perfected security
interest and, to the knowledge of such counsel, after
due inquiry, any other security interests, claims,
liens or encumbrances;
(iv) The Company has an authorized
capitalization as set forth in the Prospectus, and all
of the issued shares of capital stock of the Company
(including the Underwritten Securities being delivered
on such Delivery Date) have been duly and validly
authorized and issued, are fully paid and nonassessable
and conform to the description thereof contained in the
Prospectus; [all of the shares of Common Stock issuable
upon conversion of the Underwritten Securities have
been duly and validly authorized and reserved for
issuance upon such conversion and, when issued and
delivered in accordance with the terms of the
Certificate of Designations, will be duly and validly
issued, fully paid and nonassessable;]
(v) There are no preemptive or other rights
to subscribe for or to purchase, nor any restriction
upon the voting or transfer of, any of the Underwritten
Securities [or the Common Stock issuable upon
conversion of the Underwritten Securities] pursuant to
the Company's charter or by-laws or any agreement or
other instrument known to such counsel;
(vi) The statements made in each Prospectus
under the caption "Description of Preferred Stock" (or
a comparable caption), insofar as they purport to
constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of
such documents in all material respects;
(vii) [The] [Each] Registration Statement is
effective under the Act and, to the knowledge of such
counsel, no stop order suspending its effectiveness has
been issued and no proceeding for that purpose is
pending or threatened by the Commission;
(viii) No order issued by the Commission
directed to any document incorporated by reference in
any Prospectus has been issued and, to the knowledge of
such counsel, no challenge has been made by the
Commission to the accuracy or adequacy of any such document;
(ix) Such counsel does not know of any
litigation or any governmental proceeding pending or
threatened against the Company or any of its
subsidiaries which would affect the subject matter of
this Agreement or is required to be disclosed in any
Prospectus (including the documents incorporated by
reference therein) which is not disclosed and correctly
summarized therein;
(x) To the best of such counsel's knowledge,
neither the Company nor any of its subsidiaries is in
violation of its corporate charter or by-laws, or in
default under any material agreement, indenture or
instrument;
<PAGE>
(xi) This Agreement has been duly authorized,
executed and delivered by the Company;
(xii) The execution, delivery and
performance of this Agreement, the issuance and sale of
the Underwritten Securities being delivered on such
Delivery Date by the Company, [the issuance and
delivery of the Common Stock issuable upon conversion
of the Underwritten Securities] and the compliance by
the Company with the provisions of the Underwritten
Securities will not conflict with, or result in the
creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company or
any of its subsidiaries pursuant to the terms of, or
constitute a default under, any agreement, indenture or
instrument known to such counsel, or result in a
violation of the corporate charter or by-laws of the
Company or any of its subsidiaries or any order, rule
or regulation of any court or governmental agency
having jurisdiction over the Company or any of its
subsidiaries or their respective properties; and
(xiii) No consent, approval, authorization or
order of any court or governmental agency or body is
required for the consummation of the transactions
contemplated herein except such as have been obtained
under the Act and such other approvals (specified in
such opinion) as have been obtained.
In giving such opinion, such counsel need not express
any opinion regarding any order, consent or other
authorization or approval which may be legally required
pursuant to any state securities law.
Such opinion shall also state that [the] [each]
Registration Statement and each Prospectus, as of their
respective effective or issue dates, or if a post-effective
amendment to [the] [any such] Registration Statement has
become effective, as of the effective date of the last post-
effective amendment thereto to become effective, complied as
to form in all material respects with the requirements of
the Act and the rules and regulations of the Commission
under the Act (except that no opinion need be expressed as
to the financial statements and other financial data
contained therein) and each document incorporated by
reference in each Prospectus as filed under the Exchange Act
complied when so filed as to form in all material respects
with the applicable requirements of the Exchange Act and the
rules and regulations of the Commission thereunder (except
that no opinion need be expressed as to the financial
statements and other financial data contained therein).
Such opinion shall also contain a statement that such
counsel has no reason to believe that (i) [the] [any]
Registration Statement, on the date it became effective, or
if a post-effective amendment to [the] [any such]
Registration Statement has become effective, as of the
effective date of the last such post-effective amendment
thereto to become effective (or, with respect to [the] [any]
Registration Statement, if the Company has filed an Annual
Report on Form 10-K since such effective date, the date of
the Company's most recent Annual Report on Form 10-K),
contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading (except that no belief need be expressed as to
the financial statements and other financial data contained
therein), or (ii) the Prospectus contains an untrue
statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading (except that no belief need be expressed as to
the financial statements and other financial data contained
therein);
<PAGE>
(e) The Company shall have furnished to the
Representative on such Delivery Date a certificate, dated
such Delivery Date, of the Chairman of the Board, a Vice
Chairman of the Board, the President or a Vice President and
a financial or accounting officer of the Company (which
signatories shall not be employed in the same department)
stating that:
(i) The representations, warranties and agreements of
the Company in Paragraph 1 hereof are true and correct as of
such Delivery Date; the Company has complied with all its
agreements contained herein; and the conditions set forth in
Paragraph 9(a) hereof have been fulfilled;
(ii) They have carefully examined [the] [each]
Registration Statement and each Prospectus and, in their
opinion, (A) as of the date of each Prospectus, the
Registration Statement[s] and the Prospectus did not include
any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
(B) since the date of each Prospectus, no event has occurred
which should have been set forth in a supplement to or
amendment of the Prospectus which has not been set forth in
such a supplement or amendment.
(f) The Company shall have furnished to the
Representative (i) a letter of Coopers & Lybrand,
addressed to the Underwriters and dated the date hereof of
the type described in the American Institute of Certified
Public Accountants' Statement on Auditing Standards No. 72
and covering such specified financial statement items as
counsel for the Underwriters may reasonably have requested
and (ii) a letter of Coopers & Lybrand, addressed to the
Underwriters and dated such Delivery Date, stating, as of
the date of such letter (or, with respect to matters
involving changes or developments since the respective dates
as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to
the date of such letter), the conclusions and findings of
such firm with respect to the financial information and
other matters covered by its letter referred to in subclause
(i) above, confirming in all material respects the
conclusions and findings set forth in such prior letter.
(g) Simpson Thacher & Bartlett shall have furnished to
the Representative its opinion addressed to the Underwriters
and dated such Delivery Date, as counsel for the
Underwriters, covering the matters set forth in Paragraph
9(d), except clauses (ii), (iii), (iv), (v), (vii), (viii),
(ix), (x), (xii) and (xiii) thereof.
All opinions, letters, evidence and certificates
mentioned above or elsewhere in this Agreement shall be deemed to
be in compliance with the provisions hereof only if they are in
form and substance satisfactory to counsel for the Underwriters.
10. If the Company shall fail to tender the
Underwritten Securities for delivery to the Underwriters for any
reason permitted under this Agreement, or if the Underwriters
shall decline to purchase the Underwritten Securities for any
reason permitted under this Agreement (other than pursuant to
Paragraph 4 hereof), the Company shall reimburse the Underwriters
for the reasonable fees and expenses of their counsel and for
such other out-of-pocket expenses as shall have been incurred by
them in connection with this Agreement and the proposed purchase
of Underwritten Securities, and upon demand the Company shall pay
the full amount thereof to the Representative. If this Agreement
is terminated pursuant to Paragraph 4 hereof by reason of the
default of one or more Underwriters, the Company shall not be
obligated to reimburse any defaulting Underwriter on account of
those expenses.
11. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement by, or on behalf of,
the Representative. Any notice by the Company to the Underwriters
<PAGE>
shall be sufficient if given in writing or by telegraph addressed
to the Representative at its address set forth in Schedule I
hereto and any notice by the Underwriters to the Company shall be
sufficient if given in writing or by telegraph addressed to the
Company at 1113 Westchester Avenue, White Plains, New York 10604,
Attention: Treasurer.
12. This Agreement shall be binding upon the
Underwriters, the Company and their respective successors. This
Agreement and the terms and provisions hereof are for the sole
benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the
Company contained in this Agreement shall also be deemed to be
for the benefit of the person or persons, if any, who control any
Underwriter within the meaning of Section 15 of the Act, and (b)
the indemnity agreement of the Underwriters contained in
Paragraph 7 hereof shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed
[the] [any] Registration Statement and any person controlling the
Company. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to
in this paragraph, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained
herein.
13. For purposes of this Agreement, (a) "business day"
means any day on which the New York Stock Exchange, Inc. is open
for trading and (b) "subsidiary" has the meaning set forth in
Rule 405 of the Rules and Regulations.
14 This Agreement shall be governed by and construed
in accordance with the laws of New York.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us the
enclosed duplicate hereof, whereupon this Agreement shall
represent a binding agreement among the Company and the several
underwriters.
Very truly yours,
NYNEX Corporation
By______________________________
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
[Name of Representative]
By [Name of Representative]
By
Title:
For itself and as Representative
of the several Underwriters
named in Schedule II to the
foregoing Agreement.
<PAGE>
SCHEDULE I
Underwriting Agreement dated , 199
Registration Statement[s] No. 33-
Representatives and Addresses:
Underwritten Securities:
Title:
Number:
Liquidation Value:
Interest Rate:
Purchase Price:
Public Offering Price:
Redemption Provisions:
[Conversion Price:]
Stock Exchange Listing:
First Delivery Date, Time and Location: , 199 at
10 a.m. at the
office of NYNEX
Corporation,
New York, NY
Maximum Number of Option
Underwritten Securities:
<PAGE>
SCHEDULE II
Number of Firm
Underwritten
Name of Underwriters
Securities
$
Total ________________
Exhibit 1(c)
FORM OF
NYNEX CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
New York, New York
, 199
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
NYNEX Corporation, a Delaware corporation ("Company"),
may issue and sell from time to time one or more series of
its debt securities registered under the registration
statement[s] referred to in Paragraph 1(a) hereof
("Securities" and individually "Security"). The Company
proposes to sell to the underwriters named in Schedule II
hereto ("Underwriters") for whom you are acting as
representatives ("Representative"), a series of Securities
of the designation, with the terms and in the aggregate
principal amount specified in Schedule I hereto
("Underwritten Securities" and individually "Underwritten
Security"). If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I
hereto, then the terms "Underwriters" and "Representative"
shall each be deemed to refer to such firm or firms.
1. The Company represents, warrants and agrees that:
(a:) A registration statement [(No. 33-33592) and a
registration statement] (No. 33- ) on Form
S-3, including a prospectus, with respect to the Securities
[has] [have] been prepared by the Company in conformity with
the requirements of the Securities Act of 1933, as amended
("Act"), and the rules and regulations ("Rules and
Regulations") of the Securities and Exchange Commission
("Commission") thereunder and [has] [each of such
registration statements have] become effective. As used in
this Agreement, (i) such registration statement [(No. 33-
33592) and such registration statement] (No. 33- ),
[each] as amended and supplemented to the date hereof [is]
[are] hereinafter referred to as the "Registration
Statement," ["Initial Registration Statement" and the "Last
Registration Statement," respectively, singly as a
"Registration Statement" and collectively as the
"Registration Statements,"] (ii) "Preliminary Prospectus"
means each prospectus (including all documents incorporated
therein by reference) included in the [Registration
Statement] [Last Registration Statement], or amendments or
supplements thereof, before it became effective under the
Act, including any prospectus filed with the Commission
pursuant to Rule 424(a) of the Rules and Regulations; (iii)
"Basic Prospectus" means the prospectus (including all
documents incorporated therein by reference) included in the
Registration Statement [Last Registration Statement]; and
<PAGE>
(iv) "Prospectus" means the Basic Prospectus, together with
any prospectus amendment or supplement (including in each
case all documents incorporated therein by reference)
specifically relating to the Underwritten Securities, as
filed with the Commission pursuant to paragraph (b) of Rule
424 of the Rules and Regulations. The Commission has not
issued any order preventing or suspending the use of any
Prospectus.
(b) The Registration Statement[s] and each Prospectus
contain[s], and (in the case of any amendment or supplement
to any such document, or any material incorporated by
reference in such document, filed with the Commission after
the date as of which this representation is being made) will
contain at all times during the period specified in
Paragraph 7(c) hereof, all statements which are required by
the Act, the Securities Exchange Act of 1934, as amended
("Exchange Act"), the Trust Indenture Act of 1939, as
amended ("Trust Indenture Act"), and the rules and
regulations of the Commission under such Acts; the
indenture, including any amendments and supplements thereto,
pursuant to which the Underwritten Securities will be issued
("Indenture") will conform with the requirements of the
Trust Indenture Act and the rules and regulations of the
Commission thereunder; and the Registration Statement[s] and
each Prospectus do not, and (in the case of any amendment or
supplement to any such document, or any material
incorporated by reference in any such document, filed with
the Commission after the date as of which this
representation is being made) will not, at any time during
the period specified in Paragraph 7(c) hereof, contain 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; provided, that
the Company makes no representation or warranty as to
information contained in or omitted from the Registration
Statement[s] or any Prospectus in reliance and based upon
written information furnished to the Company through the
Representative by or on behalf of any Underwriter, or as to
any statements in or omissions from the Statement of
Eligibility and Qualification of the Trustee under the
Indenture.
(c) Neither the Company nor any of the subsidiaries of
the Company is in violation of its corporate charter or
by-laws or in default under any agreement, indenture or
instrument, the effect of which violation or default would
be material to the Company; the execution, delivery and
performance of this Agreement and any Delayed Delivery
Contracts (as defined in Paragraph 3 hereof) and compliance
by the Company with the provisions of the Underwritten
Securities and the Indenture will not conflict with, result
in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company or any
subsidiary of the Company pursuant to the terms of, or
constitute a default under, any agreement, indenture or
instrument, or result in a violation of the corporate
charter or by-laws of the Company or any subsidiary of the
Company or any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company or
any subsidiary of the Company or their respective
properties; and except as required by the Act, the Trust
Indenture Act, the Exchange Act and applicable state
securities laws, no consent, authorization or order of, or
filing or registration with, any court or governmental
agency is required for the execution, delivery and
performance of this Agreement, the Delayed Delivery
Contracts, if any, and the Indenture, except such as have
been obtained under the Act and such other approvals as have
been obtained.
(d) All the outstanding shares of capital stock of New
York Telephone Company and New England Telephone and
Telegraph Company (the "Telephone Companies") have been duly
and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the
Prospectus, all outstanding shares of capital stock of the
Telephone Companies are owned by the Company directly, free
and clear of any security interests, claims, liens or
encumbrances.
(e) Except as described in or contemplated by the
Registration Statement[s] and each Prospectus, there has not
been any material adverse change in, or any adverse
<PAGE>
development which materially affects, the business,
properties, financial condition, results of operations or
prospects of the Company from the dates as of which
information is given in the Registration Statement[s] and
each Prospectus.
(f) Coopers & Lybrand, whose report appears in the
Company's most recent Annual Report on Form 10-K which is
incorporated by reference in each Prospectus, are
independent public accountants as required by the Act and
the Rules and Regulations.
(g) On the Delivery Date (as defined in Paragraph 6
hereof) (i) the Indenture will have been validly authorized,
executed and delivered by the Company and will constitute a
legally binding obligation of the Company, (ii) the
Underwritten Securities will have been validly authorized
and, upon payment for the Underwritten Securities as
provided in this Agreement, will be validly issued and
outstanding, and will constitute legally binding obligations
of the Company, entitled to the benefits of the Indenture
and (iii) the Underwritten Securities and the Indenture will
conform to the descriptions thereof contained in the
Prospectus.
(h) The Company has been duly incorporated, is validly
existing and in good standing under the laws of its
jurisdiction of incorporation, is duly qualified to do
business and in good standing as a foreign corporation in
each jurisdiction in which its ownership of property or
conduct of its business requires such qualification (except
where the failure to so qualify would not have a material
adverse effect upon the Company), and has power and
authority necessary to own or hold its properties and to
conduct the business in which it is engaged.
(i) Except as described in each Prospectus, there is
no material litigation or governmental proceeding pending
or, to the knowledge of the Company, threatened against the
Company or any subsidiary of the Company which might result
in any material adverse change in the financial condition,
results of operations, business or prospects of the Company
or which is required to be disclosed in the Registration
Statement[s].
(j) The financial statements filed as part of the
Registration Statement[s] or included in any Preliminary
Prospectus or Prospectus present, or (in the case of any
amendment or supplement to any such document, or any
material incorporated by reference in any such document,
filed with the Commission after the date as of which this
representation is being made) will present at all times
during the period specified in Paragraph 7(c) hereof,
fairly, the financial condition and results of operations of
the entities purported to be shown thereby, at the dates and
for the periods indicated, and have been, and (in the case
of any amendment or supplement to any such document, or any
material incorporated by reference in any such document,
filed with the Commission after the date as of which this
representation is being made) will be at all times during
the period specified in Paragraph 7(c) hereof, prepared in
conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods
involved.
(k) The documents incorporated by reference into any
Preliminary Prospectus or Prospectus have been, and (in the
case of any amendment or supplement to any such document, or
any material incorporated by reference in any such document,
filed with the Commission after the date as of which this
representation is being made) will be at all times during
the period specified in Paragraph 7(c) hereof, prepared by
the Company in conformity with the applicable requirements
of the Act and the Rules and Regulations and the Exchange
Act and the rules and regulations of the Commission
thereunder and such documents have been, or (in the case of
any amendment or supplement to any such document, or any
material incorporated by reference in any such document,
filed with the Commission after the date as of which this
representation is being made) will be at all times during
the period specified in Paragraph 7(c) hereof, timely filed
as required thereby.
<PAGE>
(l) There are no contracts or other documents which
are required to be filed as exhibits to the Registration
Statement[s] by the Act or by the Rules and Regulations, or
which were required to be filed as exhibits to any document
incorporated by reference in any Prospectus by the Exchange
Act or the rules and regulations of the Commission
thereunder, which have not been filed as exhibits to the
Registration Statement[s] or to such document or
incorporated therein by reference as permitted by the Rules
and Regulations or the rules and regulations of the
Commission under the Exchange Act as required.
(m) The Company has good and valid title to all or
substantially all of its properties, except as otherwise
indicated in the Prospectus.
2. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set
forth, the Company agrees to sell to each Underwriter, severally
and not jointly, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price and
on the other terms set forth in Schedule I hereto, the principal
amount of the Underwritten Securities set forth opposite its name
in Schedule II hereto.
3. Any offer to purchase Underwritten Securities by
institutional investors solicited by the Underwriters for delayed
delivery shall be made pursuant to contracts substantially in the
form of Exhibit A attached hereto, with such changes therein as
the Company and the Representative may approve ("Delayed Delivery
Contracts"). The Company shall have the right, in its sole
discretion, to approve or disapprove each such institutional
investor. Underwritten Securities which are subject to Delayed
Delivery Contracts are herein sometimes called "Delayed Delivery
Underwritten Securities" and Underwritten Securities which are
not subject to Delayed Delivery Contracts are herein sometimes
called "Immediate Delivery Underwritten Securities."
Contemporaneously with the purchase on the Delivery
Date by the Underwriters of the Immediate Delivery Underwritten
Securities pursuant to this Agreement, the Company will pay to
the Representative, for the account of the Underwriters, the
compensation specified in Schedule I hereto for arranging the
sale of Delayed Delivery Underwritten Securities. The
Underwriters shall have no responsibility with respect to the
validity or performance of any Delayed Delivery Contracts.
For the purpose of determining the principal amount of
Immediate Delivery Underwritten Securities to be purchased by
each Underwriter, there shall be deducted from the principal
amount of Underwritten Securities to be purchased by such
Underwriter as set forth in Schedule II hereto that portion of
the aggregate principal amount of Delayed Delivery Underwritten
Securities that the principal amount of Underwritten Securities
to be purchased by such Underwriter as set forth in Schedule II
hereto bears to the aggregate principal amount of Underwritten
Securities set forth there to be purchased by all of the
Underwriters (in each case as adjusted by the Representative to
avoid fractions of the minimum principal amount in which the
Underwritten Securities may be issued), except to the extent that
the Representative determines, in its discretion, that such
deduction shall be otherwise than in such proportion and so
advises the Company.
4. The Company shall not be obligated to deliver any
Underwritten Securities except upon payment for all Immediate
Delivery Underwritten Securities to be purchased pursuant to this
Agreement as hereinafter provided.
5. If any Underwriter defaults in the performance of its
obligations under this Agreement, the remaining non-defaulting
Underwriters shall be obligated to purchase the Immediate
Delivery Underwritten Securities which the defaulting Underwriter
agreed but failed to purchase in the respective proportions which
the principal amount of Underwritten Securities set forth in
Schedule II hereto to be purchased by each remaining
<PAGE>
non-defaulting Underwriter set forth therein bears to the
aggregate principal amount of Underwritten Securities set forth
therein to be purchased by all remaining non-defaulting
Underwriters; provided that the remaining non-defaulting
Underwriters shall not be obligated to purchase any Immediate
Delivery Underwritten Securities if the aggregate principal
amount of Immediate Delivery Underwritten Securities which the
defaulting Underwriter or Underwriters agreed but failed to
purchase exceeds 9.09% of the total principal amount of
Underwritten Securities, and any remaining non-defaulting
Underwriter shall not be obligated to purchase more than 110% of
the principal amount of Underwritten Securities set forth in
Schedule II hereto to be purchased by it. If the foregoing
maximums are exceeded, the remaining non-defaulting Underwriters,
or those other underwriters satisfactory to the Representative
who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportions as may be agreed upon among
them, all the Immediate Delivery Underwritten Securities. If the
remaining Underwriters or other underwriters satisfactory to the
Representative do not elect to purchase the Immediate Delivery
Underwritten Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase, this Agreement shall
terminate without liability on the part of any non-defaulting
Underwriter or the Company, except that the Company will continue
to be liable for the payment of expenses as set forth in
Paragraph 7(k) hereof.
Nothing contained in this Paragraph 5 shall relieve a
defaulting Underwriter of any liability it may have to the
Company for damages caused by its default. If other underwriters
are obligated or agree to purchase the Immediate Delivery
Underwritten Securities of a defaulting or withdrawing
Underwriter, either the Representative or the Company may
postpone the Delivery Date for up to seven full business days in
order to effect any changes that in the opinion of counsel for
the Company or counsel for the Underwriters may be necessary in
the Registration Statement[s], any Prospectus or in any other
document or arrangement.
6. Delivery of and payment for the Immediate Delivery
Underwritten Securities shall be made at such address, date and
time as may be specified in Schedule I hereto. This date and
time are sometimes referred to as the "Delivery Date." On the
Delivery Date the Company shall deliver the Immediate Delivery
Underwritten Securities to the Representative for the account of
each Underwriter against payment to or upon the order of the
Company of the purchase price by certified or official bank check
or checks payable in next-day funds settled through the New York
Clearing House. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a
further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Immediate Delivery Underwritten
Securities shall be in fully registered form and in such
denominations as may be set forth on Schedule I. Immediate
Delivery Underwritten Securities shall be in such authorized
denominations and registered in such names as the Representative
shall request in writing not less than two full business days,
prior to the Delivery Date. For the purpose of expediting the
checking and packaging of the Immediate Delivery Underwritten
Securities, the Company shall make the Immediate Delivery
Underwritten Securities available for inspection by the
Representative in New York, New York, not later than 2:00 P.M.,
local time, on the business day prior to the Delivery Date.
7. The Company agrees:
(a) To furnish promptly to the Representative and to
counsel for the Underwriters a conformed copy of [the]
[each] Registration Statement as originally filed and each
amendment or supplement thereto filed prior to the date
hereof or relating to or covering the Underwritten
Securities, and a copy of each Prospectus filed with the
Commission, including all documents incorporated therein by
reference and all consents and exhibits filed therewith;
(b) To deliver promptly to the Representative such
reasonable number of the following documents as the
Representative may request: (i) conformed copies of [the]
[each] Registration Statement (excluding exhibits other than
the computation of the ratio of earnings to fixed charges,
<PAGE>
the Indenture and this Agreement), (ii) each Prospectus and
(iii) any documents incorporated by reference in any
Prospectus;
(c) To file with the Commission, during such period
following the date hereof as, in the opinion of counsel for
the Underwriters, any Prospectus that is required by law to
be delivered, any amendment or supplement to [the] [any]
Registration Statement or any Prospectus that may, in the
judgment of the Company or the Representative, be required
by the Act or requested by the Commission and not
disapproved by the Representative;
(d) Prior to filing with the Commission during the
period referred to in (c) above (i) any amendment or
supplement to [the] [any] Registration Statement, (ii) any
Prospectus or any amendment or supplement thereto or (iii)
any document incorporated by reference in any of the
foregoing or any amendment or supplement to such
incorporated document, to furnish a copy thereof to the
Representative and to counsel for the Underwriters and not
to file any document that shall have been disapproved by the
Representative;
(e) To advise the Representative promptly (i) when any
post-effective amendment to [the] [any] Registration
Statement relating to or covering the Underwritten
Securities becomes effective, (ii) of any request or
proposed request by the Commission for an amendment or
supplement to [the] [any] Registration Statement (insofar as
the amendment or supplement relates to or covers the
Underwritten Securities), to any Prospectus, to any document
incorporated by reference in any of the foregoing or for any
additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of
[the] [any] Registration Statement or any order directed to
any Prospectus or any document incorporated therein by
reference or the initiation or threat of any stop order
proceeding or of any challenge to the accuracy or adequacy
of any document incorporated by reference in any Prospectus,
(iv) of receipt by the Company of any notification with
respect to the suspension of the qualification of the
Underwritten Securities for sale in any jurisdiction or the
initiation or threat of any proceeding for that purpose and
(v) of the happening of any event which makes untrue any
statement of a material fact made in [the] [any]
Registration Statement (insofar as [the] [any such]
Registration Statement relates to or covers the Underwritten
Securities) or any Prospectus or which requires the making
of a change in [the] [any such] Registration Statement or
any Prospectus in order to make any material statement
therein not misleading;
(f) If, during the period referred to in (c) above,
the Commission shall issue a stop order suspending the
effectiveness of [the] [any] Registration Statement, to make
every reasonable effort to obtain the lifting of that order
at the earliest possible time;
(g) As soon as practicable, to make generally
available to its security holders and to deliver to the
Representative an earnings statement, conforming with the
requirements of Section 11(a) of the Act, covering a period
of at least twelve months beginning after the latest of (i)
the [most recent] effective date of [the] [any] Registration
Statement, (ii) the effective date of the most recent
post-effective amendment to [the] [any] Registration
Statement that became effective prior to the date of this
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 this Agreement;
(h) So long as any of the Underwritten Securities are
outstanding, to furnish to the Representative copies of all
reports and financial statements furnished by the Company to
each securities exchange on which securities issued by the
Company may be listed pursuant to requirements of or
agreements with such exchange or to the Commission pursuant
to the Exchange Act or any rule or regulation of the
Commission thereunder;
<PAGE>
(i) To endeavor to qualify the Underwritten Securities
for offer and sale under the securities laws of such
jurisdictions as the Representative may reasonably request;
(j) To use its best efforts to obtain the listing of
the Underwritten Securities on the securities exchange, if
any, set forth on Schedule I ("Stock Exchange") on or prior
to the Delivery Date and to cause such listing to be
continued so long as any amount of the Securities remains
outstanding; to furnish from time to time any and all
documents, instruments, information and undertakings that
may be necessary in order to effect such listing; and to
maintain the same until none of the Underwritten Securities
is outstanding or until such time as payment of principal of
and premium, if any, and interest on all the Underwritten
Securities has been duly provided for, whichever is earlier;
provided that if the Company can no longer reasonably
maintain such listing, the Company shall use its best
efforts to obtain and maintain the quotation for, or listing
of, the Underwritten Securities on such other securities
exchange or exchanges as the Company may, with the approval
of the Representative, determine;
(k) To pay the costs incident to the authorization,
issuance, sale and delivery of the Underwritten Securities
and any taxes payable in that connection; the costs incident
to the preparation, printing and filing under the Act of the
[each] Registration Statement and any amendments,
supplements and exhibits thereto; the costs incident to
[the] preparation, printing and filing of any, document and
any amendments and exhibits thereto required to be filed by
the Company under the Exchange Act; the costs of
distributing [the] [each] Registration Statement as
originally filed and each amendment and post-effective
amendment thereof (including exhibits), any Preliminary
Prospectus, each Prospectus and any documents incorporated
by reference in any of the foregoing documents; the costs of
printing this Agreement and the Delayed Delivery Contracts,
if any; the costs of any filings with the National
Association of Securities Dealers, Inc.; fees paid to rating
agencies in connection with the rating of the Securities,
including the Underwritten Securities; the fees and expenses
of qualifying the Underwritten Securities under the
securities laws of the several jurisdictions as provided in
this paragraph and of preparing and printing a Blue Sky
Memorandum (including fees of counsel to the Underwriters);
the cost of listing the Underwritten Securities on the Stock
Exchange; and all other costs and expenses incident to the
performance of the Company's obligations under this
Agreement, provided that, except as provided in this
Paragraph and in Paragraph 11 hereof, the Underwriters shall
pay their own costs and expenses, including the fees and
expenses of their counsel, any transfer taxes on the
Underwritten Securities which they may sell and the expenses
of advertising any offering of the Underwritten Securities
made by the Underwriters;
(l) Until the termination of the offering of the
Underwritten Securities, to timely file all documents, and
any amendments to previously filed documents, required to be
filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act; and
(m) During the period beginning on the date hereof and
continuing to the Delivery Date, without the consent of the
Representative, (i) neither the Company nor any subsidiary
of the Company which has entered into a support agreement
with the Company shall issue or announce the proposed
issuance of any of its debt securities, other than
borrowings under its revolving credit agreements and lines
of credit and issuances of its commercial paper and (ii) the
Company shall not issue any guarantees of such debt
securities of any subsidiary of the Company.
8. (a) The Company shall indemnify and hold harmless
each Underwriter and each person, if any, who controls any
Underwriter within the meaning of the Act from and against any
loss, claim, damage or liability, joint or several, and any
action in respect thereof, to which that Underwriter or
controlling person may become subject, under the Act or
otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or
alleged untrue statement of a material fact contained in any
<PAGE>
Preliminary Prospectus, [the] [any] Registration Statement or any
Prospectus, or arises out of, or is 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 shall reimburse each Underwriter and such
controlling person for any legal and other expenses reasonably
incurred by that Underwriter or controlling person in
investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses
are incurred; provided that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, [the] [any]
Registration Statement or any Prospectus in reliance and based
upon written information furnished to the Company through the
Representative by or on behalf of any Underwriter; and provided
further that as to any Preliminary Prospectus this indemnity
agreement shall not inure to the benefit of any Underwriter or
any person controlling that Underwriter on account of any loss,
claim, damage, liability or action arising from the sale of
Underwritten Securities to any person by that Underwriter if that
Underwriter failed to send or give a copy of any Prospectus, as
the same may be amended or supplemented, to that person within
the time required by the Act, and the untrue statement or alleged
untrue statement of a material fact or omission or alleged
omission to state a material fact in such Preliminary Prospectus
was corrected in such Prospectus, unless such failure resulted
from noncompliance by the Company with Paragraph 7(b) hereof.
For purposes of the second proviso to the immediately preceding
sentence, the term Prospectus shall not be deemed to include the
documents incorporated therein by reference, and no Underwriter
shall be obligated to send or give any supplement or amendment to
any document incorporated by reference in any Preliminary
Prospectus or any Prospectus of any person other than a person to
whom such Underwriter has delivered such incorporated documents
in response to a written request therefor. The foregoing
indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or controlling
person.
(b) Each Underwriter shall indemnify and hold harmless the
Company, each of its directors, each of its officers who signed
[the] [any] Registration Statement and any person who controls
the Company within the meaning of the Act from and against any
loss, claim, damage or liability, joint or several, and any
action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under
the Act or otherwise, insofar as such loss, claim, damage,
liability or action, arises out of, or is based upon, any untrue
statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, [the] [any] Registration
Statement or any Prospectus, or arises out of, or is 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, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance and to and upon written
information furnished to the Company through the Representative
by or on behalf of that Underwriter, and shall reimburse the
Company for any legal and other expenses reasonably incurred by
the Company or any such director, officer or controlling person
in investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses
are incurred. The foregoing indemnity agreement is in addition
to any liability which any Underwriter may otherwise have to the
Company or any of its directors, officers or controlling persons.
(c) Promptly after receipt by an indemnified party under
this Paragraph 8 of notice of any claim or the commencement of
any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this
Paragraph 8, notify the indemnifying party in writing of the
claim or the commencement of that action, provided that the
failure to notify the indemnifying party shall not relieve it
from any liability which it may have to an indemnified party
otherwise than under this Paragraph 8. If any such claim or
action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein, and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying
<PAGE>
party shall not be liable to the indemnified party under this
Paragraph 8 for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense thereof
other than reasonable costs of investigation, provided that the
Representative shall have the right to employ one counsel to
represent the Representative, those other Underwriters and their
respective controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be
sought by the Underwriters against the Company under this
Paragraph 8 if, in the reasonable judgment of the Representative,
it is advisable for the Representative, those Underwriters and
controlling persons to be represented by separate counsel, and in
that event the fees and expenses of such separate counsel shall
be paid by the Company. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be
a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel
as contemplated by this Paragraph 8, the indemnifying party
agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such
settlement is entered into more than 60 days after receipt by
such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement
of any pending or threatened proceeding 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 claims that are the
subject matter of such proceeding.
(d) If the indemnification provided for in this Paragraph 8
shall for any reason be unavailable to an indemnified party under
Paragraph 8(a) or 8(b) hereof in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred
to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect thereof,
in such proportion as shall be 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 Underwritten
Securities and the relative fault of the Company on the one hand
and the Underwriters on the other with respect to the statements
or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, 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 with respect to such offering shall be deemed to be in
the same proportion as the total net proceeds from the offering
of the Underwritten Securities (before deducting expenses)
received by the Company bear to the total underwriting discounts
and commissions received by the Underwriters with respect to such
offering. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters, the
intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement
or omission. The amount paid or payable by an indemnified party
as a result of the loss, claim, damage or liability, or action in
respect thereof, referred to above in this Paragraph 8(d) shall
be deemed to include, for purposes of this Paragraph 8(d), any
legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this
Paragraph 8(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at
which the Underwritten Securities underwritten by it and
distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise paid
or become liable to pay by reason of any 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 to contribute as provided in this
Paragraph 8(d) are several in proportion to their respective
underwriting obligations and not joint.
<PAGE>
(e) The indemnity agreements contained in this Paragraph 8
and the representations, warranties and agreements of the Company
in Paragraph 1 and Paragraph 7 hereof shall survive the delivery
of the Underwritten Securities and shall remain in full force and
effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any
indemnified party.
9. The obligations of the Underwriters under this
Agreement may be terminated by the Representative, in its
absolute discretion, by notice given to and received by the
Company prior to the delivery of and payment for the Immediate
Delivery Underwritten Securities, if, during the period beginning
on the date hereof to and including the Delivery Date, (a) there
shall have been any decrease in the ratings of any of the
Company's debt securities by Moody's Investors Service, Inc. or
Standard & Poor's Corporation, (b) trading in the Company's
Common Stock shall have been suspended by the Commission or the
New York Stock Exchange or trading in securities generally on the
New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such Exchange, (c)
a banking moratorium shall have been declared by either Federal
or New York State authorities or (d) there shall have occurred
any outbreak or material escalation of hostilities the effect of
which on the financial markets or the United States is such as to
make it, in the reasonable judgment of the Representative,
impracticable to market such Underwritten Securities, or (e) any
change or any development involving a prospective change, in or
affecting the business or properties of the Company and its
subsidiaries, taken as a whole, shall have occurred the effect of
which is, in the reasonable judgment of the Underwriters, so
material and adverse as to make it impracticable or inadvisable
to proceed with the delivery of the Underwritten Securities.
10. The respective obligations of the Underwriters under
this agreement with respect to the Underwritten Securities are
subject to the accuracy, on the date hereof and on the Delivery
Date, of the representations and warranties of the Company
contained herein, to performance by the Company of its
obligations hereunder, and to each of the following additional
terms and conditions applicable to the Underwritten Securities:
(a) At or before the Delivery Date, no stop order
suspending the effectiveness of [the] [any] Registration
Statement nor any order directed to any document
incorporated by reference in any Prospectus shall have been
issued and prior to that time no stop order proceeding shall
have been initiated or threatened by the Commission and no
challenge shall have been made to the accuracy or adequacy
of any document incorporated by reference in any Prospectus;
any request of the Commission for inclusion of additional
information in [the] [any] Registration Statement or any
Prospectus or otherwise shall have been complied with; and
after the date hereof the Company shall not have filed with
the Commission any amendment or supplement to [the] [any]
Registration Statement or any Prospectus (or any document
incorporated by reference therein) that shall have been
disapproved by the Representative.
(b) No Underwriter shall have discovered and disclosed
to the Company on or prior to the Delivery Date that [the]
[any] Registration Statement or any Prospectus contains an
untrue statement of a fact which, in the opinion of counsel
for the Underwriters, is material or omits to state a fact
which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the
statements therein not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this
Agreement, the Underwritten Securities and the Indenture and
the form of [the] [any] Registration Statement, each
Prospectus (other than financial statements and other
financial data) and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be
satisfactory in all respects to Simpson Thacher & Bartlett,
<PAGE>
counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that
such counsel may reasonably request to enable it to pass
upon such matters.
(d) Raymond F. Burke, Executive Vice President and
General Counsel of the Company, shall have furnished to the
Representative his opinion addressed to the Underwriters and
dated the Delivery Date, as Executive Vice President and
General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated
and is validly existing and in good standing under the
laws of the State of Delaware;
(ii) The Company is duly qualified to do
business and is in good standing as a foreign
corporation in all jurisdictions in which its ownership
of property or the conduct of its business requires
such qualification (except where the failure to so
qualify would not have a material adverse effect upon
the Company), and has all power and authority necessary
to own its properties and conduct the business in which
it is engaged as described in the Prospectus;
(iii) All the outstanding shares of capital
stock of the Telephone Companies have been duly and
validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in
the Prospectus, all outstanding shares of capital stock
of the Telephone Companies are owned by the Company
directly, free and clear of any perfected security
interest and, to the knowledge of such counsel, after
due inquiry, any other security interests, claims,
liens or encumbrances;
(iv) The Indenture has been duly authorized,
executed and delivered by the Company and duly
qualified under the Trust Indenture Act and, assuming
due authentication, execution and delivery by the
Trustee, constitutes a valid and legally binding
instrument of the Company enforceable in accordance
with its terms;
(v) The Immediate Delivery Underwritten
Securities have been duly authorized, executed and
issued by the Company and, assuming due authentication
thereof by the Trustee and upon payment and delivery in
accordance with this Agreement, will constitute valid
and legally binding obligations of the Company
enforceable in accordance with their terms and entitled
to the benefits of the Indenture;
(vi) The Delayed Delivery Underwritten
Securities, if any, have been duly authorized and, when
duly executed and issued by the Company and, assuming
due authentication thereof by the Trustee and upon
payment and delivery by the respective purchasers
thereof in accordance with the terms of the related
Delayed Delivery Contracts, will constitute valid and
legally binding obligations of the Company enforceable
in accordance with their terms and entitled to the
benefits of the Indenture;
(vii) The Delayed Delivery Contracts, if any,
have been duly authorized, executed and delivered by
the Company and, assuming due authorization, execution
and delivery by the purchasers thereunder, are valid
and legally binding obligations of the parties thereto;
(viii) The statements made in each Prospectus
under the caption "Description of Debt Securities" (or
a comparable caption), insofar as they purport to
constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of
such documents in all material respects;
<PAGE>
(ix) [The] [Each] Registration Statement is
effective under the Act and, to the knowledge of such
counsel, no stop order suspending its effectiveness has
been issued and no proceeding for that purpose is
pending or threatened by the Commission;
(x) No order issued by the Commission
directed to any document incorporated by reference in
any Prospectus has been issued and, to the knowledge of
such counsel, no challenge has been made by the
Commission to the accuracy or adequacy of any such
document;
(xi) Such counsel does not know of any
litigation or any governmental proceeding pending or
threatened against the Company or any of its
subsidiaries which would affect the subject matter of
this Agreement or is required to be disclosed in any
Prospectus (including the documents incorporated by
reference therein) which is not disclosed and correctly
summarized therein;
(xii) To the best of such counsel's knowledge,
neither the Company nor any of its subsidiaries is in
violation of its corporate charter or by-laws, or in
default under any material agreement, indenture or
instrument;
(xiii) This Agreement has been duly authorized,
executed and delivered by the Company;
(xiv) The execution, delivery and performance
of this Agreement and the Delayed Delivery Contracts,
if any, and compliance by the Company with the
provisions of the Underwritten Securities and the
Indenture will not conflict with, or result in the
creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company or
any of its subsidiaries pursuant to the terms of, or
constitute a default under, any agreement, indenture or
instrument known to such counsel, or result in a
violation of the corporate charter or by-laws of the
Company or any of its subsidiaries or any order, rule
or regulation of any court or governmental agency
having jurisdiction over the Company or any of its
subsidiaries or their respective properties; and
(xv) No consent, approval, authorization or order
of any court or governmental agency or body is required
for the consummation of the transactions contemplated
herein except such as have been obtained under the Act
and such other approvals (specified in such opinion) as
have been obtained.
In giving such opinion, such counsel need not express
any opinion regarding any order, consent or other
authorization or approval which may be legally required
pursuant to any state securities law.
Such counsel may state that the opinions set forth in
paragraphs (iv), (v), (vi) and (vii) above are subject to
the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally,
general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of
good faith and fair dealing.
Such opinion shall also state that [the] [each]
Registration Statement and each Prospectus, as of their
respective effective or issue dates, or if a post-effective
amendment to [the] [any such] Registration Statement has
become effective, as of the effective date of the last such
post-effective amendment thereto to become effective,
complied as to form in all material respects with the
<PAGE>
requirements of the Act and the Trust Indenture Act and the
rules and regulations of the Commission under said Acts
(except that no opinion need be expressed as to the
financial statements and other financial data contained
therein) and each document incorporated by reference in each
Prospectus as filed under the Exchange Act complied when so
filed as to form in all material respects with the
applicable requirements of the Exchange Act and the rules
and regulations of the Commission thereunder (except that no
opinion need be expressed as to the financial statements and
other financial data contained therein).
Such opinion shall also contain a statement that such
counsel has no reason to believe that (i) [the] [any]
Registration Statement, on the date it became effective, or
if a post-effective amendment to [the] [any such]
Registration Statement has become effective, as of the
effective date of the last such post-effective amendment
thereto to become effective (or, with respect to [the] [any]
Registration Statement, if the Company has filed an Annual
Report on Form 10-K since such effective date, the date of
the Company's most recent Annual Report on Form 10-K),
contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading (except that no belief need be expressed as to
the financial statements and other financial data contained
therein), or (ii) the Prospectus contains an untrue
statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading (except that no belief need be expressed as to
the financial statements and other financial data contained
therein);
(e) The Company shall have furnished to the
Representative on the Delivery Date a certificate, dated the
Delivery Date, of the Chairman of the Board, a Vice Chairman
of the Board, the President or a Vice President and a
financial or accounting officer of the Company (which
signatories shall not be employed in the same department)
stating that:
(xvi) The representations, warranties and
agreements of the Company in Paragraph 1 hereof are
true and correct as of the Delivery Date; the Company
has complied with all its agreements contained herein;
and the conditions set forth in Paragraph 10(a) hereof
have been fulfilled;
(xvii) They have carefully examined [the]
[each] Registration Statement and each Prospectus and,
in their opinion, (A) as of the date of each
Prospectus, the Registration Statement[s] and the
Prospectus did not include any untrue statement of a
material fact and did not omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, and (B) since the
date of each Prospectus, no event has occurred which
should have been set forth in a supplement to or
amendment of the Prospectus which has not been set
forth in such a supplement or amendment.
(f) The Company shall have furnished to the
Representative (i) a letter of Coopers & Lybrand, addressed
to the Underwriters and dated the date hereof of the type
described in the American Institute of Certified Public
Accountants' Statement on Auditing Standards No. 72 and
covering such specified financial statement items as counsel
for the Underwriters may reasonably have requested and (ii)
a letter of Coopers & Lybrand, addressed to the Underwriters
and dated the Delivery Date, stating, as of the date of such
letter (or, with respect to matters involving changes or
developments since the respective dates as of which
specified financial information is given in the Prospectus,
as of a date not more than five days prior to the date of
such letter), the conclusions and findings of such firm with
respect to the financial information and other matters
covered by its letter referred to in subclause (i) above,
confirming in all material respects the conclusions and
findings set forth in such prior letter.
<PAGE>
(g) Simpson Thacher & Bartlett shall have furnished to
the Representative its opinion addressed to the Underwriters
and dated the Delivery Date, as counsel for the
Underwriters, covering the matters set forth in Paragraph
10(d), except clauses (ii), (iii), (ix), (x), (xi), (xii),
(xiv) and (xv) thereof.
All opinions, letters, evidence and certificates
mentioned above or elsewhere in this Agreement shall be
deemed to be in compliance with the provisions hereof only
if they are in form and substance satisfactory to counsel
for the Underwriters.
11. If the Company shall fail to tender the Immediate
Delivery Underwritten Securities for delivery to the
Underwriters for any reason permitted under this Agreement,
or if the Underwriters shall decline to purchase the
Immediate Delivery Underwritten Securities for any reason
permitted under this Agreement (other than pursuant to
Paragraph 5 hereof), the Company shall reimburse the
Underwriters for the reasonable fees and expenses of their
counsel and for such other out-of-pocket expenses as shall
have been incurred by them in connection with this Agreement
and the proposed purchase of Immediate Delivery Underwritten
Securities and the solicitation of any Purchases of the
Delayed Delivery Underwritten Securities, and upon demand
the Company shall pay the full amount thereof to the
Representative. If this Agreement is terminated pursuant to
Paragraph 5 hereof by reason of the default of one or more
Underwriters, the Company shall not be obligated to
reimburse any defaulting Underwriter on account of those
expenses.
12. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement by, or on behalf
of, the Representative. Any notice by the Company to the
Underwriters shall be sufficient if given in writing or by
telegraph addressed to the Representative at its address set
forth in Schedule I hereto and any notice by the
Underwriters to the Company shall be sufficient if given in
writing or by telegraph addressed to the Company at 1113
Westchester Avenue, White Plains, New York 10604, Attention:
Treasurer.
13. This Agreement shall be binding upon the
Underwriters, the Company and their respective successors.
This Agreement and the terms and provisions hereof are for
the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of
the Company contained in this Agreement shall also be deemed
to be for the benefit of the person or persons, if any, who
control any Underwriter within the meaning of Section 15 of
the Act, and (b) the indemnity agreement of the Underwriters
contained in Paragraph 8 hereof shall be deemed to be for
the benefit of directors of the Company, officers of the
Company who have signed [the] [any] Registration Statement
and any person controlling the Company. Nothing in this
Agreement is intended or shall be construed to give any
person, other than the persons referred to in this
paragraph, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision
contained herein.
14. For purposes of this Agreement, (a) "business day"
means any day on which the New York Stock Exchange, Inc. is
open for trading and (b) "subsidiary" has the meaning has
the meaning set forth in Rule 405 of the Rules and
Regulations.
15. This Agreement shall be governed by and construed
in accordance with the laws of New York.
<PAGE>
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us the
enclosed duplicate hereof, whereupon this Agreement shall
represent a binding agreement among the Company and the several
underwriters.
Very truly yours,
NYNEX Corporation
By_________________________
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
[Name of Representative]
By [Name of Representative]
By_________________________
Title:
For itself and as Representative
of the several Underwriters
named in Schedule II to the
foregoing Agreement.
<PAGE>
SCHEDULE I
Underwriting Agreement dated , 199
Registration Statement[s] No. 33-
Representatives and Addresses:
Underwritten Securities:
Designation:
Principal amount:
Indenture: Indenture dated as
of March 1, 990
from NYNEX
Corporation to
Marine Midland Bank,
as Trustee, as
amended by a First
Supplemental
Indenture dated as
of April __, 1994
Date of Maturity:
Interest Rate:
Purchase Price:
Redemption Provisions:
Form and Authorized
Denominations:
Stock Exchange Listing:
Delivery Date, Time and Location: , 199 at
10 a.m. at the
office of NYNEX
Corporation,
New York, NY
<PAGE>
SCHEDULE II
Principal
Amount of
Underwritten
Name of Underwriters
Securities
$
Total ____________
<PAGE>
EXHIBIT A
$
NYNEX CORPORATION
DEBT SECURITIES
DELAYED DELIVERY CONTRACT
NYNEX Corporation
1113 Westchester Avenue
White Plains, New York 10604
Dear Sirs:
The Undersigned hereby agrees to purchase from NYNEX
Corporation, a Delaware corporation ("Company") to sell to
the undersigned, $ principal
amount of the Company's above-captioned securities
("Securities"), offered by the Company's prospectus dated
, 199 , as supplemented by the prospectus supplement dated
, 199 (collectively, the "Prospectus"), receipt of a copy
of which is hereby acknowledged, at a purchase price of %
of the principal amount thereof plus accrued interest from
, 199 to the Delivery Date (as defined in the next
paragraph) and on the further terms and conditions set forth
in this Contract.
Payment for and delivery of the Securities to be
purchased by the undersigned shall be made on , 199 ,
herein called the "Delivery Date".
At 10:00 A.M., New York time, on the Delivery Date, the
Securities to be purchased by the undersigned hereunder will
be delivered by the Company to the undersigned, and the
undersigned will accept delivery of such Securities and will
make payment to the Company of the purchase price therefor,
at the office of Marine Midland Bank. Payment wil be by
certified or official bank check payable in next-day funds
settled through the New York Clearing House to or upon the
order of the Company. The Securities will be delivered in
such authorized forms and denominations and registered in
such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less
than two full business days prior to the Delivery Date, or,
if the undersigned fails to make a timely designation in the
foregoing manner, in the form of one definitive fully
registered certificate representing the Securities in the
above principal amount, registered in the name of the
undersigned.
This Contract will terminate and be of no further force
and effect after , 199 , unless (i) on or before
such date it shall have been executed and delivered by both
parties hereto or (ii) the Company shall have sold to the
Underwriters named in the Prospectus the Immediate Delivery
Underwritten Securities (as defined in the Underwriting
Agreement eeferred to in the Prospectus) and the Company
shall have mailed or delivered to the undersigned at its
address set forth below a notice to that effect, stating the
date of the occurrence thereof, accompanied by copies of the
opinion of counsel for the Company delivered to such
Underwriters pursuant to Paragraph 10(d) of the Underwriting
Agreement.
<PAGE>
The obligation of the undersigned to accept delivery of
and make payment for the Securities on the Delivery Date
will be subject to the condition that the Securities shall
not, on the Delivery Date, be an investment prohibited by
the laws of the jurisdiction to which the undersigned is
subject, the undersigned hereby representing that such an
investment is not so prohibited on the date hereof.
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 acceptance of any Delayed
Delively Contract (as defined in said Underwriting
Agreement) 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.
Very truly yours,
By_______________________
_________________________
Title:
_________________________
_________________________
Address
Accepted as of , 199
NYNEX Corporation
By_______________________
________________________
Title:
Exhibit 4 (b)
NYNEX CORPORATION
and
MARINE MIDLAND BANK
as Trustee
FORM OF FIRST SUPPLEMENTAL INDENTURE
Dated as of , 1994
<PAGE>
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of
, 1994, is between NYNEX CORPORATION, a corporation duly
incorporated and existing under the laws of the State of
Delaware (the "Company"), and MARINE MIDLAND BANK (successor by
conversion to Marine Midland Bank, N.A.), a trust company duly
organized and existing under the laws of the State of New York,
acting as Trustee under the Original Indenture referred to below
(the "Trustee").
W I T N E S S E T H :
WHEREAS, the Company has duly authorized the execution
and delivery of an Indenture dated as of March 1, 1990 (the
"Original Indenture") to provide for the issuance from time to
time of its securities evidencing its unsecured indebtedness to
be issued in one or more series (the "Securities"), as in the
Original Indenture provided, unlimited as to principal amount;
WHEREAS, the Company has requested the Trustee to join
with it in the execution and delivery of this First Supplemental
Indenture;
WHEREAS, the Original Indenture, as amended by this
First Supplemental Indenture, is hereinafter referred to as the
"Indenture";
WHEREAS, Section 901(11) of the Indenture provides that
a supplemental indenture may be entered into by the Company and
the Trustee, without the consent of any Holders of Securities,
to make provisions with respect to matters or questions arising
under the Indenture, provided such action shall not adversely
affect the interests of the Holders of Securities of any
particular series in any material respect;
WHEREAS, the Company has determined that this First
Supplemental Indenture complies with said Section 901(11) and
does not require the consent of any Holders of Securities, and,
on the basis of the foregoing, the Trustee has determined that
this First Supplemental Indenture is in form satisfactory to it;
WHEREAS, all things necessary to make this First
Supplemental Indenture a valid agreement of the Company, in
accordance with its terms, have been done and performed, and the
execution and delivery of this First Supplemental Indenture by
the Company has in all respects been duly authorized;
WHEREAS, the Trustee makes no representations as to the
validity or sufficiency of this First Supplemental Indenture;
and
WHEREAS, capitalized terms herein, not otherwise
defined, shall have the same meanings given them in the Original
Indenture;
<PAGE>
NOW, THEREFORE, 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 series
thereof, as follows:
SECTION 1. AMENDMENTS TO THE INDENTURE
1.1 Amendment to Section 101 of the Indenture.
(a) Section 101 of the Indenture is hereby amended by
deleting in their entirety the definitions of "Business Day",
"CEDEL, S.A.", "Component Currency", "Conversion Date",
"Conversion Event", "Currency Determination Agent", "Discounted
Security", "Dollar Equivalent of the Currency Unit", "Dollar
Equivalent of the Foreign Currency", "Election Date", "Exchange
Rate Officer's Certificate", "Foreign Currency", "Judgment
Date", "Market Exchange Rate", "Specified Amount", "Substitute
Date", "United States" and "Valuation Date".
(b) Section 101 of the Indenture is hereby amended by
inserting in proper alphabetical order the following
definitions:
"Amortizing Security" means any Security as to which
amounts in respect of interest thereon and principal thereof
are payable over the life of the Security, according to an
amortization schedule, all as specified in accordance with
Section 301.
"Business Day" means with respect to any Security,
unless otherwise specified in accordance with Section 301,
any day, other than a Saturday or Sunday, that meets each of
the following applicable requirements: such day is (a) not
a day on which banking institutions in the Borough of
Manhattan, The City of New York are authorized or required
by law, regulation or executive order to close; (b) if the
Security is denominated in a Foreign Currency other than the
ECU, (x) not a day on which banking institutions are
authorized or required by law or regulation to close in the
principal financial center of the country issuing the
Foreign Currency and (y) a day on which banking institutions
in such principal financial center are carrying out
transactions in such Foreign Currency; (c) if the Security
is denominated in ECU, (x) not a day on which banking
institutions are authorized or required by law or regulation
to close in Luxembourg and (y) an ECU clearing day, as
determined by the ECU Banking Association in Paris; and (d)
if such Security is a LIBOR Security, a London Banking Day.
"CEDEL, S.A." means Cedel, S.A..
"Component Currency" has the meaning specified in
Section 311(e).
<PAGE>
"Conversion Event" means, with respect to any Foreign
Currency, (i) the unavailability to the Company of such
Foreign Currency for making payments thereof due to the
imposition of exchange controls or other circumstances
beyond the Company's control, (ii) the cessation of use of
such Foreign Currency as a unit of domestic exchange by the
government or governments of the country or countries which
so used such currency or (iii) the cessation of use of such
Foreign Currency for the settlement of transactions by
public institutions of or within the international banking
community.
"Currency Determination Agent", with respect to
Securities of any series, means a Person (other than the
Trustee) designated pursuant to Section 301 or Section 312.
"Discounted Security" means any Security which provides
for an amount (excluding any amounts attributable to accrued
but unpaid interest thereon) less than the principal amount
thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502
and which is designated as a Discounted Security pursuant to
Section 301.
"Dual Currency Security" means any Security as to which
the Company has the option of making any scheduled payment
of principal, premium, if any, or interest in either of two
currencies, all as specified in accordance with Section 301.
"Election Date" has the meaning specified in Section
311(e).
"Foreign Currency" means any currency or composite
currency actively maintained as a recognized unit of
domestic exchange by the government or governments of any
country or countries other than the United States.
"Indexed Security" means any Security as to which the
amount of payments of principal, premium, if any, and/or
interest due thereon is determined with reference to the
rate of exchange between the currency or currency unit in
which the Security is denominated and any other specified
currency or currency unit, to the relationship between two
or more currencies or currency units, to the price of one or
more specified securities or commodities, to one or more
securities or commodities exchange indices or other indices
or by other similar methods or formulas, all as specified in
accordance with Section 301.
"LIBOR" means, with respect to any series of
Securities, the rate specified as LIBOR for such Securities
in accordance with Section 301.
<PAGE>
"LIBOR Security" means any Security which bears
interest at a floating rate calculated with reference to
LIBOR.
"London Banking Day" means, with respect to any LIBOR
Security, any day on which dealings in deposits in the
currency in which such LIBOR Security is denominated are
transacted in the London interbank market.
"Market Exchange Rate" with respect to any Foreign
Currency on any date means, unless otherwise specified in
accordance with Section 301, the noon buying rate in The
City of New York for cable transfers in such Foreign
Currency as certified for customs purposes by the Federal
Reserve Bank of New York for such Foreign Currency on the
second Business Day prior to such date (or, in the event
such buying rate is not then available, the most recently
available buying rate for such Foreign Currency).
"United States" means the United States of America
(including the States and the District of Columbia), and its
"possessions", which include Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and Northern
Mariana Islands."
(c) Section 101 of the Indenture is hereby amended by
inserting immediately before the period at the end of the
definition of "Outstanding" the following new clause (c):
" and (c) the principal amount of any Indexed Security that
shall be deemed to be Outstanding for such purposes shall be
deemed to be the face amount thereof unless the specified
terms of any such Indexed Security provide otherwise and the
principal amount of any Dual Currency Security shall be the
amount that would be due and payable with respect to such
Dual Currency Security as of the date of such determination
upon a declaration of acceleration pursuant to Section 502."
1.2 Amendment to Section 104 of the Indenture.
Section 104 of the Indenture is hereby amended by
adding, immediately before the period at the end of paragraph
(f) thereof, the following:
", and the principal amount of any Indexed Security that may
be counted in making such determination and that shall be
deemed to be Outstanding for such purposes shall be deemed
<PAGE>
to be the face amount thereof unless the specified terms of any
such Indexed Security provide otherwise, and the
principal amount of any Dual Currency Security that may be
counted in making such determination and that shall be deemed
to be Outstanding for such purposes shall be equal to the amount of the
principal thereof that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant
to Section 502 at the time the taking of such action by the
Holders of such requisite principal amount is evidenced to
the Trustee for such Securities"
1.3 Amendment to Section 113 of the Indenture.
Section 113 of the Indenture is hereby amended by
deleting such Section in its entirety and inserting in lieu
thereof the following:
"SECTION 113. Non-Business Day.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, in
any case where any Interest Payment Date, Redemption Date or
Stated Maturity of a Security of any particular series shall
not be a Business Day at any Place of Payment with respect
to Securities of that series, then (notwithstanding any
other provision of this Indenture or of the Securities or
coupons) payment of principal of (and premium, if any) and
interest, if any, with respect to such Security need not be
made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity,
provided that no interest shall accrue for the period from
and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be."
1.4 Amendment to Section 203 of the Indenture.
(a) Section 203 of the Indenture is hereby amended by
adding, at the end of the first paragraph thereof, the
following:
"Any instructions by the Company with respect to a Security
in global form, after its initial issuance, shall be in
writing but need not comply with Section 102."
(b) Section 203 of the Indenture is hereby amended by
adding, at the end of the second paragraph thereof, the
following:
"Permanent global Securities will be issued in definitive
form."
1.5 Amendment to Section 301 of the Indenture.
(a) Section 301 of the Indenture is hereby amended by
deleting the parenthetical phrase "(including the Election
Date)" where it appears in paragraph (14) of said Section 301.
<PAGE>
(b) Section 301 of the Indenture is hereby amended by
deleting paragraphs (15), (16) and (20) thereof in their
entirety, by deleting the word "and" at the end of paragraph
(24) thereof, by redesignating paragraph (25) thereof as
paragraph (30) thereof, and by inserting the following
paragraphs in proper numerical order:
"(15) the designation of the original Currency
Determination Agent, if any, and the designation of any
other agent for purposes of making determinations or
calculations with respect to the Securities of such series
or otherwise;
(16) if any of the Securities of such series are
issuable as Indexed Securities, the manner in which the
amount of payments of principal, premium, if any, and/or
interest due thereon shall be determined, and any other
special terms with respect to such Indexed Securities;
(20) the application, if any, of Section 1004 or 1011
to any of the Securities of that series, and, if applicable,
any covenant not set forth herein and specified pursuant to
this Section 301 to be applicable to any of the Securities
of such series and subject to Section 1010 or Section 1011
or both such Sections;
(25) if any of the Securities of such series are
issuable as Dual Currency Securities, the two currencies in
either of which any scheduled payment of principal, premium,
if any, or interest due thereon may be made at the option of
the Company, and any other special terms with respect to
such Dual Currency Securities;
(26) if any of the Securities of such series are
issuable as Amortizing Securities, the amortization schedule
according to which amounts in respect of interest thereon
and principal thereof are payable over the life of such
Amortizing Securities, and any other special terms with
respect to such Amortizing Securities;
(27) if any of the Securities of such series are
issuable as Discounted Securities, a designation of such
Securities as Discounted Securities;
(28) if Section 311(b) applies to any of the
Securities of such series, the Election Date;
(29) if other than as set forth in Section 113,
provisions relating to the payment of principal of (and
premium, if any) and interest, if any, with respect to
Securities of such series in any case where any Interest
Payment Date, Redemption Date or Stated Maturity of any
Security of such series shall not be a Business Day at any
Place of Payment with respect to the Securities of such
series; and"
<PAGE>
1.6 Amendment to Section 303 of the Indenture.
Section 303 of the Indenture is hereby amended by
deleting the two provisos to the first sentence of the third
paragraph thereof and inserting in lieu thereof the following:
"; provided, however, that, in connection with its sale,
during the "restricted period" (as defined in Section 1.163-
5(c)(2)(i)(D)(7) of the United States Treasury Regulations),
no Bearer Security shall be mailed or otherwise delivered to
any location in the United States; and provided, further,
that such Bearer Security (other than a temporary global
Security in bearer form) may be delivered outside the United
States in connection with its original issuance only if the
Person entitled to receive such Bearer Security shall have
furnished to Euroclear or CEDEL, S.A., a certificate
substantially in the form set forth in Exhibit A to this
Indenture."
1.7 Amendment to Section 304 of the Indenture.
Section 304 of the Indenture is hereby amended by
deleting the fourth through the tenth paragraphs thereof in
their entirety and inserting in lieu thereof the following:
"Without unnecessary delay but in any event not later than
the date specified in or determined pursuant to the terms of
any such temporary global Security which (subject to any
applicable laws and regulations) shall be 40 days after the
closing of the sale of Securities or within a reasonable
period of time thereafter (the "Exchange Date"), the
Securities represented by any temporary global Security of a
series of Securities issuable in bearer form may be
exchanged for definitive Securities (subject to the second
succeeding paragraph), including one or more permanent
global Securities in definitive form, without interest
coupons. On or after the Exchange Date such temporary
global Security shall be surrendered by the Depositary to
the Trustee for such Security, as the Company's agent for
such purpose, or the agent appointed by the Company pursuant
to Section 301 to effect the exchange of the temporary
global Security for definitive Securities (including any
director or officer of the Global Exchange Agent authorized
by the Trustee as an Authenticating Agent pursuant to
Section 614) (the "Global Exchange Agent"), and following
such surrender, such Trustee or the Global Exchange Agent
shall (1) endorse the temporary global Security to reflect
the reduction of its principal amount by an equal aggregate
principal amount of such Security, (2) endorse the
applicable permanent global Security, if any, to reflect the
initial amount, or an increase in the amount of Securities
represented thereby, (3) manually authenticate such
definitive Securities, including any permanent global
Security, (4) subject to Section 303, either deliver such
definitive Securities to the Holder thereof or, if such
definitive Security is a
<PAGE>
permanent global Security, deliver such permanent global
Security to the Depositary to be held outside the United
States for the accounts of Euro-clear and CEDEL, S.A., for
credit to the respective accounts at Euro-clear and CEDEL,
S.A., designated by or on behalf of the beneficial owners of
such Securities (or to such other accounts as they may
direct) and (5) redeliver such temporary global Security to
the Depositary, unless such temporary global Security shall
have been cancelled in accordance with Section 309 hereof;
provided, however, that, unless otherwise specified in such
temporary global Security, upon such presentation by the
Depositary, such temporary global Security shall be
accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by Euro-clear as to the portion
of such temporary global Security held for its account then
to be exchanged for definitive Securities (including any
permanent global Security), and a certificate dated the
Exchange Date or a subsequent date and signed by CEDEL, S.A.
as to the portion of such temporary global Security held for
its account then to be exchanged for definitive Securities
(including any permanent global Security), each
substantially in the form set forth in Exhibit B to this
Indenture. Each certificate substantially in the form of
Exhibit B hereto of Euro-clear or CEDEL, S.A., as the case
may be, shall be based on certificates of the account
holders listed in the records of Euro-clear or CEDEL, S.A.,
as the case may be, as being entitled to all or any portion
of the applicable temporary global Security. An account
holder of Euro-clear or CEDEL, S.A., as the case may be,
desiring to effect the exchange of interest in a temporary
global Security for an interest in definitive Securities
(including any permanent global Security) shall instruct
Euro-clear or CEDEL, S.A., as the case may be, to request
such exchange on its behalf and shall deliver to Euro-clear
or CEDEL, S.A., as the case may be, a certificate
substantially in the form of Exhibit A hereto and dated no
earlier than 15 days prior to the Exchange Date. Until so
exchanged, temporary global Securities shall in all respects
be entitled to the same benefits under this Indenture as
definitive Securities (including any permanent global
Security) of the same series authenticated and delivered
hereunder, except as provided in the fourth succeeding
paragraph.
The delivery to the Trustee for the Securities of the
appropriate series or the Global Exchange Agent by Euro-
clear or CEDEL, S.A. of any certificate substantially in the
form of Exhibit B hereto may be relied upon by the Company
and such Trustee or Global Exchange Agent as conclusive
evidence that a corresponding certificate or certificates
has or have been delivered to Euro-clear or to CEDEL, S.A.,
as the case may be, pursuant to the terms of this Indenture.
<PAGE>
On or prior to the Exchange Date, the Company shall deliver
to the Trustee for the Securities of the appropriate series or
to the Global Exchange Agent definitive Securities in aggregate
principal amount equal to the principal amount of such temporary
global Security, executed by the Company. At any time, on or
after the Exchange Date, upon 30 days' notice to the Trustee for
the Securities of the appropriate series or the Global Exchange
Agent by Euro-clear or CEDEL, S.A., as the case may be, acting
at the request of or on behalf of the beneficial owner, a
Security represented by a temporary global Security or a
permanent global Security, as the case may be, may be exchanged,
in whole or from time to time in part, for definitive Securities
without charge and such Trustee or the Global Exchange Agent
shall authenticate and deliver, in exchange for each portion of
such temporary global Security, or such permanent global
Security, an equal aggregate principal amount of definitive
Securities of the same series of authorized denominations and
with like terms and provisions as the portion of such temporary
global Security or such permanent global Security to be
exchanged, which, unless the Securities of the series are not
issuable both as Bearer Securities and as Registered Securities,
as contemplated by Section 301, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof,
as shall be specified by the beneficial owner thereof; provided,
however, that definitive Bearer Securities shall be delivered in
exchange for a portion of the temporary global Security or the
permanent global Security only in compliance with the
requirements of the second preceding paragraph. On or prior to
the 30th day following receipt by the Trustee for the Securities
of the appropriate series or the Global Exchange Agent of such
notice with respect to a Security, or, if such day is not a
Business Day, the next succeeding Business Day, the temporary
global Security or the permanent global Security, as the case
may be, shall be surrendered by the Depositary to such Trustee,
as the Company's agent for such purpose, or the Global Exchange
Agent to be exchanged in whole, or from time to time in part,
for definitive Securities or, in the case of the permanent
global Security, other definitive Securities, without charge
following such surrender, upon the request of Euro-clear or
CEDEL, S.A., as the case may be, and such Trustee or the Global
Exchange Agent shall (1) endorse the applicable temporary global
Security or the permanent global Security to reflect the
reduction of its principal amount by the aggregate principal
amount of such Securities, (2) in accordance with procedures
acceptable to the Trustee cause the terms of such Security and
coupons, if any, to be entered on a definitive Security, (3)
manually authenticate such definitive Security and (4) if a
Bearer Security is to be delivered, deliver such definitive
Security outside the United States to Euro-clear or CEDEL, S.A.,
as the case may be, for or
<PAGE>
on behalf of the beneficial owner thereof, in exchange for a
portion of such temporary global Security or such permanent
global Security, as the case may be.
Unless otherwise specified in such temporary global
Security or permanent global Security, any such exchange
shall be made free of charge to the beneficial owners of
such temporary global Security or permanent global Security,
except that a Person receiving definitive Securities must
bear the cost of insurance, postage, transportation and the
like in the event that such Person does not take delivery of
such definitive Securities in person at the offices of Euro-
clear or CEDEL, S.A. Definitive Securities in bearer form
to be delivered in exchange for any portion of a temporary
global Security or a permanent global Security shall be
delivered only outside the United States.
Until exchanged in full as hereinabove provided, any
temporary global Security or definitive permanent global
Security shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of
the same series and with like terms and conditions, except
as to payment of interest, if any, authenticated and
delivered hereunder. Unless otherwise specified as
contemplated by Section 301, interest payable on a temporary
global Bearer Security on an Interest Payment Date for
Securities of such series shall be payable to Euro-clear and
CEDEL, S.A. on such Interest Payment Date upon delivery by
Euro-clear and CEDEL, S.A. to the Trustee for the Securities
of the appropriate series or the Global Exchange Agent in
the case of payment of interest on a temporary global
Security with respect to an Interest Payment Date occurring
prior to the applicable Exchange Date of a certificate or
certificates substantially in the form set forth in Exhibit
B to this Indenture, for credit without further interest on
or after such Interest Payment Date to the respective
accounts of the Persons who are the beneficial owners of
such global Security on such Interest Payment Date and who
have, in the case of payment of interest on a temporary
global Security with respect to an Interest Payment Date
occurring prior to the applicable Exchange Date, each
delivered to Euro-clear or CEDEL, S.A., as the case may be,
a certificate substantially in the form set forth in Exhibit
A to this Indenture.
Any definitive Bearer Security authenticated and
delivered by the Trustee for the Securities of the
appropriate series or the Global Exchange Agent in exchange
for a portion of a temporary global Security shall not bear
a coupon for any interest which shall theretofore have been
duly paid by such Trustee to Euro-clear or CEDEL, S.A. or by
the Company to such Trustee in accordance with the
provisions of this Section 304.
<PAGE>
With respect to Exhibits A and B to this Indenture, the
Company may, in its discretion and if required or desirable
under applicable law, substitute one or more other forms of
such exhibits for such exhibits, eliminate the requirement
that any or all certificates be provided, or change the time
that any certificate may be required, provided that such
substitute form or forms or notice of elimination or change
of such certification requirements have theretofore been
delivered to the Trustee with a Company Request and such
form or forms, elimination or change is reasonably
acceptable to the Trustee."
1.8 Amendment to Section 307 of the Indenture.
(a) Section 307 of the Indenture is hereby amended by
inserting immediately before the period at the end of the first
paragraph thereof the following:
"; provided, however, that, unless otherwise specified as
contemplated by Section 301, interest, if any, payable on
such Registered Security at maturity or upon earlier
redemption or repayment shall be payable to the Person to
whom principal shall be payable"
(b) Section 307 of the Indenture is hereby amended by
deleting the second paragraph thereof and inserting in lieu
thereof the following:
"Unless otherwise provided with respect to the
Securities of any series, payment of interest may be made at
the option of the Company (i) in the case of Registered
Securities, by check mailed or delivered to the address of
the Person entitled thereto as such address shall appear in
the Security Register or by transfer to an account
maintained by the payee with a bank located inside the
United States, or (ii) in the case of Bearer Securities,
except as otherwise provided in Section 1002, upon
presentation and surrender of the appropriate coupon
appertaining thereto at an office or agency of the Company
in a Place of Payment located outside the United States or
by transfer to an account maintained by the payee with a
bank located outside the United States.
Unless otherwise provided or contemplated by Section
301, every permanent global Security will provide that
interest, if any, payable on any Interest Payment Date will
be paid to each of Euro-clear and CEDEL, S.A. with respect
to that portion of such permanent global Security held for
its account by the Depositary. Each of Euro-clear and
CEDEL, S.A. will in such circumstances credit the interest
received by it in respect of such permanent global Security
to the accounts of the beneficial owners thereof."
<PAGE>
1.9 Amendment to Sections 307, 1001, 1003, 1105, 1106
and 1203 of the Indenture.
Sections 307, 1001, 1003, 1105, 1106 and 1203 of the
Indenture are hereby amended by deleting the phrase "311(b),
311(d) and 311(e)" appearing in each such Section and inserting
the phrase "311(b) and 311(d)" in lieu thereof.
1.10 Amendment to Section 311 of the Indenture.
Section 311 of the Indenture is hereby amended by
deleting such Section in its entirety and inserting in lieu
thereof the following:
"SECTION 311. Currency and Manner of Payments in Respect of
Registered Securities.
Unless otherwise specified in accordance with Section
301 with respect to any series of Registered Securities, the
following provisions shall apply:
(a) Except as provided in paragraphs (b) and (d)
below, the principal of, premium, if any, and interest on
Registered Securities of any series denominated in a Foreign
Currency will be payable by the Company in Dollars based on
the equivalent of that Foreign Currency converted into
Dollars in the manner described in paragraph (c) below.
(b) It may be provided pursuant to Section 301 with
respect to Registered Securities of any series denominated
in a Foreign Currency that Holders shall have the option,
subject to paragraph (d) below, to receive payments of
principal of, premium, if any, and interest on such
Registered Securities in such Foreign Currency by delivering
to the Trustee (or to any duly appointed Paying Agent) a
written election, to be in form and substance satisfactory
to the Trustee (or to any such Paying Agent), not later than
the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so
elects to receive such payments in such Foreign Currency,
such election will remain in effect for such Holder until
changed by such Holder by written notice to the Trustee (or
to any such Paying Agent); provided, however, that any such
change must be made not later than the close of business on
the Election Date immediately preceding the next payment
date to be effective for the payment to be made on such
payment date; and provided, further, that no such change or
election may be made with respect to payments to be made on
any Registered Security of such series with respect to which
an Event of Default has occurred, the Company has exercised
any satisfaction and discharge or defeasance options
pursuant to Article Four or Section 1011 or notice of
redemption has been given by the Company pursuant to Article
Eleven. In the event any Holder makes any such election,
such election will not be effective as to any
<PAGE>
transferee of such Holder and such transferee shall be paid
in Dollars unless such transferee makes an election as
specified above; provided, however, that such election, if
in effect while funds are on deposit with respect to the
Registered Securities as described in Section 401(a)(1)(B)
or Section 1011, will be effective on any transferee of such
Holder unless otherwise specified pursuant to Section 301
for such Registered Securities. Any Holder of any such
Registered Security who shall not have delivered any such
election to the Trustee (or to any duly appointed Paying
Agent) not later than the close of business on the
applicable Election Date will be paid the amount due on the
applicable payment date in Dollars.
(c) With respect to any Registered Security
denominated in a Foreign Currency and payable in Dollars,
the amount of Dollars so payable will be determined by the
Currency Determination Agent based on the indicative
quotation in The City of New York selected by the Currency
Determination Agent at approximately 11:00 A.M., New York
City time, on the second Business Day preceding the
applicable payment date that yields the least number of
Dollars upon conversion of the Foreign Currency. Such
selection shall be made from among the quotations appearing
on the bank composite or multi-contributor pages of the
Reuters Monitor Foreign Exchange Service or, if not
available, the Telerate Monitor Foreign Exchange Service.
If such quotations are unavailable from either such foreign
exchange service, such selection shall be made from the
quotations received by the Currency Determination Agent from
no more than three nor less than two recognized foreign
exchange dealers in The City of New York selected by the
Currency Determination Agent and approved by the Company
(one of which may be the Currency Determination Agent) for
the purchase by the quoting dealer, for settlement on such
payment date, of the aggregate amount of the Foreign
Currency payable on such payment date in respect of all
Securities denominated in such Foreign Currency and for
which the applicable dealer commits to execute a contract.
If no such bid quotations are available, payments shall be
made in the Foreign Currency.
(d) If a Conversion Event occurs with respect to a
Foreign Currency in which any of the Registered Securities
are payable, then with respect to each date for the payment
of principal of, premium, if any, and interest on such
Registered Securities occurring after the last date on which
such Foreign Currency was used, the Company may make such
payment in Dollars. The Dollar amount to be paid by the
Company to the Trustee and by the Trustee or any Paying
Agent to the Holders of such Registered Securities with
respect to such payment date shall be determined by the
Currency Determination Agent on the basis of the Market
Exchange Rate. Any payment in respect of such Security made
<PAGE>
under such circumstances in Dollars will not constitute an
Event of Default hereunder.
(e) For purposes of this Indenture the following terms
shall have the following meanings:
A "Component Currency" shall mean any currency
which is a component currency of any composite
currency, including, without limitation, the ECU.
"Election Date" shall mean, for any Registered
Security, the date specified pursuant to
Section 301(28).
(f) Notwithstanding any other provisions of this
Section 311, the following shall apply: (i) if the official
unit of any Component Currency is altered by way of
combination or subdivision, the number of units of that
currency as a component shall be divided or multiplied in
the same proportion, (ii) if two or more Component
Currencies are consolidated into a single currency, the
amounts of those currencies as components shall be replaced
by an amount in such single currency equal to the sum of the
amounts of the consolidated Component Currencies expressed
in such single currency, (iii) if any Component Currency is
divided into two or more currencies, the amount of that
original Component Currency as a component shall be replaced
by the amounts of such two or more currencies having an
aggregate value on the date of division equal to the amount
of the former Component Currency immediately before such
division and (iv) in the event of an official redenomination
of any currency (including without limitation, a composite
currency), the obligations of the Company to make payments
in or with reference to such currency on any Registered
Securities shall, in all cases, be deemed immediately
following such redenomination to be obligations to make
payments in or with reference to that amount of
redenominated currency representing the amount of such
currency immediately before such redenomination.
(g) All determinations referred to in this Section 311
made by the Currency Determination Agent shall be in its
sole discretion and shall, in the absence of manifest error,
be conclusive for all purposes and irrevocably binding upon
the Holders of the applicable Registered Securities. The
Currency Determination Agent shall promptly give written
notice to the Trustee of any such decision or determination.
The Currency Determination Agent shall have no liability for
any determinations referred to in this Section 311 made by
it.
<PAGE>
(h) The Trustee shall be fully justified and protected
in relying and acting upon information received by it from
the Company and the Currency Determination Agent with
respect to any of the matters addressed in or contemplated
by this Section 311 and shall not otherwise have any duty or
obligation to determine such information independently."
1.11 Amendment to Section 401 of the Indenture.
(a) Section 401 of the Indenture is hereby amended by
deleting paragraph (a)(1)(B) thereof in its entirety and
inserting in lieu thereof the following:
"(B) except as otherwise specified pursuant to Section
301 for the Securities of such series, with respect to all
Outstanding Securities of such series described in (A) above
(and, in the case of (i), (ii) or (iii) below, any coupons
appertaining thereto) not theretofore delivered to the Trustee
for cancellation:
(i) the Company has deposited or caused to be
deposited with the Trustee as trust funds in trust an amount
in the currency or currency unit in which the Securities of
such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series
and except as provided in Sections 311(b) and 311(d), in
which case the deposit to be made with respect to Securities
for which an election has occurred pursuant to Section
311(b) or a Conversion Event has occurred as provided in
Section 311(d), shall be made in the currency or currency
unit in which such Securities are payable as a result of
such election or Conversion Event), sufficient to pay and
discharge the entire indebtedness on all such Outstanding
Securities of such series and any related coupons for
principal (and premium, if any) and interest, if any, to the
Stated Maturity, or any Redemption Date as contemplated by
Section 402, as the case may be; or
(ii) the Company has deposited or caused to be
deposited with such Trustee as obligations in trust such
amount of Government Obligations as will, as evidenced by a
Certificate of a Firm of Independent Public Accountants
delivered to such Trustee, together with the predetermined
and certain income to accrue thereon (without consideration
of any reinvestment thereof), be sufficient to pay and
discharge when due the entire indebtedness on all such
Outstanding Securities of such series and any related
coupons for unpaid principal (and premium, if any) and
interest, if any, to the Stated Maturity or any Redemption
Date as contemplated by Section 402, as the case may be; or
<PAGE>
(iii) the Company has deposited or caused to be
deposited with such Trustee such combination of trust funds
or obligations in trust pursuant to (i) and (ii) above,
respectively, as will, as evidenced by a Certificate of a
Firm of Independent Public Accountants delivered to such
Trustee, together with the predetermined and certain income
to accrue on such obligations in trust, be sufficient to pay
and discharge when due the entire indebtedness on all such
Outstanding Securities of such series any related coupons
for principal (and premium if any) and interest to the
Stated Maturity or any Redemption Date as contemplated by
Section 402, as the case may be;"
(b) Section 401 of the Indenture is hereby amended by
deleting the phrase "based upon such Opinion" from paragraph
(a)(5) thereof and inserting in lieu thereof the phrase "based
thereon such Opinion".
(c) Section 401 of the Indenture is hereby amended by
deleting paragraph (b) thereof in its entirety and inserting in
lieu thereof the following:
"(b) Upon the satisfaction of the conditions set forth
in this Section 401 with respect to all the Securities of
any series, the terms and conditions of such series,
including the terms and conditions with respect thereto set
forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company, and the Holders of the
Securities of such series and any related coupons shall look
for payment only to the funds or obligations deposited with
the Trustee pursuant to Section 401(a)(l)(B); provided,
however, that in no event shall the Company be discharged
from (i) any payment obligations in respect of Securities of
such series and any related coupons which are deemed not to
be Outstanding under clause (3) of the definition thereof if
such obligations continue to be valid obligations of the
Company under applicable law, (ii) from any obligations
under Sections 402(b), 607, 610 and 1004 and (iii) from any
obligations under Sections 304, 305 and 306 (except that
Securities of such series issued upon registration of
transfer or exchange or in lieu of mutilated, lost,
destroyed or stolen Securities and any related coupons shall
not be obligations of the Company) and Sections 311, 701 and
1002; and provided, further, that in the event the Company
deposits such funds with the Trustee and a petition for
relief under Title 11 of the United States Code or a
successor statute is filed and not discharged with respect
to the Company within 91 days after the deposit, the entire
indebtedness on all Securities of such series and any
related coupons shall not be discharged, and in such event
the Trustee shall return such deposited funds or obligations
as it is then holding to the Company upon Company Request.
Notwithstanding the satisfaction of the conditions set forth
<PAGE>
in this Section 401 with respect to all the Securities of
any series not payable in Dollars, upon the happening of any
Conversion Event the Company shall be obligated to make the
payments in Dollars required by Section 311(d) to the extent
that the Trustee is unable to convert any Foreign Currency
or currency unit in its possession pursuant to Section
401(a)(1)(B) into the Dollar equivalent of such Foreign
Currency or currency unit, as the case may be. If, after
the deposit referred to in Section 401 has been made, (x)
the Holder of a Security is entitled to, and does, elect
pursuant to Section 311(b) to receive payment in a currency
or currency unit other than that in which the deposit
pursuant to Section 401 was made, or (y) a Conversion Event
occurs as contemplated in Section 311(d), then the
indebtedness represented by such Security shall be fully
discharged to the extent that the deposit made with respect
to such Security shall be converted into the currency or
currency unit in which such Security is payable. The
Trustee shall return to the Company any non-converted funds
or securities in its possession after such payments have
been made."
1.12 Amendment to Section 402 of the Indenture.
Section 402 of the Indenture is hereby amended by
adding the phrase "or Section 1011" immediately after the phrase
"Section 401" in each place it appears therein.
1.13 Amendment to Section 502 of the Indenture.
(a) Section 502 of the Indenture is hereby amended by
deleting the first paragraph therein in its entirety and
inserting in lieu thereof the following:
"If an Event of Default with respect to any particular
series of Securities and any related coupons occurs and is
continuing, then and in every such case, either the Trustee
for the Securities of such series or the Holders of not less
than 25% in principal amount of the Outstanding Securities
of that series may declare the entire principal amount (or
if any Securities of that series are (i) Discounted
Securities, such portion of the principal amount as may be
provided for in the terms of that series, or (ii) Indexed
Securities or Dual Currency Securities, the amount
determined in accordance with the specified terms of those
Securities) of all of the Securities of that series to be
due and payable immediately, by a notice in writing to the
Company (and to such Trustee if given by the Holders), and
upon any such declaration of acceleration such principal or
such lesser amount, as the case may be, together with
accrued interest and all other amounts owing hereunder
<PAGE>
shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived."
(b) Section 502 of the Indenture is hereby amended by
deleting the phrase "311(b), 311(d), and 311(e)" appearing
therein and inserting the phrase "311(b) and 311(d)" in lieu
thereof.
1.14 Amendment to Section 504 of the Indenture.
Section 504 of the Indenture is hereby amended by
deleting paragraph (i) therein in its entirety and inserting in
lieu thereof the following:
"(i) to file and prove a claim for the whole amount of
principal (or, if the Securities of such series are
Discounted Securities, Indexed Securities or Dual Currency
Securities, such amount as may be due and payable with
respect to such Securities pursuant to a declaration in
accordance with Section 502) (and premium, if any) and
interest, if any, owing and unpaid in respect of the
Securities of such series and any related coupons and to
file such other papers or documents as may be necessary or
advisable in order to have the claims of such Trustee
(including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel and all other amounts due to such Trustee
under Section 607) and of the Holders of the Securities of
such series and any related coupons allowed in such judicial
proceeding,"
1.15 Amendment to Section 516 of the Indenture.
Section 516 of the Indenture is hereby amended by
deleting such Section in its entirety and inserting in lieu
thereof the following:
SECTION 516. Judgment Currency.
If for the purpose of obtaining a judgment in any court
with respect to any obligation of the Company hereunder or
under any Security or any related coupon it shall become
necessary to convert into any other currency or currency
unit any amount in the currency or currency unit due
hereunder or under such Security or coupon, then such
conversion shall be made at the spot rate of exchange
prevailing on the date the Company shall make payment to any
Person in satisfaction of such judgment. If pursuant to any
such judgment, conversion shall be made on a date other than
the date payment is made and there shall occur a change
between such spot rate of exchange and the spot rate of
exchange prevailing on the date of payment, the Company
agrees to pay
<PAGE>
such additional amounts (if any) as may be necessary to
ensure that the amount paid is equal to the amount in such
other currency or currency unit which, when converted at the
spot rate of exchange prevailing on the date of payment or
distribution, is the amount then due hereunder or under such
Security or coupon. Any amount due from the Company under
this Section 516 shall be due as a separate debt and is not
to be affected by or merged into any judgment being obtained
for any other sums due hereunder or in respect of any
Security or coupon. In no event, however, shall the Company
be required to pay more in the currency or currency unit due
hereunder or under such Security or coupon at the spot rate
of exchange prevailing when payment is made than the amount
of currency or currency unit stated to be due hereunder or
under such Security or coupon so that in any event the
Company's obligations hereunder or under such Security or
coupon will be effectively maintained as obligations in such
currency or currency unit, and the Company shall be entitled
to withhold (or be reimbursed for, as the case may be) any
excess of the amount actually realized upon any such
conversion over the amount due and payable on the date of
payment or distribution."
1.16 Amendment to Section 902 of the Indenture.
Section 902 of the Indenture is hereby amended by
deleting the period at the end of clause (3) of the first
paragraph thereof, by inserting ", or" at the end of said clause
(3) and by inserting new clause (4) as follows:
"(4) reduce the amount of the principal of an Indexed
Security or a Dual Currency Security that would be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502."
1.17 Amendment to Section 1002 of the Indenture.
Section 1002 of the Indenture is hereby amended by
deleting the second and third sentences of the second paragraph
thereof and inserting in lieu thereof the following:
"Payments will not be made in respect of Bearer Securities
or coupons appertaining thereto pursuant to presentation to
the Company or its designated Paying Agents within the
United States or any other demand for payment to the Company
or its designated Paying Agents within the United States.
Notwithstanding the foregoing, payment of principal of (and
premium, if any) and interest, if any, on any Bearer
Security denominated and payable in Dollars will be made at
the office of the Company's Paying Agent in the United
States, if, and only if, payment in Dollars of the full
amount of such principal, premium or interest, as the case
may be, at all offices or agencies outside the United States
<PAGE>
maintained for that purpose by the Company in accordance
with this Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions."
1.18 Amendment to Section 1003 of the Indenture.
Section 1003 of the Indenture is hereby amended by
deleting the first sentence of the second paragraph thereof and
inserting in lieu thereof the following:
"Whenever the Company shall have one or more Paying
Agents for any particular series of Securities and any
related coupons, the Company will, on or prior to each due
date of the principal of (and premium, if any) or interest,
if any, on any such Securities(but in any case prior to the
time any such payment is required to be made on such
Securities), deposit with a Paying Agent for the Securities
of such series a sum (in the currency or currency unit
described in the preceding paragraph) sufficient to pay the
principal (and premium, if any) and interest, if any, so
becoming due, such sum to be held in trust for the benefit
of the Persons entitled thereto, and (unless such Paying
Agent is the Trustee for the Securities of such series) the
Company will promptly notify such Trustee of its action or
failure to act."
1.19 Amendment to Section 1004 of the Indenture.
Section 1004 of the Indenture is hereby amended by
deleting the third paragraph thereof and inserting in lieu
thereof the following:
"The term "United States Alien" means any corporation,
partnership, individual or fiduciary that is, for United
States federal income tax purposes, a foreign corporation, a
nonresident alien individual, a nonresident fiduciary of a
foreign estate or trust, or a foreign partnership one or
more of the members of which is, for United States federal
income tax purposes, a foreign corporation, a nonresident
alien individual or a nonresident fiduciary of a foreign
estate or trust."
1.20 Amendment to Section 1010 of the Indenture.
Section 1010 of the Indenture is hereby amended by
deleting such Section in its entirety and inserting in lieu
thereof the following:
"SECTION 1010. Waiver of Certain Covenants.
<PAGE>
"The Company may omit in any particular instance to
comply with any term, provision or condition set forth in
Sections 1005 to 1009, inclusive, with respect to the
Securities of any series (and the Company may omit in any
particular instance to comply with any other covenant not
set forth herein and specified pursuant to Section 301 to be
applicable to the Securities of such series and subject to
this Section 1010, such omission to comply to be with
respect to the Securities of such series), if before the
time for such compliance the Holders of at least a majority
in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance
with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and until such
waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and
effect."
1.21 Amendment to Section 1011 of the Indenture.
Section 1011 of the Indenture is hereby amended by
deleting such Section in its entirety and inserting in lieu
thereof the following:
"SECTION 1011. Defeasance of Certain Obligations.
(a) If specified pursuant to Section 301 to be
applicable to the Securities of any series, the Company
may omit to comply with any term, provision or
condition set forth in Section 801, Section 1009 and
any other covenant not set forth herein and specified
pursuant to Section 301 to be applicable to the
Securities of such series and subject to this Section
1011, and any such omission with respect to such
Sections shall not be an Event of Default, in each case
with respect to the Securities of such series,
provided, however, that the following conditions have
been satisfied:
(1) with respect to all Outstanding
Securities of such series and any coupons
appertaining thereto not theretofore delivered to
the Trustee for the Securities of such series for
cancellation,
(i) the Company has deposited or caused
to be deposited with the Trustee as trust
funds in trust an amount in the currency
or currency unit in which the Securities
of such series are payable (except as
<PAGE>
otherwise specified pursuant to Section 301
for the Securities of such series and except
as provided in Sections 311(b) and 311(d), in
which case the deposit to be made with
respect to Securities for which an election
has occurred pursuant to Section 311(b) or a
Conversion Event has occurred as provided in
Section 311(d), shall be made in the currency
or currency unit in which such Securities are
payable as a result of such election or
Conversion Event), sufficient to pay and
discharge the entire indebtedness on all such
Outstanding Securities of such series and any
related coupons for principal (and premium,
if any) and interest to the Stated Maturity
or any Redemption Date as contemplated by
Section 402, as the case may be; or
(ii) the Company has deposited or
caused to be deposited with such Trustee as
obligations in trust such amount of
Government Obligations as will, as evidenced
by a Certificate of a Firm of Independent
Public Accountants delivered to such Trustee,
together with the predetermined and certain
income to accrue thereon (without
consideration of any reinvestment thereof),
be sufficient to pay and discharge when due
the entire indebtedness on all such
Outstanding Securities of such series and any
related coupons for unpaid principal (and
premium, if any) and interest, if any, to the
Stated Maturity or any Redemption Date as
contemplated by Section 402, as the case may
be; or
(iii) the Company has deposited or
caused to be deposited with such Trustee such
combination of trust funds or obligations in
trust pursuant to (i) and (ii) above,
respectively, as will, as evidenced by a
Certificate of a Firm of Independent Public
Accountants delivered to such Trustee,
together with the predetermined and certain
income to accrue on such obligations in
trust, be sufficient to pay and discharge
when due the entire indebtedness on all such
Outstanding Securities of such series any
related coupons for principal (and premium if
any) and interest to the Stated Maturity or
any Redemption Date as contemplated by
Section 402, as the case may be;
<PAGE>
(2) such deposit will not result in a breach
or violation of, or constitute a default under,
this Indenture or any other agreement or
instrument to which the Company is a party or by
which it is bound;
(3) no Event of Default or event which with
the giving of notice or lapse of time, or both,
would become an Event of Default with respect to
the Securities of that series shall have occurred
and be continuing on the date of such deposit and
no Event of Default under Section 501(4) or
Section 501(5) or event which with the giving of
notice or lapse of time, or both, would become an
Event of Default under Section 501(4) or Section
501(5) shall have occurred and be continuing on
the 91st day after such date; and
(4) the Company has delivered to the Trustee
an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions
precedent herein provided for relating to the
defeasance contemplated in this Section have been
complied with.
(b) Notwithstanding the satisfaction of the
conditions set forth in this Section 1011 with respect
to all the Securities of any series not payable in
Dollars, upon the happening of any Conversion Event the
Company shall be obligated to make the payments in
Dollars required by Section 311(d) to the extent that
the Trustee for the Securities of such series is unable
to convert any Foreign Currency or currency unit in its
possession under Section 1011(a) into the Dollar
equivalent of such Foreign Currency or currency unit,
as the case may be. If, after the deposit referred to
in Section 1011(a) has been made, (x) the Holder of a
Security is entitled to, and does, elect pursuant to
Section 311(b) to receive payment in a currency or
currency unit other than that in which the deposit
under Section 1011(a) was made, or (y) a Conversion
Event occurs as contemplated in Section 311(d), then
the indebtedness represented by such Security shall be
fully discharged to the extent that the deposit made
with respect to such Security shall be converted into
the currency or currency unit in which such Security is
payable. Such Trustee shall return to the Company any
non-converted funds or securities in its possession
after such payments have been made.
<PAGE>
All the obligations of the Company under this
Indenture with respect to the Securities of such series,
other than with respect to Section 801, Section 1009, and
any other covenant not set forth herein and specified
pursuant to Section 301 to be applicable to the Securities
of such series and subject to this Section 1011, shall
remain in full force and effect. Anything in this Section
1011 to the contrary notwithstanding, the Trustee for any
series of Securities shall deliver or pay to the Company,
from time to time upon Company Request, any money or
Government Obligations held by it as provided in this
Section 1011 which, as expressed in a Certificate of a Firm
of Independent Public Accountants delivered to such Trustee,
are in excess of the amount thereof which would have been
required to be deposited for the purpose for which such
money or Government Obligations were deposited or received,
provided such delivery can be made without liquidating any
Government Obligations."
1.22 Amendment to Section 1104 of the Indenture.
Section 1104 of the Indenture is hereby amended by
deleting the word "and" at the end of clause (6) of the second
paragraph thereof, by deleting clause (7) thereof in its
entirety, and by inserting new clauses (7) and (8) as follows:
"(7) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for
redemption must be accompanied by all coupons maturing
subsequent to the date fixed for redemption or the amount of
any such missing coupon or coupons will be deducted from the
Redemption Price or security or indemnity satisfactory to
the Company, the Trustee for such series and any Paying
Agent shall be furnished, and
(8) if Bearer Securities of any series are to be
redeemed and any Registered Securities of such series are
not to be redeemed, and if such Bearer Securities may be
exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 305
or otherwise, the last date, as determined by the Company,
on which such exchanges may be made."
1.23 Amendment to Section 1106 of the Indenture.
(a) Section 1106 of the Indenture is hereby amended by
deleting the second proviso to the first paragraph thereof and
inserting in lieu thereof the following:
", and provided, further, that unless otherwise specified as
contemplated by Section 301, installments of interest on
Registered Securities whose Stated Maturity is prior to the
Redemption Date shall be payable to the Holders of
<PAGE>
such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant
Record Date according to their terms and the provisions of
Section 307, and any installment of interest, if any,
payable on such Registered Securities whose Stated Maturity
is the Redemption Date shall be payable to the Person to
whom principal shall be payable."
(b) Section 1106 of the Indenture is hereby amended by
adding immediately after the first paragraph thereof the
following new paragraph:
"If any Bearer Security surrendered for redemption
shall not be accompanied by all coupons appertaining thereto
maturing after the Redemption Date, such Security may be
paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons or the
surrender of such missing coupon or coupons may be waived by
the Company if there is furnished to the Company, the
Trustee for such Security and any Paying Agent such security
or indemnity as they may require to save the Company, such
Trustee and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to such Trustee or
any Paying Agent any such missing coupon in respect of which
a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by
coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and
surrender of those coupons."
1.24 Amendment to Section 1108 of the Indenture.
(a) Section 1108 of the Indenture is hereby amended by
deleting Subsection (a) thereof and inserting in lieu thereof
the following:
"(a) Unless otherwise specified pursuant to Section
301, Securities of any series may be redeemed at the option
of the Company in whole, but not in part, on not more than
60 days' and not less than 30 days' notice, on any
Redemption Date at the Redemption Price specified pursuant
to Section 301, if the Company determines that (A) as a
result of any change in or amendment to the laws (or any
regulations or rulings promulgated thereunder) of the United
States or of any political subdivision or taxing authority
thereof or therein affecting taxation, or any change in
official position regarding application or interpretation of
such laws, regulations or rulings (including a holding by a
court of competent jurisdiction in the United States), which
change or amendment is announced or becomes effective on or
after a date
<PAGE>
specified in Section 301 with respect to any Security of
such series, the Company has or will become obligated to pay
on the next succeeding Interest Payment Date, additional
amounts pursuant to Section 1004 with respect to any
Security of such series or (B) on or after a date specified
in Section 301 with respect to any Security of such series,
any action has been taken by any taxing authority of, or any
decision has been rendered by a court of competent
jurisdiction in, the United States or any political
subdivision or taxing authority thereof or therein,
including any of those actions specified in (A) above,
whether or not such action was taken or decision was
rendered with respect to the Company, or any change,
amendment, application or interpretation shall be officially
proposed, which, in any such case, in the Opinion of Counsel
to the Company will result in a material probability that
the Company will become obligated to pay additional amounts
with respect to any Security of such series on the next
succeeding Interest Payment Date, and (C) in any such case
specified in (A) or (B) above the Company, in its business
judgment, determines that such obligation cannot be avoided
by the use of reasonable measures available to the Company."
(b) Section 1108 of the Indenture is hereby amended by
deleting the first sentence of Subsection (b) thereof and
inserting in lieu thereof the following:
(b) Unless otherwise specified pursuant to Section
301, if the Company shall determine that any payment made
outside the United States by the Company or any of its
Paying Agents of principal or interest due in respect of any
Bearer Security (an "Affected Security") of such series or
any coupon appertaining thereto would, under any present or
future laws or regulations of the United States, be subject
to any certification, information or other reporting
requirement of any kind, the effect of which requirement is
the disclosure to the Company, any Paying Agent or any
governmental authority of the nationality, residence or
identity (as distinguished from, for example, status as a
United States Alien) of a beneficial owner of such Affected
Security of such series or coupon that is a United States
Alien (other than such a requirement that (i) would not be
applicable to a payment made by the Company or any one of
its Paying Agents (A) directly to the beneficial owner or
(B) to a custodian, nominee or other agent of the beneficial
owner, (ii) can be satisfied by such custodian, nominee or
other agent certifying to the effect that such beneficial
owner is a United States Alien; provided that, in each case
referred to in clauses (i)(B) or (ii), payment by such
custodian, nominee or other agent to such beneficial owner
is not otherwise subject to any such requirement (other than
a requirement which is imposed on a custodian, nominee or
other
<PAGE>
agent described in item (iv) of this sentence), (iii) would
not be applicable to a payment made by at least one other
Paying Agent of the Company or (iv) is applicable to a
payment to a custodian, nominee or other agent of the
beneficial owner of such Security who is a United States
person (as hereinafter defined), a controlled foreign
corporation for United States tax purposes, a foreign person
50 percent or more of the gross income of which for the
three-year period ending with the close of its taxable year
preceding the year of payment is effectively connected with
a United States trade or business, or is otherwise related
to the United States), the Company shall elect by notice to
the Trustee for such series of Securities either (x) to
redeem the Affected Securities of such series, as a whole,
at a redemption price equal to the principal amount thereof,
together with interest accrued to the date fixed for
redemption, or (y) if the conditions of the next succeeding
paragraph are satisfied, to pay the additional amounts
specified in such paragraph."
1.25 Amendment to Exhibits to the Indenture.
The Indenture is hereby amended by deleting Exhibits A,
B, C and D thereto in their entirety and substituting therefor
the new Exhibits A and B attached to this First Supplemental
Indenture.
SECTION 2. GENERAL
The parties hereto hereby agree that all references to
"Marine Midland Bank, N.A." in the Original Indenture shall be
deemed to refer to "Marine Midland Bank."
SECTION 3. EFFECT OF FIRST SUPPLEMENTAL INDENTURE
The amendments to the Indenture contained in this First
Supplemental Indenture shall be effective only with respect to
those series of Securities initially issued on or after the date
hereof.
<PAGE>
MARINE MIDLAND BANK hereby accepts the trusts in this
First Supplemental Indenture declared and provided, upon the
terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed and their
respective corporate seals to be hereunto affixed and attested,
all as of the day of , 1994.
NYNEX CORPORATION
By:
[Corporate Seal]
Attest:
MARINE MIDLAND BANK, as
Trustee
By:
[Corporate Seal]
Attest:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of , 1994, before me
personally came , to me known, who, being by me
duly sworn, did depose and say that he resides at
; that he is the of NYNEX CORPORATION,
one of the corporations described in and which executed the
above instrument, that he knows the corporate seal of such
corporation; that one of the seals affixed to such 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.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year in this certificate
first above written.
Notary Public, State of New York
[SEAL]
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of , 1994, before me
personally came , to me known, who, being by me
duly sworn, did depose and say that he resides at
; that he is the of MARINE MIDLAND BANK,
one of the corporations described in and which executed the
above instrument, that he knows the corporate seal of such
corporation; that one of the seals affixed to such 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.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year in this certificate
first above written.
Notary Public, State of New York
[SEAL]
<PAGE>
EXHIBIT A
FORM OF CERTIFICATE TO BE DELIVERED TO EURO-CLEAR
OR CEDEL, S.A., BY OR ON BEHALF OF A
BENEFICIAL OWNER OF SECURITIES
CERTIFICATE
NYNEX CORPORATION
[Title of Securities]
(the "Securities")
This is to certify that as of the date hereof, and
except as set forth below, the above-captioned Securities held
by you for our account (i) are owned by persons that are not
citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the
income of which is subject to United States Federal income
taxation regardless of its source ("United States persons"),
(ii) are owned by United States person(s) that (a) are foreign
branches of a United States financial institution (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial
institutions") purchasing for their own account or for resale,
or (b) acquired the Securities through foreign branches of
United States financial institutions and who hold the Securities
through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or
through its agent, that you may advise the issuer or the
issuer's agent that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) are
owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in
U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and
in addition if the owner of the Securities is a United States or
foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) this is to
further certify that such financial institution has not acquired
the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States
or its possessions.
If the Securities are of the category contemplated in
Section 230.903(c)(3) of Regulation S under the Securities Act
of 1933, as amended (the "Act"), then this is also to certify
that, except as set forth below, (i) in the case of debt
securities, the Securities are beneficially owned by (a) non-
U.S. person(s) or (b) U.S. person(s) who purchased the
Securities in transactions which did not require registration
<PAGE>
under the Act; or (ii) in the case of equity securities, the
Securities are owned by (x) non-U.S. person(s) (and such
person(s) are not acquiring the Securities for the account or
benefit of U.S. person(s)) or (y) U.S. person(s) who purchased
the Securities in a transaction which did not require
registration under the Act. If this certification is being
delivered in connection with the exercise of warrants pursuant
to Section 230.902(m) of Regulation S under the Act, then this
is further to certify that, except as set forth below, the
Securities are being exercised by and on behalf of non-U.S.
person(s). As used in this paragraph the term "U.S. person" has
the meaning given to it by Regulation S under the Act.
As used herein, "United States" means the United States
of America (including the States and District of Columbia); and
its "possessions" include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
We undertake to advise you promptly by tested telex on
or prior to the date on which you intend to submit your
certification relating to the Securities held by you for our
account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in
the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to $
of such interest in the above Securities in respect of
which we are not able to certify and as to which we understand
exchange and delivery of definitive Securities (or, if relevant,
exercise of any rights or collection of any interest) cannot be
made until we do so certify.
We understand that this certification is required in
connection with certain tax laws and, if applicable, certain
securities laws of the United States. In connection therewith,
if administrative or legal proceedings are commenced or
threatened in connection with which this certificate is or would
be relevant, we irrevocably authorize you to produce this
certification to any interested party in such proceedings.
Date: , 19 *
By:
As, or as agent for, the beneficial owner(s) of
the Securities to which this certificate relates
* Not earlier than 15 days prior to the Exchange Date or
Interest Payment Date to which the certification relates.
<PAGE>
EXHIBIT B
FORM OF CERTIFICATION TO BE GIVEN
BY THE EUROCLEAR OPERATOR OR CEDEL
CERTIFICATION
NYNEX CORPORATION
[Title of Securities]
(the "Securities")
This is to certify that, based solely on certifications
we have received in writing, by tested telex or by electronic
transmission from member organizations appearing in our records
as persons being entitled to a portion of the principal amount
set forth below (our "Member Organizations") substantially to
the effect set forth in the Fiscal Agency or other Agreement, as
of the date hereof, principal amount of the above-
captioned Securities (i) is owned by persons that are not
citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the
income of which is subject to United States Federal income
taxation regardless of its source ("United States persons"),
(ii) is owned by United States persons that (a) are foreign
branches of United States financial institutions (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(v) ("financial
institutions")) purchasing for their own account or for resale,
or (b) acquired the Securities through foreign branches of
United States financial institutions and who hold the Securities
through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States
financial institution has agreed, on its own behalf or through
its agent, that we may advise the Issuer or the Issuer's agent
that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986,
as amended, and the regulations thereunder), or (iii) is owned
by United States or foreign financial institutions for purposes
of resale during the restricted period (as defined in U.S.
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the
further effect that United States or foreign financial
institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly
or indirectly to a United States person or to a person within
the United States or its possessions.
If the Securities are of the category contemplated in
Section 230.903(c)(3) of Regulation S under the Securities Act
of 1933, as amended (the "Act") then this is also to certify
with respect to the principal amount of Securities set forth
<PAGE>
above that, except as set forth below, we have received in
writing, by tested telex or by electronic transmission, from our
Member Organizations entitled to portion of such principal
amount, certifications with respect to such portion,
substantially to the effect set forth in the Fiscal Agency or
other Agreement.
We further certify (i) that we are not making available
herewith for exchange (or, if relevant, exercise of any rights
or collection of any interest) any portion of the Temporary
Global security excepted in such certifications and (ii) that as
of the datedhereof we have not received any notification from
any of our Member Organizations with respect to any portion of
the part submitted herewith for exchange (or, if relevant,
exercise of any rights or collection of any interest) are no
longer true and cannot be relied upon as the date hereof.
We understand that this certification is required in
connection with certain tax laws and, if applicable, certain
securities laws of the United States. In connection therewith,
if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or
would be relevant, we irrevocably authorize you to produce this
certification to any interested party in such proceedings.
Dated: , 19 *
Yours faithfully,
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
Brussels Office,
as operator of the Euroclear
System]
or
[CEDEL, S.A.]
By:
* Not earlier than the Exchange Date or Interest Payment Date
to which the certification relates.
Exhibit 4(c)
FORM OF CERTIFICATE OF DESIGNATIONS
OF
SERIES ___ [CONVERTIBLE] PREFERRED STOCK
OF
NYNEX CORPORATION
______________________________
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
______________________________
NYNEX CORPORATION, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"),
HEREBY CERTIFIES that the following resolution was duly adopted
by the Board of Directors of the Corporation on ,
199 pursuant to authority conferred upon the Board of
Directors by the provisions of the Restated Certificate of
Incorporation of the Corporation which authorize the issuance of
up to 75,000,000 shares of preferred stock, $1.00 par value (the
"Preferred Stock"):
WHEREAS, the Board of Directors of the Corporation is
authorized at any time and from time to time, to provide for
the issuance of shares of Preferred Stock in one or more
series with such designations, preferences and relative,
participating, optional or other special rights, and such
qualifications, limitations or restrictions thereof, as may
be expressed in a resolution or resolutions providing for
the issue thereof adopted by the Board of Directors of the
Corporation and as are not inconsistent with the Restated
Certificate of Incorporation or any amendment thereto, and
as may be permitted by the General Corporation Law of
Delaware;
WHEREAS, the Board of Directors of the Corporation on
April 21, 1994 adopted a resolution fixing the voting rights
of such shares of Preferred Stock as set forth in paragraph
7 below; and
WHEREAS, it is the desire of the Board of Directors to
fix the number of shares constituting a series of Preferred
Stock and the designations, preferences and relative,
participating, optional and other special rights, and such
qualifications, limitations and restrictions of such series
as set forth below:
<PAGE>
NOW THEREFORE, BE IT RESOLVED that the issuance of up
to _____ shares of [Convertible] Preferred Stock, par value
$1.00 per share, of the Corporation [ranking on a parity
with the series of Preferred Stock of the Corporation
designated as the Corporation's "___________ Preferred
Stock"] is hereby authorized and the designation,
preferences and relative, participating, optional and other
special rights, and qualifications, limitations and
restrictions of all _____ shares of this Series, in addition
to those set forth in the Restated Certificate of
Incorporation of the Corporation and, with respect to voting
rights, in the resolutions of the Board of Directors of the
Corporation adopted on April 21, 1994, are hereby fixed as
follows:
1. Designation. The designation of this Series
shall be ___________________, par value $1.00 per share
(hereinafter referred to as the "Series ___
[Convertible] Preferred Stock"), and the number of
shares constituting this Series shall be
____________________ (_____). The number of authorized
shares of this Series may be reduced by further
resolution duly adopted by the Board of Directors of
the Corporation or any duly authorized committee
thereof; provided, however, that no decrease shall
reduce the number of shares of Series __ [Convertible]
Preferred Stock to a number less than that of the
shares then outstanding plus the number of shares of
Series __ [Convertible] Preferred Stock issuable upon
exercise of outstanding rights, options or warrants or
upon conversion of outstanding securities issued by the
Corporation.
2. Dividends. [IF THE PREFERRED STOCK HAS A
FIXED DIVIDEND RATE, INSERT THE FOLLOWING:
(a) Dividends shall be payable on the shares of
this Series: (i) for the period (the "Initial Dividend
Period") from the date of original issue of shares of
this Series to but excluding ____________, ____, and
(ii) for each quarterly dividend period thereafter (the
Initial Dividend Period and each quarterly dividend
period being hereinafter individually referred to as a
"Dividend Period" and collectively referred to as
"Dividend Periods"), which quarterly Dividend Periods
shall commence on ________, ___________, ___________
and ____________ in each year, commencing _________,
____, and shall end on and include the day next
preceding the first day of the next Dividend Period, at
a rate per annum of the liquidation value thereof equal
to __% (the "Dividend Rate"). Dividends shall be
cumulative from such date of original issue and shall
be payable, when, as and if declared by the Board of
Directors or by any duly authorized committee thereof,
on __________, ____________, ______________ and
___________ of each year, commencing on _________,
____. Each such dividend shall be paid to the holders
of record of shares of this Series as they appear on
the stock register of the Corporation on such record
date, not exceeding [30] [45] days preceding the
payment date thereof, as shall be fixed by the Board of
Directors of the Corporation or by any duly authorized
committee thereof. Dividends on account of arrears for
any past Dividend Periods may be declared and paid at
any time, without reference to any regular dividend
payment date, to holders of record on such date, not
exceeding [30][45] days preceding the payment date
thereof, as may be fixed by the Board of Directors of
the Corporation or by any duly authorized committee
thereof.
<PAGE>
[IF PREFERRED STOCK HAS ADJUSTABLE DIVIDENDS, INSERT
THE FOLLOWING:
(a) Dividends shall be payable on the shares of
this Series: (i) for the period (the "Initial Dividend
Period") from the date of original issue of shares of
this Series to but excluding , and (ii) for
each quarterly dividend period thereafter (the Initial
Dividend Period and each quarterly dividend period
being hereinafter individually referred to as a
"Dividend Period" and collectively referred to as
"Dividend Periods"), which quarterly Dividend Periods
shall commence on , ,
and in each year, commencing ,
and shall end on and include the day next preceding the
first day of the next Dividend Period. The dividend
rate on the shares of this Series shall be: (i) for
the Initial Dividend Period ___% per annum and (ii) for
each Dividend Period thereafter a rate per annum of the
liquidation value thereof equal to the Applicable Rate
(as defined in paragraph (b) of this Section 2 (the
"Dividend Rate")). Dividends shall be cumulative from
the date of original issue of shares of this Series and
shall be payable, when, as and if declared by the Board
of Directors or by any duly authorized committee
thereof, on , , and
of each year, commencing on , 19 . Each
such dividend shall be paid to the holders of record of
shares of this Series as they appear on the stock
register of the Corporation on such record date, not
exceeding [30] [45] days preceding the payment date
thereof, as shall be fixed by the Board of Directors of
the Corporation or by any duly authorized committee
thereof. Dividends on account of arrears for any past
Dividend Periods may be declared and paid at any time,
without reference to any regular dividend payment date,
to holders of record on such date, not exceeding [30]
[45] days preceding the payment thereof, as may be
fixed by the Board of Directors of the Corporation or
by any duly authorized committee thereof.
(b) Except as provided below in this paragraph,
the "Applicable Rate" for any Dividend Period shall be
(i) ___% [less] [greater] than (ii) the highest of the
Treasury Bill Rate, the Ten Year Constant Maturity Rate
or the Thirty Year Constant Maturity Rate (each as
hereinafter defined) for such Dividend Period. If the
Corporation determines in good faith that for any
reason one or more of such rates cannot be determined
for any Dividend Period, then the Applicable Rate for
such Dividend Period shall be ___% [less] [greater]
than the higher of whichever of such rates can be so
determined. If the Corporation determines in good
faith that none of such rates can be determined for any
Dividend Period, then the Applicable Rate in effect for
the preceding Dividend Period shall be continued for
such Dividend Period. [Anything herein to the contrary
notwithstanding, the Applicable Rate for any Dividend
Period shall in no event be less than ___% per annum or
greater than ___% per annum.]
(c) Except as provided below in this paragraph,
the "Treasury Bill Rate" for each Dividend Period shall
be the arithmetic average of the two most recent weekly
per annum market discount rates (or the one weekly per
annum market discount rate, if only one such rate shall
be published during the relevant Calendar Period as
provided below) for three-month U.S. Treasury Bills, as
published weekly by the Federal Reserve Board during
the Calendar Period immediately prior to the ten
calendar days immediately preceding ________, ________,
________ or ________, as the case may be, prior to the
Dividend Period for which the dividend rate on this
series is being determined. In the event that the
Federal Reserve Board does not publish such a weekly
per annum market discount rate during such Calendar
<PAGE>
Period, then the Treasury Bill Rate for such Dividend
Period shall be the arithmetic average of the two most
recent weekly per annum market discount rates (or the
one weekly per annum market discount rate, if only one
such rate shall be published during the relevant
Calendar Period as provided below) for three-month U.S.
Treasury Bills, as published weekly during such
Calendar Period by any Federal Reserve Bank or by any
U.S. Government department or agency selected by the
Corporation. In the event that a per annum market
discount rate for three-month U.S. Treasury Bills shall
not be published by the Federal Reserve Board or by any
Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then
the Treasury Bill Rate for such Dividend Period shall
be the arithmetic average of the two most recent weekly
per annum market discount rates (or the one weekly per
annum market discount rate, if only one such rate shall
be published during the relevant Calendar Period as
provided below) for all of the U.S. Treasury Bills then
having maturities of not less than 80 nor more than 100
days, as published during such Calendar Period by the
Federal Reserve Board or, if the Federal Reserve Board
shall not publish such rates, by any Federal Reserve
Bank or by any U.S. Government department or agency
selected by the Corporation. In the event that the
Corporation determines in good faith that for any
reason no such U.S. Treasury Bill Rates are published
as provided above during such Calendar Period, then the
Treasury Bill Rate for such Dividend Period shall be
the arithmetic average of the per annum market discount
rates based upon the closing bids during such Calendar
Period for each of the issues of marketable noninterest
bearing U.S. Treasury securities with a maturity of not
less than 80 nor more than 100 days from the date of
each such quotation, as chosen and quoted daily for
each business day in New York City (or less frequently
if daily quotations shall not be generally available)
to the Corporation by at least three recognized dealers
in U.S. Government securities selected by the
Corporation. In the event that the Corporation
determines in good faith that for any reason the
Corporation cannot determine the Treasury Bill Rate for
any Dividend Period as provided above in this
paragraph, the Treasury Bill Rate for such Dividend
Period shall be the arithmetic average of the per annum
market discount rates based upon the closing bids
during such Calendar Period for each of the issues of
marketable interest-bearing U.S. Treasury securities
with a maturity of not less than 80 nor more than 100
days, as chosen and quoted daily for each business day
in New York City (or less frequently if daily
quotations shall not be generally available) to the
Corporation by at least three recognized dealers in
U.S. Government securities selected by the Corporation.
(d) Except as provided below in this paragraph,
the "Ten Year Constant Maturity Rate" for each Dividend
Period shall be the arithmetic average of the two most
recent weekly per annum Ten Year Average Yields (or the
one weekly per annum Ten Year Average Yield, if only
one such Yield shall be published during the relevant
Calendar Period as provided below), as published weekly
by the Federal Reserve Board during the Calendar Period
immediately prior to the ten calendar days immediately
preceding ________, ________, ________ or ________, as
the case may be, prior to the Dividend Period for which
the dividend rate on this Series is being determined.
In the event that the Federal Reserve Board does not
publish such a weekly per annum Ten Year Average Yield
during such Calendar Period, then the Ten Year Constant
Maturity Rate for such Dividend Period shall be the
arithmetic average of the two most recent weekly per
annum Ten Year Average Yields (or the one weekly per
annum Ten Year Average Yield, if only one such Yield
shall be published during the relevant Calendar Period
as provided below), as published weekly during such
<PAGE>
Calendar Period by any Federal Reserve Bank or by any
U.S. Government department or agency selected by the
Corporation. In the event that a per annum Ten Year
Average Yield shall not be published by the Federal
Reserve Board or by any Federal Reserve Bank or by any
U.S. Government department or agency during such
Calendar Period, then the Ten Year Constant Maturity
Rate for such Dividend Period shall be the arithmetic
average of the two most recent weekly per annum average
yields to maturity (or the one weekly average yield to
maturity, if only one such yield shall be published
during the relevant Calendar Period as provided below)
for all of the actively traded marketable U.S. Treasury
fixed interest rate securities (other than Special
Securities) then having maturities of not less than
eight nor more than twelve years, as published during
such Calendar Period by the Federal Reserve Board or,
if the Federal Reserve Board shall not publish such
yields, by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the
Corporation. In the event that the Corporation
determines in good faith that for any reason the
Corporation cannot determine the Ten Year Constant
Maturity Rate for any Dividend Period as provided above
in this paragraph, then the Ten Year Constant Maturity
Rate for such Dividend Period shall be the arithmetic
average of the per annum average yields to maturity
based upon the closing bids during such Calendar Period
for each of the issues of actively traded marketable
U.S. Treasury fixed interest rate securities (other
than Special Securities) with a final maturity date not
less than eight nor more than twelve years from the
date of each such quotation, as chosen and quoted daily
for each business day in New York City (or less
frequently if daily quotations shall not be generally
available) to the Corporation by at least three
recognized dealers in U.S. Government Securities
selected by the Corporation.
(e) Except as provided below in this paragraph,
the "Thirty Year Constant Maturity Rate" for each
Dividend Period shall be the arithmetic average of the
two most recent weekly per annum Thirty Year Average
Yields (or the one weekly per annum Thirty Year Average
Yield, if only one such Yield shall be published during
the relevant Calendar Period as provided below), as
published weekly by the Federal Reserve Board during
the Calendar Period immediately prior to the ten
calendar days immediately preceding ________, ________,
________ or ________, as the case may be, prior to the
Dividend Period for which the dividend rate on this
Series is being determined. In the event that the
Federal Reserve Board does not publish such a weekly
per annum Thirty Year Average Yield during such
Calendar Period, then the Thirty Year Constant Maturity
Rate for such Dividend Period shall be the arithmetic
average of the two most recent weekly per annum Thirty
Year Average Yields (or the one weekly per annum Thirty
Year Average Yield, if only one such Yield shall be
published during the relevant Calendar Period as
provided below), as published weekly during such
Calendar Period by any Federal Reserve Bank or by any
U.S. Government department or agency selected by the
Corporation.
(f) The Treasury Bill Rate, the Ten Year Constant
Maturity Rate and the Thirty Year Constant Maturity
Rate shall each be rounded to the nearest five
hundredths of a percentage point.
<PAGE>
(g) For purposes of paragraphs (c) through (e) of
this Section 2, the term
(i) "Calendar Period" shall mean 14 calendar
days;
(ii) "Special Securities" shall mean
securities which can, at the option of the holder,
be surrendered at face value in payment of any
Federal estate tax or which provide tax benefits
to the holder and are priced to reflect such tax
benefits or which were originally issued at a deep
or substantial discount;
(iii) "Ten Year Average Yield" shall mean
the average yield to maturity for actively traded
marketable U.S. Treasury fixed interest rate
securities (adjusted to constant maturities of ten
years); and
(iv) "Thirty Year Average Yield" shall mean
the average yield to maturity for actively traded
marketable U.S. Treasury fixed interest rate
securities (adjusted to constant maturities of
thirty years).
(h) The Corporation will calculate the Applicable
Rate with respect to each Dividend Period as promptly
as practicable prior to the commencement thereof
according to the appropriate method described herein.
The Corporation will cause the Applicable Rate to be
published in a newspaper of general circulation in New
York City prior to the commencement of the new Dividend
Period to which it applies and will cause notice of the
Applicable Rate to be enclosed with the dividend
payment checks next mailed to the holders of shares of
this Series.
[IF ADJUSTABLE DIVIDENDS ARE BASED ON ANOTHER INDEX, SUCH AS
A COMMERCIAL PAPER RATE OR EURODOLLAR RATE, THE APPROPRIATE
METHOD OF CALCULATION OF SUCH RATE WILL BE INSERTED]
[(b)][(i)] Dividends payable on this Series for
any period greater or less than a full Dividend Period,
including the Initial Dividend Period, shall be
computed on the basis of a 360-day year consisting of
twelve 30-day months. Dividends payable on this Series
for each full Dividend Period shall be computed by
annualizing the Dividend Rate and dividing by four.
[(c)][(j)] No full dividends shall be declared or
paid or set apart for payment on the preferred stock of
any series ranking, as to dividends, on a parity with
or junior to this Series for any period unless full
cumulative dividends have been or contemporaneously are
declared and paid or declared and a sum sufficient for
the payment thereof set apart for such payment on this
Series 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, as
aforesaid, upon the shares of this Series and any other
series of preferred stock ranking on a parity as to
dividends with this Series, all dividends declared upon
shares of this Series and any other series of preferred
stock ranking on a parity as to dividends with this
Series shall be declared pro rata so that the amount of
dividends declared per share on this Series and such
other preferred stock shall in all cases bear to each
other the same ratio that accrued and unpaid dividends
per share on the shares of this Series and such other
<PAGE>
preferred stock bear to each other. Except as
otherwise provided herein, holders of shares of this
Series shall not be entitled to any dividend, whether
payable in cash, property or stocks, in excess of full
cumulative dividends, as herein provided, on this
Series. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend
payment or payments on this Series which may be in
arrears.
[(d) (k)] So long as any shares of this Series
are outstanding, no dividend (other than a dividend or
distribution paid in shares of, or warrants, rights or
options exercisable for or convertible into, Common
Stock or in any other stock ranking junior to this
Series as to dividends and upon liquidation and other
than as provided in paragraph [(c)(j)] of this Section
2) shall be declared or paid or set aside for payment
or other distribution declared or made upon the Common
Stock or upon any other stock ranking junior to or on a
parity with this Series as to dividends or upon
liquidation, nor shall any Common Stock or any other
stock of the Corporation ranking junior to or on a
parity with this Series as to dividends or upon
liquidation be redeemed, purchased or otherwise
acquired for any consideration (or any moneys be paid
to or made available for a sinking fund for the
redemption of any shares of any such stock) by the
Corporation (except by conversion into or exchange for
stock of the Corporation ranking junior to this Series
as to dividends and upon liquidation) unless, in each
case, the full cumulative dividends on all outstanding
shares of this Series shall have been paid or declared
and set aside for payment.]
3. Redemption.
[IF THE PREFERRED STOCK IS REDEEMABLE AT A FIXED PRICE,
INSERT THE FOLLOWING:
(a) Optional Redemption. [The shares of this
Series are not redeemable prior to ________.] The
Corporation, at its option, may redeem shares of this
Series, as a whole or in part, at any time or from time
to time [on or after ________], at a redemption price
of $________ per share plus an amount equal to accrued
and unpaid dividends thereon to the date fixed for
redemption.]
<PAGE>
[IF THE PREFERRED STOCK IS REDEEMABLE BY THE
CORPORATION AT A VARIABLE PRICE, INSERT THE FOLLOWING:
(a) Optional Redemption. [The shares of this
Series are not redeemable prior to .] The
Corporation, at its option, may redeem shares of this
Series, as a whole or in part, at any time or from time
to time [on or after ________], at a redemption price
as set forth below, plus an amount equal to accrued and
unpaid dividends thereon to the date fixed for
redemption:
Date of Redemption Redemption Price per Share
On or after ______________,
but prior to _____________. ______________________
On or after ______________,
but prior to _____________. ______________________
On or after ______________. _______________________ ]
[IF THE PREFERRED STOCK IS REDEEMABLE PURSUANT TO A SINKING
FUND, INSERT THE FOLLOWING:
(b) Mandatory Redemption; Sinking Fund. So long
as any shares of this Series shall be outstanding, the
Corporation shall, on each of the dates set forth in
the following schedule ("Sinking Fund Payment Dates")
set aside an amount sufficient for the redemption of,
and shall redeem, the number of shares of this Series
set forth opposite such Sinking Fund Payment Date:
Number of Shares of
Sinking Fund Series ___ Preferred
Payment Date Stock to be Redeemed
The redemption price of shares of this Series redeemed
pursuant to the aforesaid sinking fund shall be $___ per
share, plus an amount equal to all accrued and unpaid
dividends thereon to and including the date fixed for
redemption. The Corporation may, at its option, apply
toward its sinking fund obligation any shares of this Series
purchased or otherwise acquired by the Corporation or
redeemed by the Corporation otherwise than through the
sinking fund which have not previously been credited toward
a sinking fund obligation. The obligation of the
Corporation to redeem shares of this Series shall be
cumulative, so that if for any year or years such
requirements shall not be fully discharged as they accrue,
funds legally available therefor, after payment or provision
for dividends, for each year thereafter shall be applied
thereto until such requirements are fully discharged.]
<PAGE>
[IF THE PREFERRED STOCK IS SUBJECT TO EITHER OPTIONAL OR
MANDATORY REDEMPTION, INSERT THE FOLLOWING:
[(b)] [(c)] In the event that fewer than all the
outstanding shares of this Series are to be redeemed
[(by operation of a sinking fund or otherwise)], the
number of shares to be redeemed shall be determined by
the Board of Directors of the Corporation and the
shares to be redeemed shall be determined by lot or pro
rata as may be determined by the Board of Directors of
the Corporation or any duly authorized committee
thereof or by any other method as may be determined by
the Board of Directors of the Corporation or any duly
authorized committee thereof in its sole discretion to
be equitable [provided that such method satisfies any
applicable requirements of any securities exchange on
which this Series is listed].
[(c)] [(d)] In the event the Corporation shall
redeem shares of this Series [(by operation of a
sinking fund or otherwise)], notice of such redemption
shall be given by first class mail, postage prepaid,
mailed not less than [20] nor more than 60 days prior
to the redemption date, to each holder of record of the
shares to be redeemed, at such holder's address as the
same appears on the stock register of the Corporation.
Each such notice shall state: (i) the redemption date;
(ii) the number of shares of this Series to be redeemed
and, if fewer than all the shares held by such holder
are to be redeemed, the number of such shares to be
redeemed from such holder; (iii) the redemption price;
(iv) the place or places where certificates for such
shares are to be surrendered for payment of the
redemption price; (v) that dividends on the shares to
be redeemed will cease to accrue on the redemption
date[; and (vi) that such holder has the right to
convert such shares into a number of shares of Common
Stock prior to the close of business on the redemption
date].
[(d)] [(e)] Notice having been mailed as
aforesaid, from and after the redemption date (unless
default shall be made by the Corporation in providing
money for the payment of the redemption price)
dividends on the shares of this Series so called for
redemption shall cease to accrue, and said shares shall
no longer be deemed to be outstanding, and all rights
of the holders thereof as stockholders of the
Corporation (except the right to receive from the
Corporation the redemption price) shall cease ;
provided that, notwithstanding the foregoing, if notice
of redemption has been given pursuant to this paragraph
and any holder of shares of this Series shall, prior to
the close of business on the redemption date, surrender
for conversion any or all of the shares to be redeemed
held by such holder in accordance with Section 4, then
the conversion of such shares to be redeemed shall
become effective as provided in Section 4.] Upon
surrender in accordance with said notice of the
certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Board of
Directors of the Corporation or any duly authorized
committee thereof shall so require and the notice shall
so state), such shares shall be redeemed by the
Corporation at the redemption price aforesaid. In case
fewer than all the shares represented by any such
certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares without cost
to the holder thereof.
[(e)] [(f)] The Corporation shall take all such
actions as are necessary to cause any shares of this
Series which shall at any time have been redeemed,
after such redemption, to have the status of authorized
but unissued shares of Preferred Stock, without
designation as to series until such shares are once
more designated as part of a particular series by the
Board of Directors of the Corporation or any duly
authorized committee thereof.
<PAGE>
[(f)] [(g)] Notwithstanding the foregoing
provisions of this Section 3, if any dividends on this
Series are in arrears, no shares of this Series shall
be redeemed unless all outstanding shares of this
Series are simultaneously redeemed, and the Corporation
shall not purchase or otherwise acquire any shares of
this Series; provided, however, that the foregoing
shall not prevent the purchase or acquisition of shares
of this Series pursuant to a purchase or exchange offer
made on the same terms to holders of all outstanding
shares of this Series.]
[IF THE PREFERRED STOCK IS NOT CONVERTIBLE, INSERT THE
FOLLOWING:
4. Conversion. The holders of shares of this
Series shall not have any rights to convert such shares
into shares of any other class or series of capital
stock of the Corporation.]
[IF THE PREFERRED STOCK IS CONVERTIBLE INTO SHARES OF COMMON
STOCK, INSERT THE FOLLOWING:
4. Conversion.
(a) Subject to and upon compliance with the
provisions of this Section 4, each holder of shares of
this Series shall have the right, at such holder's
option, at any time [from after ___________], to
convert any or all of the shares of this Series held by
such holder into the number of fully paid and
nonassessable shares of Common Stock (calculated as to
each conversion, for the purpose of determining the
amount of any cash payments provided for under
paragraph (c) of this Section 4, to the nearest .01 of
a share of Common Stock, as the case may be, with one-
half cent and .005 of a share, respectively, being
rounded upward), obtained by dividing the liquidation
value of a share of this Series by the Conversion Price
(as defined below) and multiplying such resulting
number by the number of shares of this Series to be
converted, and by surrender of such shares of this
Series so to be converted, such surrender to be made in
the manner provided in paragraph (b) of this Section 4;
provided, however, that the right to convert shares
called for redemption pursuant to Section 3 hereof
shall terminate at the close of business on the date
fixed for such redemption unless the Corporation shall
default in making payment of the amount payable upon
such redemption.
[The term "Applicable Price" means (i) in the event of
a Fundamental Change in which the holders of the Common
Stock receive only cash, the amount of cash received by
a holder of one share of Common Stock and (ii) in the
event of any other Fundamental Change, the average of
the reported last sales price for one share of the
Common Stock (determined as set forth in subparagraph
(d)(v) of this Section 4 during the ten Trading Days
(as defined in subparagraph (d)(v) of this Section 4)
prior to the record date for the determination of the
holders of Common Stock entitled to receive cash,
securities, property or other assets in connection with
such Fundamental Change, or, if there is no such record
date, prior to the date upon which the holders of
Common Stock shall have the right to receive such cash,
securities, property or other assets.
<PAGE>
The term "Common Stock" shall mean the Common Stock,
par value $1.00, of the Corporation as the same exists
at the date this Certificate of Designations becomes
effective or as such stock may thereafter be
constituted from time to time.
The term "Common Stock Fundamental Change" means any
Fundamental Change in which more than 50% (by value as
determined in good faith by the Board of Directors of
the Corporation) of the consideration received by
holders of Common Stock consists of common stock that,
for the ten Trading Days (as defined in subparagraph
(d)(v) of this Section 4))prior to such Fundamental
Change, has been admitted for listing on a national
securities exchange or quoted on the National Market
System of the National Association of Securities
Dealers, Inc. Automated Quotations System.
The term "Conversion Price" shall mean $______, as
adjusted in accordance with the provisions of this
Section 4.
The term "Fundamental Change" means the occurrence of
any transaction or event in connection with which all
or substantially all the Common Stock shall be
exchanged for, converted into, acquired for or shall
constitute solely the right to receive cash,
securities, property or other assets (whether by means
of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification,
recapitalization or otherwise). In the case of a plan
involving more than one such transaction or event, for
purposes of adjustment of the Conversion Price, such
Fundamental Change shall be deemed to have occurred
when substantially all the Common Stock shall have been
exchanged for, converted into, or acquired for, or
shall constitute solely the right to receive, such
cash, securities, property or other assets, but the
adjustment shall be based upon the consideration that
the holders of Common Stock received in the transaction
or event as a result of which more than 50% of the
Common Stock shall have been exchanged for, converted
into, or acquired for, or shall constitute solely the
right to receive, such cash, securities, property or
other assets.
The term "Non-Stock Fundamental Change" means any
Fundamental Change other than a Common Stock
Fundamental Change.
The term "Purchaser Stock Price" means, with respect to
any Common Stock Fundamental Change, the average of the
reported last sales price for one share of the common
stock received by holders of Common Stock in such
Common Stock Fundamental Change (determined as set
forth in subparagraph (d)(v) of this Section 4 as if
such subparagraph were applicable to such common stock)
during the ten Trading Days (as defined in subparagraph
(d)(v) of this Section 4) prior to the record date for
the determination of the holders of Common Stock
entitled to receive such common stock or, if there is
no such record date, prior to the date upon which the
holders of Common Stock shall have the right to receive
such common stock.
The term "Reference Market Price" shall initially mean
$_______ and, in the event of any adjustment to the
Conversion Price pursuant to subparagraphs (d)(i),
(d)(ii), (d)(iii) or (d)(iv) of this Section 4, the
Reference Market Price shall also be adjusted so that
the ratio of the Reference Market Price to the
Conversion Price after giving effect to any such
<PAGE>
adjustment shall always be the same as the ratio of
$________ (which is the initial Conversion Price) to
the Conversion Price set forth in this Certificate of
Designations (without regard to any adjustment
thereto).]
2. In order to exercise the conversion privilege,
the holder of each share of this Series to be converted
shall surrender the certificate representing such share
at the office of any transfer agent for the Common
Stock and shall give written notice to the Corporation
at said office that such holder elects to convert the
same, specifying the name or names and denominations in
which such holder wishes the certificate or
certificates for the Common Stock to be issued (which
notice may be in the form of a notice of election to
convert which may be printed on the reverse of the
certificates for the shares of this Series). Unless
the shares issuable on conversion are to be issued in
the same name as the name in which such share of this
Series is registered, each share surrendered for
conversion shall be accompanied by instruments of
transfer, in form satisfactory to the Corporation, duly
executed by the holder or his duly authorized attorney,
and by an amount sufficient to pay any transfer or
similar tax.
The holders of shares of this Series at the close of
business on a dividend payment record date shall be
entitled to receive the dividend payable on such shares
(except that holders of shares called for redemption on
a redemption date between such record date and the
dividend payment date shall not be entitled to receive
such dividend on such dividend payment date) on the
corresponding dividend payment date notwithstanding the
conversion thereof or the Corporation's default in
payment of the dividend due on such dividend payment
date. However, shares of this Series surrendered for
conversion during the period between the close of
business on any dividend payment record date and the
opening of business on the corresponding dividend
payment date (except shares called for redemption on a
redemption date during such period) must be accompanied
by payment of an amount equal to the dividend payable
on such shares on such dividend payment date. A holder
of shares of this Series on a dividend payment record
date who (or whose transferee) tenders any of such
shares for conversion into shares of Common Stock on a
dividend payment date will receive the dividend payable
by the Corporation on such shares of this Series on
such date, and the converting holder need not include
payment in the amount of such dividend upon surrender
of shares of this Series for conversion. Except as
provided above, the Corporation shall make no payment
or allowance for unpaid dividends, whether or not in
arrears, on converted shares or for dividends on the
shares of Common Stock issued upon such conversion.
As promptly as practicable after the surrender of the
certificates for shares of this Series as aforesaid,
the Corporation shall issue and shall deliver at the
office of any transfer agent for the Common Stock to
such holder, or on his written order, a certificate or
certificates for the number of full shares of Common
Stock issuable upon the conversion of such shares in
accordance with the provisions of this Section 4,
together with a certificate or certificates
representing any shares of this Series which are not to
be converted but which shall have constituted part of
the shares of this Series represented by the
certificate or certificates so surrendered, and any
fractional interest in respect of a share of Common
Stock arising upon such conversion shall be settled as
provided in subparagraph (c) of this Section 4.
<PAGE>
Each conversion shall be deemed to have been effected
immediately prior to the close of business on the date
on which the certificates for shares of this Series
shall have been surrendered and such notice (and, if
applicable, payment of an amount equal to the dividend
payable on such shares) received by the Corporation as
aforesaid, and the person or persons in whose name or
names any certificate or certificates for shares of
Common Stock shall be issuable upon such conversion
shall be deemed to have become the holder or holders of
record of the shares represented thereby at such time
on such date and such conversion shall be at the
Conversion Price in effect at such time on such date,
unless the stock transfer books of the Corporation
shall be closed on such date, in which event such
person or persons shall be deemed to have become such
holder or holders of record at the close of business on
the next succeeding day on which such stock transfer
books are open, but such conversion shall be at the
Conversion Price in effect on the date upon which such
shares shall have been surrendered and such notice
(and, if applicable, payment) received by the
Corporation. All shares of Common Stock delivered upon
conversion of the shares of this Series will upon
delivery be duly and validly issued and fully paid and
nonassessable, free of all liens and charges and not
subject to any preemptive rights.
(c) No fractional shares or scrip representing
fractions of shares of Common Stock shall be issued
upon conversion of shares of this Series. Instead of
any fractional interest in a share of Common Stock
which would otherwise be deliverable upon the
conversion of a share of this Series, the Corporation
shall pay to the holder of such share of this Series an
amount in cash (computed to the nearest cent, with one-
half cent being rounded upward) equal to the reported
last sales price (as defined in subparagraph (d)(v) of
this Section 4) of the Common Stock on the Trading Day
(as defined in subparagraph (d)(v) of this Section 4)
next preceding the day of conversion multiplied by the
fraction of a share of Common Stock represented by such
fractional interest. If more than one share of this
Series shall be surrendered for conversion at one time
by the same holder, the number of full shares of Common
Stock issuable upon conversion thereof shall be
computed on the basis of the aggregate liquidation
value of the shares of this Series so surrendered.
(d) The Conversion Price shall be adjusted from
time to time as follows:
(i) In case the Corporation shall (x) pay a
dividend or make a distribution on the Common Stock in
shares of Common Stock, (y) subdivide the outstanding
Common Stock into a greater number of shares or
(z) combine the outstanding Common Stock into a smaller
number of shares, the Conversion Price shall be
adjusted so that the holder of any share of this Series
thereafter surrendered for conversion shall be entitled
to receive the number of shares of Common Stock of the
Corporation which he would have owned or have been
entitled to receive after the happening of any of the
events described above had such share been converted
immediately prior to the record date in the case of a
dividend or the effective date in the case of
subdivision or combination. An adjustment made
pursuant to this subparagraph (i) shall become
effective immediately after the record date in the case
of a dividend, except as provided in subparagraph
(viii) below, and shall become effective immediately
after the effective date in the case of a subdivision
or combination. No adjustment in the Conversion Price
shall be made if, at the same time as the Corporation
shall issue shares of Common Stock as a dividend or
distribution on the outstanding shares of Common Stock
which would otherwise call for an adjustment in the
Conversion Price, the Corporation shall issue shares of
<PAGE>
Common Stock as a dividend or distribution on the
outstanding shares of this Series equivalent to the
number of shares distributable on the shares of Common
Stock into which this Series is then convertible.
(ii) In case the Corporation shall issue
rights or warrants to all holders of shares of Common
Stock entitling them (for a period expiring within 45
days after the record date mentioned below) to
subscribe for or purchase shares of Common Stock at a
price per share less than the current market price per
share of Common Stock (as defined for purposes of this
subparagraph (ii) in subparagraph (v) below), at the
record date for the determination of stockholders
entitled to receive such rights or warrants, the
Conversion Price in effect after such record date shall
be determined by multiplying the Conversion Price in
effect immediately prior to such record date by a
fraction, the numerator of which shall be the number of
shares of Common Stock outstanding on the record date
for issuance of such rights or warrants plus the number
of shares of Common Stock which the aggregate offering
price of the total number of shares of Common Stock so
offered would purchase at such current market price,
and the denominator of which shall be the number of
shares of Common Stock outstanding on the record date
for issuance of such rights or warrants plus the number
of additional shares of Common Stock receivable upon
exercise of such rights or warrants. Such adjustment
shall be made successively whenever any such rights or
warrants are issued, and shall become effective
immediately, except as provided in subparagraph (viii)
below, after such record date. In determining whether
any rights or warrants entitled the holders of the
shares of this Series to subscribe for or purchase
shares of Common Stock at less than such current market
price, and in determining the aggregate offering price
of such shares of Common Stock, there shall be taken
into account any consideration received by the
Corporation for such rights or warrants plus the
exercise price thereof, the value of such consideration
or exercise price, as the case may be, if other than
cash, to be determined by the Board.
(iii) In case the Corporation shall
distribute to all holders of Common Stock any shares of
capital stock of the Corporation (other than Common
Stock) or evidences of its indebtedness or assets
(excluding cash dividends or distributions paid from
surplus of the Corporation or dividends payable in
Common Stock) or rights or warrants to subscribe for or
purchase any of its securities (excluding those rights
or warrants referred to in subparagraph (ii) above)
(any of the foregoing being hereinafter in this
subparagraph (iii) called the "Securities"), then, in
each such case, unless the Corporation elects (x) to
actually distribute such Securities to the holders of
the shares of this Series so that any such holder
receives, out of funds legally available therefor, the
amount and kind of such Securities which such holder
would have received if such holder had, immediately
prior to the record date for the distribution of the
Securities, converted its shares of this Series into
Common Stock or (y) to reserve such Securities for
distribution to the holders of the shares of this
Series upon the conversion of the shares of this Series
so that any such holder converting shares of this
Series will receive out of funds legally available
therefor upon such conversion, in addition to the
shares of the Common Stock to which such holder is
entitled, the amount and kind of such Securities which
such holder would have received if such holder had,
immediately prior to the record date for the
distribution of the Securities, converted its shares of
this Series into Common Stock, the Conversion Price
shall be adjusted so that the same shall equal the
price determined by multiplying the Conversion Price in
effect immediately prior to the date of such
distribution by a fraction the numerator of which shall
<PAGE>
be the current market price per share (as defined for
purposes of this subparagraph (iii) in subparagraph (v)
below) of the Common Stock on the record date mentioned
above less the then fair market value (as determined by
the Board of Directors of the Corporation, whose
determination shall be conclusive) of the portion of
the Securities so distributed applicable to one share
of Common Stock, and the denominator of which shall be
the current market price per share (as defined in
subparagraph (v) below) of the Common Stock; provided,
however, that in the event the then fair market value
(as so determined) of the portion of the Securities so
distributed applicable to one share of Common Stock is
equal to or greater than the current market price per
share (as defined in subparagraph (v) below) of the
Common Stock on the record date mentioned above, in
lieu of the foregoing adjustment, adequate provision
shall be made so that each holder of shares of this
Series shall have the right to receive out of funds
legally available therefor the amount and kind of
Securities such holder would have received had such
holder converted each such share of this Series
immediately prior to the record date for the
distribution of the Securities. Such adjustment shall
become effective immediately, except as provided in
subparagraph (v) below, after the record date for the
determination of shareholders entitled to receive such
distribution.
(iv) If, pursuant to subparagraph (ii) or
(iii) above, the number of shares of Common Stock into
which a share of this Series is convertible shall have
been adjusted because the Corporation has declared a
dividend, or made a distribution, on the outstanding
shares of Common Stock in the form of any right or
warrant to purchase securities of the Corporation, or
the Corporation has issued any such right or warrant,
then, upon the expiration of any such unexercised right
or unexercised warrant, the Conversion Price shall
forthwith be adjusted to equal the Conversion Price
that would have applied had such right or warrant never
been declared, distributed or issued.
(v) For the purpose of any computation under
subparagraph (ii) above, the current market price per
share of Common Stock on any date shall be deemed to be
the average of the reported last sales prices for the
thirty consecutive Trading Days (as defined below)
commencing forty-five Trading Days before the date in
question. For the purpose of any computation under
subparagraph (iii) above, the current market price per
share of Common Stock on any date shall be deemed to be
the average of the reported last sales prices for the
ten consecutive Trading Days before the date in
question. The reported last sales price for each day
(whether for purposes of subparagraph (ii) or
subparagraph (iii)) shall be the reported last sales
price, regular way, or, in case no sale takes place on
such day, the average of the reported closing bid and
asked prices, regular way, in either case as reported
on the New York Stock Exchange Composite Tape or, if
the Common Stock is not listed or admitted to trading
on the New York Stock Exchange at such time, on the
principal national securities exchange on which the
Common Stock is listed or admitted to trading or, if
not listed or admitted to trading on any national
securities exchange, on the National Market System of
the National Association of Securities Dealers, Inc.
Automated Quotations System ("NASDAQ") or, if the
Common Stock is not quoted on such National Market
System, the average of the closing bid and asked prices
on such day in the over-the-counter market as reported
by NASDAQ or, if bid and asked prices for the Common
Stock on each such day shall not have been reported
through NASDAQ, the average of the bid and asked prices
for such date as furnished by any New York Stock
Exchange member firm regularly making a market in the
Common Stock selected for such purpose by the Board of
Directors of the Corporation or a committee thereof or,
if no such quotations are available, the fair market
value of the Common Stock as determined by a New York
Stock Exchange member firm regularly making a market in
the Common Stock selected for such purpose by the Board
<PAGE>
of Directors of the Corporation or a committee thereof.
As used herein, the Term "Trading Day" with respect to
Common Stock means (x) if the Common Stock is listed or
admitted for trading on the New York Stock Exchange or
another national securities exchange, a day on which
the New York Stock Exchange or such other national
securities exchange is open for business or (y) if the
Common Stock is quoted on the National Market System of
the NASDAQ, a day on which trades may be made on such
National Market System or (z) otherwise, any day other
than a Saturday or Sunday or a day on which banking
institutions in the State of New York are authorized or
obligated by law or executive order to close.
(vi) No adjustment in the Conversion Price
shall be required unless such adjustment would require
an increase or decrease of at least 1% in such price;
provided, however, that any adjustments which by reason
of this subparagraph (f) are not required to be made
shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this
Section 4 shall be made to the nearest cent or to the
nearest .01 of a share, as the case may be, with one-
half cent and .005 of a share, respectively, being
rounded upward. Anything in this paragraph (d) to the
contrary notwithstanding, the Corporation shall be
entitled to make such reductions in the Conversion
Price, in addition to those required by this paragraph
(d), as it in its discretion shall determine to be
advisable in order that any stock dividend, subdivision
of shares, distribution of rights or warrants to
purchase stock or securities, or distribution of other
assets (other than cash dividends) hereafter made by
the Corporation to its stockholders shall not be
taxable.
(vii) Whenever the Conversion Price is
adjusted as herein provided, the Corporation shall file
with the transfer agent a certificate, signed by the
Chairman of the Board, any Vice Chairman, the
President, or Vice President of the Corporation,
setting forth the Conversion Price after such
adjustment and setting forth a brief statement of the
facts requiring such adjustment, which certificate
shall be conclusive evidence of the correctness of such
adjustment; provided, however, that the failure of the
Corporation to file such officers' certificate shall
not invalidate any corporate action by the Corporation.
(viii) In any case in which this paragraph
(d) provides that an adjustment shall become effective
immediately after a record date for an event, the
Corporation may defer until the occurrence of such
event (y) issuing to the holder of any share of this
Series converted after such record date and before the
occurrence of such event the additional shares of
Common Stock issuable upon such conversion by reason of
the adjustment required by such event over and above
the Common Stock issuable upon such conversion before
giving effect to such adjustment and (z) paying to such
holder any amount of cash in lieu of any fractional
share of Common Stock pursuant to paragraph (c) of this
Section 4.
(e) Whenever the Conversion Price is adjusted as
provided in paragraph (d), the Corporation shall cause
to be mailed to each holder of shares of this Series at
its then registered address by first-class mail,
postage prepaid, a notice of such adjustment of the
Conversion Price setting forth such adjusted Conversion
Price and the effective date of such adjusted
<PAGE>
Conversion Price; provided, however, that the failure
of the Corporation to give such notice shall not
invalidate any corporate action by the Corporation.
(f) The Corporation covenants that it will at all
times reserve and keep available, free from preemptive
rights, out of the aggregate of its authorized but
unissued shares of Common Stock or its issued shares of
Common Stock held in its treasury, or both, for the
purpose of effecting conversions of shares of this
Series, the full number of shares of Common Stock
deliverable upon the conversion of all outstanding
shares of this Series not theretofore converted. For
purposes of this paragraph (f), the number of shares of
Common Stock which shall be deliverable upon the
conversion of all outstanding shares of this Series
shall be computed as if at the time of computation all
such outstanding shares were held by a single holder.
(g) The Corporation will pay any and all
documentary stamp or similar issue or transfer taxes
payable in respect of the issue or delivery of shares
of Common Stock on conversions of shares of this Series
pursuant hereto; provided, however, that the
Corporation shall not be required to pay any tax which
may be payable in respect of any transfer involved in
the issue or delivery of shares of Common Stock in a
name other than that of the holder of shares of this
Series to be converted and no such issue or delivery
shall be made unless and until the person requesting
such issue or delivery has paid to the Corporation the
amount of any such tax or has established, to the
satisfaction of the Corporation, that such tax has been
paid.
(h) Notwithstanding any other provision herein to
the contrary, if any of the following events occur,
namely (w) any reclassification or change of
outstanding shares of Common Stock (other than a change
in par value, or from par value to no par value, or
from no par value to par value, or as a result of a
subdivision or combination of the Common Stock), (x)
any consolidation, merger or combination of the
Corporation with or into another corporation as a
result of which holders of Common Stock shall be
entitled to receive stock, securities or other property
or assets (including cash) with respect to or in
exchange for such Common Stock, (y) any sale or
conveyance of the properties and assets of the
Corporation as, or substantially as, an entirety to any
other entity as a result of which holders of Common
Stock shall be entitled to receive stock, securities or
other property or assets (including cash) with respect
to or in exchange for such Common Stock, [or (z) any
Fundamental Change (including any event referred to in
the foregoing clauses (w), (x) or (y) that constitutes
a Fundamental Change),] then appropriate provision
shall be made so that the holder of each share of this
Series then outstanding shall have the right to convert
such share into the kind and amount of the shares of
stock and securities or other property or assets
(including cash) that would have been receivable upon
such reclassification, change, consolidation, merger,
combination, sale, conveyance [or Fundamental Change]
by a holder of the number of shares of Common Stock
issuable upon conversion of such share of this Series
immediately prior to such reclassification, change,
consolidation, merger, combination, sale, conveyance
[or Fundamental Change; provided, however, that, if the
event referred to in clauses (w) through (z) above
constitutes a Non-Stock Fundamental Change, each holder
of Shares of this Series shall be entitled, upon
conversion thereof, to receive such amount of shares of
stock and securities or other property or assets
(including cash) as is determined by the number of
shares of Common Stock receivable upon conversion at
the Conversion Price as adjusted in accordance with
<PAGE>
subparagraph (i) of this paragraph (h); and provided,
further, that, if the event referred to in clauses (w)
through (z) above constitutes a Common Stock
Fundamental Change, the foregoing provisions of this
paragraph (h) shall not apply, but each holder of
shares of this Series shall be entitled, upon
conversion thereof at any time following such Common
Stock Fundamental Change, to receive such number of
shares of common stock of the successor or acquiring
entity as is determined by use of the Conversion Price
as adjusted in accordance with subparagraph (ii) of
this paragraph (h).] The adjustments described in this
paragraph (h) shall be subject to further adjustments
as appropriate that shall be as nearly equivalent as
may be practicable to the relevant adjustment provided
for in this paragraph (h). If, in the case of any such
consolidation, merger, combination, sale, conveyance
[or Fundamental Change], the stock or other securities
and property receivable thereupon by a holder of shares
of Common Stock includes shares of stock, securities or
other property or assets (including cash) of an entity
other than the successor or acquiring entity, as the
case may be, in such consolidation, merger,
combination, sale, conveyance [or Fundamental Change],
then the Corporation shall enter into an agreement with
such other entity for the benefit of the holders of
this Series that shall contain such provisions to
protect the interests of such holders as the Board of
Directors of the Corporation shall reasonably consider
necessary by reason of the foregoing.
[For purposes of calculating any adjustment to be made
in connection with the occurrence of a Fundamental
Change:
[(i) in the case of a Non-Stock Fundamental
Change, the Conversion Price shall be deemed to be
the lower of (1) the Conversion Price in effect
immediately prior to such Non-Stock Fundamental
Change and (2) the product of (x) the greater of
the Applicable Price and the Reference Market
Price and (y) a fraction, the numerator of which
is $ and the denominator of which is the
amount at which one share of this Series would be
redeemed by the Corporation if the redemption date
were the date of such Non-Stock Fundamental Change
(such denominator being the sum of (xx) the amount
set forth in the table in Section 3 hereof or, for
the 12 months periods commencing ____________,
199_, ____________, 199_, ______________, 199_ and
_______________, 199_, the amount of $ ,
$ , $ , $ and $ ,
respectively, and (yy) any accrued and unpaid
dividends on this Series); provided, however, that
if there were accrued and unpaid dividends with
respect to this Series at the time of such Non-
Stock Fundamental Change ("Passed Dividends"), and
if, thereafter, all (or any portion) of such
Passed Dividends are paid by the Corporation,
then, the Conversion Price to be used in
determining the amount of consideration to which a
holder of shares of this Series who has not
converted his shares of this Series shall be
entitled upon conversion thereof shall be deemed
to be the Conversion Price that would have been
used in making such determination if all (or such
portion) of such Passed Dividends had not been
accrued and unpaid at such time; and
(ii) in the case of a Common Stock
Fundamental Change, the Conversion Price of the
shares of this Series immediately following such
Common Stock Fundamental Change shall be the
Conversion Price in effect immediately prior to
such Common Stock Fundamental Change multiplied by
a fraction, the numerator of which is the
Purchaser Stock Price and the denominator of which
is the Applicable Price.]
<PAGE>
(i) Upon any conversion of shares of this
Series, the shares of this Series so converted
shall have the status of authorized and unissued
shares of Preferred Stock, without designation as
to series until such shares are once more
designated as part of a particular series by the
Board of Directors of the Corporation or by any
duly authorized committee thereof.]
5. Liquidation Rights.
(a) Upon any liquidation (voluntary or
otherwise), dissolution or winding up of the
Corporation, the holders of the shares of this Series
shall be entitled to receive and to be paid out of the
assets of the Corporation available for distribution to
its stockholders, before any payment or distribution
shall be made on the Common Stock or on any other class
of stock ranking junior to this Series upon
liquidation, the amount of $_____ per share (the
"liquidation value"), plus an amount equal to accrued
and unpaid dividends thereon.
(b) After the payment to the holders of the
shares of this Series of the full preferential amounts
provided for in this Section 5, the holders of this
Series as such shall have no right or claim to any of
the remaining assets of the Corporation.
(c) If, upon any liquidation (voluntary or
otherwise), dissolution or winding up of the
Corporation, the amounts payable with respect to the
liquidation value of the shares of this Series and any
other shares of stock of the Corporation ranking as to
any such distribution on a parity with the shares of
this Series are not paid in full, the holders of the
shares of this Series and of such other shares will
share ratably in any such distribution of assets of the
Corporation in proportion to the full respective
liquidation values to which they are entitled.
(d) Neither the sale of all or substantially all
the property or business of the Corporation, nor the
merger or consolidation of the Corporation into or with
any other corporation or the merger or consolidation of
any other corporation into or with the Corporation,
shall be deemed to be a dissolution, liquidation or
winding up, voluntary or involuntary, for the purposes
of this Section 5.
6. Ranking. For purposes of this resolution, any
stock of any class or classes of the Corporation shall
be deemed to rank:
(a) prior to the shares of this Series, either as
to dividends or upon liquidation, if the holders of
such class or classes shall be entitled to the receipt
of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the
Corporation, as the case may be, in preference or
priority to the holders of shares of this Series;
(b) on a parity with shares of this Series,
either as to dividends or upon liquidation, whether or
not the dividend rates, dividend payment dates or
redemption or liquidation prices per share or sinking
fund provisions, if any, be different from those of
<PAGE>
this Series, if the holders of such stock shall be
entitled to the receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding
up of the Corporation, as the case may be, in
proportion to their preference or priority, one over
the other, as between the holders of such stock and the
holders of shares of this Series; and
(c) junior to shares of this Series, either as to
dividends or upon liquidation, if such class shall be
Common Stock or if the holders of shares of this Series
shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding
up of the Corporation, as the case may be, in
preference or priority to the holders of shares of such
class or classes.
7. Voting Rights. The holders of shares of
Series ____ [Convertible] Preferred Stock shall have
the following voting rights:
(a) Unless the vote or consent of the holders of
a greater number of shares shall then be required by
law, the consent of the holders of a majority of all of
the shares of Series __ [Convertible] Preferred Stock
at the time outstanding, given in person or by proxy,
either in writing or by a vote at a meeting called for
the purpose at which the holders of shares of Series __
[Convertible] Preferred Stock shall vote together as a
separate class, shall be necessary for authorizing,
effecting or validating the amendment, alteration or
repeal, whether by merger, consolidation or otherwise,
of any of the provisions of the Restated Certificate of
Incorporation or of any certificate amendatory thereof
or supplemental thereto (including any Certificate of
Designations or any similar document relating to any
series of Preferred Stock) so as to affect adversely
the powers, preferences or other special rights of
Series __ [Convertible] Preferred Stock; provided,
however, that any increase in the number of the
authorized shares of Preferred Stock, or the creation
and issuance of any other class or series of preferred
stock, or any increase in the number of authorized
shares of any preferred stock of any other class or
series, in each case ranking on a parity with or junior
to the Series __ [Convertible] Preferred Stock with
respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or
winding up of the affairs of the Corporation shall not
be deemed to adversely affect such powers, preferences
or other special rights;
(b) Unless the vote or consent of the holders of
a greater number of shares shall then be required by
law, the consent of the holders of at least a majority
of all of the shares of Series __ [Convertible]
Preferred Stock and all other series of preferred stock
ranking on a parity with shares of Series __
[Convertible] Preferred Stock, either as to dividends
or upon liquidation, at the time outstanding, given in
person or by proxy, either in writing or by a vote at a
meeting called for the purpose at which the holders of
shares of Series __ [Convertible] Preferred Stock and
such other series of preferred stock shall vote
together as a single class without regard to series,
shall be necessary for authorizing, effecting or
validating (x) the creation, authorization or issuance
of, (y) the reclassification of any authorized stock of
the Corporation into, or (z) the creation,
authorization or issuance of any obligation or security
convertible into or evidencing the right to purchase,
any shares of any class or series of stock of the
Corporation ranking prior to the shares of such series
as to dividends or upon liquidation; and
<PAGE>
(c) (i) If at any time dividends on the Series
____ [Convertible] Preferred Stock shall be in arrears
in an amount equal to six quarterly dividends thereon,
(which, with respect to any series of Preferred Stock
whose dividend periods are other than quarterly, shall
be deemed to be a number of dividend periods containing
not less than 540 days), the occurrence of such
contingency shall mark the beginning of a period
(herein called a "default period") which shall extend
until such time as all accrued and unpaid dividends for
all previous dividend periods and for the current
dividend period on all shares of Series _______
[Convertible] Preferred Stock then outstanding shall
have been declared and paid or set apart for payment.
During each default period, all holders of Preferred
Stock on which dividends are in arrears and as to which
similar voting rights have been conferred, voting as a
class, irrespective of series, shall have the right to
elect two Directors.
(ii) During any default period, such voting right
of the holders of Series ______ [Convertible] Preferred
Stock may be exercised initially at a special meeting
called pursuant to Section 7(c)(iii) hereof or at any
annual meeting of stockholders, and thereafter at
annual meetings of stockholders, provided that neither
such voting right nor the right of the holders of any
other series of Preferred Stock, if any, to increase,
in certain cases, the authorized number of Directors
shall be exercised unless the holders of thirty-three
and one-third percent (33-1/3%) in number of shares of
Preferred Stock outstanding shall be present in person
or by proxy. The absence of a quorum of the holders of
Common Stock shall not affect the exercise by the
holders of Preferred Stock of such voting right. At
any meeting at which the holders of Preferred Stock
shall exercise such voting right initially during an
existing default period, they shall have the right,
voting as a class, to elect Directors to fill such
vacancies, if any, in the Board of Directors as may
then exist up to two Directors or, if such right is
exercised at an annual meeting, to elect two
Directors. If the number which may be so elected at
any special meeting does not amount to the required
number, the holders of Preferred Stock shall have the
right to make such increase in the number of Directors
as shall be necessary to permit the election by them of
the required number. After the holders of the
Preferred Stock shall have exercised their right to
elect Directors in any default period and during the
continuance of such period, the number of Directors
shall not be increased or decreased except by vote of
the holders of Preferred Stock as herein provided or
pursuant to the rights of any equity securities ranking
senior to or pari passu with the Series _____
[Convertible] Preferred Stock.
(iii) Unless the holders of Preferred Stock
shall, during an existing default period, have
previously exercised their right to elect Directors,
the Board of Directors may order, or any stockholder or
stockholders owning in the aggregate not less than ten
percent (10%) of the total number of shares of
Preferred Stock outstanding, irrespective of series,
may request the calling of a special meeting of the
holders of Preferred Stock, which meeting shall
thereupon be called by the Chairman, a Vice Chairman or
the Secretary of the Corporation. Notice of such
meeting and of any annual meeting at which holders of
Preferred Stock are entitled to vote pursuant to this
Section 7(c)(iii) shall be given to each holder of
record of Preferred Stock by mailing a copy of such
notice to him at his last address as the same appears
on the books of the Corporation. Such meeting shall be
called for a time not earlier than 10 days and not
later than 60 days after such order or request or, in
default of the calling of such meeting within 60 days
after such order or request, such meeting may be called
on similar notice by any stockholder or stockholders
owning in the aggregate not less than 10% of the total
number of Preferred Stock outstanding, irrespective of
series. Notwithstanding the provisions of this
Section 7(c)(iii), no such special meeting shall be
called during the period within 60 days immediately
preceding the date fixed for the next annual meeting of
stockholders.
<PAGE>
(iv) In any default period the holders of Common
Stock, and other classes of stock of the Corporation if
applicable, shall continue to be entitled to elect the
whole number of Directors until the holders of
Preferred Stock shall have exercised their right to
elect two Directors voting as a class, after the
exercise of which right (A) the Directors so elected by
the holders of Preferred Stock shall continue in office
until their successors shall have been elected by such
holders or until the expiration of the default period,
and (B) any vacancy on the Board of Directors may
(except as provided in Section 7(c)(ii) hereof) be
filled by vote of a majority of the remaining Directors
theretofore elected by the holders of the class of
stock which elected the Director whose office shall
have become vacant. References in this Section 7(c) to
Directors elected by the holders of a particular class
of stock shall include Directors elected by such
Directors to fill vacancies as provided in clause (B)
of the foregoing sentence.
(v) Immediately upon the expiration of a default
period, (A) the right of the holders of Preferred Stock
as a class to elect Directors shall cease, (B) the term
of any Directors elected by the holders of Preferred
Stock as a class shall terminate, and (C) the number of
Directors shall be such number as may be provided for
in the Restated Certificate of Incorporation or By-laws
of the Corporation or by resolution of the Board of
Directors, irrespective of any increase made pursuant
to the provisions of Section 7(c)(ii) hereof (such
number being subject, however, to change thereafter in
any manner provided by law or in the Restated
Certificate of Incorporation or By-laws of the
Corporation). Any vacancies on the Board of Directors
effected by the provisions of clauses (B) and (C) in
the preceding sentence may be filled by a majority of
the remaining Directors.
(d) Except as set forth herein or required by
applicable law, holders of Series _____
[Convertible] Preferred Stock shall have no voting
rights and their consent shall not be required for
taking any corporate action.
IN WITNESS WHEREOF, NYNEX Corporation has caused
this Certificate to be signed by its Vice President, [name], and
attested by its Secretary, [name], this ______ day of ________,
199__.
NYNEX CORPORATION
By_____________________________
Vice President
Attest:
____________________________
Secretary
Exhibit 4(f)
Conformed Copy
____________________________________________________________
NYNEX CORPORATION
and
AMERICAN TRANSTECH INC.
Rights Agent
__________________
RIGHTS AGREEMENT
Dated as of October l9, 1989
____________________________________________________________
TABLE OF CONTENTS
Page
Section 1. Certain Definitions 2
Section 2. Appointment of Rights Agent 6
Section 3. Issue of Right Certificates 6
Section 4. Form of Right Certificates 8
Section 5. Countersignature and Registration 10
Section 6. Transfer, Split Up, Combination and Exchange
of Right Certificates; Mutilated, Destroyed,
Lost or Stolen Right Certificates 11
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights 12
Section 8. Cancellation and Destruction of Right
Certificates 15
Section 9. Reservation and Availability of Capital Stock 16
Section 10. Preferred Stock Record Date 18
Section 11. Adjustment of Purchase Price, Number and
Kind of Shares or Number of Rights 18
Section 12. Certificate of Adjustment 29
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power 29
TABLE OF CONTENTS (Continued)
Page
Section 14. Fractional Rights and Fractional Shares 32
Section 15. Rights of Action 34
Section 16. Agreement of Rights Holders 35
Section 17. Right Certificate Holder Not Deemed a
Stockholder 35
Section 18. Concerning the Rights Agent 36
Section 19. Merger or Consolidation or Change of Name
of Rights Agent 37
Section 20. Duties of Rights Agent 37
Section 21. Change of Rights Agent 40
Section 22. Issuance of New Right Certificates 41
Section 23. Redemption and Termination 42
Section 24. Exchange 43
Section 25. Notice of Certain Events 45
Section 26. Notices 46
Section 27. Supplements and Amendments 47
TABLE OF CONTENTS (Continued)
Page
Section 28. Successors 48
Section 29. Determinations and Actions by the Board 48
of Directors, Etc.
Section 30. Benefits of this Agreement 48
Section 31. Severability 49
Section 32. Governing Law 49
Section 33. Counterparts 49
Section 34. Descriptive Headings 49
Exhibit A - Form of Certificate of Designation,
Preferences and Rights of Series A Junior Participating
Preferred Stock
Exhibit B - Form of Right Certificate
Exhibit C - Summary of Rights to Purchase Preferred Stock
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of October 19, 1989 (the
"Agreement" ), between NYNEX Corporation, a Delaware
corporation (the "Company"), and American Transtech Inc., a
Delaware corporation (the "Rights Agent").
W I T N E S S E T H
WHEREAS, on October 19, 1989, the Board of Directors of
the Company authorized and declared a dividend distribution
of one Right (as hereinafter defined) for each share of
common stock, par value $1.00 per share, of the Company (the
"Common Stock") outstanding at the Close of Business on
October 31, 1989 ( the "Record Date" ), and has authorized
the issuance of one Right for each share of Common Stock of
the Company issued (whether originally issued or delivered
from the Company's treasury) between the Record Date and the
earlier of the Distribution Date and the Expiration Date (as
such terms are hereinafter defined), each Right representing
the right to purchase one one-hundredth of a share of Series
A Junior Participating Preferred Stock of the Company having
the rights, powers and preferences set forth in the form of
Certificate of Designation, Preferences and Rights attached
hereto as Exhibit A, upon the terms and subject to the
conditions hereinafter set forth (the "Rights");
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereto
hereby agree as follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or
which, together with all Affiliates and Associates of such
Person, shall be the Beneficial Owner of 15% or more of the
shares of Common Stock then outstanding, but shall not
include the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of any Subsidiary of
the Company, or any Person or entity holding securities of
the Company for, or pursuant to the terms of, any such plan.
Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as the result of an acquisition of shares
of Common Stock by the Company which, by reducing the number
of shares outstanding, increases the proportionate number of
shares beneficially owned by such Person to 15% or more of
the shares of Common Stock then outstanding; provided,
however, that if a Person shall become the Beneficial Owner
of 15% or more of the shares of Common Stock then
outstanding by reason of share purchases by the Company and
shall, after such share purchases by the Company, become the
Beneficial Owner of any additional shares of Common Stock,
then such Person shall be deemed to be an "Acquiring
Person."
(b) "Act" shall mean the Securities Act of 1933, as
amended, as in effect on the date of this Agreement.
(c) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the Exchange Act.
(d) A Person shall be deemed the "Beneficial Owner" of,
and shall be deemed to "beneficially own,":
(i) any securities which such Person or any of
such Person's Affiliates or Associates beneficially owns,
directly or indirectly, for purposes of Section 13(d) of the
Exchange Act and Rule 13d-3 promulgated under the Exchange
Act, in each case as in effect on the date hereof;
(ii) any securities which such Person or any of
such Person's Affiliates or Associates, directly or
indirectly, has the right to acquire (whether such right is
exercisable immediately or only after the passage of time,
the compliance with regulatory requirements or the
satisfaction of some other condition) pursuant to any
agreement, arrangement or understanding, written or
otherwise, or upon the exercise of conversion rights,
exchange rights, rights (other than the Rights at any time
prior to the occurrence of a Triggering Event but thereafter
including Rights acquired from and after the Distribution
Date), warrants or options, or otherwise; provided, however,
that a Person shall not be deemed the "Beneficial Owner" of,
or to "beneficially own," securities tendered pursuant to a
tender or exchange offer made pursuant to, and in accordance
with, the applicable rules and regulations promulgated under
the Exchange Act by or on behalf of such Person or any of
such Person's Affiliates or Associates until such tendered
securities are accepted for purchase or exchange;
(iii) any securities which such Person or any of
such Person's Affiliates or Associates, directly or
indirectly, has the right to vote, alone or in concert with
others, or dispose of (including pursuant to any agreement,
arrangement or understanding, whether or not in writing);
provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own," any
security under this Section l(d)(iii) as a result of an
agreement, arrangement or understanding to vote such
security if such agreement, arrangement or understanding:
(A) arises solely from a revocable proxy given in response
to a public proxy or consent solicitation made pursuant to,
and in accordance with, the applicable rules and regulations
of the Exchange Act, and (B) is not also then reportable by
such Person on Schedule 13D under the Exchange Act (or any
comparable or successor report); or
(iv) any securities which are beneficially owned
(as defined in Section l(d)(ii) or Section l(d)(iii)
hereof), directly or indirectly, by any other Person (or any
Affiliate or Associate thereof) with which such Person or
any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding (whether or not in
writing), for the purpose of acquiring, holding, voting
(except pursuant to a revocable proxy as described in the
provison to Section l(d)(iii) hereof) or disposing of any
voting securities of the Company; provided, however, that
nothing in this Section l(d) shall cause a person engaged in
business as an underwriter of securities to be the
"Beneficial Owner" of, or to "beneficially own," any
securities acquired through such person's participation in
good faith in a firm commitment underwriting of a public
offering of securities by the Company until the expiration
of forty days after the date of such acquisition.
Notwithstanding anything in this Section l(d) to
the contrary, the phrase "then outstanding," when used with
reference to a Person's beneficial ownership of securities
of the Company, shall mean the number of such securities
then issued and outstanding together with the number of such
securities not then actually issued and outstanding which
such Person would be deemed to own beneficially hereunder.
(e) "Business Day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in the
State of New York are authorized or obligated by law or executive
order to close.
(f) "Close of Business" on any given date shall mean
5:00 P.M., New York City time, on such date; provided,
however, that if such date is not a Business Day it shall
mean 5:00 P.M., New York City time, on the next succeeding
Business Day.
(g) "Common Stock" shall mean the common stock, par
value $1.00 per share, of the Company, except that "Common
Stock" when used with reference to any Person other than the
Company shall mean the capital stock (or other equity
interest) of such Person with the greatest voting power, or
the equity securities or other equity interest having power
to control, or direct the management of, such Person.
(h) "Common Stock Equivalents" shall have the meaning set
forth in Section ll(a)(iii) hereof.
(i) "Current Market Price" shall have the meaning set
forth in Section ll(d) hereof.
(j) "Distribution Date" shall have the meaning set
forth in Section 3 hereof.
(k) "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, as in effect on the date of this
Agreement.
(l) "Expiration Date" shall have the meaning set forth
in Section 7(a) hereof.
(m) "Final Expiration Date" shall mean the Close of
Business on October 31, 1999.
(n) "Person" shall mean any individual, firm,
corporation, partnership, limited partnership, business
trust, unincorporated association or other entity, and shall
include any successor (by merger or otherwise) of such
entity.
(o) "Purchase Price" shall have the meaning set forth
in Section 7(b) hereof.
(p) "Preferred Stock" shall mean shares of Series A
Junior Participating Preferred Stock, par value $1.00 per
share, of the Company having the rights and preferences set
forth in the Certificate of Designation, Preferences and
Rights attached hereto as Exhibit A and, to the extent that
there are not a sufficient number of shares of Series A
Junior Participating Preferred Stock authorized to permit
the full exercise of the Rights, any other series of
Preferred Stock, par value $1.00 per share, of the Company
designated for such purpose containing terms substantially
similar to the terms of the Series A Junior Participating
Preferred Stock.
(q) "Redemption Date" shall mean the date on which the
Rights are redeemed as provided in Section 23 hereof.
(r) "Redemption Price" shall have the meaning set
forth in Section 23(a) hereof.
(s) "Right Certificate" shall mean a certificate
evidencing a Right in substantially the form of Exhibit B
hereto .
(t) "Section 11(a) (ii) Event" shall mean an event
described in Section ll(a) (ii) hereof .
(u) "Section ll(a) (ii) Trigger Date" shall have the
meaning set forth in Section ll(a) (iii) hereof .
(v) "Stock Acquisition Date" shall mean the earlier of
(i) the first date of public announcement (which, for
purposes of this definition, shall include, without
limitation, a report filed pursuant to Section 13(d)
promulgated under the Exchange Act) by the Company or an
Acquiring Person that an Acquiring Person has become such
and (ii) the public disclosure of facts by the Company or an
Acquiring Person indicating that an Acquiring Person has
become such.
(w) "Subsidiary" of any Person shall mean any Person
of which a majority of the voting power of the voting equity
interests is owned, directly or indirectly, by such Person,
or which is otherwise controlled, directly or indirectly, by
such Person.
(x) "Summary of Rights" shall mean the Summary of
Rights to Purchase Preferred Stock, in substantially the
form of Exhibit C hereto.
(y) "Trading Day" shall have the meaning set forth in
Section ll(d)(i) hereof.
(z) "Triggering Event" shall mean any event described
in Section ll(a)(ii) or Section 13(a). Any
determination required by the definitions contained in this
Section 1 shall be made by the Board of Directors of the
Company in their good faith judgment, which determination
shall be final and binding on the Rights Agent.
Section 2. Appointment of Rights Agent. The Company
hereby appoints the Rights Agent to act as agent for the
Company and the holders of the Rights (who, in accordance
with Section 3 hereof, shall prior to the Distribution Date
also be the holders of the outstanding shares of Common
Stock) in accordance with the terms and conditions hereof,
and the Rights Agent hereby accepts such appointment. The
Company may from time to time appoint such co-Rights Agents
as it may deem necessary or desirable.
Section 3. Issue of Right Certificates.
(a) Until the earlier of (i) the Close of Business on
the tenth day after the Stock Acquisition Date and (ii) the
Close of Business on the tenth Business Day (or such later
date as may be determined by the Board of Directors of the
Company prior to such time as any Person becomes an
Acquiring Person) after the date of commencement of, or the
first public announcement of the intent of any Person to
commence, whichever occurs first, a tender or exchange offer
by any Person, if upon consummation thereof, such Person
would become an Acquiring Person (the earlier of such dates,
including any such date which is after the date of this
Agreement and prior to the initial issuance of the Rights,
being herein referred to as the "Distribution Date"), (x)
the Rights will be evidenced (subject to the provisions of
Section 3(b) hereof) by the certificates for Common Stock
registered in the names of the holders of Common Stock
(which certificates shall be deemed also to be Right
Certificates) and not by separate Right Certificates, and
(y) the Rights will be transferable only in connection with
the transfer of the underlying shares of Common Stock
(including a transfer to the Company). As soon as
practicable after the Distribution Date, the Company will
prepare and execute, the Rights Agent will countersign and
the Rights Agent will send by first-class, insured, postage
prepaid mail, to each record holder of the Common Stock as
of the Close of Business on the Distribution Date, at the
address of such holder shown on the records of the Company,
one or more Right Certificates, evidencing one Right for
each share of Common Stock so held. In the event that any
adjustments in the number of Rights per share of Common
Stock have been made pursuant to Section ll(o) hereof, then,
at the time of distribution, the Company shall make the
necessary and appropriate rounding adjustments (in
accordance with Section 14(a) hereof) so that Right
Certificates evidencing only whole numbers of Rights are
distributed and cash is paid in lieu of fractional Rights.
As of and after the Distribution Date, the Rights will be
evidenced solely by Right Certificates.
(b) As promptly as practicable following the Record
Date, the Company will send a copy of the Summary of Rights,
by first-class, postage prepaid mail, to each record holder
of the Common Stock as of the Close of Business on the
Record Date, at the address of such holder shown on the
records of the Company. With respect to certificates for
the Common Stock outstanding as of the Record Date, until
the Distribution Date (or earlier redemption, expiration or
termination of the Rights), the Rights will be evidenced by
such certificates for the Common Stock, together with a copy
of the Summary of Rights, and the registered holders of the
Common Stock shall also be the registered holders of the
associated Rights. Until the Distribution Date (or earlier
redemption, expiration or termination of the Rights), the
transfer of any certificates representing shares of Common
Stock in respect of which Rights have been issued, with or
without a copy of the Summary of Rights, shall also
constitute the transfer of the Rights associated with such
shares of Common Stock.
(c) Rights shall be issued in respect of all shares of
Common Stock which become outstanding (whether originally
issued or delivered from the Company's treasury, including,
without limitation, reacquired shares of Common Stock
referred to in the last sentence of this Section 3(c)) after
the Record Date but prior to the earlier of the Distribution
Date and the Expiration Date. Certificates representing
such shares of Common Stock shall be deemed to be also Right
Certificates, and shall bear the following legend:
This certificate also evidences and entitles the holder
hereof to certain Rights as set forth in the Rights
Agreement between NYNEX Corporation and American
Transtech Inc., dated as of October 19, 1989 (the
"Rights Agreement"), the terms of which are
incorporated herein by reference. A copy of the Rights
Agreement is on file at the principal offices of NYNEX
Corporation. The Rights Agent will mail to the holder
of this certificate a copy of the Rights Agreement
without charge upon written request. Under certain
circumstances set forth in the Rights Agreement, the
Rights will be evidenced by separate certificates and
will no longer be evidenced by this certificate. Under
certain circumstances set forth in the Rights
Agreement, Rights beneficially owned by any Person who
becomes an Acquiring Person (as defined in the Rights
Agreement) and certain other Persons may become null
and void.
With respect to such certificates containing the foregoing
legend, until the Distribution Date (or earlier redemption,
expiration or termination of the Rights), the Rights
associated with the Common Stock represented by such
certificates shall be evidenced by such certificates alone
and registered holders of Common Stock shall also be the
registered holders of the associated Rights, and the
transfer of any such certificates shall also constitute the
transfer of the Rights associated with the Common Stock
represented by such certificates. In the event that the
Company purchases or acquires any shares of Common Stock
after the Record Date but prior to the Distribution Date,
any Rights associated with such shares of Common Stock shall
be deemed cancelled and retired so that the Company shall
not be entitled to exercise any Rights associated with
shares of Common Stock which are no longer outstanding.
Section 4. Form of Right Certificates.
(a) The Right Certificates (and the forms of election
to purchase shares and of assignment to be printed on the
reverse thereof) shall each be substantially in the form set
forth in Exhibit B hereto and may have such marks of
identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions
of this Agreement, or as may be required to comply with any
applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange
on which the Rights may from time to time be listed, or to
conform to usage. Subject to the other provisions of this
Agreement, the Right Certificates, whenever distributed,
shall be dated as of the Record Date and on their face shall
entitle the holders thereof to purchase such number of one
one-hundredths of a share of Preferred Stock as shall be set
forth therein at the Purchase Price, but the amount and type
of securities purchasable upon the exercise of each Right
and the Purchase Price thereof shall be subject to
adjustment as provided herein.
(b) Any Right Certificate issued pursuant to Section
3(a) or Section 22 hereof that represents Rights
beneficially owned by:
(i) an Acquiring Person or any Associate or
Affiliate of an Acquiring Person;
(ii) a transferee of an Acquiring Person (or
such Associate or Affiliate) who becomes a transferee after
the Acquiring Person becomes such (other than a transferee
pursuant to the proviso in Section 23(a) hereof); or
(iii) a transferee of an Acquiring Person (or
such Associate or Affiliate) who becomes a transferee prior
to or concurrently with the Acquiring Person becoming such
and receives such Rights pursuant to either:
(A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of
equity interests in such Acquiring Person or to any Person
with whom the Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred
Rights; or
(B) a transfer which the Board of Directors
of the Company has determined is part of a plan, arrangement
or understanding which has as a primary purpose or effect
the avoidance of Section 7(e) hereof, and any Right
Certificate issued pursuant to Section 6 or Section 11
hereof upon transfer, exchange, replacement or adjustment of
any other Right Certificate referred to in this sentence,
shall contain (to the extent feasible and to the extent such
Right Certificate is otherwise reasonably identifiable as
such) the following legend:
The Rights represented by this Right Certificate
are or were beneficially owned by a Person who was
or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person (as such terms
are defined in the Rights Agreement). Accordingly,
this Right Certificate and the Rights represented
hereby may be or become void in the circumstances
specified in Section 7(e) of the Rights Agreement.
Section 5. Countersignature and Registration.
(a) The Right Certificates shall be executed on behalf
of the Company by its Chairman of the Board, any Vice
Chairman, its Chief Executive Officer, its President, any of
its Vice Presidents or its Treasurer, either manually or by
facsimile signature, and shall have affixed thereto the
Company's seal or a facsimile thereof which shall be
attested by the Secretary or any Assistant Secretary of the
Company, either manually or by facsimile signature. The
Right Certificates shall be manually countersigned by the
Rights Agent and shall not be valid for any purpose unless
so countersigned; provided, however, that the Company will
use its best efforts to obtain approvals of stock exchanges
and any other approvals required for use of a facsimile
signature of the Rights Agent in lieu of a manual signature
and if such approvals are obtained the Right Certificates
shall be valid if countersigned by facsimile signature. In
case any officer of the Company who shall have signed any of
the Right Certificates shall cease to be such officer of the
Company before countersignature by the Rights Agent and
issuance and delivery by the Company, such Right
Certificates nevertheless may be countersigned by the Rights
Agent, and issued and delivered by the Company with the same
force and effect as though the person who signed such Right
Certificates had not ceased to be such officer of the
Company; and any Right Certificates may be signed on behalf
of the Company by any person who, at the actual date of the
execution of such Right Certificate, shall be a proper
officer of the Company to sign such Right Certificate,
although at the date of the execution of this Rights
Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent
will keep or cause to be kept, at its principal corporate
trust office in Jacksonville, Florida, books for
registration and transfer of the Right Certificates issued
hereunder. Such books shall show the names and addresses of
the respective holders of the Right Certificates, the number
of Rights evidenced on its face by each of the Right
Certificates and the date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and
Exchange of Right Certificates; Mutilated, Destroyed, Lost
or Stolen Right Certificates.
(a) Subject to the provisions of Section 4(b), Section
7(e), Section 14 and Section 24 hereof, at any time after
the Close of Business on the Distribution Date, and at or
prior to the Close of Business on the Expiration Date, any
Right Certificate or Certificates may be transferred, split
up, combined or exchanged for another Right Certificate or
Certificates, entitling the registered holder to purchase a
like number of shares of Preferred Stock (or, following a
Triggering Event, Common Stock, other securities or
property, as the case may be) as the Right Certificate or
Certificates surrendered then entitled such holder (or
former holder in the case of a transfer) to purchase. Any
registered holder desiring to split up, combine or exchange
any Right Certificate shall make such request in writing
delivered to the Rights Agent, and shall surrender the Right
Certificate or Right Certificates to be transferred, split
up, combined or exchanged at the principal corporate trust
office of the Rights Agent. Neither the Rights Agent nor
the Company shall be obligated to take any action whatsoever
with respect to the transfer of any such surrendered Right
Certificate until the registered holder shall have completed
and signed the certificate contained in the form of
assignment on the reverse side of such Right Certificate and
the Company shall have been provided with such additional
evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the
Company shall reasonably request. Thereupon the Rights
Agent shall, subject to Section 4(b) and Section 7(c)
hereof, countersign and deliver to the Person entitled
thereto a Right Certificate or Right Certificates, as the
case may be, as so requested. The Company may require
payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer,
split up, combination or exchange of Right Certificates.
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Right Certificate, and, in
case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to them, and reimbursement to the
Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent
and cancellation of the Right Certificate if mutilated, the
Company will execute and deliver a new Right Certificate of
like tenor to the Rights Agent for countersignature and
delivery to the registered holder in lieu of the Right
Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights.
(a) Subject to Section 7(e) hereof, the registered
holder of any Right Certificate may exercise the Rights
evidenced thereby (except as otherwise provided herein) in
whole or in part at any time after the Distribution Date
upon surrender of the Right Certificate, with the form of
election to purchase and the certificate on the reverse side
thereof duly executed, to the Rights Agent at the principal
corporate trust office of the Rights Agent, together with
payment of the Purchase Price with respect to each
surrendered Right for the total number of shares of
Preferred Stock (or, following a Triggering Event, Common
Stock, other securities or property, as the case may be) as
to which such surrendered Rights are exercisable, at or
prior to the earliest of (i) the Final Expiration Date, (ii)
the Redemption Date and (iii) the time at which such Rights
are exchanged as provided in Section 24 hereof (such
earliest time being herein referred to as the "Expiration
Date").
(b) The purchase price for each one one-hundredth of a
share of Preferred Stock pursuant to the exercise of a Right
shall initially be $250, subject to adjustment from time to
time as provided in Section 11 and Section 13 hereof (the
"Purchase Price"), and shall be payable in lawful money of
the United States of America in accordance with Section 7(c)
hereof.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase
and the certificate duly executed, accompanied by payment,
with respect to each Right so exercised (in cash, or by
certified check, cashier's check or money order payable to
the order of the Company) of the Purchase Price for the
shares of Preferred Stock (or, following a Triggering Event,
Common Stock, other securities or property, as the case may
be) to be purchased and an amount equal to any applicable
transfer tax, the Rights Agent shall, subject to Section
20(k) hereof, thereupon promptly:
(i) (A) requisition from any transfer agent of
the shares of Preferred Stock (or make available, if the
Rights Agent is the transfer agent for such shares)
certificates for the number of shares of Preferred Stock to
be purchased, and the Company hereby irrevocably authorizes
its transfer agent to comply with all such requests, or (B)
if the Company shall have elected to deposit the shares of
Preferred Stock issuable upon exercise of the Rights
hereunder with a depositary agent, requisition from the
depositary agent depositary receipts representing such
number of one one-hundredths of a share of Preferred Stock
as are to be purchased (in which case certificates for the
shares of Preferred Stock represented by such receipts shall
be deposited by the transfer agent with the depositary
agent), and the Company will direct the depositary agent to
comply with such request;
(ii) requisition from the Company the amount of
cash, if any, to be paid in lieu of fractional shares in
accordance with Section 14 hereof;
(iii) after receipt of such certificates or
depositary receipts, cause the same to be delivered to or
upon the order of the registered holder of such Right
Certificate, registered in such name or names as may be
designated by such holder; and
(iv) after receipt thereof, deliver such cash, if
any, to or upon the order of the registered holder of such
Right Certificate. In the event that the Company is
obligated to issue other securities (including Common Stock)
of the Company, pay cash or distribute other property
pursuant to Section ll(a) hereof, the Company will make all
arrangements necessary to make such other securities, cash
and property available for distribution by the Rights Agent,
if and when appropriate.
(d) In case the registered holder of any Right
Certificate shall exercise less than all the Rights
evidenced thereby, a new Right Certificate evidencing Rights
equivalent to the Rights remaining unexercised shall be
issued by the Rights Agent and delivered to the registered
holder of such Right Certificate or to his duly authorized
assigns, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the occurrence of a Triggering
Event, any Rights beneficially owned by:
(i) an Acquiring Person or an Associate or
Affiliate of an Acquiring Person;
(ii) a transferee of an Acquiring Person (or of
any such Associate or Affiliate) who becomes a transferee
after the Acquiring Person becomes such; or
(iii) a transferee of an Acquiring Person (or
such Associate or Affiliate) who becomes a transferee prior
to or concurrently with the Acquiring Person becoming such
and receives such Rights pursuant to either:
(A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of
equity interests in such Acquiring Person or to any Person
with whom the Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred
Rights; or
(B) a transfer which the Board of Directors
of the Company has determined is part of a plan, arrangement
or understanding which has as a primary purpose or effect
the avoidance of this Section 7(e), shall become null and
void without any further action, and any holder of such
Rights shall thereupon have no rights whatsoever with
respect to such Rights, whether under any provision of this
Agreement or otherwise. No Right Certificate shall be
issued at any time upon the transfer of any Rights to an
Acquiring Person whose Rights would be void pursuant to the
preceding sentence or any Associate or Affiliate thereof or
to any nominee of such Acquiring Person, Associate or
Affiliate; and any Right Certificate delivered to the Rights
Agent for transfer to an Acquiring Person whose Rights would
be void pursuant to the preceding sentence or any Associate
or Affiliate thereof shall be cancelled. The Company shall
use all reasonable efforts to insure that the provisions of
this Section 7(e) and Section 4(b) hereof are complied with,
but shall have no liability to any holder of Rights or other
Person as a result of its failure to make any determinations
with respect to an Acquiring Person or its Affiliates,
Associates or transferees hereunder.
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be
obligated to undertake any action with respect to a
registered holder upon the occurrence of any purported
exercise as set forth in this Section 7 unless the
certificate contained in the form of election to purchase
set forth on the reverse side of the Right Certificate
surrendered for such exercise shall have been completed and
signed by the registered holder thereof and the Company
shall have been provided with such additional evidence of
the identity of the Beneficial Owner (or former beneficial
Owner) or Affiliates or Associates thereof as the Company
shall reasonably request.
Section 8. Cancellation and Destruction of Right
Certificates. All Right Certificates surrendered for the
purpose of exercise, transfer, split up, combination or
exchange shall, if surrendered to the Company or any of its
agents, be delivered to the Rights Agent for cancellation or
in cancelled form, or, if surrendered to the Rights Agent,
shall be cancelled by it, and no Right Certificates shall be
issued in lieu thereof except as expressly permitted by any
of the provisions of this Agreement. The Company shall
deliver to the Rights Agent for cancellation and retirement,
and the Rights Agent shall so cancel and retire, any other
Right Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent
shall deliver all cancelled Right Certificates to the
Company, or shall, at the written request of the Company,
destroy such cancelled Right Certificates, and in such case
shall deliver a certificate of destruction thereof to the
Company.
Section 9. Reservation and Availability of
Capital Stock.
(a) The Company covenants and agrees that it will
cause to be reserved and kept available out of its
authorized and unissued shares of Preferred Stock (or,
following the occurrence of a Triggering Event, Common Stock
or other securities, as the case may be) or out of any
authorized and issued shares of Preferred Stock (or,
following the occurrence of a Triggering Event, Common Stock
or other securities, as the case may be) held in its
treasury, the number of shares of Preferred Stock (or,
following the occurrence of a Triggering Event, Common Stock
or other securities, as the case may be) that will be
sufficient (in accordance with the terms of this Agreement,
including Section ll(a)(iii) hereof) to permit the exercise
in full of all outstanding Rights.
(b) So long as the shares of Preferred Stock (or,
following the occurrence of a Triggering Event, Common Stock
or other securities, as the case may be) issuable upon the
exercise of the Rights may be listed on any national
securities exchange, the Company shall use its best efforts
to cause, from and after such time as the Rights become
exercisable, all shares reserved for such issuance to be
listed on such exchange upon official notice of issuance
upon such exercise.
(c) The Company shall use its best efforts to:
(i) file, as soon as practicable following
the earliest date after the occurrence of a Section
ll(a)(ii) Event on which the consideration to be delivered
by the Company upon exercise of the Rights has been
determined in accordance with Section ll(a)(iii) hereof, a
registration statement under the Act, with respect to the
securities purchasable upon exercise of the Rights on an
appropriate form;
(ii) cause such registration statement to
become effective as soon as practicable after such filing;
(iii) cause such registration statement to
remain effective (with a prospectus at all times meeting the
requirements of the Act) until the Expiration Date; and
(iv) take such action as may be appropriate
under, or to ensure compliance with, the securities or blue
sky laws of the various states.
The Company may temporarily suspend, for a period of time
not to exceed 90 days after the date set forth in Section
9(c)(i) hereof, the exercisability of the Rights in order to
prepare and file such registration statement or in order to
comply with such blue sky laws. Upon any such suspension,
the Company shall issue a public announcement stating that
the exercisability of the Rights has been temporarily
suspended. Notwithstanding any provision of this Agreement
to the contrary, the Rights shall not be exercisable in any
jurisdiction unless the requisite qualification in such
jurisdiction shall have been obtained and until a
registration statement has been declared effective.
(d) The Company covenants and agrees that it will take
all such action as may be necessary to ensure that all
shares of Preferred Stock (or, following the occurrence of a
Triggering Event, Common Stock or other securities, as the
case may be) delivered upon exercise of Rights shall, at the
time of delivery of the certificates for such shares or
other securities (subject to payment of the Purchase Price),
be duly and validly authorized and issued and fully paid and
nonassessable.
(e) The Company further covenants and agrees that it
will pay when due and payable any and all federal and state
transfer taxes and charges which may be payable in respect
of the issuance or delivery of the Right Certificates and of
any shares of Preferred Stock (or, following the occurrence
of a Triggering Event, Common Stock or other securities, as
the case may be) upon the exercise of Rights. The Company
shall not, however, be required to pay any transfer tax
which may be payable in respect of any transfer or delivery
of Right Certificates to a Person other than, or the
issuance or delivery of the shares of Preferred Stock (or,
following the occurrence of a Triggering Event, Common Stock
or other securities, as the case may be) in respect of a
name other than that of, the registered holder of the Right
Certificates evidencing Rights surrendered for exercise or
to issue or deliver any certificates for shares of Preferred
Stock (or, following the occurrence of a Triggering Event,
Common Stock or other securities, as the case may be) in a
name other than that of the registered holder upon the
exercise of any Rights until any such tax shall have been
paid (any such tax being payable by the holder of such Right
Certificate at the time of surrender) or until it has been
established to the Company's satisfaction that no such tax
is due.
Section 10. Preferred Stock Record Date. Each person
in whose name any certificate for shares of Preferred Stock
(or, following the occurrence of a Triggering Event, Common
Stock or other securities, as the case may be) is issued
upon the exercise of Rights shall for all purposes be deemed
to have become the holder of record of the shares of
Preferred Stock (or Common Stock or other securities, as the
case may be) represented thereby on, and such certificate
shall be dated, the date on which the Right Certificate
evidencing such Rights was duly surrendered and payment of
the Purchase Price (and all applicable transfer taxes) was
made.
Section 11. Adjustment of Purchase Price, Number and
Kind of Shares or Number of Rights. The Purchase Price,
the number and kind of shares covered by each Right and the
number of Rights outstanding are subject to adjustment from
time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time
after the date of this Agreement:
(A) declare a dividend on the Preferred Stock
payable in shares of Preferred Stock;
(B) subdivide the outstanding Preferred Stock;
(C) combine the outstanding Preferred Stock into
a smaller number of shares; or
(D) issue any shares of its capital stock in a
reclassification of the Preferred Stock (including any such
reclassification in connection with a consolidation or
merger in which the Company is the continuing or surviving
corporation), except as otherwise provided in this Section
ll(a) and Section 7(e) hereof, the Purchase Price in effect
at the time of the record date for such dividend or of the
effective date of such subdivision, combination or
reclassification, and the number and kind of shares of
Preferred Stock or capital stock, as the case may be,
issuable on such date, shall be proportionately adjusted so
that the holder of any Right exercised after such time shall
be entitled to receive the aggregate number and kind of
shares of Preferred Stock or capital stock, as the case may
be, which, if such Right had been exercised immediately
prior to such date, such holder would have owned upon such
exercise and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification;
provided, however, that in no event shall the consideration
to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock of the
Company issuable upon exercise of one Right. If an event
occurs which would require an adjustment under both this
Section ll(a)(i) and Section ll(a)(ii) hereof, the
adjustment provided for in this Section ll(a)(i) shall be in
addition to, and shall be made prior to, any adjustment
required pursuant to Section ll(a)(ii) hereof.
(ii) Subject to Section 13 and Section 24 hereof,
in the event that any Person, alone or together with its
Affiliates and Associates, shall become an Acquiring Person,
then proper provision shall be made so that each holder of a
Right (except as provided in Section 7(e) hereof) shall have
a right to receive, upon exercise thereof at the then
current Purchase Price in accordance with the terms of this
Agreement, in lieu of shares of Preferred Stock, such number
of shares of Common Stock of the Company as shall equal the
result obtained by multiplying (A) the then current Purchase
Price by the then number of one one-hundredths of a share of
Preferred Stock for which a Right was exercisable
immediately prior to the first occurrence of a Section
ll(a)(ii) Event, and dividing that product by (B) 50% of the
Current Market Price per share of Common Stock on the date
of such first occurrence (such number of shares being
referred to herein as the "Adjustment Shares"). Successive
adjustments shall be made pursuant to this Section ll(a)(ii)
each time a Section ll(a)(ii) Event occurs.
(iii) In the event that the number of shares
of Common Stock which are authorized by the Company's
Restated Certificate of Incorporation but not outstanding or
reserved for issuance for purposes other than upon exercise
of the Rights are not sufficient to permit the exercise in
full of the Rights in accordance with Section ll(a)(ii)
hereof, the Company shall:
(A) determine the excess of (1) the
value of the Adjustment Shares issuable upon the exercise of
a Right (the "Current Value") over (2) the Purchase Price
(such excess being herein referred to as the `Spread"); and
(B) with respect to each Right, make
adequate provision to substitute for the Adjustment Shares,
upon payment of the applicable Purchase Price, (1) cash, (2)
a reduction in the Purchase Price, (3) Common Stock or other
equity securities of the Company (including, without
limitation, shares, or units of shares, of preferred stock
which the Board of Directors of the Company has deemed to
have the same value as shares of Common Stock (such shares
of preferred stock being herein referred to as "Common Stock
Equivalents")), (4) debt securities of the Company, (5)
other assets, or (6) any combination of the foregoing,
having an aggregate value equal to the Current Value, where
such aggregate value has been determined by the Board of
Directors of the Company based upon the advice of nationally
recognized investment banking firm selected by the Board of
Directors of the Company; provided, however, if the Company
shall not have made adequate provision to deliver value
pursuant to this clause (B) within thirty (30) days
following the later of (x) the first occurrence of a Section
ll(a)(ii) Event and (y) the date on which the Company's
right of redemption pursuant to Section 23(a) expires (the
later of (x) and (y) being herein referred to as the
"Section ll(a)(ii) Trigger Date"), then the Company shall be
obligated to deliver, upon the surrender for exercise of a
Right and without requiring payment of the Purchase Price,
shares of Common Stock (to the extent available) and then,
if necessary, cash, which shares and cash have an aggregate
value equal to the Spread. If the Board of Directors of the
Company shall determine in good faith that it is likely that
sufficient additional shares of Common Stock could be
authorized for issuance upon exercise in full of the Rights,
the thirty (30) day period set forth above may be extended
to the extent necessary, but not more than ninety (90) days
after the Section ll(a)(ii) Trigger Date, in order that the
Company may seek stockholder approval for the authorization
of such additional shares (such period, as it may be
extended, being herein referred to as the "Substitution
Period"). To the extent that the Company determines that
some action need be taken pursuant to the first or second
sentence of this Section ll(a)(iii), the Company (I) shall
provide, subject to Section 7(e) hereof, that such action
shall apply uniformly to all outstanding Rights, and (II)
may suspend the exercisability of the Rights until the
expiration of the Substitution Period in order to seek any
authorization of additional shares and to decide the
appropriate form of distribution to be made pursuant to such
first sentence and to determine the value thereof. In the
event of any such suspension, the Company shall issue a
public announcement at such time as the suspension is no
longer in effect. For purposes of this Section ll(a)(iii),
the value of the Common Stock shall be the Current Market
Price per share of the Common Stock on the Section ll(a)(ii)
Trigger Date and the value of any Common Stock Equivalent
shall be deemed to have the same value as the Common Stock
on such date.
(b) In case the Company shall fix a record date for
the issuance of rights, options or warrants to all holders
of Preferred Stock entitling them (for a period expiring
within 45 calendar days after such record date) to
subscribe for or purchase Preferred Stock (or shares having
the same rights, privileges and preferences as the shares of
Preferred Stock ("equivalent preferred
stock")) or securities convertible into Preferred Stock or
equivalent preferred stock at a price per share of Preferred
Stock or per share of equivalent preferred stock (or having
a conversion price per share, if a security convertible into
Preferred Stock or equivalent preferred stock) less than the
Current Market Price per share of Preferred Stock on such
record date, the Purchase Price to be in effect after such
record date shall be adjusted by multiplying the Purchase
Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the number of
shares of Preferred Stock outstanding on such record date,
plus the number of shares of Preferred Stock which the
aggregate offering price of the total number of shares of
Preferred Stock and equivalent preferred stock so to be
offered (and the aggregate initial conversion price of the
convertible securities so to be offered) would purchase at
such Current Market Price and the denominator of which shall
be the number of shares of Preferred Stock outstanding on
such record date, plus the number of additional shares of
Preferred Stock and equivalent preferred stock to be offered
for subscription or purchase (or into which the convertible
securities so to be offered are initially convertible);
provided, however, that in no event shall the consideration
to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock of the
Company issuable upon exercise of one Right. In case such
subscription price may be paid in a consideration part or
all of which shall be in a form other than cash, the value
of such consideration shall be as determined in good faith
by the Board of Directors of the Company, whose
determination shall be described in a statement filed with
the Rights Agent and shall be binding on the Rights Agent.
Shares of Preferred Stock owned by, or held for the account
of, the Company shall not be deemed outstanding for the
purpose of any such computation. Such adjustment shall be
made successively whenever such a record date is fixed; and
in the event that such rights or warrants are not so issued,
the Purchase Price shall be adjusted to be the Purchase
Price which would then be in effect if such record date had
not been fixed.
(c) In case the Company shall fix a record date for a
distribution to all holders of Preferred Stock (including
any such distribution made in connection with a
consolidation or merger in which the Company is the
continuing or surviving corporation) of evidences of
indebtedness, cash (other than a regular quarterly cash
dividend out of the earnings or retained
earnings of the Company), assets (other than a dividend
payable in Preferred Stock, but including any dividend
payable in stock in other than Preferred Stock) or
subscription rights or warrants (excluding those
referred to in Section ll(b) hereof), the Purchase Price to
be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior
to such record date by a fraction, the numerator of which
shall be the Current Market Price per share of Preferred
Stock on such record date, less the fair market value (as
determined in good faith by the Board of Directors of the
Company, whose determination shall be described in a
statement filed with the Rights Agent and shall be binding
on the Rights Agent) of the portion of the cash, assets or
evidences of indebtedness so to be distributed or of such
subscription rights or warrants applicable to a share of
Preferred Stock and the denominator of which shall be such
Current Market Price per share of Preferred Stock; provided,
however, that in no event shall the consideration to
be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock of the
Company issuable upon exercise of one Right. Such
adjustments shall be made successively whenever such a
record date is fixed; and in the event that such
distribution is not so made, the Purchase Price shall be
adjusted to be the Purchase Price which would have been in
effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder,
other than pursuant to Section ll(a)(iii) hereof, the
"Current Market Price" per share of Common Stock on any date
shall be deemed to be the average of the daily closing
prices per share of Common Stock for the 30 consecutive
Trading Days (as such term is hereinafter defined)
immediately prior to such date, and for the purpose of any
computation in Section ll(a)(iii) hereof, the "Current
Market Price" per share of Common Stock on any date shall be
deemed to be the average of the daily closing prices per
share of such Common Stock for the ten consecutive Trading
Days immediately following such date; provided, however,
that in the event that the Current Market Price per share of
Common Stock is determined at a time following the
announcement by the issuer of such Common Stock of (A) a
dividend or distribution on such Common Stock payable in
shares of such Common Stock or securities convertible into
shares of such Common Stock (other than the Rights), or (B)
any subdivision, combination or reclassification of such
Common Stock, and prior to the expiration of the requisite
30 Trading Day or 10 Trading Day period, as the case may be,
after the ex-dividend date for such dividend or
distribution, or the effective date for such subdivision,
combination or reclassification, then, and in each such
case, the Current Market Price shall be properly adjusted
after such event. The closing price for each day shall be
the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the
New York Stock Exchange or, if the shares of Common Stock
are not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities
listed on the principal national securities exchange on
which the shares of Common Stock are listed or admitted to
trading or, if the shares of Common Stock are not listed or
admitted to trading on any national securities exchange, the
last quoted price, or, if not so quoted, the average of the
high bid and low asked prices in the over-the-counter
market, as reported by the National Association of
Securities Dealers, Inc. Automated Quotation System
("NASDAQ") or such other system then in use, or, if on any
such date the shares of Common Stock are not quoted by any
such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a
market in the Common Stock selected by the Board of
Directors of the Company. If on any such date no market
maker is making a market in the Common Stock, the fair value
of such shares on such date as determined in good faith by
the Board of Directors of the Company, whose determination
shall be described in a statement filed with the Rights
Agent and shall be conclusive for all purposes, shall be
used. The term "Trading Day" shall mean a day on which the
principal national securities exchange on which the shares
of Common Stock are listed or admitted to trading is open
for the transaction of business or, if the shares of Common
Stock are not listed or admitted to trading on any national
securities exchange, a Business Day. If the Common Stock is
not publicly held or not so listed or traded, Current Market
Price per share shall mean the fair value per share as
determined in good faith by the Board of Directors of the
Company, whose determination shall be described in a
statement filed with the Rights Agent and shall be
conclusive for all purposes.
(ii) For the purpose of any computation
hereunder, the Current Market Price per share of Preferred
Stock shall be determined in the same manner as set forth
for the Common Stock in Section ll(d)(i) (other than the
last sentence thereof). If the Current Market Price per
share of Preferred Stock cannot be determined in the manner
provided above or if the Preferred Stock is not publicly
held or listed or traded in a manner described in Section
ll(d)(i), the Current Market Price per share of Preferred
Stock shall be conclusively deemed to be an amount equal to
100 (as such number may be appropriately adjusted for such
events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock of the
Company occurring after the date of this Agreement)
multiplied by the Current Market Price per share of the
Common Stock of the Company. If neither the Common Stock
nor the Preferred Stock is publicly held or so listed or
traded, Current Market Price per share of Preferred Stock
shall mean the fair value per share as determined in good
faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with
the Rights Agent and shall be conclusive for all purposes.
For all purposes of this Agreement, the Current Market Price
of one one-hundredth of a share of Preferred Stock shall be
equal to the Current Market Price of a share of Preferred
Stock divided
by 100.
(e) Anything herein to the contrary notwithstanding,
no adjustment in the Purchase Price shall be required unless
such adjustment would require an increase or decrease of at
least one percent (1%) in the Purchase Price; provided,
however, that any adjustments which by reason of this
Section ll(e) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment.
All calculations under this Section 11 shall be made to the
nearest cent or to the nearest one-millionth of a share of
Preferred Stock or ten-thousandth of a share of Common Stock
or other security, as the case may be. Notwithstanding the
first sentence of this Section ll(e), any adjustment
required by this Section 11 shall be made no later than the
earlier of (i) three years from the date of the transaction
which mandates such adjustment, or (ii) the Expiration Date.
(f) If as a result of an adjustment made pursuant to
Section ll(a) or Section 13(a) hereof, the holder of any
Right thereafter exercised shall become entitled to receive
any shares of capital stock other than Preferred Stock,
thereafter the number of such other shares so receivable
upon exercise of any Right shall be subject to adjustment
from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to
the Preferred Stock contained in this Section 11, and the
other provisions of this Agreement with respect to the
Preferred Stock shall apply on like terms to any such other
shares.
(g) All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price
hereunder shall evidence the right to purchase, at the
adjusted Purchase Price, the number of shares of Preferred
Stock purchasable from time to time hereunder upon exercise
of the Rights, all subject to further adjustment as provided
herein.
(h) Unless the Company shall have exercised its
election as provided in Section ll(i) hereof, upon each
adjustment of the Purchase Price as a result of the
calculations made in Sections ll(b) and (c) hereof, each
Right outstanding immediately prior to the making of such
adjustment shall thereafter evidence the right to purchase,
at the adjusted Purchase Price, that number of one one-
hundredths of a share of Preferred Stock (calculated to the
nearest one-millionth) obtained by (i) multiplying (A) the
number of one one-hundredths of a share covered by a Right
immediately prior to this adjustment, by (B) the Purchase
Price in effect immediately prior to such adjustment of the
Purchase Price, and (ii) dividing the product so obtained by
the Purchase Price in effect immediately after such
adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of
Rights, in substitution for any adjustment in the number of
shares of Preferred Stock purchasable upon the exercise of a
Right. Each of the Rights outstanding after the adjustment
in the number of Rights shall be exercisable for the number
of shares or fractions of a share of Preferred Stock for
which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that number
of Rights (calculated to the nearest one ten-thousandth)
obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the
Purchase Price in effect immediately after adjustment of the
Purchase Price. The Company shall make a public
announcement of its election to adjust the number of Rights,
indicating the record date for the adjustment, and, if known
at the time, the amount of the adjustment to be made. This
record date may be the date on which the Purchase Price is
adjusted or any day thereafter, but, if the Right
Certificates have been issued, shall be at least 10 days
later than the date of the public announcement. If Right
Certificates have been issued, upon each adjustment of the
number of Rights pursuant to this Section ll(i), the Company
shall, as promptly as practicable, cause to be distributed
to holders of record of Right Certificates on such record
date Right Certificates evidencing, subject to Section 14
hereof, the additional Rights to which such holders shall be
entitled as a result of such adjustment, or, at the option
of the Company, shall cause to be distributed to such
holders of record in substitution and replacement for the
Right Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by the
Company, new Right Certificates evidencing all the Rights to
which such holders shall be entitled after such adjustment.
Right Certificates so to be distributed shall be issued,
executed and countersigned in the manner provided for herein
(and may bear, at the option of the Company, the adjusted
Purchase Price) and shall be registered in the names of the
holders of record of Right Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number of shares or fractions of a
share of Preferred Stock issuable upon the exercise of the
Rights, the Right Certificates theretofore and thereafter
issued may continue to express the Purchase Price and the
number of shares which were expressed in the initial Right
Certificates issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below one one-
hundredth of the then par value, if any, of the shares of
Preferred Stock issuable upon exercise of the Rights, the
Company shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and
nonassessable shares of Preferred Stock at such adjusted
Purchase Price.
(1) In any case in which this Section 11 shall require
that an adjustment in the Purchase Price be made effective
as of a record date for a specified event, the Company may
elect to defer until the occurrence of such event the
issuance to the holder of any Right exercised after such
record date of the shares of Preferred Stock and other
capital stock or securities of the Company, if any, issuable
upon such exercise over and above the shares of Preferred
Stock and other capital stock or securities of the Company,
if any, issuable upon such exercise on the basis of the
Purchase Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such holder a due
bill or other appropriate instrument evidencing such
holder's right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to
the extent that in their good faith judgment a majority of
the Board of Directors then in office shall determine to be
advisable in order that any (i) consolidation or subdivision
of the Preferred Stock, (ii) issuance wholly for cash of any
shares of Preferred Stock at less than the Current Market
Price, (iii) issuance wholly for cash of shares of Preferred
Stock or securities which by their terms are convertible
into or exchangeable for shares of Preferred Stock, (iv)
stock dividends on Preferred Stock payable in shares of
Preferred Stock or (v) issuance of rights, options or
warrants referred to in this Section 11, hereafter made by
the Company to holders of its Preferred Stock shall not be
taxable to such stockholders.
(n) The Company covenants and agrees that it shall
not, at any time after the Distribution Date:
(i) take (or permit any Subsidiary to take) any
action the primary purpose or effect of which is to diminish
substantially or otherwise eliminate the benefits intended
to be afforded by the Rights; or
(ii) engage in any transaction described in
Section 13(a)(i), (ii) or (iii) if at the time of, or
immediately after the consummation of, such transaction,
there, are any rights, warrants or other instruments or
securities outstanding or agreements in effect which would
substantially diminish or otherwise eliminate the benefits
intended to be afforded by the Rights.
(o) Anything in this Agreement to the contrary
notwithstanding, in the event that at any time after the
date of this Agreement and prior to the Distribution Date,
the Company shall:
(i) declare or pay a dividend on the outstanding
shares of Common Stock payable in shares of Common Stock; or
(ii) effect a subdivision, combination or
consolidation of the shares of Common Stock (by
reclassification or otherwise other than by payment of
dividends payable in shares of Common Stock) into a greater
or lesser number of shares of Common Stock, then in each
such event the number of Rights associated with each share
of Common Stock then outstanding, or issued or delivered
thereafter but prior to the Distribution Date, shall be
proportionately adjusted so that the number of Rights
thereafter associated with each share of Common Stock
following such event (including other shares of Common Stock
issued after the date of such event, but prior to the
Distribution Date) shall equal the result obtained by
multiplying the number of Rights associated with each share
of Common Stock immediately prior to such event by a
fraction the numerator of which shall be the total number of
shares of Common Stock outstanding immediately prior to the
occurrence of the event and the denominator of which shall
be the total number of shares of Common Stock outstanding
immediately following the occurrence of such event. The
adjustments provided for in this Section ll(o) shall be made
successively whenever such a dividend is declared or paid or
such a subdivision, combination or consolidation is
effected.
Section 12. Certificate of Adjustment. Whenever an
adjustment is made as provided in Section 11 or Section 13
hereof, the Company shall (a) promptly prepare a certificate
setting forth such adjustment and a brief statement of the
facts accounting for such adjustment, (b) promptly file with
the Rights Agent, and with each transfer agent for the
Preferred Stock and the Common Stock, a copy of such
certificate, and (c) mail a brief summary thereof to each
holder of a Right Certificate (or, if prior to the
Distribution Date, to each holder of a certificate
representing shares of Common Stock) in accordance with
Section 25 hereof. The Rights Agent shall be fully
protected in relying on any such certificate and on any
adjustment therein contained.
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power.
(a) In the event that, following the Distribution
Date, directly or indirectly:
(i) the Company shall consolidate with, or merge with and
into, any other Person (other than a Subsidiary of the
Company in a transaction which complies with Section
ll(n)(i) hereof), and the Company shall not be the
continuing or surviving corporation of such consolidation or
merger;
(ii) any Person (other than a Subsidiary of the
Company in a transaction which complies with Section
ll(n)(i) hereof) shall consolidate with, or merge with or
into, the Company, and the Company shall be the continuing
or surviving corporation of such consolidation or merger
and, in connection with such consolidation or merger, all or
part of the outstanding shares of Common Stock of the
Company shall be changed into or exchanged for stock or
other securities of any other Person (or the Company) or
cash or any other property; or
(iii) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell or
otherwise transfer), in one transaction or in a series of
related transactions, assets or earning power aggregating
more than 50% of the assets or earning power of the Company
and its Subsidiaries (taken as a whole) to any Person or
Persons (other than the Company or any Subsidiary of the
Company in a transaction which complies with Section
ll(n)(i) hereof), then, and in each such case, proper
provision shall be made so that:
(A) each holder of a Right, except as
provided in Section 7(e) hereof, shall thereafter have the
right to receive, upon the exercise thereof at the then
current Purchase Price in accordance with the terms of this
Agreement, such number of validly authorized and issued,
fully paid, nonassessable and freely tradable shares of
Common Stock of the Principal Party (as defined in Section
13(b) hereof), free and clear of liens, rights of call or
first refusal, encumbrances or other adverse claims, as
shall be equal to the result obtained by multiplying (1) the
then current Purchase Price by the number of one one-
hundredths of a share of Preferred Stock for which a Right
is exercisable immediately prior to the first occurrence of
such merger, consolidation, sale or transfer (or, if a
Section ll(a)(ii) Event has occurred prior to the first
occurrence of such merger, consolidation, sale or transfer,
multiplying the number of such one one-hundredths of a share
for which a Right was exercisable without regard to Section
ll(a)(ii) by the Purchase Price in effect without regard to
such Section), and dividing that product by (2) 50% of the
Current Market Price per share of the Common Stock of such
Principal Party on the date of consummation of such
consolidation, merger, sale or transfer;
(B) such Principal Party shall thereafter be
liable for, and shall assume, by virtue of such
consolidation, merger, sale or transfer, all the obligations
and duties of the Company pursuant to this Agreement;
(C) the term "Company" shall thereafter be
deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11
hereof shall apply only to such Principal Party following the
first occurrence of an event set forth in this Section 13(a);
(D) such Principal Party shall take such
steps (including, but not limited to, the reservation of a
sufficient number of shares of its Common Stock) in
connection with the consummation of any such transaction as
may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in
relation to its shares of Common Stock thereafter
deliverable upon the exercise of the Rights; and
(E) the provisions of Section ll(a)(ii)
hereof shall be of no effect following the first occurrence
of any such merger, consolidation, sale or transfer; in the
event that a Section ll(a)(ii) Event has occurred prior to
the first occurrence of any transaction described in this
Section 13(a) and some or all of the Rights have not been
exercised pursuant to Section 11 hereof prior to the date of
such first occurrence, such Rights shall thereafter be
exercisable only pursuant to this Section 13(a) (without
taking into account any prior adjustment required by Section
ll(a)).
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in
Section 13(a)(i) or (ii) hereof, the Person that is the
issuer of any securities into which shares of Common Stock
of the Company are converted in such merger or
consolidation, and if no securities are so issued, the
Person that is the other party to such merger or
consolidation (including the Company if applicable); and
(ii) in the case of any transaction described in
Section 13(a)(iii) hereof, the Person that is the party
receiving the greatest portion of the assets or earning
power transferred pursuant to such transaction or
transactions; provided, however, that in each such case in
Section 13(b)(i) or (ii) hereof:
(A) if the Common Stock of such Person is
not at such time and has not been continuously over the
preceding 12-month period registered under Section 12 of the
Exchange Act, and such Person is a direct or indirect
Subsidiary of another Person the Common Stock of which is
and has been so registered, "Principal Party" shall refer to
such other Person;
(B) in case such Person is a Subsidiary,
directly or indirectly, of more than one Person, the Common
Stocks of two or more of which are and have been so
registered, a "Principal Party" shall refer to whichever of
such Persons is the issuer of the Common Stock having the
greatest aggregate market value; and
(C) in case such Person is owned, directly
or indirectly, by a joint venture formed by two or more
Persons that are not owned, directly or indirectly, by the
same Person, the rules set forth in clauses (A) and (B)
above shall apply to each of the chains of ownership having
an interest in such joint venture as if such party were a
"Subsidiary" of both or all of such joint ventures and the
Principal Parties in each such chain shall bear the
obligations set forth in this Section 13 in the same ratio
as their direct or indirect interests in such Person bear to
the total of such interests.
(c) The Company shall not consummate any such
consolidation, merger, sale or transfer unless the Principal
Party shall have sufficient Common Stock authorized to
permit the full exercise of the Rights and prior thereto the
Company and such Principal Party shall have executed and
delivered to the Rights Agent a supplemental agreement
providing for the terms set forth in Sections 13(a) and
13(b) hereof, providing that all rights of first refusal or
preemptive rights in respect of the issuance of Common Stock
of such Principal Party upon exercise of outstanding Rights
have been waived and further providing that, as soon as
practicable after the date of any consolidation, merger,
sale or transfer mentioned in Section 13(a), the Principal
Party will:
(i) prepare and file a registration statement
under the Act, with respect to the Rights and the securities
purchasable upon exercise of the Rights on an appropriate
form, and will use its best efforts to cause such
registration statement to (A) become effective as soon as
practicable after such filing and (B) remain effective (with
a prospectus at all times meeting the requirements of the
Act) until the Expiration Date; and
(ii) deliver to holders of the Rights historical
financial statements for the Principal Party and each of its
Affiliates which comply in all respects with the
requirements for registration on Form 10 under the Exchange
Act.
(d) The provisions of this Section 13 shall similarly
apply to successive mergers or consolidations or sales or
other transfers.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue
fractions of Rights, except prior to the Distribution Date
as provided in Section ll(o) hereof, or to distribute Right
Certificates which evidence fractional Rights. In lieu of
such fractional Rights, there shall be paid to the
registered holders of the Right Certificates with regard to
which such fractional Rights would otherwise be issuable, an
amount in cash equal to the same fraction of the current
market value of a whole Right. For purposes of this Section
14(a), the "current market value" of a whole Right shall be
the closing price of the Rights for the Trading Day
immediately prior to the date on which such fractional
Rights would have been otherwise issuable. The closing
price of the Rights for any day shall be the last sale
price, regular way, or, in case no such sale takes place on
such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York
Stock Exchange or, if the Rights are not listed or admitted
to trading on the New York Stock Exchange, as reported in
the principal consolidated transaction reporting system with
respect to securities listed on the principal national
securities exchange on which the Rights are listed or
admitted to trading, or if the Rights are not listed or
admitted to trading on any national securities exchange, the
last quoted price or, if not so quoted, the average of the
high bid and low asked prices in the over-the-counter
market, as reported by NASDAQ or such other system then in
use or, if on any such date the Rights are not quoted by any
such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a
market in the Rights selected by the Board of Directors of
the Company. If on any such date no such market maker is
making a market in the Rights the fair value of the Rights
on such date as determined in good faith by the Board of
Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent and
shall be conclusive for all purposes, shall be used.
(b) The Company shall not be required to issue
fractions of shares of Preferred Stock (other than fractions
which are integral multiples of one one-hundredth of a share
of Preferred Stock) upon exercise of the Rights or to
distribute certificates which evidence fractional shares of
Preferred Stock (other than fractions which are integral
multiples of one one-hundredth of a share of Preferred
Stock). Fractional shares of Preferred Stock in integral
multiples of one one-hundredth of a share of Preferred Stock
may, at the election of the Company, be evidenced by
depositary receipts, pursuant to an appropriate agreement
between the Company and a depositary selected by it;
provided, however, that such agreement shall provide that
the holders of such depositary receipts shall have all the
rights, privileges and preferences to which they are
entitled as beneficial owners of the shares of Preferred
Stock represented by such depositary receipts. In lieu of
fractional shares of Preferred Stock that are not integral
multiples of one one-hundredth of a share of Preferred
Stock, the Company may pay to the registered holders of
Right certificates at the time such Rights are exercised as
herein provided an amount in cash equal to the same fraction
of the current market value of one one-hundredth of a share
of Preferred Stock. For purposes of this Section 14(b), the
"current market value" of one one-hundredth of a share of
Preferred Stock shall be one one-hundredth of the closing
price of a share of Preferred Stock (as determined pursuant
to of Section ll(d)(ii) hereof) for the Trading Day
immediately prior to the date of such exercise.
(c) Following the occurrence of a Triggering Event,
the Company shall not be required to issue fractions of
shares of Common Stock upon exercise of the Rights or to
distribute certificates which evidence fractional shares of
Common Stock. In lieu of fractional shares of Common Stock,
the Company may pay to the registered holders of Right
Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the
current market value of one share of Common Stock. For
purposes of this Section 14(c), the "current market value"
of one share of Common Stock shall be the closing price of
one share of Common Stock (as determined pursuant to Section
ll(d)(i) hereof) for the Trading Day immediately prior to
the date of such exercise.
Section 15. Rights of Action. All rights of
action in respect of this Agreement are vested in the
respective registered holders of the Right Certificates
(and, prior to the Distribution Date, the registered holders
of the Common Stock); and any registered holder of any Right
Certificate (or, prior to the Distribution Date, of the
Common Stock), without the consent of the Rights Agent or of
the holder of any other Right Certificate (or, prior to the
Distribution Date, of the Common Stock), may, in his own
behalf and for his own benefit, enforce, and may institute
and maintain any suit, action or proceeding against the
Company to enforce, or otherwise act in respect of, his
right to exercise the Rights evidenced by such Right
Certificate in the manner provided in such Right Certificate
and in this Agreement. Without limiting the foregoing or
any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would
not have an adequate remedy at law for any breach of this
Agreement and shall be entitled to specific performance of
the obligations hereunder and injunctive relief against
actual or threatened violations of the obligations hereunder
of any Person subject to this Agreement.
Section 16. Agreement of Rights Holders. Every holder
of a Right by accepting the same consents and agrees with
the Company and the Rights Agent and with every other holder
of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of shares
of Common Stock;
(b) after the Distribution Date, the Right
Certificates are transferable only on the registry books
maintained by the Rights Agent if surrendered at the
principal corporate trust office of the Rights Agent, duly
endorsed or accompanied by a proper instrument of transfer
and with appropriate forms and certificates fully executed;
(c) the Company and the Rights Agent may deem and
treat the person in whose name a Right Certificate (or,
prior to the Distribution Date, the associated Common Stock
certificate) is registered as the absolute owner thereof and
of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Right Certificate
or the associated Common Stock certificate made by anyone
other than the Company or the Rights Agent) for all purposes
whatsoever, and neither the Company nor the Rights Agent
shall be required to be affected by any notice to the
contrary; and
(d) notwithstanding anything in this Agreement to the
contrary, neither the Company nor the Rights Agent shall
have any liability to any holder of a Right or other Person
as a result of its inability to perform any of its
obligations under this Agreement by reason of any
preliminary or permanent injunction or other order, decree
or ruling issued by a court of competent jurisdiction or by
a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive
order promulgated or enacted by any governmental authority,
prohibiting or otherwise restraining performance of any such
obligations; provided, however, the Company must use
reasonable efforts to have any such order, decree or ruling
lifted or otherwise overturned as soon as possible.
Section 17. Right Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Right Certificate
shall be entitled to vote, receive dividends or be deemed
for any purpose the holder of the shares of Preferred Stock
or any other securities of the Company which may at any time
be issuable on the exercise of the Rights represented
thereby, nor shall anything contained herein or in any Right
Certificate be construed to confer upon the holder of any
Right Certificate, as such, any of the rights of a
stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as
provided in Section 25 hereof), or to receive subscription
rights, dividends or other distributions, or otherwise,
until the Right or Rights evidenced by such Right
Certificate shall have been exercised in accordance with the
provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights
Agent, its reasonable expenses and counsel fees and
disbursements and other disbursements incurred in the
administration and execution of this Agreement and the
exercise and performance of its duties hereunder. The
Company also agrees to indemnify the Rights Agent for, and
to hold it harmless against, any loss, liability, or
expense, incurred without negligence, bad faith or willful
misconduct on the part of the Rights Agent, for anything
done or omitted by the Rights Agent in connection with the
acceptance and administration of this Agreement, including
the costs and expenses of defending against any claim of
liability in connection therewith.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or
omitted by it in connection with its administration of this
Agreement in reliance upon any Right Certificate or
certificate for Common Stock or for other securities of the
Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction,
consent, certificate, statement, or other paper or document,
believed by it to be genuine and to be signed, executed and,
where necessary, verified or acknowledged, by the proper
Person or Persons.
Section 19. Merger or Consolidation or Change of
Name of Rights Agent.
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger
or consolidation to which the Rights Agent or any successor
Rights Agent shall be a party, or any corporation succeeding
to the corporate trust business of the Rights Agent or any
successor Rights Agent, shall be the successor to the Rights
Agent under this Agreement without the execution or filing
of any paper or any further act on the part of any of the
parties hereto; provided, however, that such corporation
would be eligible for appointment as a successor Rights
Agent under the provisions of Section 21 hereof. In case at
the time such successor Rights Agent shall succeed to the
agency created by this Agreement, any of the Right
Certificates shall have been countersigned but not
delivered, any such successor Rights Agent may adopt the
countersignature of a predecessor Rights Agent and deliver
such Right Certificates so countersigned; and in case at
that time any of the Right Certificates shall not have been
countersigned, any successor Rights Agent may countersign
such Right Certificates either in the name of the
predecessor or in the name of the successor Rights Agent;
and in all such cases such Right Certificates shall have the
full force provided in the Right Certificates and in this
Agreement.
(b) In case at any time the name of the Rights Agent
shall be changed and at such time any of the Right
Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature
under its prior name and deliver Right Certificates so
countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, the Rights
Agent may countersign such Right Certificates either in its
prior name or in its changed name; and in all such cases
such Right Certificate shall have the full force provided in
the Right Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations expressly set forth in
this Agreement, and no implied duties or obligations shall
be read into this Agreement against the Rights Agent. The
Rights Agent undertakes its duties and obligations hereunder
upon the following terms and conditions:
(a) The Rights Agent may consult with legal counsel
(who may be legal counsel for the Company), and the opinion
of such counsel shall be full and complete authorization and
protection to the Rights Agent as to any action taken or
omitted by it in good faith and in accordance with such
opinion.
(b) Whenever in the performance of its duties under
this Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter (including, without
limitation, the identity of any Acquiring Person and the
determination of Current Market Price) be proved or
established by the Company prior to taking or suffering any
action hereunder, such fact or matter (unless other evidence
in respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a
certificate signed by the Chairman of the Board, any Vice
Chairman, the President, any Vice President, the Treasurer,
any Assistant Treasurer, the Secretary or any Assistant
Secretary of the Company and delivered to the Rights Agent;
and such certificate shall be full authorization to the
Rights Agent for any action taken or suffered in good faith
by it under the provisions of this Agreement in reliance
upon such certificate.
(c) The Rights Agent shall be liable hereunder only
for its own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by
reason of any of the statements of fact or recitals
contained in this Agreement or in the Right Certificates or
be required to verify the same (except as to its
countersignature on such Right Certificates), but all such
statements and recitals are and shall be deemed to have been
made by the Company only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement
or the execution and delivery hereof (except the due
execution and delivery hereof by the Rights Agent) or in
respect of the validity or execution of any Right
Certificate (except its countersignature thereof); nor shall
it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any
Right Certificate; nor shall it be responsible for any
adjustment required under the provisions of Section 11 or
Section 13 hereof or responsible for the manner, method or
amount of such adjustment or the ascertaining of the
existence of facts that would require any such adjustment
(except with respect to the exercise of Rights evidenced by
Right Certificates after actual notice of any such
adjustment); nor shall it by any act hereunder be deemed to
make any representation or warranty as to the authorization
or reservation of any shares of Common Stock or Preferred
Stock to be issued pursuant to this Agreement or any Right
Certificate or as to whether any shares of Common Stock or
Preferred Stock will, when so issued, be validly authorized
and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver, or cause to be performed, executed,
acknowledged and delivered, all such further and other acts,
instruments and assurances as may reasonably be required by
the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed
to accept instructions with respect to the performance of
its duties hereunder from the Chairman of the Board, any
Vice Chairman, the President, any Vice President, the
Secretary, any Assistant Secretary, the Treasurer or any
Assistant Treasurer of the Company, and to apply to such
officers for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or
suffered to be taken by it in good faith in accordance with
instructions of any such officer.
(h) The Rights Agent and any stockholder, director,
officer or employee of the Rights Agent may buy, sell or
deal in any of the Rights or other securities of the Company
or become pecuniarily interested in any transaction in which
the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as
though it were not the Rights Agent under this Agreement.
Nothing herein shall preclude the Rights Agent from acting
in any other capacity for the Company or for any other legal
entity.
(i) The Rights Agent may execute and exercise any of
the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or
agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of
any such attorneys or agents (other than directors, officers
or employees of the Rights Agent) or for any loss to the
Company resulting from any such act, default, neglect or
misconduct; provided, however, that reasonable care was
exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require the
Rights Agent to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of
its duties hereunder or in the exercise of its rights if
there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnification against
such risk or liability is not reasonably assured to it.
(k) If, with respect to any Right Certificate
surrendered to the Rights Agent for exercise or transfer,
the certificate attached to the form of assignment or form
of election to purchase, as the case may be, has either not
been completed or indicates an affirmative response to
clause 1 or clause 2 thereof, the Rights Agent shall not
take any further action with respect to such requested
exercise or transfer without first consulting with the
Company.
Section 21. Change of Rights Agent. The Rights Agent
or any successor Rights Agent may resign and be discharged
from its duties under this Agreement upon 30 days' notice in
writing mailed to the Company, and to each transfer agent of
the Common Stock and the Preferred Stock, by registered or
certified mail, and to the holders of the Right Certificates
by first-class mail. The Company may remove the Rights
Agent or any successor Rights Agent upon 30 days' notice in
writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent of the
Common Stock and the Preferred Stock, by registered or
certified mail, and to the holders of the Right Certificates
by first-class mail. If the Rights Agent shall resign or be
removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. If
the Company shall fail to make such appointment within a
period of 30 days after giving notice of such removal or
after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or
by the holder of a Right Certificate (who shall, with such
notice, submit his Right Certificate for inspection by the
Company), then the registered holder of any Right
Certificate may apply to any court of competent jurisdiction
for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by such a
court, shall be a corporation organized and doing business
under the laws of the United States or of the State of New
York (or of any other state of the United States so long as
such corporation is authorized to do business as a banking
institution in the State of New York), in good standing,
having a principal office in the State of New York, which is
authorized under such laws to exercise corporate trust
powers and is subject to supervision or examination by
federal or state authority and which has at the time of its
appointment as Rights Agent a combined capital and surplus
of at least $100,000,000. After appointment, the successor
Rights Agent shall be vested with the same powers, rights,
duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the
successor Rights Agent any property at the time held by it
hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not
later than the effective date of any such appointment, the
Company shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the
Common Stock and the Preferred Stock, and mail a notice
thereof in writing to the registered holders of the Right
Certificates. Failure to give any notice provided for in
this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or
removal of the Rights Agent or the appointment of the
successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or
of the Rights to the contrary, the Company may, at its
option, issue new Right Certificates evidencing Rights in
such form as may be approved by its Board of Directors to
reflect any adjustment or change in the Purchase Price and
the number or kind or class of shares or other securities or
property purchasable under the Right Certificates made in
accordance with the provisions of this Agreement. In
addition, in connection with the issuance or sale of shares
of Common Stock following the Distribution Date and prior to
the redemption or expiration of the Rights, the Company (a)
shall, with respect to shares of Common Stock so issued or
sold pursuant to the exercise of stock options or under any
employee plan or arrangement outstanding, granted or awarded
as of the Distribution Date, or upon the exercise,
conversion or exchange of securities hereinafter issued by
the Company, and (b) may, in any other case, if deemed
necessary or appropriate by the Board of Directors of the
Company, issue Right certificates representing the
appropriate number of Rights in connection with such
issuance or sale; provided, however, that (i) no such Right
Certificate shall be issued if, and to the extent that, the
Company shall be advised by counsel that such issuance would
create a significant risk of material adverse tax
consequences to the Company or the Person to whom such Right
Certificate would be issued, and (ii) no such Right
Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in
lieu of the issuance thereof.
Section 23. Redemption and Termination.
(a) Subject to the provisions of Section 31 hereof,
the Board of Directors of the Company may, at its option, at
any time prior to the earliest of (i) the Stock Acquisition
Date, (ii) the date of any event described in Section 13(a)
hereof and (iii) the Final Expiration Date, redeem all but
not less than all of the then outstanding Rights at a
redemption price of $.01 per Right, as such amount may be
appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date
hereof (such redemption price being herein referred to as
the "Redemption Price"). The redemption of the Rights by
the Board of Directors may be made effective at such time,
for such form of consideration, on such basis and subject to
such conditions, as the Board of Directors in its sole
discretion may establish.
(b) Immediately upon the action of the Board of
Directors of the Company ordering the redemption of the
Rights, evidence of which shall have been filed with the
Rights Agent, and without any further action and without any
notice, the right to exercise the Rights will terminate and
the only right thereafter of the holders of Rights shall be
to receive the Redemption Price for each Right so held.
Promptly after the action of the Board of Directors ordering
the redemption of the Rights, the Company shall give notice
of such redemption to the Rights Agent and the holders of
the then outstanding Rights by mailing such notice to all
such holders at their last addresses as they appear upon the
registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the Transfer
Agent for the Common Stock. Any notice which is mailed in
the manner herein provided shall be deemed given, whether or
not the holder receives the notice. Each such notice of
redemption shall state the method by which the payment of
the Redemption Price will be made.
Section 24. Exchange.
(a) The Board of Directors of the Company may, at its
option, at any time after any Person becomes an Acquiring
Person, exchange all or part of the then outstanding and
exercisable Rights (which shall not include Rights that have
become void pursuant to the provisions of Section 7(e)
hereof) for (i) Common Stock at an exchange ratio of one
share of Common Stock per Right, appropriately adjusted to
reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such exchange
ratio being hereinafter referred to as the "Exchange Ratio")
or (ii) Substitute Consideration as such term is defined
below. The Board of Directors may determine, in its sole
discretion, whether to deliver Common Stock or Substitute
Consideration. Notwithstanding the foregoing, the Board of
Directors shall not be empowered to effect such exchange at
any time after any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the
Company or any such Subsidiary, or any entity holding Common
Stock for or pursuant to the terms of any such plan),
together with all Affiliates and Associates of such Person
(other than those listed in the immediately preceding
parenthetical), becomes the Beneficial Owner of 50% or more
of the Common Stock then outstanding. In the event that the
Board of Directors shall determine to deliver Substitute
Consideration in exchange for Rights, the Company shall (A)
determine the value of the Common Stock which is to be
exchanged pursuant to the Exchange Ratio (the "Exchange
Value"), and (B) with respect to each Right to be exchanged
pursuant to the Exchange Ratio, make adequate provision to
substitute the following (the "Substitute Consideration"):
(1) cash, (2) Common Stock or Common Stock Equivalents, (3)
debt securities of the Company, (4) other assets or (5) any
combination of the foregoing, having an aggregate value
equal to the Exchange Value, where such aggregate value has
been determined by the Board of Directors of the Company
based upon the advice of a nationally recognized investment
banking firm selected by the Board of Directors of the
Company. For purposes of this Section 24, the value of a
share of Common Stock shall be the Current Market Price per
share of Common Stock on the Section ll(a)(ii) Trigger Date;
and the value of any Common Stock Equivalent shall be deemed
to have the same value as the Common Stock on such date.
(b) Immediately upon the action of the Board of
Directors of the Company ordering the exchange of any Rights
pursuant to Section 24(a) hereof and without any further
action and without any notice, the right to exercise such
Rights shall terminate and the only right thereafter of a
holder of such Rights shall be to receive (i) that number of
shares of Common Stock equal to the number of such Rights
held by such holder multiplied by the Exchange Ratio or (ii)
Substitute Consideration having an aggregate value equal to
the number of such Rights held by such holder multiplied by
the Exchange Value attributable to each Right. The Company
shall promptly give public notice of any such exchange;
provided, however, that the failure to give, or any defect
in, such notice shall not affect the validity of such
exchange. The Company promptly shall mail a notice of any
such exchange to all of the holders of such Rights at their
last addresses as they appear upon the registry books of the
Rights Agent. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the
holder receives the notice. Each such notice of exchange
will state the method by which the exchange of the Common
Stock or Substitute Consideration for Rights will be
effected and, in the event of any partial exchange, the
number of Rights which will be exchanged. Any partial
exchange shall be effected pro rata based on the number of
Rights (other than Rights which have become void pursuant to
the provisions of Section 7(e) hereof) held by each holder
of Rights.
(c) In the event that there shall not be sufficient
shares of Common Stock issued but not outstanding or
authorized but unissued to permit any exchange of Rights as
contemplated in accordance with this Section 24, the Company
shall take all such action as may be necessary to authorize
additional shares of Common Stock for issuance upon exchange
of the Rights.
(d) The Company shall not be required to issue
fractions of shares of Common Stock or to distribute
certificates which evidence fractional shares of Common
Stock. In lieu of such fractional shares of Common Stock,
the Company shall pay to the registered holders of the Right
Certificates with regard to which such fractional shares of
Common Stock would otherwise be issuable an amount in cash
equal to the same fraction of the current market value of a
whole share of Common Stock. For the purposes of this
Section 24(d), the "current market value" of a whole share
of Common Stock shall be the closing price of the Common
Stock (as determined pursuant to the second sentence of
Section ll(d)(i) hereof) for the Trading Day immediately
prior to the date of exchange pursuant to this Section 24.
Section 25. Notice of Certain Events.
(a) In case the Company shall propose
(i) to pay any dividend payable in stock of any
class to the holders of Preferred Stock or to make any other
distribution to the holders of Preferred Stock (other than
regular quarterly cash dividends);
(ii) to offer the holders of Preferred Stock
rights or warrants to subscribe for or to purchase any
additional shares of Preferred Stock or shares of stock of
any class or any other securities, rights or options;
(iii) to effect any reclassification of its
Preferred Stock (other than a reclassification involving
only the subdivision of outstanding shares of Preferred
Stock);
(iv) to effect any consolidation or merger into
or with, or to effect any sale or other transfer (or to
permit one or more of its Subsidiaries to effect any sale or
other transfer), in one or a series of related transactions,
of more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to, any
other Person or Persons (other than the Company or any of
its Subsidiaries in one or more transactions, each of which
complies with Section ll(n) hereof); or
(v) to effect the liquidation, dissolution or
winding up of the Company, then, in each such case, the
Company shall give to each holder of a Right Certificate, a
notice of such proposed action in accordance with Section 26
hereof, which shall specify the record date for the purposes
of such stock dividend, or distribution of rights or
warrants, or the date on which such reclassification,
consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of
participation therein by the holders of the shares of
Preferred Stock, if any such date is to be fixed, and such
notice shall be so given in the case of any action covered
by Section 25(a)(i) or (ii) above at least 20 days prior to
the record date for determining holders of the shares of
Preferred Stock for purposes of such action, and in the case
of any such other action, at least 20 days prior to the date
of the taking of such proposed action or the date of
participation therein by the holders of the shares of
Preferred Stock, whichever shall be earlier.
(b) In case a Section ll(a)(ii) Event shall occur,
then, in each such case, (i) the Company shall as soon as
practicable thereafter give to each holder of a Right
Certificate a notice of the occurrence of such event in
accordance with Section 26 hereof, which shall specify the
event and the consequences of the event to holders of Rights
under Section ll(a)(ii) hereof, and (ii) all references in
Section 25(a) hereof to Preferred Stock shall be deemed
thereafter to refer to Common Stock and, if appropriate,
other securities.
Section 26. Notices. Notices or demands authorized
by this Agreement to be given or made by the Rights Agent or
by the holder of any Right Certificate to or on the Company
shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is
filed in writing with the Rights Agent) as follows:
NYNEX Corporation
335 Madison Avenue
New York, New York 10017
Attention: Secretary
With a required copy to:
NYNEX Corporation
1113 Westchester Avenue
White Plains, New York 10604
Attention: General Counsel
Subject to the provisions of Section 21, any notice or
demand authorized by this Agreement to be given or made by
the Company or by the holder of any Right Certificate to or
on the Rights Agent shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until
another address is filed in writing with the Company) as
follows:
American Transtech Inc.
8000 Baymeadows Way
Jacksonville, FL 32256
Attention: Assistant Vice President of Financial Services
With a required copy to:
American Transtech Inc.
8000 Baymeadows Way
Jacksonville, FL 32256
Attention: General Counsel
Notices or demands authorized by this Agreement to be given
or made by the Company or the Rights Agent to the holder of
any Right Certificate (or, if prior to the Distribution
Date, to the holder of certificates representing shares of
Common Stock) shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder
at the address of such holder as shown on the registry books
of the Company.
Section 27. Supplements and Amendments. The Company
and the Rights Agent shall at any time and from time to
time, if the Company shall so direct, supplement or amend
this Agreement without the approval of any holders of Rights
in order (a) to cure any ambiguity, (b) to correct or
supplement any provision contained herein which may be
defective or inconsistent with any other provisions herein,
(c) to shorten or lengthen any time period hereunder or (d)
to change or supplement the provisions hereunder in any
manner or make any other provisions with respect to the
Rights which the Company may deem necessary or desirable;
provided, however, that from and after such time as any
Person becomes an Acquiring Person, no such amendment or
supplement shall adversely affect the interests of the
holders of Rights (other than an Acquiring Person or an
Affiliate or Associate of an Acquiring Person). Any such
supplement or amendment shall be evidenced by a writing
signed by the Company and the Rights Agent. Upon the
delivery of a certificate from an appropriate officer of the
Company which states that the proposed supplement or
amendment is in compliance with the terms of this Section
27, the Rights Agent shall execute such supplement or
amendment. Notwithstanding anything contained in this
Agreement to the contrary, no supplement or amendment shall
be made which reduces the Redemption Price, provides for an
earlier Final Expiration Date, alters the procedure required
by Section 23(a) to redeem the Rights or, if at the time of
such supplement or amendment the Rights are not redeemable,
extends the time during which the Rights may be redeemed.
Section 28. Successors. All the covenants and
provisions of this Agreement by or for the benefit of the
Company or the Rights Agent shall bind and inure to the
benefit of their respective successors and assigns
hereunder.
Section 29. Determinations and Actions by the Board of
Directors. For all purposes of this Agreement, any
calculation of the number of shares of Common Stock
outstanding at any particular time, including for purposes
of determining the particular percentage of such outstanding
shares of Common Stock of which any Person is the Beneficial
Owner, shall be made in accordance with the provisions of
Rule 13d-3(d)(1)(i) of the General Rules and Regulations
under the Exchange Act. The Board of Directors of the
Company shall have the exclusive power and authority to
administer this Agreement and to exercise all rights and
powers specifically granted to the Board of Directors or the
Company or as may be necessary or advisable in the
administration of this Agreement, including, without
limitation, the right and power to (a) interpret the
provisions of this Agreement, and (b) make all
determinations deemed necessary or advisable for the
administration of this Agreement (including a determination
to redeem or not redeem the Rights or to amend the
Agreement). All such actions, calculations, interpretations
and determinations (including, for purpose of clause (ii)
below, all omissions with respect to the foregoing) which
are done or made by the Board of Directors in good faith,
shall (i) be final, conclusive and binding on the Company,
the Rights Agent and the holders of the Rights and (ii) not
subject the Board of Directors to any liability to the
holders of the Rights.
Section 30. Benefits of this Agreement. Nothing in
this Agreement shall be construed to give to any Person
other than the Company, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the
Distribution Date, registered holders of the Common Stock)
any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to
the Distribution Date, registered holders of the Common
Stock).
Section 31. Severability. If any term, provision,
covenant or restriction of this Agreement is held by a court
of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be
affected, impaired or invalidated; provided, however, that
notwithstanding anything in this Agreement to the contrary,
if any such term, provision, covenant or restriction is held
by such court or authority to be invalid, void or
unenforceable and the Board of Directors of the Company
determines in its good faith judgment that severing the
invalid language from this Agreement would adversely affect
the purpose or effect of this Agreement, the right of
redemption set forth in Section 23 hereof shall be
reinstated and shall not expire until the Close of Business
on the tenth day following the date of such determination by
the Board of Directors.
Section 32. Governing Law. This Agreement, each Right
and each Right Certificate issued hereunder shall be deemed
to be a contract made under the laws of the State of
Delaware and for all purposes shall be governed by and
construed in accordance with the laws of such State
applicable to contracts made and to be performed entirely
within such State.
Section 33. Counterparts. This Agreement may be
executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together
constitute but one and the same instrument.
Section 34. Descriptive Headings. Descriptive
headings of the several Sections of this Agreement are
inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate
seals to be hereunto affixed and attested, all as of the day
and year first above written.
NYNEX CORPORATION
By /s/ William C. Ferquson
Name: William C. Ferguson
Title: Chairman of the
Board and Chief
Executive Officer
AMERICAN TRANSTECH INC.
By /s/ Curran L. Spottswood
Name: Curran L. Spottswood
Title: Vice President-
Shareowner Services
Exhibit A
FORM OF
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
NYNEX Corporation
Pursuant to Section 151 of the
General Corporation Law
of the State of Delaware
We, Raymond F. Burke, Executive Vice President and
General Counsel, and Grace J. Fippinger, Vice
President, Secretary and Treasurer, of NYNEX Corporation, a
corporation organized and existing under the General
Corporation Law of the State of Delaware (the
"Corporation"), DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board
of Directors by the Certificate of Incorporation of the
Corporation, the Board of Directors on October 19, 1989
adopted the following resolution creating a series of
5,000,000 shares of Preferred Stock designated as Series A
Junior Participating Preferred Stock:
RESOLVED, that pursuant to the authority granted to and
vested in the Board of Directors of the Corporation in
accordance with the provisions of its Restated Certificate
of Incorporation, a series of Preferred Stock of the
Corporation be and it hereby is created, and that the
designation and amount thereof and the voting powers and
relative rights, preferences and limitations thereof are as
follows:
Section 1. Designation and Amount. There shall be
a series of Preferred Stock of the Corporation which shall
be designated as "Series A Junior Participating Preferred
Stock," $1.00 par value, and the number of shares
constituting such series shall be 5,000,000. Such number of
shares may be increased or decreased by resolution of the
Board of Directors, provided, however, that no decrease
shall reduce the number of shares of Series A Junior
Participating Preferred Stock to a number less than that of
the shares then outstanding plus the number of shares
issuable upon exercise of outstanding rights, options or
warrants or upon conversion of outstanding securities issued
by the Corporation.
Section 2. Dividends and Distributions.
(a) Subject to the prior and superior rights of the
holders of any shares of any series of Preferred Stock
ranking prior and superior to the shares of Series A Junior
Participating Preferred Stock with respect to dividends, the
holders of shares of Series A Junior Participating Preferred
Stock shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on the last
business day of March, June, September and December in each
year (each such date being referred to herein as a
"Quarterly Dividend Payment Date") to holders of record,
commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a share
of Series A Junior Participating Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the
greater of (i) $.25 or (ii) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate
per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend
payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock, par value $1.00
per share, of the Corporation (the "Common Stock") since the
immediately preceding Quarterly Dividend Payment Date, or,
with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share
of Series A Junior Participating Preferred Stock. In the
event the Corporation shall at any time following October
31, 1989 (A) declare any dividend on Common Stock payable in
shares of Common Stock, (B) subdivide the outstanding Common
Stock or (C) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the amount
to which holders of shares of Series A Junior Participating
Preferred Stock were entitled immediately prior to such
event under clause (ii) of the preceding sentence shall be
adjusted by multiplying each such amount by a fraction the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or
distribution on the Series A Junior Participating Preferred
Stock as provided in paragraph (a) above immediately after
it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock);
provided, however, that in the event no dividend or
distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment
Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $.25 per share on the Series A Junior
Participating Preferred Stock shall nevertheless be payable,
out of funds legally available for such purpose, on such
subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative
on outstanding shares of Series A Junior Participating
Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares of Series A
Junior Participating Preferred Stock, unless the date of
issue of such shares is prior to the record date for the
first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of shares of
Series A Junior Participating Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the
shares of Series A Junior Participating Preferred Stock in
an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may
fix a record date for the determination of holders of shares
of Series A Junior Participating Preferred Stock entitled to
receive payment of a dividend or distribution declared
thereon, which record date shall be no more than 30 days
prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of
Series A Junior Participating Preferred Stock shall have the
following voting rights:
(a) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Junior
Participating Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of
the stockholders of the Corporation. In the event the
Corporation shall at any time following October 31, 1989 (i)
declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding shares of
Common Stock or (iii) combine the outstanding Common Stock
into a smaller number of shares, then in each such case the
number of votes per share to which holders of shares of
Series A Junior Participating Preferred Stock were entitled
immediately prior to such event shall be adjusted by
multiplying such number by a fraction, the numerator of
which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding
immediately prior to such event.
(b) Except as otherwise provided herein or by law, the
holders of shares of Series A Junior Participating Preferred
Stock and holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(c) (i) If at any time dividends on any Series A
Junior Participating Preferred Stock shall be in arrears in
an amount equal to six (6) quarterly dividends thereon, the
occurrence of such contingency shall mark the beginning of a
period (herein called a "default period") which shall extend
until such time as all accrued and unpaid dividends for all
previous quarterly dividend periods and for the current
quarterly dividend period on all shares of Series A Junior
Participating Preferred Stock then outstanding shall have
been declared and paid or set apart for payment. During each
default period, all holders of Preferred Stock, voting as a
class, irrespective of series, shall have the right to elect
two (2) Directors.
(ii) During any default period, such voting right
of the holders of Series A Junior Participating Preferred
Stock may be exercised initially at a special meeting called
pursuant to Section 3(c)(iii) hereof or at any annual
meeting of stockholders, and thereafter at annual meetings
of stockholders, provided that neither such voting right nor
the right of the holders of any other series of Preferred
Stock, if any, to increase, in certain cases, the authorized
number of Directors shall be exercised unless the holders of
thirty-three and one-third percent (33-1/3%) in number of
shares of Preferred Stock outstanding shall be present in
person or by proxy. The absence of a quorum of the holders
of Common Stock shall not affect the exercise by the holders
of Preferred Stock of such voting right. At any meeting at
which the holders of Preferred Stock shall exercise such
voting right initially during an existing default period,
they shall have the right, voting as a class, to elect
Directors to fill such vacancies, if any, in the Board of
Directors as may then exist up to two (2) Directors or, if
such right is exercised at an annual meeting, to elect two
(2) Directors. If the number which may be so elected at any
special meeting does not amount to the required number, the
holders of Preferred Stock shall have the right to make such
increase in the number of Directors as shall be necessary to
permit the election by them of the required number. After
the holders of the Preferred Stock shall have exercised
their right to elect Directors in any default period and
during the continuance of such period, the number of
Directors shall not be increased or decreased except by vote
of the holders of Preferred Stock as herein provided or
pursuant to the rights of any equity securities ranking
senior to or pari passu with the Series A Junior
Participating Preferred Stock.
(iii) Unless the holders of Preferred Stock
shall, during an existing default period, have previously
exercised their right to elect Directors, the Board of
Directors may order, or any stockholder or stockholders
owning in the aggregate not less than ten percent (10%) of
the total number of shares of Preferred Stock outstanding,
irrespective of series, may request, the calling of a
special meeting of the holders of Preferred Stock, which
meeting shall thereupon be called by the Chairman, a Vice
Chairman or the Secretary of the Corporation. Notice of
such meeting and of any annual meeting at which holders of
Preferred Stock are entitled to vote pursuant to this
Section 3(c) (iii) shall be given to each holder of record
of Preferred Stock by mailing a copy of such notice to him
at his last address as the same appears on the books of the
Corporation. Such meeting shall be called for a time not
earlier than 10 days and not later than 60 days after such
order or request or, in default of the calling of such
meeting within 60 days after such order or request, such
meeting may be called on similar notice by any stockholder
or stockholders owning in the aggregate not less than 10% of
the total number of shares of Preferred Stock outstanding,
irrespective of series. Notwithstanding the provisions of
this Section 3(c) (iii), no such special meeting shall be
called during the period within 60 days immediately
preceding the date fixed for the next annual meeting of
stockholders.
(iv) In any default period the holders of Common
Stock, and other classes of stock of the Corporation if
applicable, shall continue to be entitled to elect the whole
number of Directors until the holders of Preferred Stock
shall have exercised their right to elect two (2) Directors
voting as a class, after the exercise of which right (A) the
Directors so elected by the holders of Preferred Stock shall
continue in office until their successors shall have been
elected by such holders or until the expiration of the
default period, and (B) any vacancy on the Board of
Directors may (except as provided in Section 3(c) (ii)
hereof) be filled by vote of a majority of the remaining
Directors theretofore elected by the holders of the class of
stock which elected the Director whose office shall have
become vacant. References in this Section 3(c) to Directors
elected by the holders of a particular class of stock shall
include Directors elected by such Directors to fill
vacancies as provided in clause (B) of the foregoing
sentence.
(v) Immediately upon the expiration of a default
period, (A) the right of the holders of Preferred Stock as a
class to elect Directors shall cease, (B) the term of any
Directors elected by the holders of Preferred Stock as a
class shall terminate, and (C) the number of Directors shall
be such number as may be provided for in the Certificate of
Incorporation or By-laws of the Corporation or by resolution
of the Board of Directors, irrespective of any increase made
pursuant to the provisions of Section 3(c) (ii) hereof (such
number being subject, however, to change thereafter in any
manner provided by law or in the Certificate of
Incorporation or By-laws of the Corporation). Any vacancies
on the Board of Directors effected by the provisions of
clauses (B) and (C) in the preceding sentence may be filled
by a majority of the remaining Directors.
(d) Except as set forth herein or required by
applicable law, holders of Series A Junior Participating
Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock as
set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating
Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series
A Junior Participating Preferred Stock outstanding shall
have been paid in full, the Corporation shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire
for consideration any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding
up) to the Series A Junior Participating Preferred Stock;
(ii) declare or pay dividends on or make any
other distributions on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Junior
Participating Preferred Stock, except dividends paid ratably
on the Series A Junior) Participating Preferred Stock and
all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series A `Junior Participating
Preferred Stock, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any stock of the
Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A
Junior Participating Preferred Stock; or
(iv) purchase or otherwise acquire for
consideration any shares of Series A Junior Participating
Preferred Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights
and preferences of the respective series and classes, shall
determine in good or faith will result in fair and equitable
treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless
the Corporation could, under Section 4(a), purchase or
otherwise acquire such shares at such time and in such
manner.
Section 5. Reacquired Shares. Any shares of Series A
Junior Participating Preferred Stock purchased or otherwise
acquired by the Corporation in any manner whatsoever shall
be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock and
may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on
issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up.
(a) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the Corporation, no
distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior
Participating Preferred Stock unless, prior thereto, the
holders of shares of Series A Junior Participating Preferred
Stock shall have received $25,000.00 per share, plus an
amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date
of such payment (the "Series A Liquidation Preference").
Following the payment of the full amount of the Series A
Liquidation Preference, no additional distributions shall be
made to the holders of shares of Series A Junior
Participating Preferred Stock unless, prior thereto, the
holders of shares of Common Stock shall have received an
amount per share (the "Common Adjustment") equal to the
quotient obtained by dividing (i) the Series A Liquidation
Preference by (ii) 100 (as appropriately adjusted as set
forth in Section 6(c) below to reflect such events as stock
splits, stock dividends and recapitalizations with respect
to the Common Stock) (such number in clause (ii), the
"Adjustment Number"). Following the payment of the full
amount of the Series A Liquidation Preference and the Common
Adjustment in respect of all outstanding shares of Series A
Junior Participating Preferred Stock and Common Stock,
respectively, holders of Series A Junior Participating
Preferred Stock and holders of shares of Common Stock shall
receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio, on a per
share basis, of the Adjustment Number to 1 with respect to
such Preferred Stock and Common Stock, on a per share basis,
respectively.
(b) In the event, however, that there are not
sufficient assets available to permit payment in full of the
Series A Liquidation Preference and the liquidation
preferences of all other series of preferred or preference
stock, if any, which rank on a parity with the Series A
Junior Participating Preferred Stock, then such remaining
assets shall be distributed ratably to the holders of such
parity shares in proportion to their respective liquidation
preferences.
(c) In the event the Corporation shall at any time
following October 31, 1989 (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding shares of Common Stock or (iii)
combine the outstanding Common Stock into a smaller number
of shares, then in each such case the Adjustment Number in
effect immediately prior to such event shall be adjusted by
multiplying such Adjustment Number by a fraction the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. Consolidation, Merger, Etc. In case
the Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any
such case the shares of Series A Junior Participating
Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to 100
times the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be,
into which or for which each share of common Stock is
changed or exchanged. In the event the Corporation shall at
any time (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding
shares of Common Stock or (iii) combine the outstanding
Common Stock into a smaller number of shares, then in each
such case the amount set forth in the preceding sentence
with respect to the exchange or change of shares of Series A
Junior Participating Preferred Stock shall be adjusted by
immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding
immediately prior to such event.
Section 8. Redemption. The Corporation shall have the
option to redeem the whole or any part of the Series A
Junior Participating Preferred Stock at any time at a
redemption price equal to, subject to the provisions for
adjustment hereinafter set forth, 100 times the "current per
share market price" of the Common Stock on the date of the
mailing of the notice of redemption, together with unpaid
accumulated dividends to the date of such redemption. In
the event the Corporation shall at any time after October
19, 1989, (i) declare any dividend on Common Stock payable
in shares of Common Stock, (ii) subdivide the outstanding
Common Stock or (iii) combine the outstanding Common Stock
into a smaller number of shares, then in each such case the
amount to which holders of shares of Series A Junior
Participating Preferred Stock were otherwise entitled
immediately prior to such event under the preceding sentence
shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event. The
"current per share market price" on any date shall be deemed
to be the average of the closing price per share of such
Common Stock for the 10 consecutive Trading Days (as such
term is hereinafter defined) immediately prior to such date.
The closing price for each day shall be the last sale price,
regular way, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York
Stock Exchange or, if the Common Stock is not listed or
admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to
trading on the principal national securities exchange on
which the Common Stock is listed or admitted to trading or,
if the Common Stock is not listed or admitted to trading on
any national securities exchange, the last quoted price or,
if not so quoted the average of the high bid and low asked
prices in the over-the-counter market, as reported by the
National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ") or such other system then in use
or, if on any such date the Common Stock is not quoted by
any such organization, the average of the closing bid and
asked prices as furnished by a professional market maker
making a market in the Common Stock selected by the Board of
Directors of the Corporation. If on such date no such
market maker is making a market in the Common Stock, the
fair value of the Common Stock on such date as determined in
good faith by the Board of Directors of the Corporation
shall be used. The term "Trading Day" shall mean a day on
which the principal national securities exchange on which
the Common Stock is listed or admitted to trading is open
for the transaction of business or, if the Common Stock is
not listed or admitted to trading on any national securities
exchange, a Monday, Tuesday, Wednesday, Thursday or Friday
on which banking institutions in the State of New York are
not authorized or obligated by law or executive order to
close.
Section 9. Ranking. The Series A Junior Participating
Preferred Stock shall rank junior to all other series of the
Corporation's Preferred Stock or Preference Stock as to the
payment of dividends and the distribution of assets, unless
the terms of any such series shall provide otherwise.
Section 10. Amendment. The Restated Certificate of
Incorporation of the Corporation shall not be amended in any
manner which would materially alter or change the powers,
preferences or special rights of the Series A Junior
Participating Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of a majority or
more of the outstanding shares of Series A Junior
Participating Preferred Stock, voting separately as a class.
Section 11. Fractional Shares. Series A Junior
Participating Preferred Stock may be issued in fractions of
a share which shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have
the benefit of all other rights of holders of Series A
Junior Participating Preferred Stock.
IN WITNESS WHEREOF, we have executed and subscribed
this Certificate this l9th day of October, 1989.
Attest:
_____________ _________________
Name: Grace J. Fippinger Name: Raymond F. Burke
Title: Vice President, Title: Executive Vice President
Secretary and Treasurer and General Counsel
Exhibit B
[Form of Right Certificate]
Certificate No. R- _____Rights
NOT EXERCISABLE AFTER OCTOBER 31, 1999, OR EARLIER IF THE
RIGHTS EXPIRE UNDER CERTAIN CIRCUMSTANCES OR ARE REDEEMED BY
THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE
OPTION OF THE COMPANY, AT $.01 PER RIGHT ON THE TERMS SET
FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES,
RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH
TERM IS DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT
HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS
REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY
OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR
AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH
TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY,
THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY
BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION
7(e) OF SUCH AGREEMENT.]*
Right Certificate
NYNEX Corporation
This certifies that , or
registered assigns, is the registered owner of the number of
Rights set forth above, each of which entitles the owner
thereof, subject to the terms, provisions and conditions of
the Rights Agreement, dated as of October 19, 1989 (the
"Rights Agreement"), between NYNEX Corporation, a Delaware
corporation (the "Company"), and American Transtech Inc., a
Delaware corporation (the "Rights Agent") to purchase from
the Company at any time after the Distribution Date (as such
term is defined in the Rights Agreement) and prior to 5:00
p.m. (New York City time) on October 31, 1999 at the
principal corporate trust office of the Rights Agent, in
Jacksonville, Florida, or its successors as Rights Agent,
one one-hundredth of a fully paid, non-assessable share of
Series A Junior Participating Preferred Stock (the
"Preferred Stock") of the Company, at a purchase price of
$250 per one one-hundredth of a share (the "Purchase
Price"), upon presentation and surrender of this Right
Certificate with the appropriate Form of Election to
Purchase and related Certificate duly executed.
_____________________
* The portion of the legend in brackets shall be
inserted only if applicable and shall replace the preceding
sentence.
The number of Rights evidenced by this Right
Certificate (and the number of shares which may be purchased
upon exercise thereof) set forth above, and the Purchase
Price per share set forth above, are the number and Purchase
Price as of October 31, 1989, based on the Preferred Stock
as constituted at such date.
Upon the occurrence of a Triggering Event (as such term
is defined in the Rights Agreement), if the Rights evidenced
by this Right Certificate are beneficially owned by (i) an
Acquiring Person or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined in the Rights
Agreement), (ii) under certain circumstances specified in
the Rights Agreement, a transferee of any such Acquiring
Person, Associate or Affiliate, or (iii) under certain
circumstances specified in the Rights Agreement, a
transferee of a person who, after such transfer, became an
Acquiring Person, or an Affiliate or Associate of an
Acquiring Person, such Rights shall become null and void and
no holder hereof shall have any right with respect to such
Rights from and after the occurrence of any such Triggering
Event.
As provided in the Rights Agreement, the Purchase Price
and the number and kind of shares of Preferred Stock or
other securities which may be purchased upon the exercise of
the Rights evidenced by this Right Certificate are subject
to modification and adjustment upon the happening of certain
events.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which
terms, provisions and conditions are hereby incorporated
herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights,
obligations, duties and immunities hereunder of the Rights
Agent, the Company and the holders of the Right
Certificates, which limitations of rights include the
temporary suspension of the exercisability of such Rights
under certain circumstances specified in the Rights
Agreement. Copies of the Rights Agreement are on file at
the above-mentioned office of the Rights Agent and are also
available upon written request to the Rights Agent.
This Right Certificate, with or without other Right
Certificates, upon surrender at the principal corporate
trust office of the Rights Agent, may be exchanged for
another Right Certificate or Right Certificates of like
tenor and date evidencing Rights entitling the holder to
purchase a like aggregate number of shares of Preferred
Stock as the Rights evidenced by the Right Certificate or
Right Certificates surrendered shall have entitled such
holder to purchase. If this Right Certificate shall be
exercised in part, the holder shall be entitled to receive
upon surrender hereof another Right Certificate or Right
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may be redeemed by the
Company at its option at a redemption price of $.01 per
Right at any time prior to the earliest of (i) the Stock
Acquisition Date (as such term is defined in the Rights
Agreement), (ii) the occurrence of any Triggering Event
described in Section 13(a) of the Rights Agreement and (iii)
the Final Expiration Date.
Fractional shares of Preferred Stock will be issued
upon the exercise of any Right or Rights evidenced hereby
only in fractions which are integral multiples of one one-
hundredth of a share of Preferred Stock (which may, at the
election of the Company, be evidenced by depositary
receipts). In lieu of the issuance of fractional shares
other than in integral multiples of one one-hundredth of a
Share, a cash payment will be made as provided in the Rights
Agreement.
No holder of this Right Certificate shall be entitled
to vote or receive dividends or be deemed for any purpose
the holder of shares of Preferred Stock or of any other
securities of the Company which may at any time be issuable
on the exercise hereof, nor shall anything contained in the
Rights Agreement or herein be construed to confer upon the
holder hereof, as such, any of the rights of a stockholder
of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at
any meeting thereof, or to give or withhold consent to any
corporate action, or, to receive notice of meetings or other
actions affecting stockholders (except as provided in the
Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by
this Right Certificate shall have been exercised as provided
in the Rights Agreement.
This Right Certificate shall not be valid or obligatory
for any purpose until it shall have been countersigned by
the Rights Agent.
WITNESS the facsimile signature of the proper officers
of the Company and its corporate seal.
ATTEST: NYNEX CORPORATION
By: By:
Name: Name:
Title: Secretary Title:
Countersigned:
AMERICAN TRANSTECH INC.
By:
Authorized Signature
Dated:
[Form of Reverse side of Right Certificate)
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Right Certificate)
FOR VALUE RECEIVED,
____________________________________________________________
Hereby sells, assigns and transfers unto:_______________________
____________________________________________________________
(Please print name and address of transferee)
this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint Attorney, to transfer
the within Right Certificate on the books of the within-
named Company, with full power of substitution.
______________________________
Signature
Dated: ______________________________
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate
boxes that:
1. this Right Certificate [ ] is [ ] is not being
sold, assigned and transferred by or on behalf of a Person
who is or was an Acquiring Person or an Affiliate or
Associate of any such Acquiring Person (as such terms are
defined in the Rights Agreement);
2. after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights
evidenced by this Right Certificate from any Person who is,
was or subsequently became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
______________________________
Signature
Dated: ______________________________
NOTICE
The signature to the foregoing Assignment and
Certificate must correspond to the name as written upon the
face of this Right Certificate in every particular, without
alteration or enlargement or any change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise Rights
represented by the Right Certificate)
To: NYNEX Corporation
The undersigned hereby irrevocably elects to exercise
Rights represented by this Right Certificate to purchase the
shares of Preferred Stock issuable upon the exercise of the
Rights (or such other securities of the Company or of any
other person which may be issuable upon the exercise of the
Rights) and requests that certificates for such shares be
issued in the name of:
Please insert social security
or other identifying
number:____________________________________________________________
____________________________________________________________
(Please print name and address)
____________________________________________________________
If such number of Rights shall not be all the Rights
evidenced by this Right Certificate, a new Right Certificate
for the balance of such Rights shall be registered in the
name of and delivered to:
Please insert social security
or other identifying
number:____________________________________________________________
____________________________________________________________
(Please print name and address)
____________________________________________________________
__________________________________
Signature
Signature Guaranteed:
Dated: ______________________________
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
1. the Rights evidenced by this Right Certificate [ ]
are [ ] are not being exercised by or on behalf of a
Person who is or was an Acquiring Person or an Affiliate or
Associate of any such Acquiring Person (as such terms are
defined in the Rights Agreement);
2. after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights
evidenced by this Right Certificate from any Person who is,
was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
______________________________
Signature
Dated: ______________________________
NOTICE
The signature to the foregoing Election to Purchase and
Certificate must correspond to the name as written upon the
face of this Right Certificate in every particular, without
alteration or enlargement or any change whatsoever.
Exhibit C
Summary of Rights to
Purchase Preferred Stock
On October 19, 1989, the Board of Directors of NYNEX
Corporation (the "Company") declared a dividend distribution
of one Right for each outstanding share of common stock, par
value $1.00 per share (the "Common Stock"), of the Company
to stockholders of record at the close of business on
October 31, 1989 (the "Record Date"). Except as described
below, each Right, when exercisable, entitles the registered
holder to purchase from the Company one one-hundredth of a
share of Series A Junior Participating Preferred Stock, par
value $1.00 per share (the "Preferred Stock"), at a price of
$250 per one one-hundredth of a share (the "Purchase
Price"), subject to adjustment. The description and terms
of the Rights are set forth in a Rights Agreement (the
"Rights Agreement") between the Company and American
Transtech Inc., as Rights Agent.
Initially, the Rights will be attached to all Common
Stock certificates representing shares then outstanding, and
no separate certificate will be distributed with respect to
any Rights. Until the earlier to occur of (i) 10 days
following a public announcement that a person or group of
affiliated or associated persons (an "Acquiring Person") has
acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding shares of Common
Stock (the "Stock Acquisition Date"), or (ii) 10 business
days (or such later date as may be determined by action of a
majority of the Board of Directors) following the
commencement of (or a public announcement of an intention to
make) a tender or exchange offer if, upon consummation
thereof, such person or group would be the beneficial owner
of 15% or more of such outstanding shares of Common Stock
(the earlier of such dates being called the "Distribution
Date"), the Rights will be evidenced, with respect to any of
the Common Stock certificates outstanding as of the Record
Date, by such Common Stock certificate. The Rights
Agreement provides that, until the Distribution Date, the
Rights will be transferred with and only with Common Stock
certificates. From as soon as practicable after the Record
Date and until the Distribution Date (or earlier redemption,
expiration or termination of the Rights), new Common Stock
certificates issued after the Record Date upon transfer or
new issuance of the Common Stock will contain a notation
incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption, expiration or
termination of the Rights), the surrender for transfer of
any certificates for Common Stock will also constitute the
transfer of the Rights associated with the Common Stock
represented by such certificate. As soon as practicable
following the Distribution Date, separate certificates
evidencing the Rights ("Right Certificates") will be mailed
to holders of record of the Common Stock as of the close of
business on the Distribution Date and, thereafter, such
separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until after the
Distribution Date and will expire at the earliest of (i)
October 31, 1999, (ii) upon redemption by the Company as
described below and (iii) upon exchange by the Company as
described below .
In the event that any Person (other than the Company
and its affiliates) becomes the beneficial owner of 15% or
more of the then outstanding shares of Common Stock ( a
"Section ll(a) (ii) Event"), proper provision will be made
so that each holder of a Right will thereafter have
the right to receive, upon exercise at the then current
exercise price of the Right, Common Stock (or, in certain
circumstances, cash, property or other securities of the
Company) having a value equal to two times the exercise
price of the Right.
In the event that, at any time following the
Distribution Date, the Company is acquired in a merger or
other business combination transaction or 50% or more of the
Company's assets or earning power is sold (a Section 13(a)
"Event"), proper provision will be made so that each holder
of a Right will thereafter have the right to receive, upon
exercise at the then current exercise price of the Right,
common stock of the acquiring or surviving company having a
value equal to two times the exercise price of the Right.
Notwithstanding the foregoing, following the occurrence
of a Section ll(a) (ii) Event or a Section 13(a) Event
(collectively, "Triggering Events"), any Rights that are, or
(under certain circumstances specified in the Rights
Agreement) were, beneficially owned by any Acquiring Person
will immediately become null and void.
The Purchase Price payable, and the number of shares of
Preferred Stock or other securities or property issuable,
upon exercise of the Rights are subject to adjustment from
time to time to prevent dilution ( i ) in the event of a
stock dividend on, or a subdivision, combination or
reclassification of, the Preferred Stock, (ii) upon the
grant to holders of the Preferred Stock of certain rights or
warrants to subscribe for Preferred Stock or convertible
securities at less than the current market price of the
Preferred Stock, or (iii) upon the distribution to holders
of the Preferred Stock of evidences of indebtedness or
assets (excluding regular quarterly cash dividends) or of
subscription rights or warrants (other than those referred
to above).
At any time after the acquisition by a person or group
of affiliated or associated persons of beneficial ownership
of 15% or more of the outstanding Common Stock and prior to
the acquisition by such person or group of 50% or more of
the outstanding Common Stock, the Board of Directors of the
Company may exchange the Rights (other than Rights owned by
such person or group which have become void), in whole or in
part, at an exchange ratio of one share of Common Stock per
Right (subject to adjustment).
With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments require
an adjustment of at least 1% in the Purchase Price. No
fractional shares of Preferred Stock (other than fractions
in multiples of one one-hundredths of a share) will be
issued and, in lieu thereof, an adjustment in cash will be
made based on the market price of the Preferred Stock on the
last trading date prior to the date of exercise.
At any time after the date of the Rights Agreement
until the earliest of (i) the Stock Acquisition Date, (ii)
the date of any Section 13(a) Event and (iii) October 31,
1999, the Company may redeem the Rights in whole, but not in
part, at a price of $.01 per Right (the "Redemption Price").
Immediately upon the action of the Board of Directors of the
Company ordering redemption of the Rights, the Rights will
terminate and the only right of the holders of Rights will
be to receive the Redemption Price.
Until a Right is exercised, the holder thereof, as
such, will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to
receive dividends.
The provisions of the Rights Agreement may be amended
by the Company, except that the Company may not amend the
Rights Agreement to (i) reduce the Redemption Price, (ii)
provide for an earlier Final Expiration Date, (iii) alter
the procedure required to redeem the Rights or (iv) if the
Rights are not then redeemable, extend the time during which
the Rights may be redeemed. In addition, any amendment from
and after such time as there is an Acquiring Person may not
adversely affect the interests of holders of Rights.
A copy of the Rights Agreement is being filed with the
Securities and Exchange Commission as an Exhibit to a
Registration Statement on Form 8-A. A copy of the Rights
Agreement is available free of charge from the Company.
This summary description of the Rights does not purport to
be complete and is qualified in its entirety by reference to
the Rights Agreement, which is incorporated herein by
reference.
Exhibit 5(a)
NYNEX Corporation
1113 Westchester Avenue White Plains, NY 10604-3510
914-644-6424
Raymond F. Burke
Executive Vice President and General Counsel
[NYNEX
LOGO]
May 13, 1994
NYNEX Corporation
1113 Westchester Avenue
White Plains, NY 10604
Dear Sirs:
I am Executive Vice President and General Counsel
of NYNEX Corporation ("NYNEX"), and am familiar with its
activities and its proposed filing under the Securities Act
of 1933, as amended (the "ACT"), of a Registration Statement
on Form S-3 which also constitutes Post-Effective Amendment
No. 1 to Registration Statement No. 33-33592 (collectively,
the "Registration Statement"), relating to the registration
of (i) shares of common stock, $1.00 par value per share, of
NYNEX (the "Common Stock"), (ii) shares of preferred stock,
$1.00 par value per share, of NYNEX (the "Preferred Stock"),
(iii) unsecured senior debt securities of NYNEX (the "Debt
Securities" and, together with the Common Stock and the
Preferred Stock, the "Securities") and (iv) such
indeterminate amount of securities as may be issued upon
conversion of, or exchange for, as the case may be, the
Securities, in an aggregate amount sufficient to result in
gross proceeds to NYNEX of up to U.S. $950,000,000 or the
equivalent thereof in one or more foreign currencies.
The Securities will be sold or delivered from time
to time as set forth in the Registration Statement, any
amendment thereto, the prospectus contained therein and
supplements to the prospectus. The Debt Securities will be
issued under an Indenture, dated as of March 1, 1990, to be
supplemented by a First Supplemental Indenture (as
supplemented, the "Indenture"), from NYNEX to Marine Midland
Bank, as Trustee. In connection with such filing, I am of
the opinion that:
1.NYNEX is a corporation duly organized, validly existing
and in good standing under the laws of the State of
Delaware.
2.Upon the issuance of the Common Stock in accordance
with the terms of resolutions of the Board of
Directors, the shares of Common Stock will have been
duly authorized and, when (i) the Registration
Statement has become effective under the Act and (ii)
the shares of Common Stock have been duly executed,
countersigned and delivered by NYNEX upon purchase
thereof and payment in full therefor as provided in
such resolutions, such shares of Common Stock will be
validly issued, fully paid and nonassessable.
<PAGE>
3.Upon the issuance of the Preferred Stock in accordance
with the terms of resolutions of the Board of Directors
and the filing with the Secretary of State of the State
of Delaware of one or more Certificates of
Designations, the shares of Preferred Stock will have
been duly authorized and, when (i) the Registration
Statement has become effective under the Act and (ii)
the shares of Preferred Stock have been duly executed,
countersigned and delivered by NYNEX upon purchase
thereof and payment in full therefor as provided in
such resolutions, such shares of Preferred Stock will
be validly issued, fully paid and nonassessable.
4.Upon the issuance of the Debt Securities in accordance
with the terms of resolutions of the Board of
Directors, the Debt Securities will have been duly
authorized and, when (i) the Registration Statement has
become effective under the Act and (ii) the Debt
Securities have been duly authenticated in accordance
with the terms of the Indenture and delivered and sold
as provided in such resolutions, the Debt Securities
will be legally issued and valid and binding
obligations of NYNEX.
I hereby consent to the filings with the Securities and
Exchange Commission of this opinion as an exhibit to the
Registration Statement and to the use of my name in the
related prospectus under the heading "Legal Matters".
Very truly yours,
R.F. Burke
R.F. Burke
Exhibit 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------
We consent to the incorporation by reference in this
Registration Statement on Form S-3 (which constitutes Post-
Effective Amendment No. 1 to Registration Statement 33-
33592) of NYNEX Corporation, relating to the registration of
$950 million of equity and debt securities, of our report
dated February 9, 1994 on our audits of the consolidated
financial statements of NYNEX Corporation and its
subsidiaries as of December 31, 1993 and 1992 and for each
of the three years in the period ended December 31, 1993,
which report is incorporated by reference in the 1993 Annual
Report on Form 10-K of NYNEX Corporation. We further
consent to the incorporation by reference in this
Registration Statement of our report dated February 9, 1994
on our audits of the consolidated financial statement
schedules of NYNEX Corporation and its subsidiaries as of
December 31, 1993 and 1992 and for each of the three years
in the period ended December 31, 1993, which
report is included in the 1993 Annual Report on Form 10-K of
NYNEX Corporation.
We consent to the reference to our Firm under the caption
"Experts" in the Prospectus which is part of the
Registration Statement.
Coopers & Lybrand
Coopers & Lybrand
New York, New York
May 16, 1994
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, NYNEX Corporation, a Delaware corporation
(hereinafter referred to as the "Corporation"), proposes to file
with the Securities and Exchange Commission, under the
provisions of the Securities Act of 1933, as amended, a
registration statement (the "Registration Statement"), which
also constitutes Post-Effective Amendment No. 1 to Registration
Statement No. 33-33592 (the "Post-Effective Amendment"), with
respect to (i) shares of common stock, $1.00 par value per share
(the "Common Stock"), accompanied by rights to purchase Junior
Participating Preferred Stock (the "Rights"), (ii) shares of
preferred stock, $1.00 par value per share, in one or more
series (the "Preferred Stock") and/or (iii) unsecured senior
debt securities in one or more series (the "Debt Securities"),
limited to an aggregate offering price of $900,000,000; and
WHEREAS, each of the undersigned is a Director or both a
Director and an Officer of the Corporation;
NOW, THEREFORE, each of the undersigned hereby constitutes
and appoints W. C. Ferguson, F. V. Salerno and P. M. Ciccone,
and each of them severally, as attorneys for the undersigned and
in the undersigned's name, place and stead, and in each of the
undersigned's offices and capacities as a Director or as both a
Director and an Officer of the Corporation, to execute and file
the Registration Statement and the Post-Effective Amendment,
including the related prospectus, with respect to (i) the Common
Stock, accompanied by Rights, (ii) the Preferred Stock, and/or
(iii) the Debt Securities, and thereafter to execute and file
any amended registration statement, limited to an aggregate
offering price of $900,000,000, or statements (including any
post-effective amendments thereto) and amended prospectus or
prospectuses or amendments or supplements to any of the
foregoing, with all exhibits thereto and other documents in
connection therewith, hereby giving and granting to said
attorneys full power and authority to do and perform all and
every act and thing whatsoever requisite, necessary and/or
desirable to be done in and about the premises as fully, to all
intents and purposes, as the undersigned might or could do if
personally present at the doing thereof, hereby ratifying and
confirming all that said attorneys may or shall lawfully do, or
cause to be done, by virtue hereof.
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney this 21st day of April, 1994.
John Brademas Randolph W. Bromery
John Brademas Randolph W. Bromery
Director Director
John J. Creedon Stanlely P.Goldstein
John J. Creedon Stanley P. Goldstein
Director Director
Helene L. Kaplan Elizabeth T. Kennan
Helene L. Kaplan Elizabeth T. Kennan
Director Director
Edward E. Phillips
David J. Mahoney Edward E. Phillips
Director Director
Frederic V. Salerno Ivan G.Seidenberg
Frederic V. Salerno Ivan G. Seidenberg
Director Director
Walter V. Shipley John R. Stafford
Walter V. Shipley John R. Stafford
Director Director
State of New York )
) ss.:
County of New York )
On the 21st day of April, 1994, personally appeared before me
each of the Officers and Directors, all to me known and known to
me to be the persons described in and who executed the foregoing
instrument, and each such person duly acknowledged to me that he
or she executed and delivered the same for the purposes therein
expressed.
Witness my hand and official seal this 21st day of April,
1994.
Hannelore Koller
Notary Public, State of New York
No. 4687105
Qualified in Westchester County
Commission Expires December 31, 1995
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, NYNEX Corporation, a Delaware corporation
(hereinafter referred to as the "Corporation"), proposes to file
with the Securities and Exchange Commission, under the provisions
of the Securities Act of 1933, as amended, a registration
statement (the "Registration Statement"), which also constitutes
Post-Effective Amendment No. 1 to Registration Statement No. 33-
33592 (the "Post-Effective Amendment"), with respect to (i)
shares of common stock, $1.00 par value per share (the "Common
Stock"), accompanied by rights to purchase Junior Participating
Preferred Stock (the "Rights"), (ii) shares of preferred stock,
$1.00 par value per share, in one or more series (the "Preferred
Stock") and/or (iii) unsecured senior debt securities in one or
more series (the "Debt Securities"), limited to an aggregate
offering price of $900,000,000; and
WHEREAS, each of the undersigned is an Officer or both an
Officer and a Director of the Corporation;
NOW, THEREFORE, each of the undersigned hereby constitutes
and appoints W. C. Ferguson,
F. V. Salerno and P. M. Ciccone, and each of them severally, as
attorneys for the undersigned and in the undersigned's name,
place and stead, and in each of the undersigned's offices and
capacities as an Officer or as both an Officer and a Director of
the Corporation, to execute and file the Registration Statement
and the Post-Effective Amendment, including the related
prospectus, with respect to (i) the Common Stock, accompanied by
Rights, (ii) the Preferred Stock, and/or (iii) the Debt
Securities, and thereafter to execute and file any amended
registration statement, limited to an aggregate offering price of
$900,000,000, or statements (including any post-effective
amendments thereto) and amended prospectus or prospectuses or
amendments or supplements to any of the foregoing, with all
exhibits thereto and other documents in connection therewith,
hereby giving and granting to said attorneys full power and
authority to do and perform all and every act and thing
whatsoever requisite, necessary and/or desirable to be done in
and about the premises as fully, to all intents and purposes, as
the undersigned might or could do if personally present at the
doing thereof, hereby ratifying and confirming all that said
attorneys may or shall lawfully do, or cause to be done, by
virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney this 10th day of May, 1994.
W. C. Ferguson F. V. Salerno P. M. Ciccone
W. C. Ferguson F. V. Salerno P. M. Ciccone
Chairman of the Board Vice Chairman Vice President
and Finance and and Comptoller
Chief Executive Office Business Development
State of New York)
) ss.:
County of Westchester)
On the 10th day of May, 1994, personally appeared before me
W. C. Ferguson, F. V. Salerno and P. M. Ciccone, to me known and
known to me to be the persons described in and who executed the
foregoing instrument, and they severally duly acknowledged to me
that they and each of them executed and delivered the same for
the purposes therein expressed.
Witness my hand and official seal this 10th day of May, 1994.
Ina H. Callery
Notary Public State of New York
No.4834371
Qualified in Westchester County
Commission Expires June 30, 1995
Exhibit 25
Conformed Copy
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
_______________
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
_______________
Marine Midland Bank
(Exact name of trustee as specified in its charter)
16-1057879
(I.R.S. Employer
Identification No.)
140 Broadway, New York, N.Y. 10005-1180
(212) 658-1000 (Zip Code)
(Address of principal executive offices)
NYNEX Corporation
(Exact name of obligor as specified in its charter)
Delaware 13-3180909
(State or other jurisdiction (I.R.S.Employer
of incorporation or organization) Identification No.)
1113 Westchester Avenue
White Plains, New York 10604
(914) 644-6400
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
<PAGE>
General
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory
authority to which it is subject.
State of New York Banking Department.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of the Federal Reserve System,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
None
<PAGE>
Item 16. List of Exhibits.
Exhibit
T1A(i) - Copy of the Organization Certificate of
Marine Midland Bank.
T1A(ii) - Certificate of the State of New York Banking
Department dated December 31, 1993 as to the
authority of Marine Midland Bank to
commence business.
T1A(iii) - Not applicable.
T1A(iv) - Copy of the existing By-Laws of Marine
Midland Bank as adopted on January 20, 1994.
T1A(v) - Not applicable.
T1A(vi) - Consent of Marine Midland Bank required by
Section 321(b) of the Trust Indenture Act
of 1939.
T1A(vii) - Copy of the latest report of condition of the
trustee (December 31, 1993), published
pursuant to law or the requirement of its
supervisory or examining authority.
T1A(viii) - Not applicable.
T1A(ix) - Not applicable.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the Trustee, Marine Midland Bank, a trust company organized under
the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of New York and State of
New York on the 9th day of May, 1994.
MARINE MIDLAND BANK
By: /s/ Metin Caner
Metin Caner
Assistant Vice President
<PAGE>
EXHIBIT T1A(i)
ORGANIZATION CERTIFICATE
of
"MARINE MIDLAND BANK"
We, the undersigned, all being of full age, all but one of
us being citizens of the United States and all of us being
residents of the State of New York, having associated ourselves
together for the purpose of forming a trust company under and
pursuant to the Banking Law of the State of New York, do hereby
certify:
First. That the name by which the corporation is to be
known is Marine Midland Bank.
Second. That the place where its principal office is to
be located is Buffalo, New York.
Third. That the amount of its capital stock is to be One
Hundred Eighty-five Million and no/100 Dollars ($185,000,000.00)
and the number of shares into which such capital stock is to be
divided is 1,850,000 with a par value of $100.00 each.
Fourth. The shares are not to be classified as preferred
and common.
If the shares are to be so classified,
(a) The number and par value of shares to be
included in each class are as follows: not applicable.
(b) All the designations, preferences, privileges
and voting powers of the shares of each class, and the
restrictions or qualifications thereof are as follows: not
applicable.
(c) The number of shares of common stock which are
to be reserved for issuance in exchange for preferred shares
or otherwise to replace any capital stock represented by
preferred shares is none.
Fifth. The name, place of residence and citizenship of
each incorporator, and the number of shares subscribed for by each
are:
No. of
Full Name Residence *Citizenship Shares
James H. Cleave New York Canada 0
John M. Endries New York New York 0
Bernard J. Kennedy New York New York 0
Northrup R. Knox New York New York 0
Henry J. Nowak New York New York 0
Sixth. The term of existence of the corporation is to be
perpetual.
- ----------------
* If a citizen of New York or a contiguous state, insert name of such state.
<PAGE>
Seventh. The number of directors is to be not less than
seven or more than thirty.
Eighth. The names of the incorporators who shall be the
directors until the first annual meeting of stockholders are:
James H. Cleave, John M. Endries, Bernard J. Kennedy, Northrup R.
Knox and Henry J. Nowak.
Ninth. The corporation is to exercise the powers
conferred by Section 100 of the Banking Law.
IN WITNESS WHEREOF, We have made, signed and acknowledged
this certificate in duplicate, this 16th day of September, 1993.
/s/ James H. Cleave
/s/ John M. Endries
/s/ Bernard J. Kennedy
/s/ Northrup R. Knox
/s/ Henry J. Nowak
STATE OF NEW YORK )
) ss.:
COUNTY OF ERIE )
On this 16th day of September, 1993, personally appeared
before me James H. Cleave, John M. Endries, Bernard J. Kennedy,
Northrup R. Knox and Henry J. Nowak, to me known to be the persons
described in and who executed the foregoing certificate and
severally acknowledged that they executed the same.
/s/ Helen Kujawa
Notary Public
(Attach County Clerk's certificate
authenticating signature of Notary [NOTARIAL SEAL]
Public who takes acknowledgement)
<PAGE>
Ninth. The corporation is to exercise the powers
conferred by Section 100 of the Banking Law.
IN WITNESS WHEREOF, We have made, signed and acknowledged
this certificate in duplicate, this 16th day of September, 1993.
/s/ James H. Cleave
/s/ John M. Endries
/s/ Bernard J. Kennedy
/s/ Northrup R. Knox
/s/ Henry J. Nowak
STATE OF NEW YORK )
) ss.:
COUNTY OF ERIE )
I, David J. Swarts, Clerk of the County of Erie, and also
Clerk of the Supreme and County Courts for said County, the same
being Courts of Record, do hereby certify that HELEN KUJAWA, whose
name is subscribed to the deposition certificate of acknowledgement
of proof of the annexed instrument, was at the time of taking the
same a NOTARY PUBLIC in and for the State of New York, duly
commissioned and sworn and qualified to act as such throughout the
State of New York; that pursuant to law a commission, or a
certificate of his appointment and qualifications and his autograph
signature, have been filed in my office; that as such Notary Public
he was duly authorized by the laws of the State of New York to
administer oaths and affirmations to receive and certify that
acknowledgement of proof of deeds, mortgages, powers of attorney
and other written instruments for lands, tentaments and
heriditaments to be read in evidence or recorded in this State, to
protect notes and to take and certify affidavits and depositions;
and that I am well acquainted with the handwriting of such Notary
Public, or have compared the signature on the annexed instrument
and with his autograph signature deposited in my office, and
believe that the signature is genuine.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed the seal of said County and Courts at Buffalo, this 17th
day of September, 1993.
[SEAL]
N.P. No. 7502 /s/ David S. Swarts
Clerk
<PAGE>
ORGANIZATION CERTIFICATE
of
"MARINE MIDLAND BANK"
Received this _____ day of ______________, 19____.
_______________________________________________________
Superintendent of Banks
Filed for examination this _____ day of ______________, 19____.
____________________________________________________________
Superintendent of Banks
________________________ by the Banking Board at a meeting
held on the _____ day of ______________, 19____.
_____________________________________________________________
Secretary of the Banking Board
_____________________________________________________ this
_____ day of ______________, 19____.
Superintendent of Banks
Filed in the office of _______________________________
this _____ day of ______________, 19____.
Recorded in the office of ____________________________
this _____ day of ______________, 19____.
<PAGE>
EXHIBIT T1A(ii)
STATE OF NEW YORK
BANKING DEPARTMENT
KNOW ALL MEN BY THESE PRESENTS,
WHEREAS, the organization certificate of MARINE MIDLAND
BANK of Buffalo, New York has heretofore been duly approved and
said MARINE MIDLAND BANK has complied with the provisions of
Chapter 2 of the Consolidated Laws, in respect of the conversion of
MARINE MIDLAND BANK, N.A. into a State trust company under the name
MARINE MIDLAND BANK,
NOW THEREFORE, I, DERICK D. CEPHAS, as Superintendent of
Banks of the State of New York, do hereby authorize the said MARINE
MIDLAND BANK to transact the business of a Trust Company at One
Marine Midland Center, Buffalo, Erie County, within this State.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed the official seal of the Banking Department, this 31st day
of December in the year one thousand nine hundred and ninety-three.
[SEAL]
/s/ Derrick D. Cephas
Superintendent
<PAGE>
(Adopted January 20, 1994)
EXHIBIT T1A (iv)
BY-LAWS
of
MARINE MIDLAND BANK
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1.1 Annual Meeting. The annual meeting of the
stockholders for the election of directors and the transaction of
such other business as may properly come before the meeting shall
be held in April each year at the office of the Bank, One Marine
Midland Center, City of Buffalo, State of New York.
Section 1.2 Special Meetings. Except as otherwise
specifically provided by statute, special meetings of the
stockholders may be called for any purpose at any time by the Board
of Directors, the Chairman of the Board, the President, the Chief
Executive Officer or the Secretary at such place and time and on
such day as may be designated in the notice of meeting. Business
transacted at all special meetings of stockholders shall be
confined to the purposes stated in the notice of meeting.
Section 1.3 Quorum. The holders of a majority of the
stock issued and outstanding, and entitled to vote thereat, present
in person or represented by proxy, shall constitute a quorum at all
meetings of stockholders, unless otherwise provided by law.
Section 1.4 Voting.
a. At any meeting of the stockholders each stockholder
may vote in person or by proxy duly authorized in writing. Each
stockholder shall at every meeting of stockholders be entitled to
one vote for each share of stock held by such stockholder. A
majority of the votes cast shall decide every question or matter
submitted to the stockholders at any meeting, unless otherwise
provided by law or by the Organization Certificate.
b. Any action required to be taken at an annual or
special meeting of stockholders may be taken without a meeting by
written consent setting forth the action and signed by the holders
of all of outstanding shares entitled to vote thereon.
Section 1.5 Notice of Meeting. Written notice of each
meeting of stockholders stating the place, date and hour of the
meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called and the person or persons
calling the meeting, shall be delivered personally or shall be
mailed postage prepaid to each stockholder entitled to vote at such
meeting, directed to the stockholder at his or her address as it
appears on the records of the Bank, not less than ten or more than
50 days before the date of the meeting.
<PAGE>
ARTICLE II
DIRECTORS
Section 2.1 Board of Directors. The Board of Directors
(the "Board") shall have power to manage and administer the
business and affairs of the Bank and, except as expressly limited
by law, all corporate powers of the Bank shall be vested in and may
be exercised by the Board unless such powers are required by
statute, the Organization Certificate or these By-Laws to be
exercised by the stockholders.
Section 2.2 Number and Term. The Board shall consist of
not less than seven or more than thirty directors, the exact number
within such minimum and maximum limits to be fixed and determined
from time to time by resolution of a majority of the entire Board
or by resolution of the stockholders at any meeting of
stockholders. Unless sooner removed or disqualified, each director
shall hold office until the next annual meeting of the stockholders
and until the director's successor has been elected and qualified.
Section 2.3 Organization Meeting. At its first meeting
after each annual meeting of stockholders, the Board shall choose a
Chairman of the Board, a President and a Chief Executive Officer
from its own members and otherwise organize the new Board and
appoint officers of the Bank for the succeeding year.
Section 2.4 Chairman of the Board. The Chairman of the
Board shall preside at all meetings of the Board and of
stockholders and perform such duties as shall be assigned from time
to time by the Board. In the absence of the Chairman of the
Executive Committee, the Chairman of the Board shall act as
Chairman of the Executive Committee. Except as may be otherwise
provided by the By-Laws or the Board, the Chairman of the Board
shall be a member ex officio of all committees authorized by these
By-Laws or the Board. The Chairman of the Board shall be kept
informed by the executive officers about the affairs of the Bank.
Section 2.5 Regular Meetings. The regular meetings of
the Board shall be held each month at the time and location
designated by the Board. No notice of a regular meeting shall be
required if the meeting is held according to a schedule of regular
meetings approved by the Board.
Section 2.6 Special Meetings. Special meetings of the
Board may be called by the Chairman of the Board, the President,
the Chief Executive Officer or the Secretary or at the written
request of any three or more directors. Each member of the Board
shall be given notice stating the time and place of each such
special meeting by telegram, telephone or similar electronic means
or in person at least one day prior to such meeting, or by mail at
least three days prior.
Section 2.7 Quorum. One third of the entire Board shall
constitute a quorum at any meeting, except when otherwise provided
by law. If a quorum is not present at any meeting, a majority of
the directors present may adjourn the meeting, and the meeting may
be held, as adjourned, without further notice provided that a
quorum is then present. The act of a majority of the directors
present at any meeting at which there is a quorum shall be the act
of the Board, unless otherwise specifically provided by statute,
the Organization Certificate or these By-Laws.
Section 2.8 Vacancies. When any vacancy occurs among the
directors, the remaining members of the Board may appoint a
director to fill each such vacancy at any regular meeting of the
Board or at a special meeting called for that purpose. Any
director so appointed shall hold office until the next annual
meeting of the stockholders and until the director's successor has
been elected and qualified, unless sooner displaced.
<PAGE>
Section 2.9 Removal of Directors. Any director may be
removed either with or without cause, at any time, by a vote of the
holders of a majority of the shares of the Bank at any meeting of
stockholders called for that purpose. A director may be removed
for cause by vote of a majority of the entire Board.
Section 2.10 Compensation of Directors. The Board shall
fix the amounts to be paid directors for their services as
directors and for their attendance at the meetings of the Board or
of committees or otherwise. No director who receives a salary from
the Bank shall receive any fee for attending meetings of the Board
or of any of its committees.
Section 2.11 Action by the Board. Except as otherwise
provided by law, corporate action to be taken by the Board shall
mean such action at a meeting of the Board or the Executive
Committee of the Board. Any one or more members of the Board or
any committee may participate in a meeting of the Board or
committee by means of a conference telephone or similar
communications equipment allowing all persons participating in the
meeting to hear each other at the same time. Participation by such
means shall constitute presence in person at a meeting.
Section 2.12 Waiver of Notice. Notice of a meeting need
not be given to any director who submits a signed waiver of notice
before or after the meeting or who attends the meeting without
protesting the lack of such notice prior to or at the commencement
of the meeting.
Section 2.13 Advisory and Regional Boards. The Board,
the Chairman of the Board, the President, the Chief Executive
Officer or any Regional President may establish Advisory Boards or
Regional Boards and committees thereof for any one or more of the
Bank's regions, offices, or departments and make or authorize
appointments to be made thereto. Appointees to such boards and
committees need not be stockholders, directors or officers of the
Bank, and they shall have and perform only such functions as may be
assigned to them by, shall serve at the pleasure of, and shall be
compensated by fees fixed by the Board, the Chairman of the Board,
the President, the Chief Executive Officer or the Regional
President making the appointment.
ARTICLE III
COMMITTEES OF THE BOARD
Section 3.1 Executive Committee.
a. There shall be an Executive Committee which shall be
composed of at least five members elected by the Board from among
its members at its first meeting following the annual meeting of
stockholders to serve for the ensuing year and shall include the
Chairman of the Board, the President, the Chief Executive Officer
and the Chairman of the Executive Committee, all of which offices
may be held by one person. The Chairman of the Board may appoint
one or more directors as alternate members to serve in place of any
absent members of the Executive Committee. Any vacancy in the
Executive Committee shall be filled by the Board, but until its
next regular Board meeting may be filled temporarily by the
Chairman of the Board.
b. The Executive Committee shall possess and exercise all
of the powers of the Board except (i) when the latter is in session
and (ii) as provided otherwise in the New York Banking Law.
<PAGE>
Section 3.2 Chairman of the Executive Committee. The
Board shall appoint one of its members to be Chairman of the
Executive Committee. The Chairman of the Board, the President or
the Chief Executive Officer may at the same time be appointed
Chairman of the Executive Committee. The Chairman of the Executive
Committee shall preside at all meetings of the Executive Committee,
and the Chairman of the Executive Committee shall, in the absence
of the Chairman of the Board, the President and the Chief Executive
Officer, preside at all meetings of stockholders and the Board.
The Chairman of the Executive Committee shall also perform such
other duties and be vested with such other powers as may from time
to time be conferred upon him or her by these By-Laws or as shall
be assigned to him or her from time to time by the Board or the
Chief Executive Officer.
Section 3.3 Meetings of the Executive Committee. Meetings
of the Executive Committee may be called by the Chairman of the
Board, the Chairman of the Executive Committee, the President, the
Chief Executive Officer or the Secretary and may be held at any
place and at any time designated in the notice thereof. Each
member of the Executive Committee shall be given notice stating the
time and place of each such meeting, by telegram, telephone or
similar electronic means or in person at least one day prior to
such meeting, or by mail at least three days prior.
Section 3.4 Examining Committee. The Board shall
designate an Examining Committee, which shall hold office until the
next annual meeting of the Board following the annual meeting of
stockholders, consisting of not less than three of its members,
other than officers of the Bank, and whose duty it shall be to make
an examination at least once during each calendar year and within
15 months of the last such examination into the affairs of the Bank
including the administration of fiduciary powers, or cause suitable
examinations to be made by auditors responsible only to the Board
and to report the result of such examination in writing to the
Board. Such report shall state whether the Bank is in a sound
condition, whether adequate internal controls and procedures are
being maintained and shall recommend to the Board such changes in
the manner of conducting the affairs of the Bank as shall be deemed
advisable. The Committee shall at such time ascertain whether the
Bank's fiduciary responsibilities have been administered in
accordance with law and sound fiduciary principles.
Section 3.5 Other Committees. The Board may appoint,
from time to time, from its own members, committees of the Board of
three or more persons, for such purposes and with such powers as
the Board may determine.
ARTICLE IV
OFFICERS
Section 4.1 Appointment of Officers. At its annual
meeting following the annual meeting of stockholders, the Board
shall appoint from among its members a Chairman of the Board, a
President, a Chief Executive Officer and a Secretary. The Chairman
of the Board or the President may also be appointed as the Chief
Executive Officer. At such meeting, the Board shall also appoint
one or more Vice Presidents, and may at such meeting or at other
meetings of the Board appoint such other officers as it may
determine from time to time. The Board may also authorize a
committee of the Board to appoint such officers as are not required
to be appointed by the Board at a meeting.
Section 4.2 Duties of President. In the absence of the
Chairman of the Board, the President shall preside at all meetings
of the Board and of stockholders and in the absence of the Chairman
of the Executive Committee and the Chairman of the Board shall
preside at all meetings of the Executive Committee. Except as may
<PAGE>
be otherwise provided by the By-Laws or the Board, the President
shall be a member ex officio of all committees authorized by these
By-Laws or the Board. The President shall have general executive
powers, shall participate actively in all major policy decisions
and shall have and may exercise any and all other powers and duties
pertaining by law, regulation or practice to the Office of
President or imposed by these By-Laws. The President shall also
have and may exercise such further powers and duties as from time
to time may be conferred or assigned by the Board or the Chief
Executive Officer.
Section 4.3 Duties of Chief Executive Officer. The Chief
Executive Officer shall exercise general supervision over the
policies and business affairs of the Bank and the carrying out of
the policies adopted or approved by the Board. Except as otherwise
provided by these By-Laws, the Chief Executive Officer shall have
the power to determine the duties of the officers of the Bank and
to employ and discharge officers and employees. Except as otherwise
provided by the By-Laws or the Board, the Chief Executive Officer
shall be a member ex officio of all committees authorized by these
By-Laws or created by the Board. In the absence of the Chairman of
the Board and the President, the Chief Executive Officer shall
preside at all meetings of the Board and of stockholders.
Section 4.4 Duties of Vice Presidents. Each Vice
President shall have such titles, seniority, powers and duties as
may be assigned by the Board, a committee of the Board, the
President or the Chief Executive Officer.
Section 4.5 Secretary. The Secretary shall be Secretary
of the Board and of the Bank and shall keep accurate minutes of all
meetings of stockholders and of the Board. The Secretary shall
attend to the giving of all notices required to be given by these
By-Laws; shall be custodian of the corporate seal, records,
documents and papers of the Bank; shall provide for the keeping of
proper records of all transactions of the Bank; shall have and may
exercise any and all other powers and duties pertaining by law,
regulation or practice to the office of Secretary or imposed by
these By-Laws; and shall also perform such other duties as may be
assigned from time to time by the Board, the president or the Chief
Executive Officer.
Section 4.6 Other Officers. The President or the Chief
Executive Officer or his or her designee may appoint all officers
whose appointment does not require approval by the Board or a
committee of the Board and assign to them such titles as from time
to time may appear to be required or desirable to transact the
business of the Bank. Each such officer shall have such powers and
duties as may be assigned by the Board, the president or the Chief
Executive Officer.
Section 4.7 Tenure of Office. The Chairman of the Board,
the President, the Chief Executive Officer, the Chairman of the
Executive Committee, the Secretary and the Vice Presidents shall
hold office for the current year for which the Board was elected
and until their successors have been appointed and qualified,
unless they shall resign, become disqualified or be removed. All
other officers shall hold office until their successors have been
appointed and qualify, unless they shall resign, become
disqualified or be removed. The Board shall have the power to
remove the Chairman of the Board, the President, the Chief
Executive Officer, the Chairman of the Executive Committee and the
Secretary. The Board or the Chief Executive Officer or his or her
designee shall have the power to remove all other officers and
employees. Any vacancy occurring in the offices of Chairman of the
Board, President or Chief Executive Officer shall be filled
promptly by the Board.
Section 4.8 Compensation. The Board shall by resolution
determine from time to time the officers whose compensation will
require approval by the Board or a committee of the Board. The
Chief Executive Officer shall fix the compensation of all officers
and employees whose compensation does not require approval by the
Board or a committee of the Board.
<PAGE>
Section 4.9 Auditor. The Board or the Chief Executive
Officer shall appoint an officer to fill the position of Auditor
for the Bank and assign to such officer such title as is deemed
appropriate. The Auditor shall perform all duties incident to the
audit of all departments and offices and of all affairs of the
Bank. The Auditor shall be responsible to the Chief Executive
Officer. The Auditor may at any time report to the Board any
matter concerning the affairs of the Bank that, in the Auditor's
judgment, should be brought to its attention.
Section 4.10 Regional Presidents. The Board may appoint
one or more Regional Presidents. Each Regional President shall
have such powers and duties as may be assigned by the Board or the
Chief Executive Officer.
ARTICLE V
FIDUCIARY POWERS
Section 5.10 Fiduciary Responsibility. The Board shall
appoint an officer or officers or a committee or committees of this
Bank whose duties shall be to manage, supervise and direct the
fiduciary activities of the Bank as assigned by the Board. Such
officer or committee shall do or cause to be done all things
necessary or proper in carrying on the assigned activities in
accordance with provisions of law and applicable regulations and
shall act pursuant to opinion of counsel where such opinion is
deemed necessary. Opinions of counsel shall be retained on file in
connection with all important matters pertaining to fiduciary
activities. The officer or committee shall be responsible for all
assets and documents held by the Bank in connection with fiduciary
matters assigned by the Board.
Section 5.11 Fiduciary Files. Files shall be maintained
containing all fiduciary records necessary to assure that fiduciary
responsibilities have been properly undertaken and discharged.
Section 5.12 Fiduciary Investments. Funds held in a
fiduciary capacity shall be invested in accordance with the
instrument establishing the fiduciary relationship and applicable
law. Where such instrument does not specify the character and
class of investments to be made and does not vest in the Bank a
discretion in the matter, funds held pursuant to such instrument
shall be invested in investments in which corporate fiduciaries may
invest under applicable law.
ARTICLE VI
STOCK AND STOCK CERTIFICATES
Section 6.1 Transfers. Shares of the stock of the Bank
shall be transferable on the books of the Bank, only by the person
named in the certificate or by an attorney, lawfully constituted in
writing, and upon surrender of the certificate therefor. Every
person becoming a stockholder by such transfer shall, in proportion
to his or her shares, succeed to all rights of the prior holder of
such shares.
Section 6.2 Stock Certificates. The certificates of
stock of the Bank shall be numbered and shall be entered in the
books of the Bank as they are issued. They shall exhibit the
holder's name and number of shares and shall be signed by the
Chairman of the Board, the President, the Chief Executive Officer
or any Vice President and by the Secretary or an Assistant
Secretary.
<PAGE>
ARTICLE VII
CORPORATE SEAL
Section 7.1 Corporate Seal. The Chairman of the Board,
the President, the Chief Executive Officer, the Secretary or any
Assistant Secretary, a Vice President or Assistant Vice President
or other officer designated by the Board or the Chief Executive
Officer or his or her designee shall have authority to affix the
corporate seal to any document requiring such seal and to attest
the same. Such seal shall be substantially in the following form:
(impression)
( of )
( seal )
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Fiscal Year. The fiscal year of the Bank
shall be the calendar year.
Section 8.2 Execution of Instruments.
a. All agreements, indentures, mortgages, deeds,
conveyances, transfers, certificates, declarations, receipts,
discharges, releases, satisfactions, settlements, petitions,
schedules, accounts, affidavits, bonds, undertakings, proxies and
other instruments or documents may be signed, executed,
acknowledged, verified, delivered or accepted in behalf of the Bank
or in connection with the exercise of the fiduciary powers of the
Bank, by the Chairman of the Board, the President, the Chief
Executive Officer, the Secretary or any other officer or employee
(other than the Auditor) designated by the Board or the Chief
Executive Officer or his or her designee. Any such instruments may
also be executed, acknowledged, verified, delivered or accepted in
behalf of the Bank in such other manner and by such other officers
as the Board may from time to time direct. The provisions of this
Section 8.2 are supplementary to any other provision of these By-
Laws.
b. When required, the Secretary or any officer or agent
designated by the Board or the Chief Executive Officer or his
designee shall countersign and certify all bonds or certificates
issued by the Bank as trustee, transfer agent, registrar or
depository. The Chief Executive Officer or any officer designated
by the Board or the Chief Executive Officer or his or her designee
shall have the power to accept in behalf of the Bank any
guardianship, receivership, executorship or other special or
general trust permitted by law. Each of the foregoing
authorizations shall be at the pleasure of the Board, and each such
authorization by the Chief Executive Officer or his or her designee
also shall be at the pleasure of the Chief Executive Officer.
Section 8.3 Records. The By-Laws and the proceedings of
all meetings of the stockholders, the Board and standing committees
of the Board shall be recorded in appropriate minute books provided
for the purpose. The minutes of each meeting shall be signed by
the Secretary or other officer appointed to act as secretary of the
meeting.
<PAGE>
Section 8.4 Emergency Operations. In the event of war or
warlike damage or disaster of sufficient severity to prevent the
conduct and management of the affairs, business and property of the
Bank by its directors and officers as contemplated by these By-
Laws, any two or more available members of the then-incumbent
Executive Committee shall constitute a quorum of that committee for
the full conduct and management of the affairs, business and
property of the Bank. In the event of the unavailability at such
time of a minimum of two members of the then-incumbent Executive
Committee, any three available directors shall constitute the
Executive Committee for the full conduct and management of the
affairs, business and property of the Bank. This by-law shall be
subject to implementation by resolutions of the Board passed from
time to time for that purpose, and any provisions of these By-Laws
(other than this section) and any resolutions which are contrary to
the provisions of this section or to the provisions of any such
implementary resolutions shall be suspended until it shall be
determined by any interim Executive Committee acting under this
section that it shall be to the advantage of the Bank to resume the
conduct and management of its affairs, business and property under
all of the other provisions of these By-Laws.
Section 8.5 Indemnification.
a. The Bank shall indemnify each person made or
threatened to be made a party to any action or proceeding, whether
civil or criminal, by reason of the fact that such person or such
person's testator or intestate is or was a director or officer of
the Bank, or, while a director or officer, serves or served, at the
request of the Bank, any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise in any
capacity, against judgments, fines, penalties, amounts paid in
settlement and reasonable expenses, including attorney's fees,
incurred in connection with such action or proceeding, or any
appeal therein, provided that no such indemnification shall be made
if a judgment or other final adjudication adverse to such director
or officer establishes that his or her acts were committed in bad
faith or were the result of active and deliberate dishonesty and
were material to the cause of action so adjudicated, or that he or
she personally gained in fact a financial profit or other advantage
to which he or she was not legally entitled, and provided further
that no such indemnification shall be required with respect to any
settlement or other nonjudicated disposition of any threatened or
pending action or proceeding unless the Bank has given its prior
consent to such settlement or other disposition.
b. The Bank shall advance or promptly reimburse upon
request any director or officer seeking indemnification hereunder
for all expenses, including attorneys' fees, reasonably incurred in
defending any action or proceeding in advance or the final
disposition thereof upon receipt of an undertaking by or on behalf
of such person to repay such amount if such person is ultimately
found not to be entitled to indemnification or, where
indemnification is granted, to the extent the expenses so advanced
or reimbursed exceed the amount to which such person is entitled.
c. This Section 8.5 shall be given retroactive effect,
and the full benefits hereof shall be available in respect of any
alleged or actual occurrences, acts or failures to act prior to the
date of the adoption of this Section 8.5. The right to
indemnification of advancement of expenses under this Section 8.5
shall be a contract right.
Section 8.6 Amendments. These By-Laws may be added to,
amended, altered or repealed at any regular meeting of the Board by
a vote of a majority of the total number of the directors, or at
any meeting or stockholders, duly called and held, by a majority of
the stock represented at such meeting.
<PAGE>
I, __________________, CERTIFY that I am the duly
appointed Secretary of Marine Midland Bank and, as such officer,
have access to its official records and the foregoing By-Laws are
the By-Laws of the Bank, and all of them are now lawfully in force
and effect.
IN TESTIMONY WHEREOF, I have hereunto affixed my official
signature and the seal of the Bank, in New York, on _______________.
Secretary
[SEAL]
<PAGE>
EXHIBIT T1A(vi)
Securities and Exchange Commission
Washington, D.C. 20549
Dear Sirs:
Pursuant to Section 321(b) of the Trust Indenture Act of
1939 and subject to the qualifications and limitation of 321(b) and
the other provisions of the Trust Indenture Act of 1939, the
undersigned Marine Midland Bank consents that reports of
examination by Federal, State, Territorial or District authorities
may be furnished by such authorities to the Commission upon request
therefor.
Yours very truly,
MARINE MIDLAND BANK
By:
Metin Caner
Assistant Vice President
Attest:
By:
Eileen M. Hughes
Corporate Trust Officer
<PAGE>
EXHIBIT T1A(vii)
REPORT OF CONDITION
Consolidated Report of Condition of
Marine Midland Bank of Buffalo, New
York and Foreign and Domestic Subsid-
iaries, a member of the Federal Re-
serve System, at the close of bus-
iness on December 31, 1993, pub-
lished in accordance with a call made
by the Federal Reserve Bank of this
District pursuant to the provisions of
the Federal Reserve Act.
(Dollar Amounts in
Thousands)
ASSETS
Cash and balance due from
depositary institutions:
Noninterest-bearing balances
and currency and coin $1,071,645
Interest-bearing balances 1,492,007
Securities 1,919,704
Federal funds sold and
securities purchased under
agreements to resell in
domestic offices of the
bank and of its Edge and
Agreement subsidiaries, and
in IBF's
Federal funds sold 357,000
Securities purchased
under agreements to
resell 593,002
Loans and lease financing
receivables:
Loans and leases, net of
unearned income 9,930,891
LESS: Allowance for loan
and lease losses 342,089
LESS: Allocated transfer
risk reserve 0
<PAGE>
Loans and lease, net of unearned
income, allowance, and reserve 9,588,802
Assets held in trading accounts 1,615,072
Premises and fixed assets
(including capitalized leases) 193,194
Other real estate owned 142,240
Investments in unconsolidated
subsidiaries and associated
companies 0
Customers' liability to this
bank on acceptances outstanding 15,007
Intangible assets 69,056
Other assets 428,500
----------
Total assets 17,485,229
LIABILITIES
Deposits:
In domestic offices 12,377,782
Noninterest-bearing 3,259,659
Interest-bearing 9,118,123
In foreign offices, Edge
and Agreement Subsid-
iaries, and IBF's 1,002,884
Noninterest-bearing 0
Interest-bearing 1,002,884
Federal funds purchased
securities sold under
agreements to repurchase
in domestic offices of
the bank and of its Edge
and Agreement subsidiar-
ies, and in IBF's
Federal funds purchased 1,115,269
Securities sold under
agreements to repurchase 260,530
Demand notes issued to the U.S.
Treasury 300,000
Other borrowed money 510,549
Mortgage indebtedness and
obligations under capital-
ized leases 41,852
Bank's liability on acceptances
executed and outstanding 17,591
Subordinated notes and
debentures 225,000
Other liabilities 317,656
----------
Total Liabilities 16,169,113
<PAGE>
Limited-Life preferred
stock and related surplus 0
EQUITY CAPITAL
Perpetual preferred stock
and related surplus 0
Common Stock 185,000
Surplus
1,182,745
Undivided profits and capital
reserves (51,629)
LESS: Net unrealized loss
on marketable equity
securities 0
Cumulative foreign currency
translation adjustments 0
Total equity capital 1,316,116
----------
Total
Liabilities, limited-life
preferred stock and equity
capital 17,485,229
<PAGE>
I, Gerald A. Ronning, Executive Vice President and Controller
of the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
GERALD A. RONNING
We the undersigned directors, attest to the correctness of
this Report of Condition and declare that it has been examined by
us and to the best of our knowledge and belief has been prepared in
conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true and correct.
James H. Cleave
Director
Bernard J. Kennedy
Director
Northrup R. Knox
Director
