<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 12, 1994.
REGISTRATION NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
ASARCO INCORPORATED
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
NEW JERSEY 13-4924440
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
</TABLE>
180 Maiden Lane
New York, New York 10038
(212) 510-2000
(Address, including zip code and telephone number, including
area code, of registrant's principal executive offices)
Augustus B. Kinsolving, Esq.
ASARCO Incorporated
180 Maiden Lane, New York, New York 10038
(212) 510-2000
(Name, address, including zip code and telephone number,
including area code, of agent for service)
------------------------
COPIES TO:
<TABLE>
<S> <C>
Kevin Keogh, Esq. Kris F. Heinzelman, Esq.
White & Case Cravath, Swaine & Moore
1155 Avenue of the Americas 825 Eighth Avenue
New York, New York 10036 New York, New York 10019-7475
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED(1) PER UNIT(1)(2) OFFERING PRICE(1)(2) FEE
- -------------------------------------------------------------------------------------------------------------------
Primary Offering:
Debt Securities(3)(4)..........
Convertible Debt Securities
(3)(4)(5)................... $300,000,000(2)(6) $300,000,000 $103,448.28
Common Stock(3)(4)(7)..........
Preferred Stock(3)(4)(8).......
Depositary Shares(3)(9)........
Convertible Preferred
Stock(3)(4)(5)..............
Warrants(4)....................
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Secondary Offering:
Common Stock(8)(9)............. 10,353,363 shares $31 13/16 $329,366,360 $113,574.61
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</TABLE>
Notes are on next page
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
- ---------------
(1) In United States dollars or the equivalent thereof in foreign currency or
currency units.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933.
(3) No separate consideration will be received for the Depositary Shares, or
for the Debt Securities, Preferred Stock, Convertible Preferred Stock or
Common Stock which may be issuable upon conversion of or in exchange for
the Convertible Debt Securities or Preferred Stock.
(4) In no event will the aggregate initial price of the Debt Securities,
Convertible Debt Securities, Preferred Stock, Common Stock, Convertible
Preferred Stock and Warrants (collectively, "Securities") offered in the
Primary Offering exceed $300,000,000.
(5) Such indeterminate amounts of Debt Securities and Convertible Debt
Securities, and such indeterminate number of shares of Preferred Stock,
Convertible Preferred Stock and Common Stock, as may be issued upon
conversion or exchange of any Convertible Debt Securities, Preferred Stock
or Convertible Preferred Stock that provide for conversion or exchange into
other securities.
(6) The Common Stock to be issued in the Primary Offering and Secondary
Offering includes Preferred Stock Purchase Rights associated with the
Common Stock under a Shareholder Rights Plan.
(7) Such indeterminate number of Depositary Shares to be evidenced by
Depositary Receipts issued pursuant to a Deposit Agreement. In the event
the Registrant elects to offer to the public fractional interests in shares
of the Preferred Stock registered hereunder, Depositary Receipts will be
distributed to those persons acquiring such fractional interest and the
shares of Preferred Stock will be issued to the Depositary under the
Deposit Agreement.
(8) Calculated pursuant to Rule 457(a), based upon bona fide estimate as of the
date hereof of maximum offering price.
(9) Includes Common Stock that is to be offered and sold outside the United
States either as part of the distribution or within 40 days after the date
of the effective date of this registration statement and the date the
Common Stock is first offered to the public.
<PAGE> 3
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
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAW OF
ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED OCTOBER 12, 1994
PROSPECTUS
ASARCO Incorporated
Debt Securities
Convertible Debt Securities
Common Stock
Preferred Stock
Depositary Shares
Convertible Preferred Stock
Warrants
-----------------------
ASARCO Incorporated ("Asarco" or the "Company") may from time to time offer,
together or separately, (i) its debt securities consisting of debentures, notes
or other unsecured evidences of indebtedness (the "Debt Securities");
(ii) its convertible debt securities (the "Convertible Debt
Securities"), consisting of debentures, notes or other evidences of
indebtedness representing unsecured obligations of the Company
convertible into common stock, without par value (the "Common
Stock") or into Preferred Stock, without par value (the "Preferred
Stock") of the Company; (iii) shares of its Preferred Stock,
which may be represented by Depository Receipts (the "Depositary
Shares") which will represent a fraction of a share of
Preferred Stock; (iv) shares of its Preferred Stock
convertible into Common Stock or another series of Preferred
Stock (the "Convertible Preferred Stock"), which may be
represented by Depositary Shares; and (v) warrants to
purchase securities of the Company as shall be designated
by the Company at the time of the offering (the
"Warrants"), in each case, in amounts, at prices and on
terms to be determined at the time of the offering.
Both the Company and M.I.M. Holdings Limited ("MIM"
or the "Selling Stockholder") may also offer and
sell from time to time shares of the Common Stock.
The Common Stock, the Debt Securities, the
Convertible Debt Securities, the Preferred
Stock, the Convertible Preferred Stock, the
Depositary Shares and the Warrants
are collectively called the "Securities."
The aggregate initial offering price of the Securities offered by the Company
hereby will not exceed $300,000,000 or its equivalent in any other currency or
composite currency determined at the applicable exchange rate at the time of
sale, and the number of shares of Common Stock offered by the Selling
Stockholder hereby will not exceed 10,353,363. The Company will not
receive any of the proceeds from the sale of shares by the Selling
Stockholder.
For each offering of Securities for which this Prospectus is being delivered,
there will be an accompanying Prospectus Supplement (the "Prospectus
Supplement"), which sets forth, where applicable, (i) in the case of Debt
Securities and Convertible Debt Securities, the specific designation,
aggregate principal amount, the denomination, maturity, premium, if any, the
rate (which may be fixed or variable), time and method of calculating payment
of interest, if any, on such Debt Securities or Convertible Debt Securities,
any terms of redemption at the option of the Company or the holder, terms
for sinking fund payments, and with respect to Convertible Debt
Securities, terms for conversion into Common Stock or Preferred Stock;
(ii) in the case of Preferred Stock or Convertible Preferred Stock, the
specific title and stated value, any dividend, liquidation, redemption,
voting and other rights, and any other special terms, including the
terms of any Depositary Shares representing Preferred Stock and terms
for converting Convertible Preferred Stock into other Securities;
(iii) in the case of Common Stock, the number of shares of Common
Stock and the terms of offering thereof; and (iv) in the case of
Warrants, the designation and number, the exercise price, any listing
of the Warrants or the underlying Securities on a securities exchange
and any other terms in connection with the offering, sale and
exercise of the Warrants. If so specified in the applicable
Prospectus Supplement, Debt Securities and Convertible Debt
Securities of a series may be issued in whole or in part in the
form of one or more temporary or permanent global securities. The
Prospectus Supplement will also contain information, as
applicable, about certain United States Federal income tax
considerations relating to the particular Securities offered
thereby.
The Company and the Selling Stockholder may sell the Securities to or through
underwriters, through dealers or agents or directly to purchasers. See "Plan of
Distribution." The accompanying Prospectus Supplement will set 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, the
amounts proposed to be purchased by them, any applicable fee, commission
or discount arrangements with them, the initial public offering price
and the net proceeds to the Company or the Selling Stockholder.
The Common Stock is listed on the New York Stock Exchange under the symbol "AR."
Any shares of Common Stock sold pursuant to a Prospectus Supplement will be
listed on such exchange, subject to an official notice of issuance.
------------------
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 AD-
EQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is October 12, 1994.
<PAGE> 4
AVAILABLE INFORMATION
Asarco is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549 and the following regional offices of the
Commission: New York regional office, Seven World Trade Center, 13th Floor, New
York, New York 10048; and Midwest regional office, Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such
material can be obtained at prescribed rates by writing to the Commission,
Public Reference Section, 450 Fifth Street, N.W., Washington, D.C. 20549. Such
material can also be inspected at the offices of the New York Stock Exchange, 20
Broad Street, New York, New York 10005.
This Prospectus constitutes part of a Registration Statement filed by
Asarco with the Commission under the Securities Act of 1933, as amended (the
"Act"). This Prospectus omits certain of the information contained in the
Registration Statement, and reference is hereby made to the Registration
Statement and to the exhibits relating thereto for further information with
respect to the Company and the Securities offered hereby. Any statements
contained herein concerning the provisions of any document are not necessarily
complete, and, in each instance, reference is made to the copy of such document
filed as an exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this Prospectus the Company's
(i) Annual Report on Form 10-K for the fiscal year ended December 31, 1993, (ii)
Quarterly Reports on Form 10-Q for the quarters ended March 31, and June 30,
1994, (iii) Proxy Statement for the Annual Meeting of Stockholders on April 27,
1994 (filed with the Commission on March 18, 1994) and (iv) Current Report on
Form 8-K dated September 30, 1994 heretofore filed by the Company (Commission
File Number 1-164) with the Commission pursuant to the Exchange Act.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Securities offered hereby shall be deemed to
be incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained 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.
Asarco will provide without charge to each person to whom a copy of this
Prospectus has been delivered, on the request of any such person, a copy of any
or all of the documents referred to above which have been or may be incorporated
in this Prospectus by reference, other than exhibits to such documents (unless
such exhibits are specifically incorporated by reference into such document).
Requests for such copies should be directed to Mr. Augustus B. Kinsolving, Vice
President, General Counsel and Secretary, ASARCO Incorporated, 180 Maiden Lane,
New York, New York 10038, Telephone: (212) 510-2000.
------------------------------------
NO PERSON HAS BEEN AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE HEREBY
TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE
CONTAINED IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER OR AGENT. THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF
AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO WHICH IT RELATES OR
ANY OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES IN ANY
CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL. NEITHER THE
DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE HEREUNDER
OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE
INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
THE DATE HEREOF AND THEREOF.
2
<PAGE> 5
THE COMPANY
Asarco is one of the world's leading producers of nonferrous metals,
principally copper, lead, zinc, silver and gold. Asarco also produces specialty
chemicals and minerals and provides environmental services. Asarco has
substantial equity interests in three mining companies: 15.5% in M.I.M. Holdings
Limited ("MIM"), 52.3% in Southern Peru Copper Corporation ("SPCC") and 23.6% in
Grupo Mexico, S.A. de C.V. ("GMEXICO"). Such companies are referred to herein as
"associated companies."
Asarco's strategy since the mid-1980s has been to transform the Company
into an integrated producer of copper and lead. Once principally a custom
smelter and refiner of ores and concentrates produced by others, Asarco has
evolved during the last decade into one of the world's largest integrated
producers of nonferrous metals. In 1985, Asarco supplied less than 25% of its
copper concentrate and 5% of its lead concentrate requirements; in 1991 Asarco
supplied approximately 76% of its copper concentrate and 43% of its lead
concentrate requirements. With the completion of Asarco's expansion programs in
1993, the Company is now able to supply all of its copper concentrate and 95% of
its lead concentrate requirements for its Missouri lead operations. Since 1988
Asarco has also expanded its specialty chemicals business both by growth of its
existing business and by acquisition, has expanded its minerals business by
acquisition and has entered the hazardous waste management and waste recycling
business.
Asarco or its associated companies operate mines, smelters and refineries
in the United States, Australia, Mexico and Peru. Asarco and its associated
companies together in 1993 accounted for about 13% of the western world mine
production of copper, 22% of lead, 13% of zinc and 13% of silver.
The executive offices of Asarco, a New Jersey corporation organized in
1899, are located at 180 Maiden Lane, New York, New York 10038, telephone number
(212) 510-2000.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, Asarco
intends to use the net proceeds from the sale of the Securities for general
corporate purposes, which may include refinancings of indebtedness, working
capital, capital expenditures and acquisitions. The Company will not receive any
of the proceeds from the sale of shares of Common Stock by the Selling
Stockholder.
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES AND COMBINED
FIXED CHARGES AND PREFERRED SHARE DIVIDEND REQUIREMENTS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
SIX MONTHS ENDED ----------------------------------------
JUNE 30, 1994 1993 1992 1991 1990 1989
---------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
2.1 (a) (a) 1.5 3.5 8.2
</TABLE>
- ---------------
(a) For the years 1992 and 1993, earnings were insufficient to cover fixed
charges by $73.9 million and $135.3 million, respectively.
The ratio of earnings to fixed charges was calculated based on information
from the Company's books and records. In computing the ratio of earnings to
fixed charges, earnings consist of net earnings of the Company and its
consolidated subsidiaries plus taxes on income and fixed charges, plus dividends
received from non-consolidated associated companies accounted for by the equity
method, less interest capitalized net of amount amortized and less equity
earnings of non-consolidated associated companies accounted for by the equity
method. Fixed charges consist of interest costs on borrowed funds, including
capitalized interest, commitment fees, and a reasonable approximation of the
imputed interest on non-capitalized lease payments. There were no preferred
shares outstanding during any of the periods indicated and therefore the ratio
of earnings to combined fixed charges and preferred share dividend requirements
would have been the same as the ratio of earnings to fixed charges for each
period indicated.
3
<PAGE> 6
SELLING STOCKHOLDER
The following table sets forth certain information with respect to MIM's
beneficial ownership of Common Stock, as adjusted to reflect the sale by MIM of
the 10,353,363 shares owned by MIM and registered for possible sale hereby. The
Common Stock is the only class of equity securities of the Company which is
currently outstanding.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY
SHARES BENEFICIALLY OWNED IF ALL
OWNED PRIOR TO REGISTERED
OFFERING NUMBER OF SHARES ARE SOLD
--------------------- SHARES BEING --------------------
SELLING STOCKHOLDER(1) NUMBER PERCENT REGISTERED FOR SALE NUMBER PERCENT
- ------------------------------- --------- ------- ------------------- -------- -------
<S> <C> <C> <C> <C> <C>
M.I.M. Holdings Limited........ 10,353,363 24.7 10,353,363 -0- -0-
</TABLE>
- ---------------
(1) The address of MIM is M.I.M. Plaza, 410 Ann Street, Brisbane, Queensland
4000, Australia.
MIM's decision, subject to market conditions, to sell shares of Asarco is
pursuant to a strategy of concentrating on core businesses over which it has
direct control and which are low cost producers of the core products of those
businesses.
The following is a summary description of a 1981 agreement, as amended in
1985, 1987, 1990 and 1993, between MIM and Asarco (the "Agreement"). This
summary does not purport to be complete and is subject to, and is qualified in
its entirety by reference to, the provisions of the Agreement. A copy of the
Agreement, including the amendments thereto, are exhibits to the Company's Form
10-Q for the second quarter 1981, Form 8-K dated September 30, 1985, Form 8-K
filed on September 30, 1987, Form 8-K filed on September 24, 1990 and Form 8-K
filed on July 15, 1993.
Under the Agreement, MIM has the right to require the Company, under
certain conditions, to register under the Act 1,000,000 or more of the shares of
the Company's Common Stock it owns should MIM wish to sell such shares. Under
the Agreement, with respect to 4,938,400 shares of Asarco Common Stock held by
MIM, MIM must provide Asarco with prior written notice of any proposed sale or
transfer of 1,000,000 or more shares in a single transaction, a group of related
transactions or pursuant to a program of transactions, unless such proposed sale
or transfer is pursuant to an underwritten public offering or to a subsidiary of
MIM. Asarco has the right to purchase all of the shares set forth in such notice
at the price set forth in such notice for 90 days after receipt by Asarco of
such notice. Asarco also has agreed to give MIM prior notice of any registered
public offering by Asarco of its Common Stock for cash and to include at MIM's
request (at MIM's pro rata expense) any shares of the Company's Common Stock
owned by MIM in such offering unless including such shares would, in the opinion
of the underwriter, raise a substantial question as to whether the proposed
offering could be successfully consummated on terms reasonably acceptable to
Asarco. The provisions of the Agreement with respect to Asarco's right of first
refusal expire on a date designated by either party by twelve months' prior
notice (the "Expiration Date").
Under the Agreement, MIM has the right to designate two nominees to
Asarco's Board of Directors so long as MIM owns more than 6,500,000 shares of
Asarco's Common Stock, adjusted for stock dividends or stock splits, and so long
as such ownership constitutes more than 10% of Asarco's Common Stock. Pursuant
to the Agreement, Asarco's management has recommended to Asarco's Board of
Directors that two nominees designated by MIM be included in the slate of
nominees recommended by Asarco's Board of Directors to shareholders for election
as directors. Currently Norman C. Fussell and Peter R. Rowland, the Managing
Director and a director of MIM, respectively, are directors of Asarco. Asarco
has the right to nominate two persons for election to MIM's Board of Directors
so long as Asarco's ownership exceeds 241,718,641 MIM common shares, which shall
be adjusted for stock dividends, stock splits and rights offers and so long as
such ownership constitutes more than 10% of MIM's outstanding common shares.
Asarco now owns sufficient MIM shares to have the right to nominate two
directors of MIM but does not currently intend to exercise this right. In the
Agreement, MIM agreed, subject to certain exceptions, to limit its beneficial
ownership of Asarco's Common Stock to 33 1/3% of the outstanding shares of
Common Stock until the Expiration Date and Asarco agreed to limit its ownership
of MIM's common shares to 40% for the same period.
4
<PAGE> 7
Also, under the Agreement, MIM and Asarco have agreed not to authorize or
otherwise amend their organizational documents to provide for the authorization
of, or issue of, voting securities which would adversely affect in a
discriminatory manner the voting rights of the other party so long as the party
in whose benefit such covenant runs owns 10% of the voting securities of the
other party. The Agreement provides that MIM and Asarco will, prior to any sale,
exchange, transfer or other disposition of any shares of the other party owned
by MIM or Asarco, as the case may be, meet to consult and discuss in good faith
for a period of (except in certain circumstances) no less than 30 days the
effects of such proposed disposition.
DESCRIPTION OF COMMON STOCK
The Company has authorized 80 million shares of Common Stock, without par
value, of which 41,946,555 shares were issued and outstanding as of August 31,
1994. The shares of Common Stock currently outstanding are, and the shares of
Common Stock that may be offered hereby will be, fully paid and non-assessable.
Each holder of Common Stock is entitled to one vote for each share owned of
record on all matters voted upon by stockholders, and a majority vote is
required for all action to be taken by stockholders except for certain
transactions with interested shareholders, for which a vote of 80% of
outstanding shares is required for approval. In the event of a liquidation,
dissolution or winding-up of the Company, the holders of Common Stock are
entitled to share equally and ratably in the assets of the Company, if any,
remaining after the payment of all debts and liabilities of the Company and the
liquidation preference of any outstanding Preferred Stock. The holders of the
Common Stock have no preemptive rights or cumulative voting rights and there are
no redemption, sinking fund or conversion provisions applicable to the Common
Stock.
Holders of Common Stock are entitled to receive dividends if, as and when
declared by the Board of Directors out of funds legally available for such
purpose, subject to the dividend and liquidation rights of any Preferred Stock
that may be issued.
In 1989, the Company adopted a Shareholder Rights Plan and declared a
dividend of one right (as defined therein) for each share of its Common Stock.
In certain circumstances, if a person or group becomes the beneficial owner of
15% or more of the outstanding Common Stock (or in the case of MIM, more than
33 1/3%), with certain exceptions, these rights vest and entitle the holder to
certain share purchase rights. In connection with the Rights dividend, 800,000
shares of Junior Participating Preferred Stock were authorized for issuance upon
exercise of the Rights. See "Description of Preferred Share Purchase
Rights -- Junior Participating Preferred Stock" below.
DESCRIPTION OF PREFERRED STOCK
The following summary contains a description of certain general terms of
the Company's Preferred Stock to which any Prospectus Supplement may relate.
Certain terms of any series of Preferred Stock that may be offered by any
Prospectus Supplement will be described in the Prospectus Supplement relating
thereto. If so indicated in the Prospectus Supplement, the terms of any series
may differ from the terms set forth below. The description of certain provisions
of the Company's Preferred Stock does not purport to be complete and is subject
to and qualified in its entirety by reference to the provisions of the Company's
Restated Certificate of Incorporation, as amended (the "Certificate"), and the
Certificate of Designation (the "Certificate of Designation") relating to each
particular series of Preferred Stock which will be filed or incorporated by
reference, as the case may be, as an exhibit to the Registration Statement of
which this Prospectus is a part at or prior to the time of the issuance of such
Preferred Stock.
GENERAL
Under the Certificate, the Board of Directors of the Company is authorized,
without further stockholder action to provide for the issuance of up to 10
million shares of Preferred Stock. As of September 30, 1994, no shares of
Preferred Stock were issued or outstanding.
The Preferred Stock may be issued in one or more series, with such
designations or titles; dividend rates; any redemption provisions; special or
relative rights in the event of liquidation, dissolution, distribution or
5
<PAGE> 8
winding up of the Company; any sinking fund provisions; any conversion
provisions; any voting rights thereof; and any other preferences, privileges,
powers, rights, qualifications, limitations and restrictions, as shall be set
forth as and when established by the Board of Directors of the Company. The
shares of any series of Preferred Stock will be, when issued, fully paid and
non-assessable and holders thereof will have no preemptive rights in connection
therewith.
The liquidation preference of any series of Preferred Stock is not
necessarily indicative of the price at which shares of such series of Preferred
Stock will actually trade at or after the time of their issuance. The market
price of any series of Preferred Stock can be expected to fluctuate with changes
in market and economic conditions, the financial condition and prospects of the
Company and other factors that generally influence the market price of
securities.
RANK
Any series of Preferred Stock will, with respect to rights on liquidation,
winding up and dissolution, rank (i) senior to all classes of Common Stock and
to all equity securities issued by the Company, the terms of which specifically
provide that such equity securities will rank junior to such series of Preferred
Stock (the "Junior Liquidation Securities"); (ii) on a parity with all equity
securities issued by the Company, the terms of which specifically provide that
such equity securities will rank on a parity with such series of Preferred Stock
("Parity Liquidation Securities"); and (iii) junior to all equity securities
issued by the Company, the terms of which specifically provide that such equity
securities will rank senior to such series of Preferred Stock (the "Senior
Liquidation Securities"). In addition, any series of Preferred Stock will, with
respect to dividend rights, rank (i) senior to all equity securities issued by
the Company, the terms of which specifically provide that such equity securities
will rank junior to such series of Preferred Stock and, to the extent provided
in the applicable Certificate of Designation, to Common Stock; (ii) on a parity
with all equity securities issued by the Company, the terms of which
specifically provide that such equity securities will rank on a parity with such
series of Preferred Stock and, to the extent provided in the applicable
Certificate of Designation, to Common Stock ("Parity Dividend Securities"); and
(iii) junior to all equity securities issued by the Company, the terms of which
specifically provide that such equity securities will rank senior to such series
of Preferred Stock. As used in any Certificate of Designation for these
purposes, the term "equity securities" will not include debt securities
convertible into or exchangeable for equity securities.
DIVIDENDS
Holders of each series of Preferred Stock will be entitled to receive,
when, as and if declared by the Board of Directors of the Company out of funds
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 Preferred
Stock. Dividends will be payable to holders of record of Preferred Stock as they
appear on the books of the Company (or, if applicable, the records of the
Depositary referred to below under "Description of Depositary Shares") on such
record dates as shall be fixed by the Board of Directors. Dividends on any
series of Preferred Stock may be cumulative or non-cumulative.
No full dividends may be declared or paid out of funds set apart for the
payment of dividends on any series of Preferred Stock unless dividends shall
have been paid or set apart for such payment on the Parity Dividend Securities.
If full dividends are not so paid, such series of Preferred Stock shall share
dividends pro rata with the Parity Dividend Securities.
CONVERSION AND EXCHANGE
The Prospectus Supplement for any series of Preferred Stock will state the
terms, if any, on which shares of that series are convertible into shares of
another series of Preferred Stock or Common Stock or exchangeable for another
series of Preferred Stock, Common Stock or Debt Securities of the Company. The
Common Stock of the Company is described above under "Description of Common
Stock."
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REDEMPTION
A series of Preferred Stock may be redeemable at any time, in whole or in
part, at the option of the Company or the holder thereof and may be subject to
mandatory redemption pursuant to a sinking fund or otherwise upon terms and at
the redemption prices set forth in the Prospectus Supplement relating to such
series.
In the event of partial redemptions of Preferred Stock, whether by
mandatory or optional redemption, the shares to be redeemed will be determined
by lot or pro rata, as may be determined by the Board of Directors of the
Company, or by any other method determined to be equitable by the Board of
Directors.
On and after a redemption date, unless the Company defaults in the payment
of the redemption price, dividends will cease to accrue on shares of Preferred
Stock called for redemption and all rights of holders of such shares will
terminate except for the right to receive the redemption price.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the Company, holders of each series of Preferred Stock that ranks senior to the
Junior Liquidation Securities will be entitled to receive out of assets of the
Company available for distribution to shareholders, before any distribution is
made on any Junior Liquidation Securities, including Common Stock, distributions
upon liquidation in the amount set forth in the Prospectus Supplement relating
to such series of Preferred Stock. If the holders of the Preferred Stock of any
series and any other Parity Liquidation Securities are not paid in full, the
holders of the Preferred Stock of such series and the Parity Liquidation
Securities will share ratably in any such distribution of assets of the Company
in proportion to the full liquidation preferences to which each is entitled.
After payment of the full amount of the liquidation preference to which they are
entitled, the holders of such series of Preferred Stock will not be entitled to
any further participation in any distribution of assets of the Company.
VOTING RIGHTS
Except as indicated in the Prospectus Supplement relating to a particular
series of Preferred Stock or except as expressly required by applicable law or
the Company's Certificate, the holders of shares of Preferred Stock will have no
voting rights.
DESCRIPTION OF PREFERRED SHARE PURCHASE RIGHTS
In 1989, the Company adopted a Shareholder Rights Plan (the "Rights Plan")
and declared a dividend of one Preferred Share Purchase Right (a "Right") for
each outstanding share of Common Stock held of record at the close of business
on August 7, 1989. Each Right entitles the registered holder, upon the
occurrence of certain events, to purchase from the Company a unit consisting of
one one-hundredth of a share (a "Unit") of Junior Participating Preferred Stock,
without par value, at a purchase price of $90 per Unit.
As distributed, the Rights will be attached to and will trade together with
the Common Stock. They may be exercised or traded separately only after the
earlier to occur of: (i) 10 days following a public announcement that a person
or group of persons has obtained the right to acquire beneficial ownership of
15% or more of the outstanding Common Stock, or (ii) 10 Business days (or such
later date as the Board of Directors may determine) following the commencement
of a tender offer or exchange offer that would result in a person or group of
persons beneficially owning 15% or more of the outstanding Common Stock. In the
event that a person or group of persons acquires 15% or more of the outstanding
Common Stock (with certain exceptions), each right will thereafter vest and
entitle the holder to receive, upon exercise of the Right, Common Stock having a
value equal to two times the exercise price of that Right. Additionally, if the
Company is acquired in a merger or other business combination, or 50% or more of
the Company's assets or earning power is sold or transferred, each Right shall
thereafter have the right to receive, upon exercise, common stock of the
acquiring company having a value equal to two times the exercise price of that
Right.
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In connection with the Rights Plan, 800,000 shares of Junior Participating
Preferred Stock were authorized for issuance upon exercise of the Rights.
The Company may redeem the Rights at a price of $.01 per Right at any time
until ten days following the date a person or group of persons acquires 15% of
the Company's outstanding Common Stock. The Company may amend the Rights (other
than the basic economic terms of the Rights) at any time without shareholder
approval. The Rights will expire by their terms on August 7, 1999.
Under the Rights Plan, MIM will not be deemed an acquiring person unless
and until it becomes the beneficial owner of more than 33 1/3% of the shares of
outstanding Common Stock.
The existence of the Rights Plan and the Rights may, under certain
circumstances discourage, delay or prevent a change in control of the Company.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below of certain provisions of the Deposit
Agreement (as defined below) and of the Depositary Shares and Depositary
Receipts (as defined below) does not purport to be complete and is subject to
and qualified in its entirety by reference to the forms of Deposit Agreement and
Deposit Receipt, included as exhibits to the Registration Statement of which
this Prospectus is a part.
GENERAL
The Company may, at its option, elect to offer fractional shares of
Preferred Stock, rather than full shares of Preferred Stock. In the event the
Company so elects, the Depositary will issue receipts for Depositary Shares,
each of which will represent a fraction (to be set forth in the Prospectus
Supplement relating to a particular series of Preferred Stock) of a share of a
particular series of Preferred Stock as described below.
The shares of any series of Preferred Stock represented by Depositary
Shares will be deposited under a Deposit Agreement (the "Deposit Agreement")
between the Company and a depositary that is a bank or trust company having its
principal offices in the United States and having a combined capital surplus of
at least $50,000,000 (the "Depositary"). Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share will be entitled, in proportion to
the applicable fraction of a share of Preferred Stock represented by such
Depositary Share, to all the rights and preferences of the Preferred Stock
represented thereby (including dividend, voting, redemption, conversion and
liquidation rights).
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement (the "Depositary Receipts"). The Depositary
Receipts will be distributed to those persons purchasing the fractional shares
of Preferred Stock in accordance with the terms of the offering.
Pending the preparation of definitive Depositary Receipts, the Depositary
may, upon the written order of the Company or any holder of deposited Preferred
Stock, execute and deliver temporary Depositary Receipts which are substantially
identical to, and entitle the holders thereof to all the rights pertaining to,
the definitive Depositary Receipts. Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will be
exchangeable for definitive Depositary Receipts at the Company's expense.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the deposited Preferred Stock to the record
holders of the Depositary Shares relating to such Preferred Stock in proportion
to the numbers of such Depositary Shares owned by such holders.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto. If the Depositary determines that it is not feasible to make
such distribution, it may, with the approval of the Company, sell such property
and distribute the net proceeds from such sale to such holders.
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REDEMPTION OF STOCK
If a series of Preferred Stock represented by Depositary Shares is to be
redeemed, the Depositary Shares will be redeemed from the proceeds received by
the Depositary resulting from the redemption, in whole or in part, of such
series of Preferred Stock held by the Depositary. The Depositary Shares will be
redeemed by the Depositary at a price per Depositary Share equal to the
applicable fraction of the redemption price per share payable in respect of the
shares of Preferred Stock so redeemed. If fewer than all the Depositary Shares
will be redeemed, the Depositary Shares to be redeemed will be selected by the
Depositary by lot or pro rata or by any other equitable method as may be
determined by the Depositary.
VOTING DEPOSITED PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of any series of
deposited Preferred Stock are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the record holders of the
Depositary Shares relating to such series of Preferred Stock. Each record holder
of such Depositary Shares on the record date (which will be the same date as the
record date for the relevant series of Preferred Stock) will be entitled to
instruct the Depositary as to the exercise of the voting rights pertaining to
the amount of the Preferred Stock represented by such holder's Depositary
Shares. The Depositary will endeavor, insofar as practicable, to vote the amount
of such series of Preferred Stock represented by such Depositary Shares in
accordance with such instructions, and the Company will agree to take all
reasonable actions that may be deemed necessary by the Depositary in order to
enable the Depositary to do so. The Depositary will abstain from voting shares
of the Preferred Stock to the extent it does not receive specific instructions
from the holder of Depositary Shares representing such Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of the Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary. However, any amendment which materially
prejudices any substantially existing right of the holders of the Depositary
Shares representing Preferred Stock of any series will not be effective unless
such amendment has been approved by the record holders of a majority of the
Depositary Shares then outstanding. Every holder of an outstanding Depositary
Receipt at the time any such amendment becomes effective shall be deemed, by
continuing to hold such Depositary Receipt to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby. The
Deposit Agreement may be terminated by the Company or by the Depositary only
after (i) all outstanding Depositary Shares have been redeemed; or (ii) each
share of Preferred Stock has been converted into other Preferred Stock or Common
Stock or has been exchanged for Debt Securities; or (iii) there has been a final
distribution in respect of the Preferred Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution has
been distributed to the holders of Depositary Shares.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay all charges of the Depositary in connection with the initial deposit of
the relevant series of Preferred Stock and any redemption of such Preferred
Stock. Holders of Depositary Receipts will pay other transfer and other taxes
and governmental charges and such other charges or expenses as are expressly
provided in the Deposit Agreement to be for their accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Company notice
of its election to do so, and the Company may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or
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trust company having its principal office in the United States and having a
combined capital and surplus of at least $50,000,000.
MISCELLANEOUS
The Depositary will forward all reports and communications from the Company
that are delivered to the Depositary and that the Company is required to furnish
to the holders of the deposited Preferred Stock.
Neither the Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstances beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Depositary under
the Deposit Agreement will be limited to performance in good faith of their
duties thereunder and they will not be obligated to prosecute or defend any
legal proceeding in respect of any Depositary Shares, Depositary Receipts or
shares of Preferred Stock unless satisfactory indemnity is furnished. They may
rely upon written advice of counsel or accountants, or upon information provided
by holders of Depositary Receipts or other persons believed to be competent and
on documents believed to be genuine.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities and the Convertible Debt Securities are to be issued
under an Indenture dated as of October 1, 1994 (the "Indenture"), between the
Company and Chemical Bank, as Trustee (the "Trustee"). The following summary
statements with respect to the Debt Securities and the Convertible Debt
Securities do not purport to be complete and are subject to, and are qualified
in their entirety by reference to, the detailed provisions of the Indenture, the
form of which is filed as an exhibit to the Registration Statement of which this
Prospectus is a part. Capitalized terms are defined in the Indenture unless
otherwise defined herein. Whenever any particular section of the Indenture or
any term defined therein is referred to, such section or definition is
incorporated herein by reference.
GENERAL
The Debt Securities and the Convertible Debt Securities offered hereby will
be limited to an aggregate initial offering price not to exceed U.S.
$300,000,000 or its equivalent in any other currency or composite currency,
determined at the applicable exchange rate at the time of sale. The Indenture
does not limit the amount of Debt Securities or Convertible Debt Securities
which can be issued thereunder and provides that additional Debt Securities or
Convertible Debt Securities may be issued in one or more series thereunder up to
the aggregate principal amount which may be authorized from time to time by the
Company's Board of Directors. The Debt Securities will be unsecured senior
obligations of the Company and will rank equally and ratably with all other
unsecured unsubordinated indebtedness of the Company. The Convertible Debt
Securities may be subordinated to the Senior Indebtedness.
Reference is made to the Prospectus Supplement relating to the particular
Debt Securities or Convertible Debt Securities offered thereby for the following
terms, where applicable, of the Debt Securities or Convertible Debt Securities:
(i) the specific designation of the Debt Securities or Convertible Debt
Securities; (ii) the denominations in which such Debt Securities or Convertible
Debt Securities are authorized to be issued; (iii) the aggregate principal
amount of such Debt Securities or Convertible Debt Securities; (iv) the date or
dates on which the principal of such Debt Securities or Convertible Debt
Securities will mature or the method of determining such date or dates; (v) the
price or prices (expressed as a percentage of the aggregate principal amount
thereof) at which the Debt Securities or Convertible Debt Securities will be
issued; (vi) the rate or rates (which may be fixed or variable) at which such
Debt Securities or Convertible Debt Securities will bear interest, if any, or
the method of calculating such rate or rates; (vii) the times and places where
principal of, premium, if any, and interest, if any, on such Debt Securities or
Convertible Debt Securities will be payable; (viii) the date, if any, after
which such Debt Securities or Convertible Debt Securities may be redeemed and
the redemption prices; (ix) the date or dates on which interest, if any, will be
payable and the record date or dates therefor or the method by which such date
or dates will be determined; (x) the period or periods within which, the price
or prices at which, the currency or currencies (including currency units) in
which, and the terms and conditions upon which, such Debt Securities or
Convertible Debt Securities may be
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redeemed, in whole or in part, at the option of the Company; (xi) the
obligation, if any of the Company to redeem or purchase such Debt Securities or
Convertible Debt Securities pursuant to any sinking fund or analogous
provisions, upon the happening of a specified event or at the option of a holder
thereof and the period or periods within which, the price or prices at which and
the terms and conditions upon which, such Debt Securities or Convertible Debt
Securities shall be redeemed or purchased, in whole or in part, pursuant to such
obligations; (xii) the terms and conditions upon which conversion of such
Convertible Debt Securities will be effected, including the conversion price,
the conversion period and other conversion provisions in addition to or in lieu
of those described below; (xiii) the currency or currency units for which such
Debt Securities or Convertible Debt Securities may be purchased or in which such
Debt Securities or Convertible Debt Securities may be denominated and/or the
currency or currency units in which principal of, premium, if any, and/or
interest, if any, on such Debt Securities or Convertible Debt Securities will be
payable and whether the Company or the holders of any such Debt Securities or
Convertible Debt Securities may elect to receive payments in respect of such
Debt Securities or Convertible Debt Securities in a currency or currency units
other than that in which such Debt Securities or Convertible Debt Securities are
stated to be payable; (xiv) if other than the principal amount thereof, the
portion of the principal amount of such Debt Securities or Convertible Debt
Securities which will be payable upon declaration of the acceleration of the
maturity thereof or the method by which such portion shall be determined; (xv)
the person to whom any interest on any such Debt Security or Convertible Debt
Security shall be payable if other than the person in whose name such Debt
Security or Convertible Debt Security is registered on the applicable record
date; (xvi) any addition to, or modification or deletion of, any Event of
Default or any covenant of the Company specified in the Indenture with respect
to such Debt Securities or Convertible Debt Securities; (xvii) the application,
if any, of such means of defeasance or covenant defeasance as may be specified
for such Debt Securities or Convertible Debt Securities; (xviii) whether such
Debt Securities or Convertible Debt Securities are to be issued in whole or in
part in the form of one or more temporary or permanent global securities and, if
so, the identity of the depositary for such global security or securities; (xix)
whether such Convertible Debt Securities shall be subordinated and subject to
the right to prior payment in full of all Senior Indebtedness; and (xx) any
other special terms pertaining to such Debt Securities or Convertible Debt
Securities. Unless otherwise specified in the applicable Prospectus Supplement,
the Debt Securities or Convertible Debt Securities will not be listed on any
securities exchange. Unless otherwise provided in the applicable Prospectus
Supplement, principal and premium, if any, or interest, if any, will be payable
and the Debt Securities or Convertible Debt Securities may be surrendered for
payment or transferred at the offices of the Trustee as paying and
authenticating agent, provided that payment of interest on Registered Securities
may be made at the option of the Company by check mailed to the address of the
person entitled thereto as it appears in the Security Register. Payment of Debt
Securities or Convertible Debt Securities in bearer form will be made at such
paying agencies outside of the United States as the Company may appoint.
(Sections 301 and 1002)
Unless otherwise specified in the applicable Prospectus Supplement, the
Debt Securities and Convertible Debt Securities will be issued in fully
registered form without coupons in denominations set forth in the Prospectus
Supplement. No service charge will be made for any transfer or exchange of such
Debt Securities or Convertible Debt Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. (Section 305) Where Debt Securities and
Convertible Debt Securities of any series are issued in bearer from, the special
restrictions and considerations, including special offering restrictions and
special Federal income tax considerations, applicable to any such Debt
Securities or Convertible Debt Securities and to payment on and transfer and
exchange of such Debt Securities or Convertible Debt Securities will be
described in the Prospectus Supplement. Bearer Debt Securities and Convertible
Debt Securities will be transferrable by delivery. (Section 305)
Some of the Debt Securities and Convertible Debt Securities may be issued
at a discount (bearing no interest or interest at below market rates) ("Discount
Securities") to be sold at a substantial discount below their stated principal
amount. Federal income tax consequences and other special considerations
applicable to any such Debt Securities and Convertible Debt Securities or any
Debt Securities and Convertible Debt Securities which are denominated in a
currency or composite currency other than United States dollars will be
described in the applicable Prospectus Supplement.
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The Prospectus Supplement for a particular series may indicate terms for
redemption at the option of a Holder. Unless otherwise indicated in the
applicable Prospectus Supplement, the covenants contained in the Indenture and
the Debt Securities or Convertible Debt Securities (as the case may be) would
not provide for redemption at the option of a Holder nor necessarily afford
Holders thereof protection in the event of a highly leveraged or other
transaction that may adversely affect such Holders.
RESTRICTIVE COVENANTS
Definitions.
"Subsidiary" is defined to mean a corporation whose accounts are
consolidated with those of the Company in accordance with generally accepted
accounting principles. (Section 101)
"Significant Subsidiary" is defined to mean any Subsidiary of the Company
which owns a Principal Property and any Subsidiary which owns directly or
indirectly stock of a Significant Subsidiary. (Section 101)
"Consolidated Net Tangible Assets" is defined to mean the aggregate amount
of assets (less applicable reserves and other properly deductible items) after
deducting (a) all current liabilities (excluding any thereof constituting Funded
Debt by reason of being renewable or extendable) and (b) all goodwill, trade
names, trademarks, patents, unamortized debt discount and expense, and other
like intangibles, all as set forth on the most recent balance sheet of the
Company and its consolidated subsidiaries and computed in accordance with
generally accepted accounting principles. (Section 101)
"Funded Debt" is defined to mean all indebtedness for money borrowed having
a maturity of more than 12 months from the date as of which the amount thereof
is to be determined or having a maturity of less than 12 months but by its terms
being renewable or extendable beyond 12 months from such date at the option of
the borrower. (Section 101)
"Principal Property" is defined to mean any smelters, refineries, mines,
concentrators or other facilities, located within the present 50 states of the
United States of America (other than its territories or possessions), owned by
the Company or any Subsidiary and the gross book value of which (without
deduction of any depreciation reserves) on the date as of which the
determination is being made exceeds 3% of Consolidated Net Tangible Assets,
other than any such facility or portion thereof which is pollution control or
other equipment or facility financed by obligations issued by a State or local
government unit and other than any smelters, refineries, mines, concentrators or
facilities or any portions thereof which the Board of Directors of the Company
declares by resolution are not of material importance to the total business
conducted by the Company and its Subsidiaries as an entirety. (Section 101)
"Nonrecourse Obligations" is defined to mean indebtedness or lease payment
obligations substantially related to (i) the acquisition of assets not currently
owned by the Company or any of its Significant Subsidiaries or (ii) the
financing of the construction or improvement of equipment, mines or facilities
involving the development of properties of the Company or any of its Significant
Subsidiaries, as to which the obligee with respect to such indebtedness or
obligation has no recourse to the general corporate funds or the assets, in
general, of the Company or any of its Significant Subsidiaries. (Section 1004)
"Debt" is defined to mean notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed. (Section 1004)
"Attributable Debt" is defined to mean as to any particular Capitalized
Lease under which any Person is at the time liable, at any date as of which the
amount thereof is to be determined, the total net amount of rent required to be
paid by such person under such Capitalized Lease during the remaining primary
term thereof, discounted from the respective due dates thereof to such date at
the rate of interest per annum implicit in the terms of such Capitalized Lease,
as determined in good faith by the Company, compounded semi-annually. The net
amount of rent required to be paid under any such Capitalized Lease for any such
period shall be the amount of the rent payable by the lessee with respect to
such period, after excluding amounts required to be paid on account of
maintenance, repairs, insurance, taxes, assessments, water rates and similar
charges. In the case of any Capitalized Lease which is terminable by the lessee
upon the payment of a penalty, such net
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amount shall also include the amount of such penalty, but shall not include any
rent required to be paid under such Capitalized Lease subsequent to the first
date upon which it may be so terminated. (Section 101)
"Senior Indebtedness" is defined to mean all Debt of the Company, including
principal and interest (and premium, if any) (including, without limitation, any
interest that would accrue but for the occurrence of any event specified in
paragraphs (6) and (7) of "-- Events of Default") on such Debt except (i)
existing subordinated Debt Securities or subordinated Convertible Debt
Securities, (ii) such indebtedness as is by its terms expressly stated to be
junior in right of payment to the subordinated Debt Securities or subordinated
Convertible Debt Securities, and (iii) such indebtedness as is by its terms
expressly stated to rank pari passu with the subordinated Debt Securities or
subordinated Convertible Debt Securities. (Section 101)
RESTRICTIONS ON SECURED DEBT (SECTION 1004)
The Company has covenanted that it will not itself, and will not permit any
Subsidiary to, incur, issue, assume or guarantee any Debt secured after the date
of the Indenture by pledge of, or mortgage or other lien on ("Mortgage"), any
Principal Property of the Company or any Significant Subsidiary, or any shares
of stock or Debt of any Significant Subsidiary without effectively providing
that the Debt Securities or Convertible Debt Securities of all series issued
pursuant to the Indenture (together with, if the Company shall so determine, any
other Debt of the Company or such Significant Subsidiary then existing or
thereafter created which is not subordinate to the Debt Securities or
Convertible Debt Securities) shall be secured equally and ratably with (or, at
the option of the Company, prior to) such secured Debt, so long as such secured
Debt shall be so secured, unless after giving effect thereto, the aggregate
principal amount of all such secured Debt then outstanding which would otherwise
be prohibited, plus all Attributable Debt of the Company and its Significant
Subsidiaries in respect of sale and leaseback transactions (as defined in
"-- Restrictions on Sales and Leasebacks") occurring after the date of the
Indenture which would otherwise be prohibited by the covenant described in
"-- Restrictions on Sales and Leasebacks", would not exceed 10% of Consolidated
Net Tangible Assets. This restriction does not apply to, and there shall be
excluded in computing secured Debt for the purpose of such restriction, Debt
secured by:
(1) Mortgages on property of, or on any shares of stock or Debt of,
any corporation existing at the time such corporation becomes a Significant
Subsidiary;
(2) Mortgages in favor of the Company or any Significant Subsidiary;
(3) Mortgages in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof, or in
favor of any other country, or any political subdivision thereof, to secure
partial, progress, advance or other payments pursuant to any contract or
statute, or Mortgages for taxes, assessments or governmental charges or
levies in each case (i) not then due and delinquent or (ii) the validity of
which is being contested in good faith by appropriate proceedings, and
materialmen's, mechanics', carriers', workmen's, repairmen's, landlord's or
other like Mortgages, or deposits to obtain the release of such Mortgages;
(4) Mortgages on property, shares of stock or Debt existing at the
time of acquisition thereof (including acquisition through merger or
consolidation) or to secure the payment of all or any part of the purchase
price or construction cost thereof or to secure any Debt incurred prior to,
at the time of, or within 180 days after, the acquisition of such property
or shares or Debt or the completion of any such construction for the
purpose of financing all or any part of the purchase price or construction
cost thereof, provided that any such Mortgage shall only extend to the
property acquired or constructed or property on which the acquired or
constructed property is situated;
(5) Mortgages securing obligations issued by a State, territory or
possession of the United States of America, or any political subdivision of
any of the foregoing, to finance the acquisition or construction of
property, and on which the interest is not, in the opinion of tax counsel
of recognized standing or in accordance with a ruling issued by the
Internal Revenue Service, includible in gross income of the holder by
reason of Section 103(a) of the Internal Revenue Code (or any successor to
such provision) as in
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effect at the time of the issuance of such obligations, including, without
limitation, Debt related to the financing of pollution control or other
equipment or facilities financed by State or local government units;
(6) Mortgages created in connection with a project financed, or assets
acquired, with, and created to secure any Nonrecourse Obligations;
(7) Production payments or other related rights of others to the
output of mines, refineries, smelters, concentrators or production
facilities, including project financings, with respect to any property or
assets acquired, constructed or improved by the Company or a Subsidiary
with the proceeds of such project financings or Mortgages to secure payment
of workmen's compensation or to secure performance in connection with
tenders, leases of real property, bids or contracts or to secure (or in
lieu of) surety or appeal bonds and Mortgages made in the ordinary course
of business for similar purposes; and
(8) Any extension, renewal, refunding or replacement (or successive
extensions, renewals, refundings or replacements), as a whole or in part,
of any Mortgage referred to in the foregoing clauses (1) to (7), inclusive;
provided, however, that (i) such extension, renewal, refunding or
replacement Mortgage shall be limited to all or a part of the same
property, shares of stock or Debt that secured the Mortgage extended,
renewed, refunded or replaced (plus improvements on such property) and (ii)
the Debt secured by such Mortgage at such time is not increased.
RESTRICTIONS ON SALES AND LEASEBACKS (SECTION 1005)
The Company has covenanted that it will not itself, and will not permit any
Significant Subsidiary to, enter into any arrangement with any bank, insurance
company or other lender or investor (not including the Company or any
Significant Subsidiary) or to which any such lender or investor is a party,
providing for the leasing by the Company or any such Significant Subsidiary of
any Principal Property which has been or is to be sold or transferred by the
Company or such Significant Subsidiary to such lender or investor or to any
Person to whom funds have been or are to be advanced by such lender or investor
(each, a "sale and leaseback transaction") unless, after giving effect thereto,
the aggregate amount of all Attributable Debt with respect to all such
transactions occurring after the date of the Indenture and existing at such time
plus all secured Debt then outstanding of the Company and its Significant
Subsidiaries incurred after the date of the Indenture which would otherwise be
prohibited by the covenant described in "-- Restrictions on Secured Debt" above,
would not exceed 10% of Consolidated Net Tangible Assets. This restriction does
not apply to, and there shall be excluded from Attributable Debt in any
computation under such restriction, Attributable Debt with respect to any sale
and leaseback transaction if:
(1) the lease in such sale and leaseback transaction is for a period,
including renewals, of not in excess of three years, or
(2) such sale and leaseback transaction is entered into prior to, at
the time of, or within 180 days after the later of the acquisition of the
Principal Property to which such sale and leaseback transaction relates or
the completion of construction thereon, or
(3) the lease in such sale and leaseback transaction secures or
relates to obligations issued by a State, territory or possession of the
United States of America, or any political subdivision of any of the
foregoing, to finance the acquisition or construction of property, and on
which the interest is not, in the opinion of tax counsel of recognized
standing or in accordance with a ruling issued by the Internal Revenue
Service, includible in gross income of the holder by reason of Section
103(a) of the Internal Revenue Code (or any successor to such provision) as
in effect at the time of the issuance of such obligations, including,
without limitation, Debt related to the financing of pollution control or
other equipment or facilities financed by State or local government units,
or
(4) such sale and leaseback transaction is entered into between the
Company and a Significant Subsidiary or between Significant Subsidiaries,
or
(5) such sale and leaseback transaction is created in connection with
a project financed, or assets acquired, with, and such obligation
constitutes, a Nonrecourse Obligation, or
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(6) the Company or a Significant Subsidiary, within 180 days after the
sale or transfer shall have been made by the Company or by any such
Significant Subsidiary, applies an amount not less than the greater of (i)
the net proceeds of the sale of the Principal Property sold and leased back
pursuant to such arrangement or (ii) the fair market value of the Principal
Property so sold and leased back at the time of entering into such
arrangement (as determined by any two of the following officers of the
Company: the Chairman of the Board of Directors, the President, any Vice
President, the Treasurer and the Controller) to (x) the purchase of
property, facilities or equipment (other than the property, facilities or
equipment involved in such sale) which will constitute Principal Property
or (y) the retirement of Funded Debt of the Company or any Significant
Subsidiary; provided, however, that the amount to be applied to the
retirement of Funded Debt of the Company or any Significant Subsidiary
shall be reduced by (i) the principal amount of any Funded Debt (including
the Debt Securities or Convertible Debt Securities of any series) of the
Company or any Significant Subsidiary (or, if the Debt Securities or
Convertible Debt Securities of any series are Original Issue Discount
Securities, such portion of the principal amount as may be due and payable
with respect to such series pursuant to a declaration in accordance with
Section 502 of the Indenture), delivered within 180 days after such sale to
the Trustee or other applicable trustee for retirement and cancellation,
and (ii) the principal amount of Funded Debt, other than any Funded Debt
referred to in the immediately preceding clause (i) of this proviso,
voluntarily retired by the Company or a Significant Subsidiary within 180
days after such sale; and provided, further, that, notwithstanding the
foregoing, no retirement referred to in this clause (y) may be effected by
payment at Maturity or pursuant to any mandatory sinking fund payment or
any mandatory redemption provision.
SUBORDINATION
The Convertible Debt Securities may be subordinated and junior in right of
payment, to the extent set forth in the applicable Prospectus Supplement, to all
"Senior Indebtedness" of the Company as defined in the applicable Prospectus
Supplement.
EVENTS OF DEFAULT (SECTION 501)
The following are Events of Default with respect to Debt Securities or
Convertible Debt Securities of each series:
(1) default in the payment of the principal of, or any premium on, any
of the Debt Securities or Convertible Debt Securities of such series as and
when the same shall become due and payable either at stated maturity, upon
redemption, by declaration or otherwise; or
(2) default in the payment of any installment of interest, if any,
upon any of the Debt Securities or Convertible Debt Securities of such
series as and when it shall become due and payable, and continuance of such
default for a period of 30 days; or
(3) default in the payment of any sinking fund payment, when and as
due and payable by the terms of the Debt Securities or Convertible Debt
Securities of such series; or
(4) default in the performance, or breach, of any covenant or
agreement of the Company in the Indenture or the Debt Securities or
Convertible Debt Securities of such series (other than a covenant or
agreement a default in the performance or a breach of which is otherwise
specified as an Event of Default or which has expressly been included in
the Indenture and designated as being solely for the benefit of series of
Debt Securities or Convertible Debt Securities other than such series), and
continuance of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the holders of at least 25% in
principal amount of the Debt Securities or Convertible Debt Securities of
such series then outstanding, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" under the Indenture; or
(5) a default under any Debt in excess of $25,000,000 of the Company
or any Significant Subsidiary (including a default with respect to Debt
Securities or Convertible Debt Securities of any series other
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than such series) or under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
such indebtedness for money borrowed by the Company or any Significant
Subsidiary (including the Indenture), whether such indebtedness is existing
or shall thereafter be created, which default shall have resulted in such
indebtedness becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, without such
involuntary acceleration having been rescinded or annulled within a period
of 30 days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the holders of at least 25% in aggregate principal amount of the Debt
Securities or Convertible Debt Securities of such series then outstanding a
written notice specifying such default and requiring the Company to cause
such acceleration to be rescinded or annulled and stating that such notice
is a "Notice of Default" under the Indenture; provided, however, that, if
such default shall be remedied or cured by the Company or waived by the
holders of such indebtedness, then the Event of Default under the Indenture
by reason thereof shall be deemed likewise to have been thereupon remedied,
cured or waived without any action on the part of the Trustee or any of the
holders; or
(6) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law then or thereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Company or for all or
substantially all of its property or ordering the winding up or liquidation
of its affairs, and such decree or order shall remain unstayed and in
effect for a period of 90 consecutive days; or
(7) the Company shall commence a voluntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law then or thereafter in effect, or consent to the entry of
an order for relief in an involuntary case under any such law, or consent
to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the
Company or for all or substantially all of its property, or make any
general assignment for the benefit of creditors; or
(8) any other Event of Default provided with respect to Debt
Securities or Convertible Debt Securities of such series.
ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT
If an Event of Default with respect to Debt Securities or Convertible Debt
Securities of any series at the time outstanding occurs and is continuing, then,
and in each and every such case, unless the principal of all of the Debt
Securities or Convertible Debt Securities of such series shall have already
become due and payable, either the Trustee or the holders of not less than 25%
in aggregate principal amount of the Debt Securities or Convertible Debt
Securities of such series then outstanding, by notice in writing to the Company
(and to the Trustee if given by holders), may declare the entire principal
amount (or, if the Debt Securities or Convertible Debt Securities of such series
are Original Issue Discount Securities (as defined in the Indenture), such
portion of the principal as may be specified in the terms of such series) of all
of the Debt Securities or Convertible Debt Securities of such series and any
premium and interest accrued thereon to be due and payable immediately, and upon
any such declaration such principal amount (or specified amount) and any premium
and interest accrued thereon shall become immediately due and payable.
However, at any time after a declaration of acceleration with respect to
Debt Securities or Convertible Debt Securities of any series has been made, but
before a judgment or decree based on such acceleration has been obtained, the
Holders of a majority in principal amount of Outstanding Securities of that
series may, under certain circumstances, rescind and annul such acceleration.
(Section 502) For information as to waiver of defaults, see "Modification and
Waiver."
Reference is made to the Prospectus Supplement relating to each series of
Debt Securities or Convertible Debt Securities which are Discount Securities for
the particular provisions relating to acceleration of the Maturity of a portion
of the principal amount of such Discount Securities upon the occurrence of an
Event of Default and the continuation thereof.
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The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. (Section 603) Subject to such
provisions for indemnification of the Trustee, the Holders of a majority in
principal amount of the Outstanding Securities of any series will have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Debt Securities or Convertible Debt Securities of that series. (Section
512)
The Company is required to furnish to the Trustee annually a statement as
to the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance. (Section 1006)
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company
and the Trustee with the consent of the Holders of 66 2/3% in principal amount
of the Outstanding Securities of each series affected thereby (each such series
voting as a single class); provided, however, that no such modification or
amendment may, without the consent of the Holder of each Outstanding Security
affected thereby, (a) change the Stated Maturity of the principal, or any
installment of principal of or interest on, any Debt Security or Convertible
Debt Security, (b) reduce the principal amount thereof, or reduce any premium
thereof or change the time of payment of any premium thereon, (c) reduce the
rate or change the time of payment of interest thereon, if any, (d) reduce any
amount payable on redemption of any such Security (if any), (e) reduce the
Overdue Rate thereof, (f) change the place or currency of payment of principal
of, or any premium or interest thereon, (g) reduce the amount of principal of
any Discount Security payable upon acceleration of the Maturity thereof or the
amount thereof provable in bankruptcy, (h) impair, if applicable, any right of
repayment at the option of the Holder, (i) impair the right to institute suit
for the enforcement of any payment on or with respect to any Debt Security or
Convertible Debt Security, or (j) reduce the percentage in principal amount of
Outstanding Securities of any series, the consent of the Holders of which is
required for modification or amendment of the Indenture or for waiver of
compliance with certain provisions of the Indenture or for waiver of certain
defaults, or (k) alter or impair the right of any Holder to convert Securities
of any series, if applicable, at the rate and upon the terms established
pursuant to the Indenture. (Section 902)
The Holders of a majority in aggregate principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all Debt Securities or
Convertible Debt Securities of that series waive, insofar as that series is
concerned, compliance by the Company with certain restrictive provisions of the
Indenture. (Section 1007) The Holders of a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all Debt
Securities or Convertible Debt Securities of that series waive any past default
under the Indenture with respect to Debt Securities or Convertible Debt
Securities of that series, except a default not theretofore cured in the payment
of the principal of (or premium, if any) or interest on any Debt Securities or
Convertible Debt Securities of that series or in respect of any provision which
under the Indenture cannot be modified or amended without the consent of the
Holder of each Outstanding Security of that series affected. (Section 513)
The Indenture contains provisions permitting the Company and the Trustee to
enter into one or more supplemental indentures without the consent of the
Holders of any of the Debt Securities or Convertible Debt Securities in order
(i) to evidence the succession of another corporation to the Company and the
assumption of the covenants of the Company by a successor to the Company; (ii)
to add to the covenants of the Company or surrender any right or power of the
Company; (iii) to add additional Events of Default with respect to any series of
Debt Securities or Convertible Debt Securities; (iv) to add to, change or
eliminate any provision affecting Debt Securities or Convertible Debt Securities
not yet issued; (v) to secure the Debt Securities or Convertible Debt
Securities; (vi) to establish the form or terms of Debt Securities or
Convertible Debt Securities; (vii) to evidence and provide for a successor
Trustee; and (viii) to cure any ambiguity or correct any mistake or to correct
any defect or supplement any inconsistent provisions or to make any other
provisions
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with respect to matters or questions arising under the Indenture, provided that
such action does not adversely affect the interests of any Holder of Debt
Securities or Convertible Debt Securities of any series. (Section 901)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate or merge with or into, or transfer or lease
all or substantially all its assets to, any Person, and any other Person may not
consolidate or merge with or into, the Company, unless (i) the Person (if other
than the Company) formed by such consolidation or into which the Company is
merged or which acquires or leases all or substantially all the assets of the
Company is organized and existing under the laws of the United States, any state
thereof or the District of Columbia and expressly assumes all of the Company's
obligations under the Debt Securities or Convertible Debt Securities and under
the Indenture, (ii) immediately after giving effect to such transaction no Event
of Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing (provided that
a transaction will only be deemed to be in violation of this condition (ii) as
to any series of Debt Securities or Convertible Debt Securities as to which such
Event of Default or such event shall have occurred and be continuing), and (iii)
certain other conditions are met.
SATISFACTION, DISCHARGE, AND DEFEASANCE PRIOR TO MATURITY OR REDEMPTION
Covenant Defeasance of any Series
If the Company shall deposit with the Trustee, in trust, at or before
maturity or redemption of the Debt Securities or Convertible Debt Securities of
any series, money and/or Government Obligations in such amounts and maturing at
such times such that the proceeds of such obligations to be received upon the
respective maturities and interest payment dates of such obligations will
provide funds sufficient, without reinvestment, in the opinion of a nationally
recognized firm of independent public accountants, to pay when due the principal
of (and premium, if any) and each installment of principal of (and premium, if
any) and interest on such series of Debt Securities or Convertible Debt
Securities at the Stated Maturity of such principal or installment of principal
or interest, as the case may be, then the Company may omit to comply with
certain of the terms of the Indenture with respect to that series of Debt
Securities or Convertible Debt Securities, including the restrictive covenants
described above, and the Events of Default described in clauses (4) and (5)
under "Events of Default" above shall not apply. Defeasance of Debt Securities
or Convertible Debt Securities of any series is subject to the satisfaction of
certain conditions, including among others: (1) the absence of an Event of
Default or event which, with notice or lapse of time, would become an Event of
Default at the date of the deposit, (2) the delivery to the Trustee by the
Company of an Opinion of Counsel to the effect that Holders of the Debt
Securities or Convertible Debt Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such deposit
and covenant defeasance and will be subject to Federal income tax in the same
amounts and in the same manner and at the same times as would have been the case
if such deposit and covenant defeasance had not occurred, (3) such covenant
defeasance will not cause any Debt Securities or Convertible Debt Securities of
such series then listed on any nationally recognized securities exchange to be
delisted, (4) that such covenant defeasance will not result in a breach of, or
constitute a default under, any instrument by which the Company is bound and (5)
such covenant defeasance shall not cause the Trustee for the Securities of such
series to have conflicting interest for purposes of the Trust Indenture Act with
respect to any securities of the Company. If indicated in the Prospectus
Supplement relating to a series of Debt Securities or Convertible Debt
Securities, in addition to the obligations of the United States of America or
obligations guaranteed by the United States of America, Government Obligations
may include obligations of the government, and obligations guaranteed by such
government, issuing the currency or currency unit in which Debt Securities or
Convertible Debt Securities of such series are payable. (Section 1304)
Defeasance of any Series
Upon the deposit of money or securities as contemplated in the preceding
paragraph and the satisfaction of certain other conditions, the Company may also
omit to comply with its obligation duly and punctually to
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pay the principal of (and premium, if any) and interest on a particular series
of Debt Securities or Convertible Debt Securities, and any Events of Default
with respect thereto shall not apply, and thereafter, the Holders of Debt
Securities or Convertible Debt Securities of such series shall be entitled only
to payment out of the money or securities deposited with the Trustee. (Section
1304) Such conditions include among others: (1) the absence of an Event of
Default or event which, with notice or lapse of time, would become an Event of
Default at the date of the deposit, (2) the delivery to the Trustee by the
Company of an Opinion of Counsel, which refers to or is based on a ruling of the
Internal Revenue Service or a change in the applicable Federal income tax law
occurring after the date of the Indenture, to the effect that Holders of the
Debt Securities or Convertible Debt Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such deposit
and the satisfaction, discharge and defeasance, and will be subject to Federal
income tax in the same amounts and in the same manner and at the same times as
would have been the case if such deposit and defeasance had not occurred, (3)
such defeasance will not cause any Debt Securities or Convertible Debt
Securities of such series then listed on any nationally recognized securities
exchange to be delisted, (4) that such defeasance will not result in a breach
of, or constitute a default under, any instrument by which the Company is bound
and (5) such defeasance shall not cause the Trustee for the Securities of such
series to have a conflicting interest for the purpose of the Trust Indenture Act
with respect to any securities of the Company. (Section 1304)
Federal Income Tax Consequences
Under current Federal income tax law, the deposit and defeasance described
above under "Covenant Defeasance of any Series" will not result in a taxable
event to any Holder of Debt Securities or Convertible Debt Securities or
otherwise affect the Federal income tax consequences of an investment in Debt
Securities or Convertible Debt Securities of any series.
The Federal income tax treatment of the deposit and defeasance described
above under "Defeasance of any Series" is not clear. A deposit and defeasance
may be treated as a taxable exchange of such Debt Securities or Convertible Debt
Securities for beneficial interests in the trust consisting of the deposited
money or securities. In that event, a Holder of Debt Securities or Convertible
Debt Securities would be required to recognize gain or loss equal to the
difference between the Holder's adjusted basis for the Debt Securities or
Convertible Debt Securities and the fair market value of the Holder's beneficial
interest in such trust. Thereafter, such Holder would be required to include in
income a share of the income, gain, and loss of the trust. As described above,
it is a condition to such a deposit and defeasance that the Company obtain an
opinion of tax counsel to the effect that such deposit and defeasance will not
alter the Holder's tax consequences that would have been applicable in the
absence of the deposit and defeasance. Purchasers of the Debt Securities or
Convertible Debt Securities should consult their own advisers with respect to
the tax consequences to them of such deposit and defeasance, including the
applicability and effect of tax laws other than Federal income tax law.
CONVERTIBLE DEBT SECURITIES
The following provisions will apply to Convertible Debt Securities, unless
otherwise provided in the applicable Prospectus Supplement for such Convertible
Debt Securities. The holder of any Convertible Debt Securities will have the
right exercisable at any time prior to maturity, or prior to such other date as
may be specified in the applicable Prospectus Supplement, unless previously
redeemed by the Company, to convert such Convertible Debt Securities into shares
of Common Stock or Preferred Stock of the Company at the conversion price set
forth in the applicable Prospectus Supplement, subject to adjustment. The holder
of Convertible Debt Securities may convert any portion thereof which is $1,000
or any integral multiple of $1,000. In the case of Convertible Debt Securities
called for redemption, conversion rights will expire at the close of business on
the date fixed for the redemption unless the Company shall default in payment of
the redemption price, except that in the case of redemption at the option of the
holder thereof, if applicable, the conversion right will terminate upon receipt
of written notice of the exercise of such option. (Section 1402) In certain
events, the conversion price will be subject to adjustment as set forth in the
applicable Prospectus Supplement. Fractional shares of Common Stock or Preferred
Stock will not be issued upon conversion, but,
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in lieu thereof, the Company will pay a cash adjustment based on the then
current market price for the Common Stock or Preferred Stock. (Section 1406)
Subordination of Convertible Debt Securities
The obligation of the Company to make payment on account of the principal
of, and premium, if any, and interest on the Convertible Debt Securities may be
subordinated and junior in right of payment, to the extent and in the manner set
forth in the Prospectus Supplement relating to any Convertible Debt Securities,
to the prior payment in full of all Senior Indebtedness of the Company.
In the event (a) of any insolvency or bankruptcy proceedings, or any
receivership, dissolution, winding-up total or partial liquidation,
reorganization or other similar proceedings in respect of the Company or a
substantial part of its property, whether voluntary or involuntary, or (b) that
(i) a default shall have occurred with respect to the payment of principal of
(and premium, if any) or any interest on or other monetary amounts due and
payable on any Senior Indebtedness in an amount in excess of $25,000,000 or (ii)
there shall have occurred an event of default (other than a default in the
payment of principal, premium, if any, or interest, or other monetary amounts
due and payable) in respect of any Senior Indebtedness, as defined therein or in
the instrument under which the same is outstanding, permitting the holder or
holders thereof to accelerate the maturity thereof and such default or event of
default shall not have been cured or waived or shall not have ceased to exist,
or (iii) separately with respect to each series of Securities, if immediately
after giving effect to any payment of principal, premium, if any, or interest on
such series of Securities there would occur an event of default (other than a
default in the payment of principal or interest or other monetary amounts due
and payable) in respect of any Senior Indebtedness, as defined therein or in the
instrument under which the same is outstanding, permitting the holder or holders
thereof to accelerate the maturity thereof and such default or event of default
shall not have been cured or waived or shall not have ceased to exist, or (c)
that the principal of and accrued interest on any subordinated Convertible Debt
Securities shall have been declared due and payable upon an Event of Default
pursuant to the Indenture and such declaration shall not have been rescinded and
annulled as provided therein, then the holders of all Senior Indebtedness shall
first be entitled to receive payment of the full amount unpaid thereon, or
provision shall be made, in accordance with the relevant Senior Indebtedness,
for such payment in money or money's worth, before the holders of any of the
subordinated Convertible Debt Securities are entitled to receive any payment on
account of the principal of (and premium, if any) or any interest on the
indebtedness evidenced by such subordinated Convertible Debt Securities or any
cash payments to repurchase such subordinated Convertible Debt Securities at the
option of the holders thereof or otherwise. By reason of such subordination, in
the event of insolvency, creditors of the Company (including holders of
subordinated Convertible Debt Securities) who are not holders of Senior
Indebtedness may recover less, ratably, than holders of Senior Indebtedness.
REGARDING THE TRUSTEE
The Indenture, by reference to Section 315 of the Trust Indenture Act,
provides that, except during the continuance of an Event of Default, the Trustee
shall perform only such duties as are specifically set forth in the Indenture.
During the continuance of any Event of Default, the Trustee shall exercise such
of the rights and powers vested in it under the Indenture and use the same
degree of care and skill in their exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
The Trustee may acquire and hold Debt Securities or Convertible Debt
Securities and, subject to certain conditions, otherwise deal with the Company
as if it were not the Trustee under the Indenture. (Section 605)
The Company maintains deposit accounts and conducts other banking
transactions with the Trustee in the ordinary course of the Company's business.
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DESCRIPTION OF WARRANTS
DEBT WARRANTS
The Company may issue, together with other Securities or separately, Debt
Warrants for the purchase of Debt Securities or Convertible Debt Securities. The
Debt Warrants are to be issued under Debt Warrant Agreements (each a "Debt
Warrant Agreement") to be entered into between the Company and a bank or trust
company, as Debt Warrant Agent (the "Debt Warrant Agent"), all as to be set
forth in a Prospectus Supplement relating to Debt Warrants. A copy of the form
of Debt Warrant Agreement, including the form of Warrant Certificates
representing the Debt Warrants (the "Debt Warrant Certificates"), reflecting the
alternative provisions to be included in the Debt Warrant Agreements that will
be entered into with respect to particular offerings of Debt Warrants, is filed
as an exhibit to the Registration Statement of which this Prospectus forms part.
The following summaries of certain provisions of the Debt Warrant Agreement and
the Debt Warrant Certificates do not purport to be complete and are subject to,
and are qualified in their entirety by reference to, all the provisions of the
Debt Warrant Agreement and the Debt Warrant Certificates, respectively,
including the definitions therein of certain capitalized terms not defined
herein.
General. Reference is made to the applicable Prospectus Supplement for the
terms of Debt Warrants in respect of which this Prospectus is being delivered,
the Debt Warrant Agreement relating to such Debt Warrants and the Debt Warrant
Certificates representing such Debt Warrants, including the following: (1) the
designation, aggregate principal amount and terms of the Debt Securities or
Convertible Debt Securities purchasable upon exercise of such Debt Warrants and
the procedures and conditions relating to the exercise of such Debt Warrants;
(2) the designation and terms of any related Debt Securities or Convertible Debt
Securities with which such Debt Warrants are issued and the number of such Debt
Warrants issued with each such Debt Security or Convertible Debt Security; (3)
the date, if any, on and after which such Debt Warrants and the related Debt
Securities or Convertible Debt Securities will be separately transferable; (4)
the principal amount of Debt Securities or Convertible Debt Securities
purchasable upon exercise of each Debt Warrant and the price at which such
principal amount of Debt Securities or Convertible Debt Securities may be
purchased upon such exercise; (5) the date on which the right to exercise such
Debt Warrants shall commence and the date on which such right shall expire; (6)
if the Debt Securities or Convertible Debt Securities purchasable upon exercise
of such Debt Warrants are original issue discount Debt Securities, a discussion
of Federal income tax considerations applicable thereto; and (7) whether the
Debt Warrants represented by the Debt Warrant Certificates will be issued in
registered or bearer form, and, if registered, where they may be transferred and
registered.
Debt Warrant Certificates will be exchangeable for new Debt Warrant
Certificates of different denominations and Debt Warrants may be exercised at
the corporate trust office of the Debt Warrant Agent or any other office
indicated in the applicable Prospectus Supplement. Prior to the exercise of
their Debt Warrants, holders of Debt Warrants will not have any of the rights of
holders of the Debt Securities or Convertible Debt Securities purchasable upon
such exercise and will not be entitled to payments of principal of (and premium,
if any) or interest, if any, on the Debt Securities or Convertible Debt
Securities purchasable upon such exercise.
Exercise of Debt Warrants. Each Debt Warrant will entitle the holder to
purchase for cash such principal amount of Debt Securities or Convertible Debt
Securities at such exercise price as shall in each case be set forth in, or be
determinable as set forth in, the applicable Prospectus Supplement relating to
the Debt Warrants offered thereby. Debt Warrants may be exercised at any time up
to 5:00 p.m. New York City time on the expiration date set forth in the
applicable Prospectus Supplement. After 5:00 p.m. New York City time on the
expiration date, unexercised Debt Warrants will become void.
Debt Warrants may be exercised as set forth in the applicable Prospectus
Supplement relating to the Debt Warrants. Upon receipt of payment and the Debt
Warrant Certificate properly completed and duly executed at the corporate trust
office of the Debt Warrant Agent or any other office indicated in the applicable
Prospectus Supplement, the Company will, as soon as practicable, forward the
Debt Securities or Convertible Debt Securities purchasable upon such exercise.
If less than all of the Debt Warrants represented by such
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<PAGE> 24
Debt Warrant Certificate are exercised, a new Debt Warrant Certificate will be
issued for the remaining amount of Debt Warrants.
COMMON STOCK WARRANTS
The Company may issue, together with other securities or separately, Common
Stock Warrants for the purchase of Common Stock. The Common Stock Warrants are
to be issued under Common Stock Warrant Agreements (each a "Common Stock Warrant
Agreement") to be entered into between the Company and a bank or trust company,
as Common Stock Warrant Agent (the "Common Stock Warrant Agent"), all as to be
set forth in the applicable Prospectus Supplement relating to Common Stock
Warrants in respect of which this Prospectus is being delivered. A copy of the
form of Common Stock Warrant Agreement, including the form of Warrant
Certificates representing the Common Stock Warrants (the "Common Stock Warrant
Certificates") reflecting the provisions to be included in the Common Stock
Warrant Agreements that will be entered into with respect to particular
offerings of Common Stock Warrants, is filed as an exhibit to the Registration
Statement of which this Prospectus forms part. The following summaries of
certain provisions of the Common Stock Warrant Agreement and the Common Stock
Warrant Certificates do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all the provisions of the Common
Stock Warrant Agreement and the Common Stock Warrant Certificates, respectively,
including the definitions therein of certain capitalized terms not defined
herein.
General. Reference is made to the applicable Prospectus Supplement for the
terms of Common Stock Warrants in respect of which this Prospectus is being
delivered, the Common Stock Warrant Agreement relating to such Common Stock
Warrants and the Common Stock Warrant Certificates representing such Common
Stock Warrants, including the following: (1) the offering price of such Common
Stock Warrants, if any; (2) the procedures and conditions relating to the
exercise of such Common Stock Warrants; (3) the number of shares of Common Stock
purchasable upon exercise of each Common Stock Warrant and the initial price at
which such shares may be purchased upon exercise; (4) the date on which the
right to exercise such Common Stock Warrants shall commence and the date on
which such right shall expire; (5) a discussion of U.S. Federal income tax
considerations applicable to the exercise of Common Stock Warrants; (6) call
provisions of such Common Stock Warrants, if any; and (7) any other terms of the
Common Stock Warrants.
Prior to the exercise of their Common Stock Warrants, holders of the Common
Stock Warrants will not have any of the rights of holders of the Common Stock
purchasable upon such exercise, and will not be entitled to any dividend
payments on the Common Stock purchasable upon such exercise.
Exercise of Stock Warrants. Each Common Stock Warrant will entitle the
holder to purchase for cash such number of shares of Common Stock at such
exercise price as shall in each case be set forth in, or be determinable as set
forth in, the applicable Prospectus Supplement relating to the Common Stock
Warrants offered thereby. Unless otherwise specified in the applicable
Prospectus Supplement, Common Stock Warrants may be exercised at any time up to
5:00 p.m. New York City time on the expiration date set forth in the applicable
Prospectus Supplement. After 5:00 p.m. New York City time on the expiration
date, unexercised Common Stock Warrants will become void.
Common Stock Warrants may be exercised as to be set forth in the applicable
Prospectus Supplement relating to the Common Stock Warrants in respect of which
this Prospectus is being delivered. Upon receipt of payment and the Common Stock
Warrant Certificates properly completed and duly executed at the corporate trust
office of the Common Stock Warrant Agent or any other office indicated in the
applicable Prospectus Supplement, the Company will, as soon as practicable,
forward a certificate representing the number of shares of Common Stock
purchasable upon such exercise. If less than all of the Common Stock Warrants
represented by such Common Stock Warrant Certificate are exercised, a new Common
Stock Warrant Certificate will be issued for the remaining amount of Common
Stock Warrants.
Antidilution Provisions. Unless otherwise specified in the applicable
Prospectus Supplement, the exercise price payable and the number of shares
purchasable upon the exercise of each Common Stock Warrant will be subject to
adjustment in certain events, including (1) the issuance of a stock dividend to
holders of Common Stock or a combination, subdivision or reclassification of
Common Stock; (2) the
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<PAGE> 25
issuance of rights, warrants or options to all holders of Common Stock entitling
the holders thereof to purchase Common Stock for an aggregate consideration per
share less than the current market price per share of the Common Stock; or (3)
any distribution by the Company to the holders of its Common Stock of evidences
of indebtedness of the Company or of assets (excluding cash dividends or
distributions payable out of capital surplus and dividends and distributions
referred to in (1) above). No fractional shares will be issued upon exercise of
Common Stock Warrants, but the Company will pay the cash value of any fractional
shares otherwise issuable.
PREFERRED STOCK WARRANTS
The Company may issue, together with other securities or separately,
Preferred Stock Warrants for the purchase of Preferred Stock or Convertible
Preferred Stock. The Preferred Stock Warrants are to be issued under Preferred
Stock Warrant Agreements (each a "Preferred Stock Warrant Agreement") to be
entered into between the Company and a bank or trust company, as Preferred Stock
Warrant Agent (the "Preferred Stock Warrant Agent"), all as to be set forth in
the applicable Prospectus Supplement relating to the Preferred Stock Warrants in
respect of which this Prospectus is being delivered. A copy of the form of
Preferred Stock Warrant Agreement, including the form of Warrant Certificates
representing the Preferred Stock Warrants (the "Preferred Stock Warrant
Certificates") reflecting the provisions to be included in the Preferred Stock
Warrant Agreements that will be entered into with respect to particular
offerings of Preferred Stock Warrants, is filed as an exhibit to the
Registration Statement of which this Prospectus forms part. The following
summaries of certain provisions of the Preferred Stock Warrant Agreement and the
Preferred Stock Warrant Certificates do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all the
provisions of the Preferred Stock Warrant Agreement and the Preferred Stock
Warrant Certificates, respectively, including the definitions therein of certain
capitalized terms not defined herein.
General. Reference is made to the applicable Prospectus Supplement for the
terms of Preferred Stock Warrants in respect of which this Prospectus is being
delivered, the Preferred Stock Warrant Agreement relating to such Preferred
Stock Warrants and the Preferred Stock Warrant Certificates representing such
Preferred Stock Warrants, including the following: (1) the offering price of
such Preferred Stock Warrants, if any; (2) the procedures and conditions
relating to the exercise of such Preferred Stock Warrants; (3) the number of
shares of Preferred Stock or Convertible Preferred Stock purchasable upon
exercise of such Preferred Stock Warrant and the initial price at which such
shares may be purchased upon exercise; (4) the date on which the right to
exercise such Preferred Stock Warrants shall commence and the date on which such
right shall expire; (5) a discussion of the U.S. Federal income tax
considerations applicable to the exercise of Preferred Stock Warrants; (6) call
provisions of such Preferred Stock Warrants, if any; and (7) any other terms of
the Preferred Stock Warrants.
Prior to the exercise of their Preferred Stock Warrants, holders of
Preferred Stock Warrants will not have any of the rights of holders of the
Preferred Stock or Convertible Preferred Stock purchasable upon such exercise,
and will not be entitled to any dividend payments on the Preferred Stock or
Convertible Preferred Stock purchasable upon such exercise.
Exercise of Stock Warrants. Each Preferred Stock Warrant will entitle the
holder to purchase for cash such number of shares of Preferred Stock or
Convertible Preferred Stock at such exercise price as shall in each case be set
forth in, or be determinable as set forth in, the applicable Prospectus
Supplement relating to the Preferred Stock Warrants offered thereby. Unless
otherwise specified in the applicable Prospectus Supplement, Preferred Stock
Warrants may be exercised at any time up to 5:00 p.m. New York City time on the
expiration date set forth in the applicable Prospectus Supplement. After 5:00
p.m. New York City time on the expiration date, unexercised Preferred Stock
Warrants will become void.
Preferred Stock Warrants may be exercised as to be set forth in the
applicable Prospectus Supplement relating to the Preferred Stock Warrants in
respect of which this Prospectus is being delivered. Upon receipt of payment and
the Preferred Stock Warrant Certificates properly completed and duly executed at
the corporate trust office of the Preferred Stock Warrant Agent or any other
office indicated in the applicable Prospectus Supplement, the Company will, as
soon as practicable, forward a certificate representing the number of shares
23
<PAGE> 26
of Preferred Stock purchasable upon such exercise. If less than all of the
Preferred Stock Warrants represented by such Preferred Stock Warrant Certificate
are exercised, a new Preferred Stock Warrant Certificate will be issued for the
remaining amount of Preferred Stock Warrants.
CURRENCY WARRANTS
The Company may issue, together with Debt Securities or Debt Warrants or
separately, Currency Warrants either in the form of Currency Put Warrants
entitling the holders thereof to receive from the Company the Cash Settlement
Value in U.S. dollars of the right to sell a specified amount of a specified
foreign currency or currency units for a specified amount of U.S. dollars, or in
the form of Currency Call Warrants entitling the holders thereof to receive from
the Company the Cash Settlement Value in U.S. dollars of the right to purchase a
specified amount of a specified foreign currency or currency units for a
specified amount of U.S. dollars. The spot exchange rate of the applicable Base
Currency, upon exercise, as compared to the U.S. dollar, will determine whether
the Currency Warrants have a Cash Settlement Value on any given day prior to
their expiration.
The Currency Warrants are to be issued under a Currency Warrant Agreement
to be entered into between the Company and a bank or trust company, as Currency
Warrant Agent (the "Currency Warrant Agent"), all as to be set forth in the
applicable Prospectus Supplement. A copy of the form of Currency Warrant
Agreement, including the forms of global Warrant Certificates representing the
Currency Put Warrants and Currency Call Warrants (the "Currency Warrant
Certificates"), reflecting the provisions to be included in the Currency Warrant
Agreement that will be entered into with respect to particular offerings of
Currency Warrants, is filed as an exhibit to the Registration Statement of which
this Prospectus forms part. The description of the Currency Warrants contained
herein and the following summaries of certain provisions of the Currency Warrant
Agreement and the Currency Warrant Certificates do not purport to be complete
and are subject to, and are qualified in their entirety by reference to, all the
provisions of the Currency Warrant Agreement and the Currency Warrant
Certificates, respectively, including the definitions therein of certain
capitalized terms not defined herein.
General. Reference is made to the applicable Prospectus Supplement for the
terms of Currency Warrants in respect of which this Prospectus is being
delivered, the Currency Warrant Agreement relating to such Currency Warrants and
the Currency Warrant Certificates representing such Currency Warrants, including
the following: (1) whether such Currency Warrants will be Currency Put Warrants,
Currency Call Warrants, or both; (2) the formula for determining the Cash
Settlement Value, if any, of each Currency Warrant; (3) the procedures and
conditions relating to the exercise of such Currency Warrants; (4) the
circumstances which will cause the Currency Warrants to be deemed to be
automatically exercised; (5) any minimum number of Currency Warrants which must
be exercised at any one time, other than upon automatic exercise; and (6) the
date on which the right to exercise such Currency Warrants will commence and the
date on which such right will expire.
Book-Entry Procedures and Settlement. Except as may otherwise be provided
in the applicable Prospectus Supplement, the Currency Warrants will be issued in
the form of global Currency Warrant Certificates, registered in the name of a
depositary or its nominee. Holders will not be entitled to receive definitive
certificates representing Currency Warrants. A holder's ownership of a Currency
Warrant will be recorded on or through the records of the brokerage firm or
other entity that maintains such holder's account. In turn, the total number of
Currency Warrants held by an individual brokerage firm for its clients will be
maintained on the records of the depositary in the name of such brokerage firm
or its agent. Transfer of ownership of any Currency Warrant will be effected
only through the selling holder's brokerage firm.
Exercise of Currency Warrants. Each Currency Warrant will entitle the
holder to receive the Cash Settlement Value of such Currency Warrant on the
applicable Exercise Date, in each case as such terms will be defined in the
applicable Prospectus Supplement. If not exercised prior to 3:00 p.m., New York
City time, on the fifth New York Business Day preceding the expiration date,
Currency Warrants will be deemed automatically exercised on the expiration date.
24
<PAGE> 27
CORPORATE PROVISIONS
CERTIFICATE OF INCORPORATION AND BY-LAWS
The Company's Restated Certificate of Incorporation (the "Certificate") and
By-laws ("By-laws") provide for the classification of the Company's Board of
Directors into three classes to be elected to staggered three-year terms;
limitations on the shareholders' ability to nominate individuals for election as
directors; and the inclusion of provisions which require that special meetings
of shareholders may only be called by the Chairman of the Board, the President
or the Board pursuant to a resolution approved by a majority of the entire
Board.
The Certificate also provides that the affirmative vote of the holders of
at least 80% of the outstanding shares of all classes of capital stock entitled
to vote, considered as one class, is required to authorize the Company to enter
into certain transactions with any individual, corporation or other person that
is the beneficial owner of more than 10% of the outstanding shares of any class
of capital stock of the Company. Beneficial ownership of shares by a person
includes shares which such person has the right to acquire by agreement or by
exercise of warrants, options or other rights, shares so owned by others with
which such person has an agreement with respect to the acquisition, holding,
voting or disposition of Asarco capital stock or assets, or shares owned by
"affiliates" or "associates" of such person (as such terms are defined in the
rules and regulations of the Commission). The transactions with a 10% beneficial
owner that are subject to such special shareholder approval requirements
include: (a) any merger or consolidation of the Company or of any subsidiary of
the Company with or into such beneficial owner, (b) any sale, lease, exchange or
other disposition of all or any material part of the assets of the Company or of
any subsidiary of the Company to or with such beneficial owner, and (c) any
issuance or transfer of securities of the Company to such beneficial owner. The
special shareholder approval described in this paragraph does not apply to any
agreement for the merger of any subsidiary of the Company with the Company if
the Company is the surviving corporation. No amendment to the provisions of the
Company's Certificate outlined in this paragraph may be made without the
affirmative vote of the holders of at least 80% of the outstanding shares of all
classes of voting stock entitled to vote, considered as one class.
In addition to any vote required by law or by provisions outlined in the
preceding paragraph, the Certificate provides that a majority of the Continuing
Directors (as defined) of the Company must approve certain transactions,
including transactions between the Company and any person (or any affiliate or
associate of such person) who at the time of the transaction or during the
preceding two years was the beneficial owner of 10% or more of the voting stock
of the Company or who has announced the intention of becoming the beneficial
owner of such stock (such person is referred to as an "interested shareholder").
A "Continuing Director" is defined to include the current members of the Board
of Directors and any future members who are not affiliates or associates of an
interested shareholder at the time of the transaction and who either became a
member of the Board before the interested shareholder became or threatened to
become a beneficial owner of 10% of the voting stock or who was nominated or
elected by a majority of the other Continuing Directors. The transactions with
an interested shareholder that are subject to the approval of the Continuing
Directors include: (a) the sale or other disposal of assets or securities to an
interested shareholder or any other arrangement for the benefit of an interested
shareholder where the assets or securities sold or disposed of have a fair
market value of more than $10,000,000 or 1% of the book value of the Company's
consolidated total assets; (b) any arrangement pursuant to which the interested
shareholder or parties related to such interested shareholder would have any
management responsibility over the Company's affairs, other than as a director;
(c) the adoption of any plan or proposal for the liquidation or dissolution of
the Company or any amendment to the Company's By-laws; and (d) any
reclassification of securities, recapitalization or other transaction which has
the effect, directly or indirectly, of increasing an interested shareholder's
proportionate share of the outstanding capital stock of the Company or a
subsidiary. No amendment to the provision of the Company's Certificate outlined
in this paragraph may be made without the affirmative vote of the holders of at
least 80% of the outstanding voting stock of the Company and the holders of at
least a majority of the voting stock who are not affiliated or associated with
the interested shareholder. By act of the Continuing Directors, the Board is
empowered to waive the requirement that such 80% approval and majority approval
be obtained.
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<PAGE> 28
The Company's Board of Directors believes that the provisions described
above will help assure that all of the Company's shareholders will be treated
similarly if certain kinds of business combinations are effected. However, these
provisions also may have the effect of deterring hostile takeovers or delaying
or preventing changes in control or management of the Company, and may make it
more difficult to accomplish certain transactions that are opposed by the
incumbent Board of Directors.
NEW JERSEY LAW AND OTHER LIMITATIONS UPON TRANSACTIONS WITH "INTERESTED
SHAREHOLDERS"
The New Jersey Business Corporation Act provides that in determining
whether a proposal or offer to acquire a corporation is in the best interest of
the corporation, the Board of Directors may, in addition to considering the
effects of any action on shareholders, consider any of the following: (a) the
effects of the proposed action on the corporation's employees, suppliers,
creditors and customers, (b) the effects on the community in which the
corporation operates and (c) the long-term as well as short-term interests of
the corporation and its shareholders, including the possibility that these
interests may best be served by the continued independence of the corporation.
The statute further provides that if, based on these factors, the Board of
Directors determines that any such offer is not in the best interest of the
corporation, it may reject the offer. These provisions may make it more
difficult for a shareholder to challenge the Board of Directors' rejection of,
and may facilitate the Board of Directors' rejection of, an offer to acquire the
Company.
The Company is also subject to the New Jersey Shareholders Protection Act
(the "Protection Act"), which prohibits certain New Jersey corporations from
engaging in business combinations (including mergers, consolidations,
significant asset dispositions and certain stock issuances) with any Interested
Shareholder (defined to include, among others, any person that becomes a
beneficial owner of 10% or more of the affected corporation's voting power) for
five years after such person becomes an Interested Shareholder, unless the
business combination is approved by the Board of Directors prior to the date the
shareholder became an Interested Shareholder. In addition, the Protection Act
prohibits any business combination at any time with an Interested Shareholder
other than a transaction that (i) is approved by the Board of Directors prior to
the date the Interested Shareholder became an Interested Shareholder, or (ii) is
approved by the affirmative vote of the holders of two-thirds of the voting
stock not beneficially owned by the Interested Shareholder, or (iii) satisfies
certain "fair price" and related criteria.
LIMITATION OF LIABILITY AND INDEMNIFICATION MATTERS
The Company has a shareholder-approved By-law provision requiring it to
indemnify its directors and officers to the fullest extent permitted in certain
circumstances, to advance expenses, to maintain insurance and to follow certain
other procedures. Provisions of the Certificate eliminate the personal monetary
liability of directors and officers for breaches of duty, except for (i)
breaches of such person's duty of loyalty, (ii) those instances where such
person is found not to have acted in good faith or in knowing violation of law
and (iii) those instances where such person received an improper personal
benefit as the result of such breach.
TRANSFER AGENT
The transfer agent for the Common Stock is The Bank of New York.
PLAN OF DISTRIBUTION
GENERAL
The Company and the Selling Stockholder may sell Securities to or through
underwriters, and also may sell Securities directly to other purchasers or
through agents.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices.
26
<PAGE> 29
In connection with the sale of Securities, underwriters may receive
compensation from the Company or from purchasers of Securities for whom they may
act as agents in the form of discounts, concessions or commissions.
Underwriters, dealers and agents that participate in the distribution of
Securities may be deemed to be underwriters, and any discounts or commissions
received by them from the Company and any profit on the resale of Securities by
them may be deemed to be underwriting discounts and commissions under the Act.
Any such underwriter or agent will be identified, and any such compensation
received from the Company will be described, in the applicable Prospectus
Supplement.
The Preferred Stock, the Convertible Debt Securities, the Debt Securities,
the Depositary Shares and the Warrants will each be a new issue of Securities
("New Issues") with no established trading market. Underwriters and agents to
whom New Issues are sold by the Company for public offering and sale may make a
market in such New Issues, but such underwriters and agents will not be
obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of the trading market for
the New Issues.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Securities may be
entitled to indemnification by the Company against certain liabilities,
including liabilities under the Act, or to contribution with respect to payments
required to be made in respect thereof.
DELAYED DELIVERY ARRANGEMENTS
If so indicated in the applicable Prospectus Supplement, the Company will
authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase Securities from the Company
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Company. The obligations of any purchaser
under any such contract will be subject to the condition that the purchase of
the Securities shall not at the time of delivery be prohibited under the laws of
the jurisdiction to which such purchaser is subject. The underwriters and such
other persons will not have any responsibility in respect of the validity or
performance of such contracts.
EXPERTS
The financial statements and financial statement schedules included in the
latest Annual Report of the Company on Form 10-K incorporated herein by
reference, have been audited by Coopers & Lybrand, independent accountants, as
stated in their report included in such Form 10-K, and have been incorporated by
reference herein in reliance upon such report given upon the authority of that
firm as experts in accounting and auditing.
With respect to any unaudited interim financial information included in the
Company's Quarterly Reports on Form 10-Q, that are or will be incorporated
herein by reference, Coopers & Lybrand applies limited procedures in accordance
with professional standards for reviews of such information. As stated in any of
its reports that are included in the Company's Quarterly Reports on Form 10-Q
that are or will be incorporated herein by reference, Coopers & Lybrand did not
audit and did not express an opinion on such interim financial information.
Accordingly, the degree of reliance on any of its reports on such information
should be restricted in light of the limited nature of the review procedures
applied. Coopers & Lybrand has advised the Company that it is not subject to the
liability provisions of Section 11 of the Act for any of its reports on such
unaudited interim financial information because those reports are not "reports"
or a "part" of the Registration Statement prepared or certified by an accountant
within the meaning of Sections 7 and 11 of the Act.
27
<PAGE> 30
LEGAL MATTERS
The validity of the issuance of the Securities offered hereby will be
passed upon for the Company by White & Case, New York, New York, and certain
legal matters will be passed upon by Augustus B. Kinsolving, General Counsel of
the Company, and for the underwriters, if any, by Cravath, Swaine & Moore, New
York, New York.
28
<PAGE> 31
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Expenses in connection with the issuance of the securities being registered
hereby are estimated as follows:
<TABLE>
<S> <C>
Registration fee...................................................... $217,022.89
Accounting fees and expenses.......................................... 100,000.00*
Legal fees and expenses............................................... 250,000.00*
Blue Sky and Legal Investment fees and expenses....................... 5,000.00*
Transfer Agent's fees and expenses.................................... 5,000.00*
Printing expenses..................................................... 110,000.00*
Miscellaneous......................................................... 2,977.11*
-----------
Total............................................................ $690,000.00*
==========
</TABLE>
- ---------------
* Subject to future contingencies.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 9 of the Certificate of Incorporation of the Company provides as
follows:
"9. This corporation shall indemnify to the full extent permitted by
law any person made, or threatened to be made, a party to any pending,
threatened or completed civil, criminal, administrative or arbitrative
action, suit or proceeding and any appeal therein (and any inquiry or
investigation which could lead to such action, suit or proceeding) by
reason of the fact that he is or was a director, officer or employee of
this corporation or serves or served any other enterprise as a director,
officer or employee at the request of this corporation. Such right of
indemnification shall inure to the benefit of the legal representative of
any such person."
In April 1987, the Company adopted and its shareholders approved a By-law
amendment which requires it to indemnify directors and officers in certain
circumstances, to advance certain expenses, to obtain indemnification insurance
and to follow specific procedures for determining whether a director or officer
has met applicable standards of conduct. The By-law amendment also establishes a
statute of limitations for certain actions against directors and officers. These
provisions in the Certificate of Incorporation and By-laws are permitted under
Section 14A:3-5 of the New Jersey Business Corporation Act, set forth below.
Section 14A:3-5 of the New Jersey Business Corporation Act governs the
indemnification of directors, officers and employees of the Company. The
following is the text of the Section which became effective February 4, 1989:
"(1) As used in this section,
(a) "Corporate agent" means any person who is or was a director,
officer, employee or agent of the indemnifying corporation or of any
constituent corporation absorbed by the indemnifying corporation in a
consolidation or merger and any person who is or was a director,
officer, trustee, employee or agent of any other enterprise, serving as
such at the request of the indemnifying corporation, or of any such
constituent corporation, or the legal representative of any such
director, officer, trustee, employee or agent;
(b) "Other enterprise" means any domestic or foreign corporation,
other than the indemnifying corporation, and any partnership, joint
venture, sole proprietorship, trust or other enterprise, whether or not
for profit, served by a corporate agent;
II-1
<PAGE> 32
(c) "Expenses" means reasonable costs, disbursements and counsel
fees;
(d) "Liabilities" means amounts paid or incurred in satisfaction of
settlements, judgments, fines and penalties;
(e) "Proceeding" means any pending, threatened or completed civil,
criminal, administrative or arbitrative action, suit or proceeding, and
any appeal therein and any inquiry or investigation which could lead to
such action, suit or proceeding; and
(f) References to "other enterprises" include employee benefit
plans; references to "fines" include any excise taxes assessed on a
person with respect to an employee benefit plan; and references to
"serving at the request of the indemnifying corporation" include any
service as a corporate agent which imposes duties on, or involves
services by, the corporate agent with respect to an employee benefit
plan, its participants, or beneficiaries; and a person who acted in good
faith and in a manner the person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed to the best
interests of the corporation" as referred to in this section.
"(2) Any corporation organized for any purpose under any general or
special law of this State shall have the power to indemnify a corporate
agent against his expenses and liabilities in connection with any
proceeding involving the corporate agent by reason of his being or having
been such a corporate agent, other than a proceeding by or in the right of
the corporation, if
(a) such corporate agent acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation; and
(b) with respect to any criminal proceeding, such corporate agent
had no reasonable cause to believe his conduct was unlawful. The
termination of any proceeding by judgment, order, settlement, conviction
or upon a plea of nolo contendere or its equivalent shall not of itself
create a presumption that such corporate agent did not meet the
applicable standards of conduct set forth in paragraphs 14A:3-5(2)(a)
and 14A:3-5(2)(b).
"(3) Any corporation organized for any purpose under any general or
special law of this State shall have the power to indemnify a corporate
agent against his expenses in connection with any proceeding by or in the
right of the corporation to procure a judgment in its favor which involves
the corporate agent by reason of his being or having been such corporate
agent, if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation. However, in
such proceeding no indemnification shall be provided in respect of any
claim, issue or matter as to which such corporate agent shall have been
adjudged to be liable to the corporation, unless and only to the extent
that the Superior Court or the court in which such proceeding was brought
shall determine upon application that despite the adjudication of
liability, but in view of all circumstances of the case, such corporate
agent is fairly and reasonably entitled to indemnity for such expenses as
the Superior Court or such other court shall deem proper.
"(4) Any corporation organized for any purpose under any general or
special law of this State shall indemnify a corporate agent against
expenses to the extent that such corporate agent has been successful on the
merits or otherwise in any proceeding referred to in subsections 14A:3-5(2)
and 14A:3-5(3) or in defense of any claim, issue or matter therein.
"(5) Any indemnification under subsection 14A:3-5(2) and, unless
ordered by a court, under subsection 14A:3-5(3) may be made by the
corporation only as authorized in a specific case upon a determination that
indemnification is proper in the circumstances because the corporate agent
met the applicable standard of conduct set forth in subsection 14A:3-5(2)
or subsection 14A:3-5(3). Unless otherwise provided in the certificate of
incorporation or bylaws, such determination shall be made
(a) by the board of directors or a committee thereof, acting by a
majority vote of a quorum consisting of directors who were not parties
to or otherwise involved in the proceeding; or
II-2
<PAGE> 33
(b) if such a quorum is not obtainable, or, even if obtainable and
such quorum of the board of directors or committee by a majority vote of
the disinterested directors so directs, by independent legal counsel, in
a written opinion, such counsel to be designated by the board of
directors; or
(c) by the shareholders if the certificate of incorporation or
bylaws or a resolution of the board of directors or of the shareholders
so directs.
"(6) Expenses incurred by a corporate agent in connection with a
proceeding may be paid by the corporation in advance of the final
disposition of the proceeding as authorized by the board of directors upon
receipt of an undertaking by or on behalf of the corporate agent to repay
such amount if it shall ultimately be determined that he is not entitled to
be indemnified as provided in this section.
"(7)(a) If a corporation upon application of a corporate agent has
failed or refused to provide indemnification as required under subsection
14A:3-5(4) or permitted under subsections 14A:3-5(2), 14A:3-5(3) and
14A:3-5(6), a corporate agent may apply to a court for an award of
indemnification by the corporation, and such court
(i) may award indemnification to the extent authorized under
subsections 14A:3-5(2) and 14A:3-5(3) and shall award indemnification to
the extent required under subsection 14A:3-5(4), notwithstanding any
contrary determination which may have been made under subsection
14A:3-5(5); and
(ii) may allow reasonable expenses to the extent authorized by, and
subject to the provisions of, subsection 14A:3-5(6), if the court shall
find that the corporate agent has by his pleadings or during the course
of the proceeding raised genuine issues of fact or law.
(b) Application for such indemnification may be made
(i) in the civil action in which the expenses were or are to be
incurred or other amounts were or are to be paid; or
(ii) to the Superior Court in a separate proceeding. If the
application is for indemnification arising out of a civil action, it
shall set forth reasonable cause for the failure to make application for
such relief in the action or proceeding in which the expenses were or
are to be incurred or other amounts were or are to be paid.
The application shall set forth the disposition of any previous
application for indemnification and shall be made in such manner and
form as may be required by the applicable rules of court or, in the
absence thereof, by direction of the court to which it is made. Such
application shall be upon notice to the corporation. The court may also
direct that notice shall be given at the expense of the corporation to
the shareholders and such other person as it may designate in such
manner as it may require.
"(8) The indemnification and advancement of expenses provided by or
granted pursuant to the other subsections of this section shall not exclude
any other rights, including the right to be indemnified against liabilities
and expenses incurred in proceedings by or in the right of the corporation,
to which a corporate agent may be entitled under a certificate of
incorporation, bylaw, agreement, vote of shareholders, or otherwise;
provided that no indemnification shall be made to or on behalf of a
corporate agent if a judgment or other final adjudication adverse to the
corporate agent establishes that his acts or omissions (a) were in breach
of his duty of loyalty to the corporation or its shareholders, as defined
in subsection (3) of N.J.S. 14A:2-7, (b) were not in good faith or involved
a knowing violation of law or (c) resulted in receipt by the corporate
agent of an improper personal benefit.
"(9) Any corporation organized for any purpose under any general or
special law of this State shall have the power to purchase and maintain
insurance on behalf of any corporate agent against any expenses incurred in
any proceeding and any liabilities asserted against him by reason of his
being or having been a corporate agent, whether or not the corporation
would have the power to indemnify him against such expenses and liabilities
under the provisions of this section. The corporation may purchase such
insurance
II-3
<PAGE> 34
from, or such insurance may be reinsured in whole or in part by, an insurer
owned by or otherwise affiliated with the corporation, whether or not such
insurer does business with other insureds.
"(10) The powers granted by this section may be exercised by the
corporation, notwithstanding the absence of any provision in its
certificate of incorporation or bylaws authorizing the exercise of such
powers.
"(11) Except as required by subsection 14A:3-5(4), no indemnification
shall be made or expenses advanced by a corporation under this section, and
none shall be ordered by a court, if such action would be inconsistent with
a provision of the certificate of incorporation, a bylaw, a resolution of
the board of directors or of the shareholders, an agreement or other proper
corporate action, in effect at the time of the accrual of the alleged cause
of action asserted in the proceeding, which prohibits, limits or otherwise
conditions the exercise of indemnification powers by the corporation or the
rights of indemnification to which a corporate agent may be entitled.
"(12) This section does not limit a corporation's power to pay or
reimburse expenses incurred by a corporate agent in connection with the
corporate agent's appearance as a witness in a proceeding at a time when
the corporate agent has not been made a party to the proceeding."
The Company has various insurance policies, which became effective April
15, 1994, insuring directors and officers against certain liabilities they may
incur, including liabilities under the Securities Act of 1933, as amended. The
policies provide coverage for claims not reimbursed by the Company up to an
aggregate limit of $75 million without deductible. For claims which are
reimbursed by the Company, the policies provide coverage up to $75 million with
a deductible of $1 million. These policies remain in effect.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENTS
- ------ -------------------------------------------------------------------------------
<C> <S> <C>
1.1 Form of Underwriting Agreement between the Company and the underwriters named therein
for Common Stock, Preferred Stock, Convertible Preferred Stock, Debt Securities,
Convertible Debt Securities, Depositary Shares and Warrants.
1.2 Form of Underwriting Agreement among the Company, MIM and the underwriters named
therein for Common Stock.*
3.1 Certificate of Incorporation
(a) Certificate of Incorporation -- restated, filed May 4, 1970
(Filed as an Exhibit to the Company's 1980 Annual Report on Form 10-K and
incorporated herein by reference)
(b) Certificate of Amendment to the Certificate of Incorporation effective April
23, 1975
(Filed as an Exhibit to the Company's 1980 Annual Report on Form 10-K and
incorporated herein by reference)
(c) Certificate of Amendment of Certificate of Incorporation executed April 14,
1981
(Filed as an Exhibit to the Post-Effective Amendment No. 8 to Registration
Statement No. 2-47616, filed April 30, 1981 and incorporated herein by
reference)
(d) Certificate of Amendment of Restated Certificate of Incorporation filed on May
6, 1985
(Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1985 and incorporated herein by reference)
(e) Certificate of Amendment of Certificate of Incorporation filed July 21, 1986
(Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1986 and incorporated herein by reference)
</TABLE>
II-4
<PAGE> 35
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENTS
- ------ -------------------------------------------------------------------------------
<C> <S> <C>
(f) Certificate of Amendment of Restated Certificate of Incorporation, as amended,
filed April 22, 1987
(Filed as an Exhibit to the Company's 1987 Annual Report on Form 10-K and
incorporated herein by reference)
(g) Statement of Cancellation filed July 31, 1987 whereby 155,000 shares of Series
A Cumulative Preferred Stock and 862,500 shares of $9.00 Convertible
Exchangeable Preferred Stock were cancelled
(Filed as an Exhibit to the Company's 1987 Annual Report on Form 10-K and
incorporated herein by reference)
(h) Statement of Cancellation filed November 20, 1987 whereby 1,026,900 shares of
Series A Cumulative Preferred Stock were cancelled
(Filed as an Exhibit to the Company's 1987 Annual Report on Form 10-K and
incorporated herein by reference)
(i) Statement of Cancellation filed December 18, 1987 whereby 1,250,000 shares of
Series B Cumulative Convertible Preferred Stock were cancelled
(Filed as an Exhibit to the Company's 1987 Annual Report on Form 10-K and
incorporated herein by reference)
(j) Statement of Cancellation filed March 3, 1988 whereby 27,000 shares of Series A
Cumulative Preferred Stock were cancelled
(Filed as an Exhibit to the Company's 1987 Annual Report on Form 10-K and
incorporated herein by reference)
(k) Certificate of Amendment of Restated Certificate of Incorporation, as amended,
filed August 7, 1989
(Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1989 and incorporated herein by reference)
3.2 By-Laws as last amended on June 26, 1991
(Filed as an Exhibit to the Company's 1991 Annual Report on Form 10-K and
incorporated herein by reference)
4.1 Form of Indenture between the Company and Chemical Bank, as Trustee, for Debt
Securities and Convertible Debt Securities
4.2 Form of Deposit Agreement between the Company and the Depositary, for Depositary
Shares and Depositary Receipts
4.3 Form of Common Stock Warrant Agreement
4.4 Form of Preferred Stock Warrant Agreement
4.5 Form of Debt Warrant Agreement
4.6 Form of Currency Warrant Agreement
5.1 Opinion of White & Case
12.1 Statement re Computation of Consolidated Ratio of Earnings to Fixed Charges and
Combined Fixed Charges and Preferred Share Dividend Requirements
15.1 Letter re Unaudited Interim Financial Information
23.1 Consent of Coopers & Lybrand
23.2 Consent of White & Case (contained in its opinion filed as Exhibit 5.1)
25.1 Statement of Eligibility of Trustee
</TABLE>
- ---------------
* To be filed by amendment.
II-5
<PAGE> 36
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 the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in this Registration Statement shall be
deemed to be a new Registration Statement relating to the securities
offered herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(5) That, for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this Registration Statement as of the time it was declared
effective.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-6
<PAGE> 37
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 12th day of
October, 1994.
ASARCO INCORPORATED
By: /s/ RICHARD DE J. OSBORNE
--------------------------
Richard de J. Osborne
Chairman of the Board,
Chief Executive Officer and
President
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints and
hereby authorizes Kevin R. Morano and Augustus B. Kinsolving, and each of them,
as attorney-in-fact, to sign in such person's behalf, individually and in each
capacity stated below, and to file any amendments, including post-effective
amendments to this Registration Statement.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES STATED BELOW ON THE 12TH DAY OF OCTOBER, 1994.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------- ------------------------------------- ---------------
<S> <C> <C>
/s/ RICHARD DE J. OSBORNE Chairman of the Board, Chief October 12, 1994
- ------------------------------------- Executive Officer and President
(Richard de J. Osborne)
/s/ KEVIN R. MORANO Vice President, and Chief Financial October 12, 1994
- ------------------------------------- Officer (Principal Financial Officer)
(Kevin R. Morano)
/s/ RONALD J. O'KEEFE Controller (Principal Accounting October 12, 1994
- ------------------------------------- Officer)
(Ronald J. O'Keefe)
/s/ WILLARD C. BUTCHER Director October 12, 1994
- -------------------------------------
(Willard C. Butcher)
/s/ JAMES C. COTTING Director October 12, 1994
- -------------------------------------
(James C. Cotting)
Director
- -------------------------------------
(Norman C. Fussell)
Director
- -------------------------------------
(David C. Garfield)
</TABLE>
II-7
<PAGE> 38
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------- ------------------------------------- ---------------
<S> <C> <C>
/s/ DR. E. GORDON GEE Director October 12, 1994
- -------------------------------------
(Dr. E. Gordon Gee)
/s/ HARRY HOLIDAY, JR. Director October 12, 1994
- -------------------------------------
(Harry Holiday, Jr.)
/s/ JAMES W. KINNEAR, III Director October 12, 1994
- -------------------------------------
(James W. Kinnear, III)
/s/ FRANCIS R. MCALLISTER Executive Vice President and Director October 12, 1994
- -------------------------------------
(Francis R. McAllister)
/s/ MARTHA T. MUSE Director October 12, 1994
- -------------------------------------
(Martha T. Muse)
/s/ MICHAEL T. NELLIGAN Director October 12, 1994
- -------------------------------------
(Michael T. Nelligan)
/s/ JOHN D. ONG Director October 12, 1994
- -------------------------------------
(John D. Ong)
/s/ PETER R. ROWLAND Director October 12, 1994
- -------------------------------------
(Peter R. Rowland)
/s/ JAMES WOOD Director October 12, 1994
- -------------------------------------
(James Wood)
</TABLE>
II-8
<PAGE> 39
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENTS PAGE
- ------ ------------------------------------------------------------------------- ----
<C> <S> <C> <C>
1.1 Form of Underwriting Agreement between the Company and the underwriters named
therein for Common Stock, Preferred Stock, Convertible Preferred Stock, Debt
Securities, Convertible Debt Securities, Depositary Shares and Warrants.
1.2 Form of Underwriting Agreement among the Company, MIM and the underwriters
named therein for Common Stock.*
3.1 Certificate of Incorporation
(a) Certificate of Incorporation -- restated, filed May 4, 1970
(Filed as an Exhibit to the Company's 1980 Annual Report on Form 10-K and
incorporated herein by reference)
(b) Certificate of Amendment to the Certificate of Incorporation effective
April 23, 1975
(Filed as an Exhibit to the Company's 1980 Annual Report on Form 10-K and
incorporated herein by reference)
(c) Certificate of Amendment of Certificate of Incorporation executed April
14, 1981
(Filed as an Exhibit to the Post-Effective Amendment No. 8 to
Registration Statement No. 2-47616, filed April 30, 1981 and incorporated
herein by reference)
(d) Certificate of Amendment of Restated Certificate of Incorporation filed
on May 6, 1985
(Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1985 and incorporated herein by reference)
(e) Certificate of Amendment of Certificate of Incorporation filed July 21,
1986
(Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1986 and incorporated herein by reference)
(f) Certificate of Amendment of Restated Certificate of Incorporation, as
amended, filed April 22, 1987
(Filed as an Exhibit to the Company's 1987 Annual Report on Form 10-K and
incorporated herein by reference)
(g) Statement of Cancellation filed July 31, 1987 whereby 155,000 shares of
Series A Cumulative Preferred Stock and 862,500 shares of $9.00
Convertible Exchangeable Preferred Stock were cancelled
(Filed as an Exhibit to the Company's 1987 Annual Report on Form 10-K and
incorporated herein by reference)
(h) Statement of Cancellation filed November 20, 1987 whereby 1,026,900
shares of Series A Cumulative Preferred Stock were cancelled
(Filed as an Exhibit to the Company's 1987 Annual Report on Form 10-K and
incorporated herein by reference)
(i) Statement of Cancellation filed December 18, 1987 whereby 1,250,000
shares of Series B Cumulative Convertible Preferred Stock were cancelled
(Filed as an Exhibit to the Company's 1987 Annual Report on Form 10-K and
incorporated herein by reference)
(j) Statement of Cancellation filed March 3, 1988 whereby 27,000 shares of
Series A Cumulative Preferred Stock were cancelled
(Filed as an Exhibit to the Company's 1987 Annual Report on Form 10-K and
incorporated herein by reference)
</TABLE>
II-9
<PAGE> 40
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENTS PAGE
- ------ ------------------------------------------------------------------------- ----
<C> <S> <C> <C>
(k) Certificate of Amendment of Restated Certificate of Incorporation, as
amended, filed August 7, 1989
(Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1989 and incorporated herein by reference)
3.2 By-Laws as last amended on June 26, 1991
(Filed as an Exhibit to the Company's 1991 Annual Report on Form 10-K and
incorporated herein by reference)
4.1 Form of Indenture between the Company and Chemical Bank, as Trustee, for Debt
Securities and Convertible Debt Securities
4.2 Form of Deposit Agreement between the Company and the Depositary, for
Depositary Shares and Depositary Receipts
4.3 Form of Common Stock Warrant Agreement
4.4 Form of Preferred Stock Warrant Agreement
4.5 Form of Debt Warrant Agreement
4.6 Form of Currency Warrant Agreement
5.1 Opinion of White & Case
12.1 Statement re Computation of Consolidated Ratio of Earnings to Fixed Charges and
Combined Fixed Charges and Preferred Share Dividend Requirements
15.1 Letter re Unaudited Interim Financial Information
23.1 Consent of Coopers & Lybrand
23.2 Consent of White & Case (contained in its opinion filed as Exhibit 5.1)
25.1 Statement of Eligibility of Trustee
</TABLE>
- ---------------
* To be filed by amendment
II-10
<PAGE> 1
EXHIBIT 1.1
ASARCO INCORPORATED
Debt Securities
Convertible Debt Securities
Preferred Stock
Convertible Preferred Stock
Common Stock
Debt Warrants
Common Stock Warrants
Preferred Stock Warrants
Currency Warrants
FORM OF UNDERWRITING AGREEMENT
1. Introductory. ASARCO Incorporated, a New Jersey corporation
("Company"), proposes to issue and sell from time to time certain of its
unsecured debt securities, convertible debt securities, preferred stock,
depositary shares, convertible preferred stock, warrants and common stock
("Common Stock") registered under the registration statement referred to in
Section 2(a) ("Registered Securities"). The Registered Securities constituting
debt securities will be issued under an indenture, dated as of October 1, 1994
("Indenture"), between the Company and Chemical Bank, as Trustee, in one or
more series, which series may vary as to interest rates, maturities,
redemption provisions, selling prices and other terms. The Registered
Securities constituting preferred stock may be issued in one or more series,
which series may vary as to dividend rates, redemption provisions, selling
prices and other terms. The Registered Securities constituting depositary
shares will be issued under a depositary agreement dated as of [ ],
199[ ] ("Deposit Agreement"), between the Company and [ ],
as Depositary, in one or more series, which series may vary as to dividend
rates, redemption provisions, selling prices and other terms. The Registered
Securities constituting warrants will be issued under a debt warrant agreement,
common stock warrant agreement, preferred stock warrant agreement or currency
warrant agreement, respectively, each dated as of [ ], 199[ ] (in
each case, as applicable, the "Warrant Agreement"), between the Company and
[ ] as Warrant Agent, in one or more series, which series may vary
as to interest rates, and maturities (in the case of debt warrants), dividend
rates (in the case of equity warrants), redemption provisions, selling prices
and other terms. Particular series or offerings of Registered Securities will
be sold pursuant to a Terms Agreement referred to in Section 3, for resale in
accordance with terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Offered Securities". The firm or firms which
agree to purchase the Offered Securities are hereinafter referred to as the
"Underwriters" of such Securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "Representatives"; provided, however,
that, if the Terms Agreement does not specify any representative of the
Underwriters, the term "Representatives", as used in this Agreement (other than
in Sections 2(b), 5(c) and 6 and the second sentence of Section 3), shall mean
the Underwriters.
<PAGE> 2
2
2. Representations and Warranties of the Company. The
Company, as of the date of each Terms Agreement referred to in Section 3,
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 33- ), including a
prospectus, relating to the Registered Securities has been filed with the
Securities and Exchange Commission ("Commission") and has become
effective. Such registration statement, as amended at the time of any
Terms Agreement referred to in Section 3, is hereinafter referred to as
the "Registration Statement", and the prospectus included in such
Registration Statement, as supplemented as contemplated by Section 3 to
reflect the terms of the offering of the Offered Securities, as first
filed with the Commission pursuant to and in accordance with Rule 424(b)
("Rule 424(b)") under the Securities Act of 1933 ("Act"), including all
material incorporated by reference therein as of the date of such filing,
is hereinafter referred to as the "Prospectus".
(b) On the effective date of the registration statement relating
to the Registered Securities, such registration statement conformed in
all material respects to the requirements of the Act, the Trust Indenture
Act of 1939 ("Trust Indenture Act") and the rules and regulations of the
Commission ("Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, and on the date of each Terms Agreement referred to in
Section 3 the Registration Statement and the Prospectus will conform in
all respects to the requirements of the Act, the Trust Indenture Act and
the Rules and Regulations, and neither of such documents will include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, except that the foregoing does not apply to statements in
or omissions from any of such documents based upon written information
furnished to the Company by any Underwriter through the Representatives,
if any, specifically for use therein.
3. Purchase and Offering of Offered Securities. The obligation of
the Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of telegraphic or other written communications ("Terms
Agreement") at the time the Company determines to sell the Offered Securities.
The Terms Agreement will incorporate by reference the provisions of this
Agreement, except as otherwise provided therein, and will specify the firm or
firms which will be Underwriters, the names of any Representatives, the
principal amount or number of shares to be purchased by each Underwriter, the
purchase price to be paid by the Underwriters and (if the Offered Securities
are debt securities, depositary shares, warrants or preferred stock) the terms
of the Offered Securities not already specified (in the Indenture, in the case
of Offered Securities that are debt securities; in the Warrant Agreement, in
the case of Offered Securities that are warrants; and in the Deposit Agreement,
in the case of Offered Securities that are depositary shares), including, but
not limited to, interest rate (if debt securities or debt warrants), dividend
rate (if preferred stock, preferred stock warrants or depositary shares),
maturity (if debt securities or warrants), any redemption provisions and any
sinking fund requirements and whether any of the Offered Securities may be sold
to institutional investors pursuant to Delayed Delivery Contracts (as defined
below). The Terms Agreement will also specify the time and date of delivery
and payment (such time and date, or such other time not later than seven full
business days thereafter as the
<PAGE> 3
3
Underwriter first named in the Terms Agreement (the "Lead Underwriter") and
the Company agree as the time for payment and delivery, being herein and in
the Terms Agreement referred to as the "Closing Date"), the place of delivery
and payment and any details of the terms of the offering that should be
reflected in the prospectus supplement relating to the offering of the Offered
Securities. The obligations of the Underwriters to purchase the Offered
Securities will be several and not joint. It is understood that the
Underwriters propose to offer the Securities for sale as set forth in the
Prospectus.
If the Terms Agreement provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Offered Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached hereto ("Delayed
Delivery Contracts") with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the
Closing Date the Company will pay, as compensation, to the Representatives for
the accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the principal amount or number of shares of Offered Securities to be
sold pursuant to Delayed Delivery Contracts ("Contract Securities"). The
Underwriters will not have any responsibility in respect of the validity or the
performance of Delayed Delivery Contracts. If the Company executes and
delivers Delayed Delivery Contracts, the Contract Securities will be deducted
from the Offered Securities to be purchased by the several Underwriters and the
aggregate principal amount or number of shares of Offered Securities to be
purchased by each Underwriter will be reduced pro rata in proportion to the
principal amount or number of shares of Offered Securities set forth opposite
each Underwriter's name in such Terms Agreement, except to the extent that the
Lead Underwriter determines that such reduction shall be otherwise than pro
rata and so advise the Company. The Company will advise the Lead Underwriter
not later than the business day prior to the Closing Date of the principal
amount or number of shares of Contract Securities.
If the Offered Securities are preferred stock or Common Stock, the
certificates for the Offered Securities delivered to the Underwriters on the
Closing Date will be in definitive form and, if the Offered Securities are debt
securities or depositary shares, the Offered Securities delivered to the
Underwriters on the Closing Date will be in definitive fully registered form,
in each case in such denominations and registered in such names as the Lead
Underwriter requests. If the Offered Securities are warrants, the Offered
Securities delivered to the Underwriters on the Closing Date will be in such
form as specified in the applicable Warrant Agreement.
If the Offered Securities are debt securities and the Terms
Agreement specifies "Book- Entry Only" settlement or otherwise states that the
provisions of this paragraph shall apply, the Company will deliver against
payment of the purchase price the Offered Securities in the form of one or more
permanent global Securities in definitive form (the "Global Securities")
deposited with the Trustee as custodian for The Depository Trust Company
("DTC") and registered in the name of Cede & Co., as nominee for DTC.
Interests in any permanent global Securities will be held only in book-entry
form through DTC, except in the limited circumstances described in the
Prospectus. Payment for the Offered Securities shall be made by the
Underwriters (if the Terms Agreement specifies that the Offered Securities will
not trade in DTC's Same Day Funds Settlement System) by certified or official
bank
<PAGE> 4
4
check or checks in New York Clearing House (next-day) funds or (if the
Terms Agreement specifies that the Offered Securities will trade in DTC's Same
Day Funds Settlement System) in Federal (same- day) funds by official check or
checks or wire transfer to an account in New York previously designated to the
Lead Underwriter by the Company at a bank acceptable to the Lead Underwriter,
in each case drawn to the order of ASARCO Incorporated at the place of payment
specified in the Terms Agreement on the Closing Date, against delivery to the
Trustee, as custodian for DTC, of the Global Securities representing all the
Offered Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to counsel for the Underwriters one
signed copy of the registration statement relating to the Registered
Securities, including all exhibits, in the form in which it became effective
and of all amendments thereto and that, in connection with each offering of
Offered Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and
if consented to by the Lead Underwriter, subparagraph (5)) not later than
the second business day following the execution and delivery of the Terms
Agreement.
(b) The Company will advise the Lead Underwriter promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Lead Underwriter a reasonable opportunity
to comment on any such proposed amendment or supplement, and the Company
will also advise the Lead Underwriter promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of any
part thereof and will use its reasonable best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time
during such period to amend the Prospectus to comply with the Act, the
Company promptly will notify the Lead Underwriter of such event and will
promptly prepare and file with the Commission, at its own expense, an
amendment or supplement which will correct such statement or omission or
an amendment which will effect such compliance. Neither the Lead
Underwriter's consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months, after
the date of each Terms Agreement, the Company will make generally
available to its security holders an earnings statement covering a period
of at least 12 months beginning after the later of (i) the effective date
of the registration statement relating to the Registered Securities, (ii)
the effective date of the most recent posteffective amendment to the
<PAGE> 5
5
Registration Statement to become effective prior to the date of such
Terms Agreement and (iii) the date of the Company's most recent Annual
Report on Form 10-K filed with the Commission prior to the date of such
Terms Agreement, which will satisfy the provisions of Section 11(a) of
the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendment and supplements to such documents, in each case as soon
as available and in such quantities as the Lead Underwriter reasonably
requests. The Company will pay the expenses of printing and distributing
to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale and (if the Offered Securities are debt securities or
preferred stock) the determination of their eligibility for investment
under the laws of such jurisdictions as the Lead Underwriter designates
and will continue such qualification in effect so long as required for
the distribution; provided, however, that in no event shall the Company
be required to qualify as a foreign corporation or to file a general
consent for service of process in any such jurisdiction.
(g) During the period of 2 years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under
the Securities Exchange Act of 1934 or mailed to stockholders, and (ii)
from time to time, such other publicly available information concerning
the Company as the Lead Underwriter may reasonably request.
(h) The Company will pay all expenses incident to the performance
of its obligations under the Terms Agreement (including the provisions of
this Agreement) and will reimburse the Underwriters (if and to the extent
incurred by them) (i) for any filing fees or other expenses (including
fees and disbursements of counsel) incurred by them in connection with
qualification of the Registered Securities for sale and (if the Offered
Securities are debt securities or preferred stock) any determination of
their eligibility for investment under the laws of such jurisdictions as
the Lead Underwriter may designate and the printing of memoranda relating
thereto (provided that the expenses and fees provided in this clause (i)
shall not exceed $15,000 in the aggregate), (ii) for any fees charged
by investment rating agencies for the rating of the Offered Securities
(if they are debt securities or preferred stock), (iii) for any
applicable filing fee of the National Association of Securities Dealers,
Inc. relating to the Registered Securities, (iv) for any travel expenses
of the Company's officers and employees and any other expenses of the
Company in connection with attending or hosting meetings with prospective
purchasers of Registered Securities and (v) for expenses incurred in
distributing the Prospectus, any preliminary prospectuses, any
preliminary prospectus supplements or any other amendments or supplements
to the Prospectus to the Underwriters.
<PAGE> 6
6
If the Offered Securities are debt securities or preferred stock,
the Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating United States dollar-
denominated debt securities issued or guaranteed by the Company and
having a maturity of more than [one year] from the date of issue (if the
Offered Securities are debt securities) or any series of preferred stock
issued or guaranteed by the Company (if the Offered Securities are
preferred stock), or publicly disclose the intention to make any such
offer, sale, pledge, disposal or filing, without the prior written
consent of the Lead Underwriter for a period beginning at the time of
execution of the Terms Agreement and ending the number of days after the
Closing Date specified under "Blackout" in the Terms Agreement.
If the Offered Securities are Common Stock or are convertible into
Common Stock, the Company will not offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to, any
additional shares of its Common Stock or securities convertible into or
exchangeable or exercisable for any shares of its Common Stock, or
publicly disclose the intention to make any such offer, sale, pledge,
disposal or filing, without the prior written consent of the Lead
Underwriter for a period beginning at the time of execution of the Terms
Agreement and ending the number of days after the Closing Date specified
under "Blackout" in the Terms Agreement, except issuances of Common Stock
pursuant to the conversion or exchange of convertible or exchangeable
securities or the exercise of warrants or options, in each case
outstanding on the date of the Terms Agreement, grants of employee stock
options pursuant to the terms of a plan in effect on the date of the
Terms Agreement, issuances of Common Stock pursuant to the exercise of
such options including the exercise of any other employee stock options
outstanding on the date of the Terms Agreement or issuances of Common
Stock pursuant to the Company's dividend reinvestment plan, saving plans
or other employee or director benefit or compensation plan of the
Company.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Offered
Securities will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the
statements of Company officers made pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of delivery
thereof, of Coopers & Lybrand confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and any
schedules and any summary of earnings examined by them and included
in the Prospectus comply as to form in all material respects with
the applicable accounting requirements of the Act and the related
published Rules and Regulations;
<PAGE> 7
7
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on any unaudited
financial statements included in the Registration Statement;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company
who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited financial statements, if any,
included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Act and the related published Rules and Regulations or
any material modifications should be made to such unaudited
financial statements for them to be in conformity with
generally accepted accounting principles;
(B) if any unaudited "capsule" information is
contained in the Prospectus, the unaudited consolidated net
sales, net operating income, net income and net income per
share amounts or other amounts constituting such "capsule"
information and described in such letter do not agree with
the corresponding amounts set forth in the unaudited
consolidated financial statements or were not determined on a
basis substantially consistent with that of the corresponding
amounts in the audited statements of income;
(C) at the date of the latest available balance sheet
read by such accoun- tants, or at a subsequent specified date
not more than five days prior to the date of the Terms
Agreement, there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt of the
Company and its consolidated subsidiaries or, at the date of
the latest available balance sheet read by such accountants,
there was any decrease in consolidated net current assets or
net assets, as compared with amounts shown on the latest
balance sheet included in the Prospectus; or
(D) for the period from the closing date of the
latest income statement included in the Prospectus to the
closing date of the latest available income statement read by
such accountants there were any decreases, as compared with
the corresponding period of the previous year and with the
period of corresponding length ended the date of the latest
income statement included in the Prospectus, in consolidated
net sales, net operating income in the total or (if
<PAGE> 8
8
the Offered Securities are Common Stock or are convertible
into Common Stock) per share amounts of consolidated income
before extraordinary items or net income or in the ratio of
earnings to fixed charges or (if the Offered Securities are
preferred stock) in the ratio of earnings to fixed charges and
preferred stock dividends combined;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) they have, at the reasonable request of the Lead
Underwriter, compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Prospectus (in each case to the extent that such
dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries,
a reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
All financial statements and schedules included in material incorporated
by reference into the Prospectus shall be deemed included in the
Prospectus for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or any Underwriter, shall be contemplated by the
Commission.
(c) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in, or affecting particularly, the
condition (financial or other), business, properties or results of
operations of the Company or its subsidiaries which, in the reasonable
judgment of a majority in interest of the Underwriters including any
Representatives, materially impairs the investment quality of, or makes
it impracticable or inadvisable to proceed with the completion of the
public offering or the sale of and payment for, the Offered Securities;
(ii) any downgrading in the rating of any debt securities or
preferred stock of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities or
preferred stock of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange (other
than a limitation on the hours of trading), or any setting of minimum
prices for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (iv) any banking
<PAGE> 9
9
moratorium declared by U.S. Federal or, New York or authorities; or (v)
any outbreak or escalation of major hostilities in which the United
States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters including any
Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency is material and adverse to the market
for the Offered Securities and makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment
for the Offered Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of White & Case counsel for the Company, to the effect
that:
(i) the Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of New Jersey, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
(ii) if the Offered Securities are debt securities: the
Indenture has been duly authorized, executed and delivered by the
Company and has been duly qualified under the Trust Indenture Act;
the Offered Securities have been duly authorized; the Offered
Securities other than any Contract Securities have been duly
executed, authenticated, issued and delivered; the Indenture and
the Offered Securities other than any Contract Securities
constitute, and any Contract Securities, when duly executed,
authenticated, issued and delivered against payment therefor in the
manner provided in the Indenture and sold pursuant to Delayed
Delivery Contracts, will constitute, valid and legally binding
obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and the Offered Securities other than
any Contract Securities conform in all material respects, and any
Contract Securities, when so issued and delivered and sold will
conform, to the description thereof contained in the Prospectus, as
amended or supplemented;
(iii) if the Offered Securities are preferred stock: the
Offered Securities have been duly authorized; the Offered
Securities other than any Contract Securities have been validly
issued and, assuming payment therefor by the Underwriters as
provided herein, are fully paid and nonassessable; any Contract
Securities, when issued, delivered and sold pursuant to Delayed
Delivery Contracts, will be validly issued, fully paid and
nonassessable; and the Offered Securities other than any Contract
Securities conform, and any Contract Securities, when so issued,
delivered and sold, will conform, in all material respects to the
description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect
to the Offered Securities;
<PAGE> 10
10
(iv) if the Offered Securities are Common Stock: the
Offered Securities have been duly authorized and validly issued,
are fully paid, assuming payment therefor by the Underwriters as
provided herein, and nonassessable and conform in all material
respects to the description thereof contained in the Prospectus;
and the stockholders of the Company have no preemptive rights with
respect to the Offered Securities;
(v) if the Offered Securities are convertible: the Offered
Securities other than any Contract Securities are, and any Contract
Securities, when (if the Offered Securities are debt securities)
executed, authenticated, issued and delivered in the manner
provided in the Indenture and sold pursuant to Delayed Delivery
Contracts or (if the Offered Securities are preferred stock) when
issued, delivered and sold pursuant to Delayed Delivery Contracts,
will be convertible into Common Stock of the Company in accordance
with (if they are debt securities) the Indenture or (if they are
preferred stock) their terms; the shares of Common Stock initially
issuable upon conversion of the Offered Securities have been duly
authorized and reserved for issuance upon such conversion and, when
issued upon such conversion, will be validly issued, fully paid and
nonassessable; the outstanding shares of Common Stock conform in
all material respects to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Common Stock;
(vi) if the Offered Securities are Common Stock or are
convertible into Common Stock: there are no contracts, agreements
or understandings known to such counsel between the Company and any
person (other than M.I.M. Holdings Limited) granting such person
the right to require the Company to file a registration statement
under the Act with respect to any securities of the Company owned
or to be owned by such person or to require the Company to include
such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company
under the Act;
(vii) the Company is not an "investment company" as defined
in the Investment Company Act of 1940;
(viii) no consent, approval, authorization or order of, or
filing with, any Federal or, to the best of such counsel's
knowledge after due inquiry, other governmental agency or body or
any court having jurisdiction over the Company is required for the
consummation of the transactions contemplated by the Terms
Agreement (including the provisions of this Agreement) in
connection with the issuance or sale of the Offered Securities by
the Company, except such as have been obtained and made under the
Act and, if the Offered Securities are debt securities, the Trust
Indenture Act and such as may be required under state securities or
Blue Sky laws;
(ix) the execution, delivery and performance by the Company
of its obligations under the Indenture (if the Offered Securities
are debt securities), the Terms Agreement (including the provisions
of this Agreement)
<PAGE> 11
11
and the issuance and sale of the Offered Securities and, if the
Offered Securities are debt securities or preferred stock, any
Delayed Delivery Contracts and the issuance and sale of the Offered
Securities and, if the Offered Securities are debt securities or
preferred stock, compliance with the terms and provisions thereof
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under any New York or
Federal statute, any rule, regulation or order of any governmental
agency or body or any court having jurisdiction over the Company or
any Significant Subsidiary of the Company or any of their
properties, or any agreement or instrument for borrowed money known
to such counsel to which the Company is a party or by which the
Company is bound or to which any material properties of the Company
is subject, or the charter or by-laws of the Company, and the
Company has full corporate power and authority to authorize, issue
and sell the Offered Securities as contemplated by the Terms
Agreement (including the provisions of this Agreement);
(x) the Registration Statement has become effective under
the Act, the Prospectus was filed with the Commission pursuant to
the subparagraph of Rule 424(b) specified in such opinion on the
date specified therein, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the Registration Statement, as of
its effective date, and the Prospectus, as of the date of the Terms
Agreement, and any amendment or supplement thereto, as of its date,
complied as to form in all material respects with the requirements
of the Act, the Trust Indenture Act and the Rules and Regulations;
such counsel have no reason to believe that such Registration
Statement, as of its effective date, the Prospectus, as of the date
of the Terms Agreement or as of the Closing Date, or any amendment
thereto, as of its date or as of the Closing Date, contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, as of
the date of the Terms Agreement or as of such Closing Date, or any
amendment or supplement thereto, as of its date or as of the
Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; and such counsel do not know of any
legal or governmental proceedings required to be described in the
Prospectus which are not described as required or of any contracts
or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to
the Registration Statement which are not described and filed as
required; it being understood that such counsel need express no
opinion as to the financial statements and related Schedules
therein or other financial or statistical data contained or
incorporated by reference in the Registration Statement or the
Prospectus; and
<PAGE> 12
12
(xi) the Terms Agreement (including the provisions of this
Agreement) and, if the Offered Securities are debt securities or
preferred stock, any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company.
In rendering such opinion,White & Case may rely as to all matters
governed by New Jersey law on the opinion of Pitney, Hardin, Kipp &
Szuch; provided, however, that they will furnish a copy thereof to the
Representatives and state in their opinion that they and the
Representatives are justified in relying on such opinion of New Jersey
counsel for such matters.
(e) The Representatives shall have received an opinion, dated the
Closing Date, from Augustus B. Kinsolving, Vice President, General
Counsel and Secretary of the Company, to the effect that:
(i) the Company and each of its Significant Subsidiaries
(as defined in the Indenture) have been duly incorporated and are
validly existing and in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to do
business and are in good standing as foreign corporations in all
jurisdictions in which their respective ownership of property or
the conduct of their respective businesses requires such
qualification (except where the failure to so qualify would not
have a material adverse effect upon the Company and its
subsidiaries taken as a whole), and have all power and authority
necessary to own their respective properties and conduct the
businesses in which they are engaged as described in the
Prospectus;
(ii) if the Offered Securities are debt securities: the
Indenture has been duly authorized, executed and delivered by the
Company and has been duly qualified under the Trust Indenture Act;
the Offered Securities have been duly authorized; the Offered
Securities other than any Contract Securities have been duly
executed, authenticated, issued and delivered; the Indenture and
the Offered Securities other than any Contract Securities
constitute, and any Contract Securities, when duly executed,
authenticated, issued and delivered against payment therefor in the
manner provided in the Indenture and sold pursuant to Delayed
Delivery Contracts, will constitute, valid and legally binding
obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and the Offered Securities other than
any Contract Securities conform in all material respects, and any
Contract Securities, when so issued and delivered and sold will
conform, to the description thereof contained in the Prospectus, as
amended or supplemented;
(iii) if the Offered Securities are preferred stock: the
Offered Securities have been duly authorized; the Offered
Securities other than any Contract Securities have been validly
issued and, assuming payment therefor by the Underwriters as
provided herein, are fully paid and nonassessable; any Contract
Securities, when issued, delivered and sold pursuant to Delayed
<PAGE> 13
13
Delivery Contracts, will be validly issued, fully paid and
nonassessable; and the Offered Securities other than any Contract
Securities conform, and any Contract Securities, when so issued,
delivered and sold, will conform, in all material respects to the
description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect
to the Offered Securities;
(iv) if the Offered Securities are Common Stock: the
Offered Securities have been duly authorized and validly issued,
are fully paid, assuming payment therefor by the Underwriters as
provided herein, and nonassessable and conform in all material
respects to the description thereof contained in the Prospectus;
and the stockholders of the Company have no preemptive rights with
respect to the Offered Securities;
(v) if the Offered Securities are convertible: the Offered
Securities other than any Contract Securities are, and any Contract
Securities, when (if the Offered Securities are debt securities)
executed, authenticated, issued and delivered in the manner
provided in the Indenture and sold pursuant to Delayed Delivery
Contracts or (if the Offered Securities are preferred stock) when
issued, delivered and sold pursuant to Delayed Delivery Contracts,
will be convertible into Common Stock of the Company in accordance
with (if they are debt securities) the Indenture or (if they are
preferred stock) their terms; the shares of Common Stock initially
issuable upon conversion of the Offered Securities have been duly
authorized and reserved for issuance upon such conversion and, when
issued upon such conversion, will be validly issued, fully paid and
nonassessable; the outstanding shares of Common Stock conform in
all material respects to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Common Stock;
(vi) if the Offered Securities are Common Stock or are
convertible into Common Stock: there are no contracts, agreements
or understandings known to such counsel between the Company and any
person (other than M.I.M. Holdings Limited) granting such person
the right to require the Company to file a registration statement
under the Act with respect to any securities of the Company owned
or to be owned by such person or to require the Company to include
such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company
under the Act;
(vii) the Company is not an "investment company" as defined
in the Investment Company Act of 1940;
(viii) no consent, approval, authorization or order of, or
filing with, any Federal or, to the best of such counsel's
knowledge after due inquiry, other governmental agency or body or
any court having jurisdiction over the Company is required for the
consummation of the transactions contemplated by the Terms
Agreement (including the provisions of this Agreement) in
connection with the issuance or sale of the Offered Securities by
the
<PAGE> 14
14
Company, except such as have been obtained and made under the
Act and, if the Offered Securities are debt securities, the Trust
Indenture Act and such as may be required under state securities or
Blue Sky laws;
(ix) the execution, delivery and performance by the Company
of its obligations under the Indenture (if the Offered Securities
are debt securities), the Terms Agreement (including the provisions
of this Agreement) and the issuance and sale of the Offered
Securities and, if the Offered Securities are debt securities or
preferred stock, any Delayed Delivery Contracts and the issuance
and sale of the Offered Securities and, if the Offered Securities
are debt securities or preferred stock, compliance with the terms
and provisions thereof will not result in a breach or violation of
any of the terms and provisions of, or constitute a default under,
any statute or, to the best of such counsel's knowledge after due
inquiry, any rule, regulation or order of any governmental agency
or body or any court having jurisdiction over the Company or any
Significant Subsidiary of the Company or any of their material
properties or any agreement or instrument for borrowed money to
which the Company or any such Significant Subsidiary is a party or
by which the Company or any such Significant Subsidiary is bound or
to which any of the material properties of the Company or any such
Significant Subsidiary is subject, or the charter or by-laws of the
Company or any such Significant Subsidiary, and the Company has the
corporate power and authority to authorize, issue and sell the
Offered Securities as contemplated by the Terms Agreement
(including the provisions of this Agreement);
(x) the Registration Statement has become effective under
the Act, the Prospectus was filed with the Commission pursuant to
the subparagraph of Rule 424(b) specified in such opinion on the
date specified therein, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the Registration Statement, as of
its effective date, and the Prospectus, as of the date of the Terms
Agreement, and any amendment or supplement thereto, as of its date,
complied as to form in all material respects with the requirements
of the Act, the Trust Indenture Act and the Rules and Regulations;
such counsel has no reason to believe that such Registration
Statement, as of its effective date, the Prospectus, as of the date
of the Terms Agreement or as of the Closing Date, or any amendment
thereto, as of its date or as of the Closing Date, contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, as of
the date of the Terms Agreement or as of the Closing Date, or any
amendment or supplement thereto, as of its date or as of the
Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; the descriptions in the
Registration Statement and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be shown;
and such counsel does
<PAGE> 15
15
not know of any legal or governmental proceedings required to be
described in the Prospectus which are not described as required or
of any contracts or documents of a character required to be
described in the Registration Statement or Prospectus or to be
filed as exhibits to the Registration Statement which are not
described and filed as required; it being understood that such
counsel need express no opinion as to the financial statements and
related Schedules therein or other financial or statistical data
contained or incorporated by reference in the Registration
Statement or the Prospectus; and
(xi) the Terms Agreement (including the provisions of this
Agreement) and, if the Offered Securities are debt securities or
preferred stock, any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company.
In rendering such opinion, Augustus B. Kinsolving may rely as to all
matters governed by New Jersey law on the opinion of Pitney, Hardin, Kipp
& Szuch; provided, however, that he will furnish a copy thereof to the
Representatives and state in his opinion that he and the Representatives
are justified in relying on such opinion of New Jersey counsel for such
matters.
(f) The Representatives shall have received from Cravath, Swaine
& Moore, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities, the Registration Statement, the
Prospectus and other related matters as the Representatives may require,
and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
In rendering such opinion, Cravath, Swaine & Moore may rely as to the
incorporation of the Company and all other matters governed by New
Jersey law upon the opinion of Pitney, Hardin, Kipp & Szuch referred to
above.
(g) The Representatives shall have received a certificate, dated
the Closing Date, of the President, any Executive Vice President or any
Vice-President and a principal financial or accounting officer of the
Company in which such officers, to the best of their knowledge after
reasonable investigation, shall state that the representations and
warranties of the Company in this Agreement are true and correct, that
the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to the
Closing Date in all material respects, that no stop order suspending the
effectiveness of the Registration Statement or of any part thereof has
been issued and no proceedings for that purpose have been instituted or
are contemplated by the Commission and that, subsequent to the date of
the most recent financial statements in the Prospectus, there has been no
material adverse change in the business, properties, financial
position or results of operations of the Company and its Subsidiaries
taken as a whole except as set forth in or contemplated by the
Prospectus or as described in such certificate.
(h) The Representatives shall have received a letter, dated the
Closing Date, of Coopers & Lybrand which meets the requirements of
subsection (a) of this Section, except that the specified date referred
to in such subsection will be a date not more than five days prior to the
Closing Date for the purposes of this subsection.
<PAGE> 16
16
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf of
the Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
6. Indemnification and Contribution. (a) The Company
will indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein in the light of the circumstances in which they
were made not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives, if any,
specifically for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in the Terms Agreement.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the Prospectus,
or any amendment or supplement thereto, or any related preliminary prospectus
or preliminary prospectus supplement, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives, if any, specifically
for use therein, and will reimburse any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred, it
being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in the Terms
Agreement.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof, but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified
<PAGE> 17
17
party otherwise than under subsection (a) or (b) above. In case any
such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who may, unless
actual conflicts exist, be counsel to the indemnifying party, provided that it
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one firm for all such indemnified
parties), and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying party
will not be liable to such indemnified party under this Section for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonablecosts of investigation. No
indemnifying party shall, without the prior written consent of the indemnified
party or, if any Underwriter is an idemnified party, without the prior written
consent of each Underwriter, effect any settlement of any pending or threatened
action in respect of which any indemnified party is a party and indemnity can
be sought hereunder by such indemnified party unless such settlement includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent 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
<PAGE> 18
18
Underwriters' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer of the
Company who has signed the Registration Statement and to each person, if any,
who controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities under the Terms
Agreement and the aggregate principal amount (if debt securities) or number
of shares (if preferred stock or Common Stock) of Offered Securities that
such defaulting Underwriter or Underwriters agreed but failed to purchase
does not exceed 10% of the total principal amount (if debt securities) or
number of shares (if preferred stock or Common Stock) of Offered Securities,
the Lead Underwriter may make arrangements satisfactory to the Company for the
purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by the Closing Date, the
nondefaulting Underwriters shall be obligated severally, in proportion to their
respective commitments under the Terms Agreement (including the provisions of
this Agreement), to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount (if debt securities) or number of
shares (if preferred stock or Common Stock) of Offered Securities with respect
to which such default or defaults occur exceeds 10% of the total principal
amount (if debt securities) or number of shares (if preferred stock or Common
Stock) of Offered Securities and arrangements satisfactory to the Lead
Underwriter and the Company for the purchase of such Offered Securities by
other persons are not made within 36 hours after such default, the Terms
Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Company, except as provided in Section 8. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default. If the Offered Securities are debt
securities or preferred stock, the respective commitments of the several
Underwriters for the purposes of this Section shall be determined without
regard to reduction in the respective Underwriters' obligations to purchase the
principal amounts (if debt securities) or numbers of shares (if preferred
stock) of the Offered Securities set forth opposite their names in the Terms
Agreement as a result of Delayed Delivery Contracts entered into by the
Company.
The foregoing obligations and agreements set forth in this Section
will not apply if the Terms Agreement specifies that such obligations and
agreements will not apply.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to the Terms Agreement (including the provisions of
this Agreement) will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
<PAGE> 19
19
any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If the Terms Agreement is terminated
pursuant to Section 7 or if for any reason the purchase of the Offered
Securities by the Underwriters is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to
Section 4 and the respective obligations of the Company and the Underwriters
pursuant to Section 6 shall remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of the Terms Agreement pursuant to Section 7
or the occurrence of any event specified in clause (iii), (iv) or (v) of
Section 5(c), the Company will reimburse the Underwriters for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Offered Securities.
9. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them at their address furnished to the Company in writing for the
purpose of communications hereunder or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 180 Maiden Lane, New York,
New York 10038, Attention: Augustus B. Kinsolving, Vice President, General
Counsel and Secretary.
10. Successors. The Terms Agreement (including the provisions of
this Agreement) will inure to the benefit of and be binding upon the Company
and such Underwriters as are identified in the Terms Agreement and their
respective successors and the officers and directors and controlling persons
referred to in Section 6, and no other person will have any right or obligation
hereunder.
11. Representation of Underwriters. Any Representatives will
act for the several Underwriters in connection with the financing described in
the Terms Agreement, and any action under such Terms Agreement (including the
provisions of this Agreement) taken by the Representatives jointly or by the
Lead Underwriter will be binding upon all the Underwriters.
12. Counterparts. The Terms Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement and the Terms Agreement shall
be governed by, and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of laws.
The Company hereby submits to the nonexclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to the Terms Agreement
(including the provisions of this Agreement) or the transactions contemplated
thereby.
<PAGE> 20
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed and
returned to the address shown below so as to arrive not later than 9:00 A.M.,
New York time, on , 19 . 1/.)
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of initial public offering]
ASARCO INCORPORATED
c/o
Attention:
Gentlemen:
The undersigned hereby agrees to purchase from ASARCO
Incorporated, a New Jersey corporation ("Company"), and the Company agrees to
sell to the undersigned, [If one delayed closing, insert--as of the date
hereof, for delivery on , 19 ("Delivery Date"),]
[$].............. [shares]
- --principal amount--of the Company's [insert title of securities]
("Securities"), offered by the Company's Prospectus dated , 1994, and
a Prospectus Supplement dated , 19 , relating thereto, receipt of
copies of which is hereby acknowledged, at-- % of the principal amount thereof
plus accrued interest, if any,--$ per share plus accrued dividends, if
any,--and on the further terms and conditions set forth in this Delayed
Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date
hereof, for delivery on the dates set forth below, Securities in the--
principal--amounts set forth below:
- ---------------------------
1/ Insert date which is third full business day prior to Closing Date under
the Terms Agreement.
<PAGE> 21
2
<TABLE>
<CAPTION>
Principal Amount
----------------
Number
Delivery Date of Shares
------------- ---------
<S> <C>
--------------- ---------
--------------- ---------
</TABLE>
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to
purchase for delivery on--the--each--Delivery Date shall be made to the Company
or its order by certified or official bank check in New York Clearing House
(next day) funds at the office of at .M. on--the--such--
Delivery Date upon delivery to the undersigned of the Securities to be
purchased by the undersigned--for delivery on such Delivery Date--in
definitive [If debt issue, insert--fully registered] form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than
five full business days prior to-the-such-Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on--the--each--Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at--the--such--Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total--principal
amount--number of shares--of the Securities less the--principal amount--number
of shares--thereof covered by this and other similar Contracts. The
undersigned represents that its investment in the Securities is not, as of the
date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject and which governs such investment.
Promptly after completion of the sale to the Underwriters the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by copies of the opinions of counsel for the
Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the
<PAGE> 22
3
undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned when such counterpart is so
mailed or delivered.
Yours very truly,
--------------------------
(Name of Purchaser)
by
--------------------------
(Title of Signatory)
--------------------------
(Address of Purchaser)
Accepted, as of the above date.
ASARCO INCORPORATED,
by
--------------------------
[Insert Title]
<PAGE> 23
ASARCO INCORPORATED
("Company")
Debt Securities
TERMS AGREEMENT
, 19
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named
[in Schedule A hereto] [below] for their respective accounts, on and subject to
the terms and conditions of the Underwriting Agreement filed as an exhibit to
the Company's registration statement on Form S-3 (No. 33- ) ("Underwriting
Agreement"), the following securities ("Offered Securities") on the following
terms:
Title: [ %] [Floating Rate]--Notes--Debentures--Bonds--Due .
Principal Amount: $ .
Interest: [ % per annum, from 19 , payable
semiannually on and , commencing , 19 , to
holders of record on the preceding or , as the case may be.]
[Zero coupon.]
Maturity: , 19 .
Optional Redemption:
Sinking Fund:
Listing: [None.] [New York Stock Exchange.]
Delayed Delivery Contracts: [None.] [Delivery Date[s] shall be
, 19 . Underwriters' fee is % of the principal amount of the
Contract Securities.]
Purchase Price: % of principal amount, plus accrued interest[,
if any,] from 19 .
Expected Reoffering Price: % of principal amount, subject to
change by the [Representative[s]] [Underwriters].
<PAGE> 24
2
Closing: A.M. on , 19 , at , in New York Clearing
House (next day) funds.
Settlement and Trading: [Physical certificated form.] [Book-Entry
Only via DTC. The Offered Securities [will] [will not] trade in DTC's Same Day
Funds Settlement System.]
Blackout: Until days after the Closing Date.
[Name[s] and Address[es] of [Representative[s]] [Underwriter[s]]:]
The respective principal amounts of the Offered Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated
herein by reference.
The Offered Securities will be made available for checking and
packaging at the office of at least 24 hours prior to the
Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the last paragraph at the bottom of
the prospectus supplement cover page concerning the terms of the offering by
the Underwriters, the legend concerning over-allotments--and--, --stabilizing
[and passive market making] on the inside front cover page of the prospectus
supplement--and--, --the concession and reallowance figures appearing in the
paragraph under the caption "Underwriting" in the prospectus supplement.
If paragraph regarding passive market making is included,insert---and
the information contained in the paragraph under the caption
"Underwriting" in the prospectus supplement] [If applicable, insert--; and
(ii) the following information in the prospectus supplement furnished on
behalf of [insert name of Underwriter]: [insert description of information,
such as material relationship disclosure under the caption "Underwriting" in
the prospectus supplement].
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and
the several Underwriters in accordance with its terms.
Very truly yours,
ASARCO INCORPORATED,
by
-----------------------
[Insert Title]
<PAGE> 25
3
The foregoing Terms Agreement
is hereby confirmed and accepted
as of the date first above written.
[If no corepresentative, use first
confirmation form. If
corepresentative, use second.]
by
-------------------------------
[Insert Title]
[Acting on behalf of itself and as the
Representative of the several
Underwriters.]
[Acting on behalf of themselves and as the
Representatives of the several Under-
writers.]
by
by
-------------------------------
[Insert Title]
<PAGE> 26
ASARCO INCORPORATED
("Company")
Warrants
TERMS AGREEMENT
, 19
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. 33- ) ("Underwriting
Agreement"), the following securities ("Offered Securities") on the following
terms:
Description of Warrants:
Title of Warrants:
Warrant Agent:
Warrant exercise price, currency and date:
Principal amount and currency of Securities issuable upon exercise
of one Warrant:
Date after which Warrants may be exercised:
Expiration date:
Detachable date:
Description of Securities issuable upon exercise of Warrants:
<PAGE> 27
2
Description of Currency Warrants:
Title of Currency Warrants:
Number of Currency Warrants:
Principal Amount of Each Currency Warrant:
Currency:
Price to Public of Currency Warrants:
Underwriting Discount:
Purchase Price of Currency Warrants:
Currency Warrants Exercise Price and Date:
Expiration Date:
Currency Warrant Agent:
Listing: [None.] [New York Stock Exchange.]
Delayed Delivery Contracts: [None.] [Delivery Date[s] shall be
, 19 . Underwriters' fee is % of the principal amount of the
Contract Securities.]
Purchase Price: % of principal amount, plus accrued interest[,
if any,] from 19 .
Expected Reoffering Price: % of principal amount, subject
to change by the [Representative[s]] [Underwriters].
Closing: A.M. on , 19 , at , in New York Clearing
House (next day) funds.
Settlement and Trading: [Physical certificated form.] [Book-Entry
Only via DTC. The Offered Securities [will] [will not] trade in DTC's Same Day
Funds Settlement System.]
Blackout: Until days after the Closing Date.
[Name[s] and Address[es] of [Representative[s]] [Underwriter[s]]:]
The respective principal amounts of the Offered Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated
herein by reference.
<PAGE> 28
3
The Offered Securities will be made available for checking and
packaging at the office of at least 24 hours prior
to the Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the last paragraph at the bottom of
the prospectus supplement cover page concerning the terms of the offering by
the Underwriters, the legend concerning over-allotments--and-- , --stabilizing
[and passive market making] on the inside front cover page of the prospectus
supplement--and--, --the concession and reallowance figures appearing in the
paragraph under the caption "Underwriting" in the prospectus supplement.
If paragraph regarding passive market making is included, insert---and
the information contained in the paragraph under the caption
"Underwriting" in the prospectus supplement] [If applicable, insert--; and
(ii) the following information in the prospectus supplement furnished on
behalf of [insert name of Underwriter]: [insert description of information,
such as material relationship disclosure under the caption "Underwriting" in
the prospectus supplement].
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
ASARCO INCORPORATED,
by
--------------------------
[Insert Title]
The foregoing Terms Agreement
is hereby confirmed and accepted
as of the date first above written.
[If no corepresentative, use first
confirmation form. If corepresentative,
use second.]
by
--------------------------------
[Insert Title]
[Acting on behalf of itself and as the
Representative of the several
Underwriters.]
<PAGE> 29
4
[Acting on behalf of themselves and as the
Representatives of the several Under-
writers.]
by
by
--------------------------------
[Insert Title]
<PAGE> 30
SCHEDULE A
<TABLE>
<CAPTION>
Principal
Underwriter Amount
----------- ------
<S> <C>
$
$
-----------------
Total . . . . . . . . . . . . . . .
$
=================
</TABLE>
<PAGE> 31
ASARCO INCORPORATED
("Company")
[Common Stock]
[Preferred Stock]
Depositary Shares]
TERMS AGREEMENT
, 19
To: The [Representative[s] of the]
Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. 33- ) ("Underwriting
Agreement"), the following securities ("Offered Securities") on the following
terms:
Title:
Number of [Depositary] Shares:
Dividend Rate:
Optional Redemption:
Sinking Fund:
Listing: [None.] [New York Stock Exchange.]
Delayed Delivery Contracts: [None.] [Delivery Date[s] shall be
, 19 . Underwriters' fee is $ per share of the Contract
Securities.]
Purchase Price: $ per [Depositary] share [If preferred stock
issue, insert-plus accrued dividends[, if any,] from , 19 ].
Expected Reoffering Price: $ per share, subject to change by
the [Representative[s]] [Underwriters].
[Depositary Receipt Arrangements:]
<PAGE> 32
2
[Name of Depositary:]
[Date of Deposit Agreement:]
[Fraction of a Share equal to one Depositary Share:]
Closing: A.M. on , 19 , at , in New York
Clearing House (next day) funds.
Underwriter[s']['s] Compensation: $ payable to the
[Representative[s] for the proportionate accounts of the] Underwriter[s] on the
Closing Date.
Blackout: Until days after the Closing Date.
[Name[s] and Address[es] of [Representative[s]] [Underwriter[s]]:]
The respective numbers of shares of the Offered Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated
herein by reference.
The Offered Securities will be made available for checking and
packaging at the office of at least 24 hours prior to the Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the last paragraph at the bottom of
the prospectus supplement cover page concerning the terms of the offering by
the Underwriters, the legend concerning over allotments--and--,--stabilizing
[and passive market making] on the inside front cover page of the prospectus
supplement-and-, -the concession and reallowance figures appearing in the
paragraph under the caption "Underwriting" in the prospectus supplement
[If paragraph regarding passive market making is included, insert--and
the information contained in the paragraph under the caption "Underwriting"
in the prospectus supplement] [If applicable, insert--; and (ii) the
following information in the prospectus supplement furnished on behalf of
[insert name of Underwriter]: [insert description of information,
such as material relationship disclosure under the caption "Underwriting" in
the prospectus supplement.]
<PAGE> 33
3
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
ASARCO INCORPORATED,
by
-------------------------
[Insert Title]
- ----------------
The foregoing Terms Agreement
is hereby confirmed and accepted
as of the date first above written.
[If no corepresentative, use first
confirmation form. If corepresentative, use
second.]
by
-------------------------------
[Insert Title]
[Acting on behalf of itself and as the
Representative of the several
Underwriters.]
[Acting on behalf of themselves and as the
Representatives of the several Under-
writers.]
by
-------------------------------
[Insert Title]
<PAGE> 34
SCHEDULE A
<TABLE>
<CAPTION>
Number
Underwriter of Shares
----------- ---------
<S> <C>
-----------------
Total . . . . . . . . . . . . . . .
=================
</TABLE>
<PAGE> 1
EXHIBIT 4.1
==============================================
ASARCO INCORPORATED
TO
CHEMICAL BANK,
Trustee
_____________
INDENTURE
Dated as of October 1, 1994
____________
==============================================
<PAGE> 2
Reconciliation and tie between Indenture, dated as of October 1, 1994 and the
Trust Indenture Act of 1939, as amended ("TIA").
<TABLE>
<CAPTION>
Indenture
TIA Section Section
- ----------- ---------
<S> <C>
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TIA
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TIA
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 610; TIA
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613; TIA
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613; TIA
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702; TIA
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c); TIA
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703; TIA
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703; TIA
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703; TIA
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703; TIA
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704; TIA
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TIA
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TIA
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601; 603; TIA
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602; TIA
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TIA
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TIA
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603; TIA
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603; TIA
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TIA
316(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502; 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 507; 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TIA
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TIA
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TIA
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TIA
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108; TIA
</TABLE>
- ---------------------
This reconciliation and tie section does not constitute part of the
Indenture.
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Authorization of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Compliance with Legal Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Attributable Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capitalized Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Closing Price Per Share . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Consolidated Net Tangible Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Converting Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Determination Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
</TABLE>
- -----------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
(i)
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C>
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Funded Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Nonrecourse Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
NYSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
original issue date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Overdue Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Principal Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Redemption Rescission Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Registered Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Rescission Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Security Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Significant Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Specified Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Surrendered Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Trading Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
</TABLE>
- ----------------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
(ii)
<PAGE> 6
<TABLE>
<CAPTION>
Page
----
<S> <C>
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 103. Form of Documents Delivered to
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 104. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 105. Notices, Etc., to Trustee and
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 107. Incorporators, Stockholders,
Officers and Directors of Company
Exempt from Individual Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 108. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 109. Effect of Headings and Table of
Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 110. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 111. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 112. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 113. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 114. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 115. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE TWO
Security Forms
Section 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 202. Form of Trustee's Certificate
of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 203. Additional Provisions Required in
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 303. Execution, Authentication, Delivery
and Dating of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
</TABLE>
- -------------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
(iii)
<PAGE> 7
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 305. Registration, Registration of
Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 306. Mutilated, Defaced, Destroyed, Lost
and Stolen Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 307. Payment of Interest; Interest
Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 311. Securities Denominated in Foreign
Currencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 312. Compliance with Certain Laws and
Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE FIVE
Remedies
Section 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 502. Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 505. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 506. Application of Moneys Collected by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
</TABLE>
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Section 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 603. Certain Rights of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 604. Not Responsible for Recitals
or Issuance of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 608. Right to Rely on Officers'
Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 609. Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 610. Resignation and Removal;
Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 611. Acceptance of Appointment by
Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 612. Merger, Conversion, Consolidation
or Succession to Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 613. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE SEVEN
Holders' List and Reports by Trustee and Company
Section 701. Company to Furnish Trustee
Names and Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 702. Preservation of Information;
Communications to Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
</TABLE>
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ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only
on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without
Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 902. Supplemental Indentures with
Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 906. Reference in Securities to
Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 1003. Money for Securities Payments to
Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 1004. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 1005. Limitation on Sales and Leasebacks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 1006. Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 1007. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 1102. Election to Redeem; Notice to
</TABLE>
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Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 1103. Selection by Trustee of Securities
to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 1106. Securities Payable on Redemption
Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 1108. Rescission of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 1202. Satisfaction of Sinking Fund
Payments with Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 1203. Redemption of Securities for
Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
ARTICLE THIRTEEN
Defeasance
Section 1301. Applicability of Article; Company's
Option to Effect Defeasance or
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 1302. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 1303. Covenant Defeasance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 1304. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 1305. Deposited Money and Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 1306. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
ARTICLE FOURTEEN
Convertible Securities
Section 1401. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
</TABLE>
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Section 1402. Right of Holders to Convert
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 1403. Issuance of Shares of Capital
Stock on Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 1404. No Payment or Adjustment for
Interest or Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 1405. Adjustment of Conversion Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 1406. No Fractional Shares to be Issued . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Section 1407. Preservation of Conversion Rights
Upon Consolidation, Merger, Sale
or Conveyance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Section 1408. Notice to Holders of Securities of
a Series Prior to Taking Certain
Types of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 1409. Covenant to Reserve Shares for
Issuance on Conversion of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Section 1410. Compliance with Governmental
Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 1411. Payment of Taxes Upon Certificates
for Shares Issued Upon Conversion
of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 1412. Trustee's Duties with Respect
to Conversion Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 1413. Corporate Action Regarding
Par Value of Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 1414. Company Determination Final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
ARTICLE FIFTEEN
Subordination
Section 1501. Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 1502. Payments to Holders of Subordinated
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Section 1503. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Section 1504. Authorization by Holders of
Subordinated Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Section 1505. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
Section 1506. Trustee's Relation to Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
</TABLE>
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Section 1507. No Impairment of Subordination . . . . . . . . . . . 109
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Acknowledgments
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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THIS INDENTURE, dated as of October 1, 1994 between ASARCO
Incorporated, a corporation duly organized and existing under the laws of the
State of New Jersey (herein called the "Company"), having its principal office
at 180 Maiden Lane, New York, New York 10038, and Chemical Bank, a New York
corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness, which may be convertible
into shares of Capital Stock (as such term is hereinafter defined) of the
Company (such debentures, notes or other evidences of indebtedness herein
called the "Securities") to be issued in one or more series as in this
Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is agreed for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture and of any indenture
supplemental hereto, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act or by Commission rule under the Trust Indenture
Act, either directly or by reference therein, have the meanings
assigned to them therein;
<PAGE> 14
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with United States
generally accepted accounting principles; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in
that article.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Attributable Debt" means, as to any particular Capitalized
Lease under which any Person is at the time liable, at any date as of which the
amount thereof is to be determined, the total net amount of rent required to be
paid by such Person under such Capitalized Lease during the remaining primary
term thereof, discounted from the respective due dates thereof to such date at
the rate of interest per annum implicit in the terms of such Capitalized Lease,
as determined in good faith by the Company, compounded semi-annually. The net
amount of rent required to be paid under any such Capitalized Lease for any
such period shall be the amount of the rent payable by the lessee with respect
to such period, after excluding amounts required to be paid on account of
maintenance, repairs, insurance, taxes, assessments, water rates and similar
charges. In the case of any Capitalized Lease which is terminable by the
lessee upon the payment of a penalty, such net amount shall also include the
amount of such penalty, but shall not include any rent required to be paid
under such Capitalized Lease subsequent to the first date upon which it may be
so terminated.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper of general
circulation, in the official language of the country of publication or in the
English language, customarily
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<PAGE> 15
published on each Business Day whether or not published on Saturdays, Sundays
or holidays. Whenever successive publications in an Authorized Newspaper are
required hereunder they may be made (unless otherwise expressly provided
herein) on the same or different days of the week and in the same or different
Authorized Newspapers.
"Bearer Security" means any Security issued under this
Indenture which is payable to bearer.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board or any directors
and/or officers of the Company to whom that board or committee shall have duly
delegated its authority.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means, except as may otherwise be provided
herein or in any Security, when used with respect a location, each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that location are authorized or obligated by law or executive
order to close.
"Capital Stock" means any stock of any class of the Company.
"Capitalized Lease" means any lease which has been capitalized
by the Company.
"Closing Price Per Share" means, with respect to the Capital
Stock of the Company, for any day the last reported sales price per share (i)
on the New York Stock Exchange, Inc. as reported in the Wall Street Journal (or
other similar newspaper) for New York Stock Exchange Composite Transactions
(or, if no such sale is so reported on such day, the average of such reported
closing bid and asked prices regular way) or, if the Capital Stock is not
listed or admitted to trading on such Exchange, on the principal (as determined
by the Company's Board of Directors) national securities exchange on which the
Capital Stock is listed or admitted to trading or, (ii) if not listed or
admitted to trading on any national securities exchange, on the National
Association of Securities Dealers Automated Quotations National Market System;
or if the Capital Stock is not listed or admitted to trading on any national
securities exchange or quoted on such National Market System, the average of
the
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<PAGE> 16
closing bid and asked prices in the over-the-counter market as furnished by any
New York Stock Exchange member firm selected from time to time by the Company
for that purpose.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by both (i) its
Chairman of the Board of Directors, its Vice Chairman of the Board of
Directors, its President or a Vice President, and (ii) its Treasurer, an
Assistant Treasurer, its Controller, an Assistant Controller, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the aggregate amount
of assets (less applicable reserves and other properly deductible items) after
deducting therefrom (i) all current liabilities (excluding any thereof
constituting Funded Debt by reason of being renewable or extendable) and (ii)
all goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all as set forth on the most recent balance
sheet of the Company and its consolidated Subsidiaries and computed in
accordance with generally accepted accounting principles.
"Converting Holder" has the meaning specified in Section 1403.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is located at 450
West 33rd Street, 15th Floor, New York, New York 10001.
"Corporation" includes corporations, associations, companies,
joint-stock companies and business trusts.
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<PAGE> 17
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Debt" has the meaning specified in Section 1004.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 301 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall mean
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Securities of that series.
"defeasance" and "covenant defeasance" have the respective
meanings specified in Sections 1302 and 1303.
"Determination Date" has the meaning specified in Section 1405.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Event of Default" has the meaning specified in Section 501.
"Funded Debt" means all indebtedness for money borrowed having
a maturity of more than 12 months from the date as of which the amount thereof
is to be determined or having a maturity of less than 12 months but by its
terms being renewable or extendable beyond 12 months from such date at the
option of the borrower.
"Global Security" means a Security bearing the legend
prescribed in Section 203 evidencing all or part of a series of Securities,
issued to the Depositary for such series or its nominee, and registered in the
name of such Depositary or nominee.
"Government Obligations" has the meaning specified in Section
1304.
"Holder" means, with respect to a Registered Security, a
Person in whose name a Security is registered in
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the Security Register and, with respect to a Bearer Security, a bearer thereof
or of a Coupon appertaining thereto.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the mandatory provisions of the Trust Indenture Act that are deemed
to be a part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated in Section 301.
"interest" means, when used with respect to a non-interest
bearing Security, interest payable after the principal thereof has become due
and payable whether at Maturity, by declaration of acceleration, by call for
redemption, pursuant to a sinking fund or otherwise, and, when used with
respect to an Original Issue Discount Security which by its terms bears
interest only after Maturity, interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an instalment of interest on such
Security.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an instalment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption, pursuant to a
sinking fund or otherwise.
"Mortgage" has the meaning specified in Section 1004.
"Nonrecourse Obligation" has the meaning specified in Section
1004.
"NYSE" means the New York Stock Exchange, Inc.
"Officers' Certificate" means a certificate signed by both (a)
the Chairman of the Board of Directors, a Vice Chairman of the Board of
Directors, the President or a Vice President and (b) the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee. Each such Officers' Certificate shall include
the statements required by Section 102 hereunder.
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"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel for the Company.
"original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding" when used with respect to Securities, means,
except as otherwise required by the Trust Indenture Act as of the date of
determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of
such Securities and of any Coupons; provided, however, that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(c) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(d) Securities which have been converted into Capital Stock
in accordance with Article Fourteen hereof, if the terms of such
Securities provide for convertibility pursuant to Section 301.
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<PAGE> 20
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities of any series have taken any
action (including the making of any request, demand, authorization or
direction), the giving of any notice, consent or waiver (or the taking of any
other action) hereunder and in determining voting rights of any Holder of a
Security hereunder (i) the principal amount of Original Issue Discount
Securities that shall be deemed to be Outstanding for such purposes shall be
the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 and (ii) the principal amount of any Security,
the principal amount of which is denominated in a Specified Currency, shall be
deemed to be that amount as determined in accordance with Section 311 (or, in
the case of any Original Issue Discount Security, the amount determined in
accordance with clause (i) above as well as Section 311), and (iii) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or any such other obligor. In
case of a dispute as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Trustee in accordance with
such advice.
"Overdue Rate" means, unless otherwise specified in the
Securities of any series, the same rate as the rate of interest specified in
the Securities of such series or, in the case of a series of Original Issue
Discount Securities, the Yield to Maturity of such series of Securities.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or any premium or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of
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<PAGE> 21
the same debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and delivered under
Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Principal Property" means any smelters, refineries, mines,
concentrators or other facilities, located within the present 50 States of the
United States of America (excluding the territories and possessions of the
United States of America) and owned by the Company or any Subsidiary, in each
case the gross book value (without deduction of any depreciation reserves) of
which on the date as of which the determination is being made exceeds 3% of
Consolidated Net Tangible Assets, other than any such facility or portion
thereof which is pollution control or other equipment or facility financed by
obligations issued by a State or local government unit; provided, however,
that Principal Property shall not include any smelters, refineries, mines,
concentrators or facilities or any portions thereof which the Board of
Directors of the Company declares by resolution are not of material importance
to the total business conducted by the Company and its Subsidiaries as an
entirety.
"Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified as such in the
terms of the Securities of such series, or, if no such date is so specified, if
such Interest Payment Date is the first day of a calendar month, the fifteenth
day of the next preceding calendar month or, if such Interest Payment Date is
the fifteenth day of a calendar month, the last day of the preceding calendar
month, whether or not such Record Date is a Business Day.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Redemption Rescission Event" means the occurrence of (a) any
general suspension of trading in, or limitation on prices for, securities on
the principal national securities exchange on which shares of Capital Stock are
registered and listed for trading (or, if shares of Capital Stock are not
registered and listed for trading on any such exchange, in the over-the-counter
market) for more than six-and-one-half (6-1/2) consecutive trading hours, (b)
any decline in either
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the Dow Jones Industrial Average or the Standard & Poor's Index of 400
Industrial Companies (or any successor index published by Dow Jones & Company,
Inc. or Standard & Poor's Corporation) by either (i) an amount in excess of
10%, measured from the close of business on any Trading Day to the close of
business on the next succeeding Trading Day during the period commencing on the
Trading Day preceding the day notice of any redemption of Securities is given
(or, if such notice is given after the close of business on a Trading Day,
commencing on the Trading Day) and ending at the time and date fixed for
redemption in such notice or (ii) an amount in excess of 15% (or if the time
and date fixed for redemption is more than 15 days following the date on which
such notice of redemption is given, 20%), measured from the close of business
on the Trading Day preceding the day notice of such redemption is given (or, if
such notice is given after the close of business on a Trading Day, from such
Trading Day) to the close of business on any Trading Day at or prior to the
time and date fixed for redemption, (c) a declaration of a banking moratorium
or any suspension of payments in respect of banks by Federal or state
authorities in the United States or (d) the commencement of a war or armed
hostilities or other national or international calamity directly or indirectly
involving the United States which in the reasonable judgement of the Company
could have a material adverse effect on the market for the Capital Stock.
"Registered Holder" means the Holder of a Registered Security.
"Registered Security" means any Security issued under this
Indenture which is registered as to principal and interest in the Security
Register.
"Rescission Date" has the meaning specified in Section 1108.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Bearer Security, including any
Coupon appertaining thereto, or any Registered Security authenticated and
delivered under this Indenture.
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"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means all Debt of the Company including
principal and interest (and premium, if any) (including, without limitation,
any interest that would accrue but for the occurrence of any event specified in
Section 501(6) or (7) hereunder) on such Debt, created, incurred or assumed on
or after the date of the first issuance of any subordinated Securities, except
(i) existing subordinated Securities, (ii) such indebtedness as is by its terms
expressly stated to be junior in right of payment to subordinated Securities,
and (iii) such indebtedness as is by its terms expressly stated to rank pari
passu with, the subordinated Securities.
"Significant Subsidiary" means any Subsidiary of the Company
which owns a Principal Property and any Subsidiary which owns directly or
indirectly stock of a Significant Subsidiary.
"Special Record Date" has the meaning specified in Section 307.
"Specified Currency" means a currency other than United States
dollars or units of currencies or a composite currency.
"Stated Maturity", when used with respect to any Security or
any instalment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such instalment of principal or interest is due and payable.
"Subsidiary" means a corporation whose accounts are
consolidated with those of the Company in accordance with generally accepted
accounting principles.
"Surrendered Securities" has the meaning specified in Section
1403.
"Trading Day" means, with respect to the Capital Stock, so
long as the Capital Stock is listed or admitted to trading on the NYSE, a day
on which the NYSE is open for the transaction of business, or, if the Capital
Stock is not listed or admitted to trading on the NYSE, a day on which the
principal national securities exchange on which the Capital Stock is listed is
open for the transaction of business, or, if the Capital Stock is not so listed
or admitted for trading on any national securities exchange, a day on which
NASDAQ is open for the transaction of business.
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"Trust Indenture Act" (except as otherwise provided in Section
905) means the Trust Indenture Act of 1939, as amended, as in force at the date
as of which this instrument was executed; provided, however, that in the event
the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture
Act" means, to the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title of "vice president".
"Yield to Maturity" means, in the case of any Original Issue
Discount Security, the yield to maturity specified in such Security or in a
Board Resolution relating thereto.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required under
the Trust Indenture Act. Each such certificate or opinion shall be given in
the form of an Officers' Certificate, if to be given by any officer of the
Company, or Opinion of Counsel, if to be given by counsel, and shall comply
with the requirements of the Trust Indenture Act and any other requirements set
forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or
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<PAGE> 25
opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
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<PAGE> 26
Section 104. Acts of Holders; Record Dates.
(a) Whenever in this Indenture it is provided that the
Holders of a specified percentage in aggregate principal amount of the
Securities of any series may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the taking of
any other action), the fact that at the time of taking any such action the
Holders of such specified percentage have joined therein may be evidenced (1)
by any instrument or any number of instruments of similar tenor executed by
such Holders in person or by agent or proxy appointed in writing, or (2) by the
record of such Holders of Securities voting in favor thereof at any meeting of
such Holders duly called and held, or (3) by a combination of such instrument
or instruments and any such record of such a meeting of such Holders; and,
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments and/or such record are delivered
to the Trustee. Proof of execution of any instrument or of a writing
appointing any such agent or proxy shall be sufficient for any purpose of this
Indenture and (subject to the requirements of the Trust Indenture Act and
Section 601) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section 104.
Without limiting the generality of the foregoing, a Holder,
including a Depositary that is a Holder of a Global Security, may make, give or
take, by a proxy or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted in this Indenture to be made, given or taken by Holders, and a
Depositary that is a Holder of a Global Security may provide its proxy or
proxies to the beneficial owners of interest in any such Global Security.
(b) Subject to the requirements of the Trust Indenture Act
and Sections 601 and 603, proof of the execution of any instrument by a Holder
or his agent or proxy shall be sufficient if made in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in such
manner as shall be satisfactory to the Trustee.
(c) If the Company shall solicit from the Registered Holders
any demand, request, notice, consent, waiver or the taking of any other action,
the Company may, at its option, by a Board Resolution, fix in advance a record
date for the determination of Registered Holders entitled to give such demand,
request, notice, consent or waiver or to take such other action, but the
Company shall have no obligation to do so. If such a record date is fixed,
such
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<PAGE> 27
demand, request, notice, consent, waiver or other action may be given before or
after the record date, but only the Registered Holders of record at the close
of business on the record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite percentage of Securities
Outstanding have authorized or agreed or consented to such demand, request,
notice, consent, waiver or taking of any other action, and for that purpose
the Securities Outstanding shall be computed as of the record date; provided,
however, that no such demand, request, notice, consent, waiver or taking of any
other action by the Holders on the record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not
later than six months after the Record Date.
(d) The ownership of Registered Securities shall be proved by
the Security Register or by a certificate of the Person designated by the
Company to keep the Security Register and to act as repository in accordance
with the provisions of Section 305.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(f) At any time prior to (but not after) the evidencing to
the Trustee of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action, any Holder
of a Security the serial number or other distinguishing symbol of which is
shown by the evidence to be included among the serial numbers or other
distinguishing symbols of the Securities the Holders of which have consented to
such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article, revoke such action so far as
concerns such Security.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
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(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the Trustee
by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, (i) if any of the Securities affected by such event are Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date (if any), and not earlier
than the earliest date (if any) prescribed for the giving of such notice, and,
(ii) if any of the Securities affected by such event are Bearer Securities,
notice to the Holders thereof shall be sufficiently given (unless otherwise
herein or in the terms of such Bearer Securities expressly provided) if
published once in an Authorized Newspaper in New York, New York, and in such
other city or cities, if any, as may be specified as contemplated in Section
301.
In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. In any case where notice is given to Holders by publication,
neither the failure to publish such notice, nor any defect in any notice so
published, shall affect the sufficiency of such notice with respect to other
Holders.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver. Notwithstanding anything to the contrary
elsewhere
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<PAGE> 29
in this Indenture as to the giving of notice, any other form of written notice
is sufficient, if received.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give any notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder. If it
is impossible or, in the opinion of the Trustee, impracticable to give any
notice by publication in the manner herein required, then such publication in
lieu thereof as shall be made with the approval of the Trustee shall constitute
a sufficient publication of such notice.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
Section 107. Incorporators, Stockholders,
Officers and Directors of Company
Exempt from Individual Liability .
No recourse under or upon any obligation, covenant or
agreement contained in this Indenture, or in any Security, or because of any
indebtedness evidenced thereby, shall be had against any incorporator, as such,
or against any past, present or future stockholder, official or director, as
such, of the Company or of any successor, either directly or through the
Company or any successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
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Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 113. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
Section 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Stated Maturity or Maturity of any Security shall not be a Business Day at the
place of payment, then (notwithstanding any other provision on this Indenture
or of the Securities (other than a provision of the Securities of any series
which specifically states that such provision shall apply in lieu of this
Section)) payment of interest or principal (and premium, if any) need not be
made on such date, but may be made on the next succeeding Business Day in such
place with the same force and effect as if made on such Interest Payment Date
or Redemption Date or at the Stated Maturity or Maturity, provided, however,
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date, Stated Maturity or Maturity, as the case may be.
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Section 115. Counterparts.
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities of each series and any Coupons to be attached
thereto shall be substantially in such form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture and may
have imprinted or otherwise reproduced thereon such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with any applicable law, rule or regulation or with the
rules of any securities exchange or as may, consistent with the provisions of
this Indenture, be determined by the officers executing such Securities, as
evidenced by their execution of the Securities. Temporary Securities of any
series may be issued as permitted by Section 304. If the form of Securities or
Coupons of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of any such action taken pursuant
thereto, including a copy of the approved form of Securities or Coupons, shall
be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated in Section 303 for the authentication and delivery of such
Securities. Any portion of the text of any Security may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the
Security.
Unless otherwise specified as contemplated in Section 301,
Bearer Securities shall have Coupons attached.
The definitive Securities and Coupons shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities and Coupons.
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<PAGE> 32
Section 202. Form of Trustee's Certificate
of Authentication.
The Trustee's certificate of authentication on all Securities
shall be in substantially the following form:
This is one of the Securities of the series designated herein
and referred to in the within-mentioned Indenture.
-----------------------------,
as Trustee
By
---------------------------
Authorized Officer
Section 203. Additional Provisions Required in Global
Security.
Any Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee thereof. This Security may not be transferred
to, or registered or exchanged for Securities registered in the name
of, any Person other than the Depositary or a nominee thereof and no
such transfer may be registered, except in the limited circumstances
described in the Indenture. Every Security authenticated and
delivered upon registration or transfer of, or in exchange for or in
lieu of, this Security shall be a Global Security subject to the
foregoing, except in such limited circumstances."
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board
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<PAGE> 33
Resolution, a copy of which, certified by the Secretary or an assistant or
attesting Secretary of the Company, shall be delivered to the Trustee, or
established in one or more indentures supplemental hereto, prior to the
issuance of Securities of a particular series, the following:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of all other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 304, 305,
306, 906 or 1107 and except for any Securities which, pursuant to
Section 303, are deemed never to have been authenticated and delivered
hereunder);
(3) the manner in which or the Person to whom any interest on
a Registered Security of the series shall be payable, if other than
the Person in whose name that Registered Security (or one or more
Predecessor Securities) is registered at the close of business on the
Record Date for such interest;
(4) the date or dates on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
(including the Overdue Rate) shall be determined, the date or dates
from which such interest shall accrue or the method by which such date
or dates may be determined, the Interest Payment Dates on which such
interest shall be payable and the Record Dates for the determination
of Holders to whom interest is payable;
(6) the place or places where the principal of and any
premium and interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices
at which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the
Company, pursuant to any sinking fund or otherwise;
(8) the obligation, if any, of the Company to redeem,
purchase or repay Securities of the series pur-
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suant to any sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which, the price or
prices at which and the terms and conditions (including, without
limitation, the type of consideration to be paid by the Company) upon
which Securities of the series shall be redeemed, purchased or repaid,
in whole or in part, pursuant to such obligation;
(9) the period or periods within which, the price or prices
at which and the terms and conditions upon which Securities of the
series may be repaid, in whole or in part, at the option of the Holder
thereof;
(10) if other than such coin or currency of the United States
of America as at the time of payment is legal tender for payment of
public or private debts, the coin or currency (including composite
currencies) in which the Securities of the series shall be denominated
and, if different, the coin or currency (including composite
currencies) in which payment of the principal of, and any premium and
interest on, the Securities of the series shall be payable;
(11) if the principal of, and any premium and interest on,
the Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency (including
composite currencies) other than that in which the Securities are
stated to be payable, the period or periods within which, and the
terms and conditions upon which, such election may be made;
(12) if the amount of payments of principal of, and any
premium and interest on, the Securities of the series may be
determined with reference to an index, formula or other method, the
manner in which such amounts shall be determined;
(13) the applicability, if any, of Section 1302 or Section
1303 to the Securities of such series, or such other means of
defeasance or covenant defeasance as may be specified for the
Securities and any Coupons of such series, and whether, for the
purpose of such defeasance or covenant defeasance, the term
"Government Obligations" shall include obligations referred to in the
definition of such term which are not obligations of the United States
of America or an agency or instrumentality of the United States of
America;
(14) if other than denominations of $1,000 (or if the
Securities are denominated in a currency other than
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U.S. dollars or in a composite currency, 1,000 units of such other
currency or composite currency) and any multiple thereof, the
denominations in which Securities of the series shall be issuable;
(15) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or provable in bankruptcy pursuant to Section
504;
(16) if the Securities of the series are Original Issue
Discount Securities, the price at which and the date on which
Securities of the series are to be issued and the Yield to Maturity at
the time of issuance of such series;
(17) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without Coupons),
or both, and any restrictions applicable to the offering, sale or
delivery of Bearer Securities and, if other than as provided in
Section 305, the terms upon which Bearer Securities of a series may be
exchanged for Registered Securities of the same series and vice versa;
(18) the date as of which any Bearer Securities of the series
and any temporary Global Security representing Outstanding Securities
of the series shall be dated if other than the original issue date of
the first Security of the series to be issued;
(19) the forms of the Securities and Coupons, if any, of the
series;
(20) if and as applicable, that the Securities of the series
shall be issuable in whole or in part in the form of one or more
Global Securities and, in such case, the Depositary or Depositaries
for such Global Security or Global Securities and any circumstances
other than those set forth in Section 305 in which any such Global
Security may be transferred to, and registered and exchanged for
Registered Securities in the name of, a Person other than the
Depositary for such Global Security or nominee thereof, and in which
any such transfer may be registered, or, if other than as provided in
Section 305, the circumstances under which any exchange may occur;
(21) with respect to such series of Securities, the "stated
intervals" and the method of determining the
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"record date" for purposes of sections 312(a) and 316(c),
respectively, of the Trust Indenture Act;
(22) whether the Securities of such series will be
convertible into any class or combination of classes of Capital Stock,
and the terms and conditions upon which such conversion shall be
effected (including, without limitation, the initial conversion price
or rate, the events giving rise to adjustments to the conversion price
or rate and the nature of such adjustments, the conversion period, any
provision which gives the Company the right, at its option, to pay to
a Holder of the Securities a specified cash amount in lieu of Capital
Stock issuable upon such conversion, and any other provisions in
addition to or in lieu of those set forth in this Indenture relative
to such obligation);
(23) whether the Securities of such series shall be
subordinated and subject in right of payment to the prior payment in
full of all Senior Indebtedness as set forth in Article Fifteen
hereunder; and
(24) any other terms of the series which are not inconsistent
with this Indenture.
All Securities of any one series shall be substantially
identical except as to denomination, interest rate and maturity and except as
may otherwise be provided in or pursuant to such Board Resolution or in any
such indenture supplemental hereto. The applicable Board Resolution or the
applicable supplemental indenture may provide that Securities of any particular
series may be issued at various times, with different Maturities and redemption
and repayment provisions (if any) and bearing interest at different rates, but
shall for all purposes under this Indenture, including, but not limited to,
voting and Events of Default, be treated as Securities of a single series.
Section 302. Denominations.
In the absence of any specification as contemplated in Section
301 with respect to the Securities of any series, any Securities of a series
shall be issuable in denominations of U.S. $1,000 (or, if such Securities are
denominated in a currency other than United States dollars or in a composite
currency, 1,000 units of such other currency or composite currency) and any
integral multiple thereof. The Securities of each series shall be numbered,
lettered or otherwise distinguished in such manner or in accordance with such
plan as the officers of the Company who execute such Securities may determine
with the approval of the Trustee as evidenced by the execution and
authentication thereof.
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Section 303. Execution, Authentication, Delivery
and Dating of Securities.
The Securities shall be signed on behalf of the Company by its
Chairman of the Board of Directors, its Vice Chairman of the Board of
Directors, its President or any of its Vice Presidents, under its corporate
seal which may, but need not, be attested by its Secretary or any of its
Assistant Secretaries. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. The seal of the Company
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any
of the Securities shall cease to be such officer before the Security so signed
shall be authenticated and delivered by the Trustee or disposed of by the
Company, such Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Security had not ceased to be
such officer of the Company; and any Security may be signed on behalf of the
Company by such persons as, at the actual date of the execution of such
Security, shall be the proper officers of the Company, although at the date of
the execution and delivery of this Indenture any such person was not such an
officer.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee, in accordance with the Company Order, shall thereupon authenticate and
deliver such Securities without any further action by the Company. In
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities the Trustee shall be
entitled to receive, and (subject to the requirements of the Trust Indenture
Act) shall be fully protected in relying upon:
(1) a copy of any Board Resolution or Board Resolutions
relating to such series;
(2) an executed supplemental indenture, if any, relating
thereto;
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<PAGE> 38
(3) an Officers' Certificate setting forth the form and terms
of the Securities as required pursuant to Sections 201 and 301,
respectively, and prepared in accordance with the requirements of the
Trust Indenture Act and Section 103; or
(4) an Opinion of Counsel, prepared in accordance with the
requirements of the Trust Indenture Act and Section 103, which shall
state that:
(a) if the form of such Securities has been
established by or pursuant to a Board Resolution as permitted
by Section 201, such form has been established in conformity
with the provisions of this Indenture;
(b) the terms of such Securities have been
established by or pursuant to a Board Resolution as permitted
by Section 301 in conformity with the provisions of this
Indenture; and
(c) such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and binding obligations of
the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the
enforcement of creditors' rights generally and to general
principles of equity.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Company
or if the Trustee in good faith by its board of directors or board of trustees,
executive committee or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders or would adversely affect the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
The Trustee shall not be required to authenticate Securities
denominated in a coin or currency other than that of the United States of
America if the Trustee reasonably determines that such Securities impose duties
or obligations on the Trustee which the Trustee is not able or reasonably
willing to accept; provided, however, that the Trustee, upon the request of the
Company, will resign as Trustee with
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<PAGE> 39
respect to Securities of any series as to which such a determination is made,
prior to the issuance of such Securities, and will comply with the request of
the Company to execute and deliver a supplemental indenture appointing a
successor Trustee pursuant to Section 901.
Notwithstanding the provisions of Section 301 and this Section
303, if all Securities of a series are not to be originally issued at one time,
it shall not be necessary to deliver the Officers' Certificate, Opinion of
Counsel and Company Order otherwise required pursuant to this Section 303 at or
prior to the time of authentication of each Security of such series if such
documents are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication,
shall bear interest, if any, from the date, and shall be payable on the dates,
in each case, which shall be specified as contemplated in Section 301.
Only such Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, executed by the
Trustee by the manual signature of one of its authorized signatories, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate by the Trustee upon any Security executed by the
Company shall be conclusive evidence that the Security so authenticated has
been duly authenticated and delivered hereunder and that the Holder is entitled
to the benefits of this Indenture. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 309, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities for any
series, the Company may execute, and upon a Company Order the Trustee shall
authenticate and deliver, temporary Securities for such series printed,
lithographed, typewritten or otherwise produced. Temporary Securities of any
series shall be issuable, with or without coupons, in any authorized
denomination, and substantially of the tenor or form of the definitive
Securities of such series in lieu of which they are issued but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Temporary Securities may
contain
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<PAGE> 40
such reference to any provisions of this Indenture as may be appropriate.
Every temporary Security shall be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Securities in lieu of which they are issued. Without unreasonable
delay the Company shall execute and shall furnish definitive Securities of such
series and thereupon temporary Securities of such series may be surrendered
(together with any unmatured Coupons) in exchange therefor without charge at
each office or agency to be maintained by the Company for that purpose pursuant
to Section 1002, and the Trustee shall authenticate and deliver in exchange for
such temporary Securities of such series a like aggregate principal amount of
definitive Securities of the same series of authorized denominations having the
same interest rate, Maturity and redemption and repayment provisions and
bearing interest from the same date as such temporary Securities; provided,
however, that no definitive Bearer Security shall be delivered in exchange for
a temporary Registered Security; and provided further that no definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security unless
the Trustee shall have received from the Person entitled to receive the
definitive Bearer Security a certificate substantially in the form approved in
the Board Resolutions relating thereto and such delivery shall occur only
outside the United States of America. Until so exchanged, the temporary
Securities of any series shall be entitled to the same benefits under this
Indenture as definitive Securities of the same series authenticated and
delivered hereunder.
Section 305. Registration, Registration of Transfer and Exchange.
The Company will keep, either at the office or agency
designated and maintained by the Company for such purpose in the Borough of
Manhattan, The City of New York, in accordance with the provisions of Section
1002, or at any of such other offices or agencies as may be designated and
maintained in accordance with the provisions of Section 1002, a register or
registers in which, subject to such reasonable regulations as it may prescribe,
it will register, and will register the transfer of, Registered Securities of a
series. Each such register is sometimes herein referred to as a "Security
Register". Each Security Register shall be in written form in the English
language or in any other form capable of being converted into such form within
a reasonable time. At all normal business hours such Security Register shall
be open for inspection by the Trustee and any Security Registrar other than the
Trustee.
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Upon surrender for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 1002, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series and of
like tenor in any authorized denomination for a like aggregate principal amount
and having the same interest rate, Maturity, repayment and redemption
provisions.
Bearer Securities (except for any temporary global Bearer
Securities) or any Coupons appertaining thereto (except for Coupons attached to
any temporary global Bearer Security) shall be transferable by delivery.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series and
of like tenor in other authorized denominations, in an equal aggregate
principal amount and having the same interest rate, Maturity, repayment and
redemption provisions. Registered Securities of any series to be exchanged
shall be surrendered at any office or agency to be maintained by the Company
for the purpose as provided in Section 1002, and the Company shall execute, and
the Trustee shall authenticate and deliver, in exchange therefor the Registered
Securities of the same series and having the same interest rate and Maturity
which the Holder making the exchange shall be entitled to receive, bearing
numbers or other distinguishing symbols not contemporaneously outstanding. Each
Person designated by the Company pursuant to the provisions of Section 1002 as
a Person authorized to register and register transfer of the Registered
Security is sometimes herein referred to as a "Security Registrar".
Unless otherwise specified as contemplated in Section 301, at
the option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations and of like tenor
and aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured Coupons and all
matured Coupons in default. If the Holder of a Bearer Security is unable to
produce any such unmatured Coupon or matured Coupon in default, such exchange
may be effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company and the Trustee in an amount equal to the face amount
of such missing Coupon, or the surrender of such missing Coupon may be waived
by the Company and the Trustee if there be furnished to them such
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security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
any Paying Agent any such missing Coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
1002, interest represented by Coupons shall be payable only upon presentation
and surrender of those Coupons at an office or agency located outside the
United States of America. Notwithstanding the foregoing, in case any Bearer
Security of any series is surrendered at any such office or agency in exchange
for a Registered Security of the same series after the close of business at
such office or agency on (i) any Record Date and before the opening of business
at such office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such office or agency
on the related date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the Coupon relating to such Interest Payment Date
or proposed date of payment, as the case may be (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the
Person so surrendering the Bearer Security), and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date of payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such Coupon, when due in accordance with the provisions of
this Indenture.
The Company will at all times designate one Person (who may be
the Company and who need not be a Security Registrar) to act as repository of a
master list of names and addresses of the Holders of the Registered Securities.
The Corporate Trust Office of the Trustee shall act as such repository unless
and until some other Person is, by written notice from the Company to such
office or agency and each Security Registrar, designated by the Company to act
as such. The Company shall cause each Security Registrar to furnish to such
repository, on a current basis, such information as to all registrations of
transfer and exchanges effected by such Security Registrar, as may be necessary
to enable such repository to maintain the master list of Registered Holders on
as current a basis as is practicable.
No Person shall at any time be designated as or act as a
Security Registrar unless such Person is at such time empowered under
applicable law to act as such and duly registered to act as such under and to
the extent required by applicable law and regulations.
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Every Registered Security presented for registration of
transfer, exchange, redemption or payment shall (if so required by the Company
or the Trustee) be duly endorsed by, or be accompanied by a written instrument
of transfer or exchange in form satisfactory to the Company and the Trustee
duly executed by, the Holder or his attorney duly authorized in writing.
The Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities, other than exchanges
pursuant to Section 304, 906 or 1107 not involving any registration of
transfer. No service charge shall be made for any such transaction.
The Company shall not be required (1) to exchange or register
a transfer of any Securities of any series for a period of 15 days next
preceding the selection of Securities of that series to be redeemed, (2) to
exchange or register a transfer of any Registered Securities selected, called
or being called for redemption or surrendered for repayment in whole or in part
except, in the case of any Security to be redeemed or repaid in part, the
portion thereof not so to be redeemed or repaid, or (3) to exchange any Bearer
Security so selected for redemption, except that such a Bearer Security may be
exchanged for a Registered Security of that series and like tenor; provided,
however, that such Registered Security shall be simultaneously surrendered for
redemption.
Notwithstanding the foregoing and except as otherwise
specified or contemplated in Section 301, no Global Security shall be
exchangeable pursuant to this Section 305 or Sections 304, 906, and 1107 for
the Securities of, and no transfer of a Global Security of any series may be
registered to, any Person other than the Depositary for such Security or its
nominee unless (1) such Depositary (A) notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Security or (B)
ceases to be a clearing agency registered under the Securities Exchange Act of
1934, as amended, (2) the Company executes and delivers to the Trustee a
Company Order that such Global Security shall be so exchangeable and the
transfer thereof so registerable, or (3) there shall have occurred and be
continuing an Event of Default, or an event which after notice or lapse of time
would be an Event of Default, with respect to the Securities evidenced by such
Global Security. Upon the occurrence in respect of any Global Security of any
series of any one or more of the conditions specified in clauses (1), (2) or
(3) of the preceding sentence or such other conditions as may be specified as
contemplated in Section 301 for such series, such as that the Securities of
such series may be exchanged
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for Bearer Securities, such Global Security may be exchanged for Registered
Securities in the names of, and the transfer of such Global Security may be
registered to, such Persons (including Persons other than the Depositary with
respect to such series and its nominees), as such Depositary shall direct.
Notwithstanding any other provision of this Indenture, any Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, any Global Security shall also be a Global Security and
shall bear the legend specified in Section 203 except for any Security
authenticated and delivered in exchange for, or upon registration of transfer
of, a Global Security pursuant to the preceding sentence.
Section 306. Mutilated, Defaced, Destroyed, Lost
and Stolen Securities.
In case any temporary or definitive Security or Coupon shall
become mutilated or defaced or be destroyed, lost or stolen, in the absence of
notice to the Company or the Trustee that such Security or Coupon has been
acquired by a bona fide purchaser, the Company may in its discretion execute,
and the Trustee shall authenticate and deliver, a new Registered Security, if
such surrendered Security was a Registered Security, or a new Bearer Security
with Coupons corresponding to the Coupons appertaining to the surrendered
Security, if such surrendered Security was a Bearer Security, which shall be of
the same series and of like tenor and aggregate principal amount, bearing a
number or other distinguishing symbol not contemporaneously Outstanding, in
exchange and substitution for the mutilated or defaced Security, or in lieu of
and substitution for the Security so destroyed, lost or stolen. In every case
the applicant for a substitute Security shall furnish to the Company and to the
Trustee (and any agent of the Company or Trustee, if requested by the Company)
such security or indemnity as may be required by them to indemnify and defend
and to save each of them harmless and, in every case of destruction, loss or
theft, evidence to their satisfaction of the destruction, loss or theft of such
Security, or of such Coupon appurtenant thereto, and of the ownership thereof.
Upon the issuance of any substitute Security, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
In case any Security that has matured or is about to mature or
has been called for redemption in full shall become mutilated or defaced or be
destroyed, lost or stolen, the Company in its discretion may instead of issuing
a sub-
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stitute Security pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated or defaced Security), if the
applicant for such payment shall furnish to the Company and to the Trustee (and
any agent of the Company or Trustee, if requested by the Company) such security
or indemnity as any of them may require to indemnify and defend and to save
each of them harmless, and, in every case of destruction, loss or theft,
evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
Every substituted Security (and every appurtenant Coupon, if
any) of any series issued pursuant to the provisions of this Section by virtue
of the fact that any such Security is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Security shall be at any time enforceable by
anyone and shall be entitled to all the benefits of (but shall be subject to
all the limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder. All Securities shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
Section 307. Payment of Interest; Interest
Rights Preserved.
Except as otherwise specified for a particular series pursuant
to Section 301, interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Registered Security (or one or more
Predecessor Securities) is registered in the Security Register at the close of
business on the Record Date for such interest either (i) by check mailed to the
address of such Person as referenced in the Security Register or (ii) by wire
transfer to an account designated by such Person pursuant to an arrangement
that is satisfactory to the Company and the Trustee. Unless otherwise provided
pursuant to Section 301, the Company shall pay to the Trustee or the Paying
Agent the aggregate amount of interest in immediately available funds by 10:00
A.M. New York City time on the Interest Payment Date. The Trustee shall not be
held responsible or liable for any loss resulting from a failure of the federal
funds
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wire system or any other occurrence beyond its control in connection with wire
transfers made pursuant to this Section 307.
Except as otherwise specified for a particular series pursuant
to Section 301, (i) interest on any Bearer Securities shall be paid only
against presentation and surrender of the Coupons for such interest
installments as are evidenced thereby as they mature and (ii) the accreted
amount, if any, with respect to Bearer Securities which constitute Original
Issue Discount Securities shall be paid only against presentation and surrender
of such Securities; in either case at the office of a Paying Agent located
outside the United States of America, unless the Company shall have otherwise
instructed the Trustee in writing, provided that the Company furnishes the
Trustee with an Opinion of Counsel stating that any such instruction for
payment in the United States of America does not cause any Bearer Security to
be treated as a "registration-required obligation" under United States laws and
regulations. The interest on any temporary Bearer Security shall be paid, as
to any installment of interest evidenced by a Coupon attached thereto, only
upon presentation and surrender of such Coupon and, as to other installments of
interest, only upon presentation of such Security for notation thereon of the
payment of such interest. If at the time a payment of principal of or interest
on a Bearer Security or Coupon shall become due, the payment of the full amount
so payable at the office or offices of all the Paying Agents outside the United
States is illegal or effectively precluded because of the imposition of
exchange controls or other similar restrictions on the payment of such amount
in United States dollars, then the Company may instruct the Trustee in writing
to make such payments at a Paying Agent located in the United States of
America, provided that the Company furnishes the Trustee with an Opinion of
Counsel stating that provision for such payment in the United States of America
would not cause such Bearer Security to be treated as a "registration-required
obligation" under United States laws and regulations.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respec-
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tive Predecessor Securities) are registered at the close of
business on a special record date ("Special Record Date") for the
payment of such Defaulted Interest which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security
of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Registered
Securities of such series at its address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Registered Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 307, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued
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and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the
Trustee may deem and treat the Person in whose name any Registered Security
shall be registered in the Security Register for such series as the absolute
owner of such Registered Security (whether or not such Registered Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, any premium or interest
on, such Registered Security and for all other purposes; and neither the
Company nor the Trustee nor any agent of the Company or the Trustee shall be
affected by any notice to the contrary.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any
Coupon as the absolute owner of such Bearer Security or Coupon for the purpose
of receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or Coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
All payments so made to any such Person or bearer, or upon his
order, shall be valid and, to the extent of the sum or sums so paid, effectual
to satisfy and discharge the liability for moneys payable upon any such
Security.
Section 309. Cancellation.
All Securities and Coupons surrendered for the purpose of
payment, redemption, conversion, registration of transfer or exchange, or for
credit against any payment in respect of a sinking or analogous fund, if
surrendered to the Company, any Security Registrar, any Paying Agent or any
other agent of the Company or any agent of the Trustee, shall be delivered to
the Trustee and promptly canceled by it or, if surrendered to the Trustee,
shall be promptly canceled by it; and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall destroy canceled Securities and Coupons held by
it and, in the case of canceled Securities, deliver a certificate of
destruction to the Company. If the Company shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction
of the
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indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated in Section 301
for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
Section 311. Securities Denominated in Foreign Currencies.
For the purposes of calculating the principal amount of
Securities of any series denominated in a Specified Currency for any purpose
under this Indenture, the principal amount of such Securities at any time
Outstanding shall be deemed to be that amount of United States dollars that
could be obtained for such principal amount on the basis of a spot rate of
exchange specified to the Trustee by the Company in an Officers' Certificate
for such Specified Currency into United States dollars as of the date of any
such calculation.
Section 312. Compliance with Certain Laws and Regulations.
If any Bearer Securities are to be issued in any series of
Securities, the Company will use reasonable efforts to provide for arrangements
and procedures designed pursuant to then applicable laws and regulations, if
any, to ensure that Bearer Securities are sold or resold, exchanged,
transferred and paid only in compliance with such laws and regulations and
without adverse consequences to the Company or the Trustee.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of conversion or registration
of transfer or exchange of Securities herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
and all Coupons appertaining thereto (other
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than (i) Securities and Coupons which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
306, (ii) Securities and Coupons for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003, (iii) Coupons appertaining to
Bearer Securities surrendered in exchange for Registered Securities
and maturing after such exchange, surrender of which is not required
or has been waived as provided in Section 305, and (iv) Coupons
appertaining to Bearer Securities called for redemption and maturing
after the relevant Redemption Date, surrender of which has been waived
as provided in Section 1106) have been delivered to the Trustee for
cancellation; or
(B) all such Securities, and, in the case of (i) and (ii)
below, any Coupons appertaining thereto, not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal and any premium and
interest to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
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Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section 614 and,
if money shall have been deposited with the Trustee pursuant to subclause (B)
of clause (1) of this Section 401, the obligations of the Trustee under
Sections 305, 306, 402 and 1002 and the last paragraph of Section 1003 shall
survive.
Section 402. Application of Trust Money.
Subject to provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) or Depositary as the
Trustee may determine, to the Holders of the particular Securities of such
series for the payment or redemption of which such money has been deposited
with the Trustee, of all sums due and to become due thereon for principal and
any premium and interest.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default", with respect to Securities of a particular
series wherever used herein, means any one of the following events and such
other events as may be established with respect to the Securities of such
series as contemplated in Section 301, continued for the period of time, if
any, and after the giving of notice, if any, designated in this Indenture or as
may be established with respect to such Securities as contemplated in Section
301, as the case may be, unless such event is either inapplicable or is
specifically deleted or modified in, or pursuant to, the applicable Board
Resolution or in the supplemental indenture under which such series of
Securities is issued, as the case may be, as contemplated in Section 301:
(1) default in the payment of the principal of, or any
premium on, any of the Securities of such series as and when the same
shall become due and payable either at Stated Maturity, upon
redemption, by declaration or otherwise; or
(2) default in the payment of any installment of interest, if
any, upon any of the Securities of such
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series as and when it shall become due and payable, and continuance of
such default for a period of 30 days; or
(3) default in the payment of any sinking fund payment, when
and as due and payable by the terms of the Securities of such series;
or
(4) default in the performance, or breach, of any covenant or
agreement of the Company in this Indenture or the Securities of such
series (other than a covenant or agreement a default in the
performance of which or a breach of which is elsewhere in this Section
501 specifically dealt with or which has expressly been included in
this Indenture and designated as being solely for the benefit of
series of Securities other than such series), and continuance of such
default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of such series, a
written notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed in excess of $25,000,000
of the Company or any Significant Subsidiary (including a default with
respect to Securities of any series other than such series) or under
any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any such indebtedness
for money borrowed by the Company or any Significant Subsidiary
(including this Indenture), whether such indebtedness now exists or
shall hereafter be created, which default shall have resulted in such
indebtedness becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable, without
such involuntary acceleration having been rescinded or annulled within
a period of 30 days after there shall have been given, by registered
or certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in aggregate principal
amount of the Outstanding Securities of such series a written notice
specifying such default and requiring the Company to cause such
acceleration to be rescinded or annulled and stating that such notice
is a "Notice of Default" hereunder;provided, however, that, if such
default shall be remedied or cured by the Company or waived by the
holders of such indebtedness, then the Event of Default hereunder by
reason thereof shall be deemed likewise to have been thereupon
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remedied, cured or waived without any action on the part of the
Trustee or any of the Holders; or
(6) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official) of the Company or for
all or substantially all of its property or ordering the winding up or
liquidation of its affairs, and such decree or order shall remain
unstayed and in effect for a period of 90 consecutive days; or
(7) the Company shall commence a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment or taking possession
by a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Company or for all or
substantially all of its property, or make any general assignment for
the benefit of creditors; or
(8) any other Event of Default provided with respect to
Securities of such series.
Section 502. Acceleration of Maturity; Rescission
and Annulment.
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then, and in each and
every such case, unless the principal of all of the Securities of such series
shall have already become due and payable, either the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Outstanding Securities
of such series, by notice in writing to the Company (and to the Trustee if
given by Holders), may declare the entire principal amount (or, if the
Securities of such series are Original Issue Discount Securities, such portion
of the principal as may be specified in the terms of such series) of all of the
Securities of such series and any premium and interest accrued thereon to be
due and payable immediately, and upon any such declaration such principal
amount (or specified amount) and any premium and interest accrued thereon shall
become immediately due and payable.
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The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series shall have been
so declared due and payable, and before any judgment or decree for the payment
of money due shall have been obtained or entered as hereinafter provided,
(1) the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay the premium and all matured installments of
interest, if any, upon all the Securities of such series and the
principal of any and all Securities of such series which shall have
become due otherwise than by such declaration of acceleration (with
premium and interest upon such principal and, to the extent that
payment of such interest is enforceable under applicable law, on
overdue premium and installments of interest, if any, at the Overdue
Rate applicable to such series to the date of such payment or
deposit), and all amounts payable to the Trustee pursuant to Section
607, and
(2) all Events of Default under the Indenture with respect to
such series of Securities other than the nonpayment of the principal
of such Securities which shall have become due by such declaration of
acceleration, shall have been cured, waived or otherwise remedied as
provided in Section 513 or provision shall have been made therefor to
the satisfaction of the Trustee,
then and in every such case the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of such series, by
written notice to the Company and to the Trustee, may rescind and annul such
declaration and its consequences with respect to such series, but no such
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities shall
be deemed, for all purposes hereunder, to be such portion of the principal
thereof as shall be due and payable as a result of such acceleration, and
payment of such portion of the principal thereof as shall be due and payable as
a result of such acceleration, together
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with interest, if any, thereon and all other amounts owing thereunder, shall
constitute payment in full of such Original Issue Discount Securities.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any of the Securities of any series as and when such
interest becomes due and payable, and such default continues for a
period of 30 days, or
(2) a default is made in the payment of the principal of, and
any premium on, any of the Securities of any series as and when the
same becomes due and payable, whether upon Stated Maturity of the
Securities of such series or upon redemption or by declaration or
otherwise, or
(3) default is made in the making or satisfaction of any
sinking fund payment or analogous obligation when the same becomes due
by the terms of the Securities of any series,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of the Securities of such series the whole amount then
due and payable on all Securities of such series for principal and any premium
and interest as the case may be (with interest to the date of such payment upon
the overdue principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue premium and installments of
interest, if any, at the Overdue Rate applicable to Securities of such series);
and in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, and any further amounts payable to the
Trustee pursuant to Section 607.
Until such demand is made by the Trustee, the Company may pay
the principal of and any premium and interest on the Securities of any series
to the registered Holders, whether or not the principal of and any premium and
interest on the Securities of such series be overdue.
In case the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings
at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or
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final decree, and may enforce any such judgment or final decree against the
Company or other obligor upon such Securities and collect in the manner
provided by law out of the property of the Company or other obligor upon such
Securities, wherever situated, the moneys adjudged or decreed to be payable.
If an Event of Default with respect to Securities of any
Series has occurred, has not been waived and is continuing, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Section 504. Trustee May File Proofs of Claim.
In case there shall be pending proceedings for the bankruptcy
or for the reorganization of the Company or any other obligor upon the
Securities of any series under Title 11 of the United States Code or any other
similar applicable Federal or State law, or in case a receiver, trustee in
bankruptcy or similar official shall have been appointed for the property of
the Company or such other obligor, or in case of any other similar judicial
proceedings relative to the Company or other obligor upon the Securities of any
series, or to the creditors or property of the Company or such other obligor,
the Trustee, irrespective of whether the principal of any Securities shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section, shall be entitled and empowered, by intervention in
such proceedings or otherwise:
(1) to file and prove a claim or claims for the whole amount
of principal (or, if the Securities of any series are Original Issue
Discount Securities, such portion of the principal amount as may be
due and payable with respect to such series pursuant to a declaration
in accordance with Section 502) and any premium and interest owing and
unpaid in respect of the Securities of any series, and, in case of any
judicial proceedings, to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for any amounts payable to the
Trustee pursuant to Section 607) and of the Holders allowed in any
judicial proceedings
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relating to the Company or other obligor upon the Securities of any
series, or to the creditors or property of the Company or such other
obligor;
(2) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Securities of any series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or of a person performing similar functions in comparable
proceedings; and
(3) to collect and receive any money or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Holders and of the
Trustee on their behalf (after deduction of costs and expenses of
collection, and any further amounts payable to the Trustee pursuant to
Section 607 and incurred by it); and any trustee in bankruptcy,
receiver or other similar official is hereby authorized by each of the
Holders to make payments to the Trustee and, in the event that the
Trustee shall consent to the making of payments directly to the
Holders, to pay to the Trustee costs and expenses of collection and
any further amounts payable to the Trustee pursuant to Section 607 and
incurred by it.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or vote for or accept or adopt on behalf
of any Holder any plan or reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding, except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar person.
Section 505. Trustee May Enforce Claims Without Possession
of Securities.
All rights of action and claims under this Indenture, or under
the Securities of any series, may be prosecuted and enforced by the Trustee
without the possession of any of the Securities of such series or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
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Section 506. Application of Moneys Collected by Trustee.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in the case of distribution of such money on account of principal
or any premium or interest, upon presentation of the Securities or Coupons in
respect of which money has been collected and stamping (or otherwise noting)
thereon the payment, or issuing Securities in reduced principal amounts in
exchange for the presented Securities of like series and tenor if only
partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of amounts due to the Trustee under
Section 607;
SECOND: In case the principal of the Outstanding Securities
in respect of which money has been collected shall not have become and
be then due and payable, to the payment of interest, if any, on the
Securities in default in the order of the Maturity of the installments
of such interest, with interest (to the extent that such interest has
been collected by the Trustee and to the extent permitted by
applicable law) upon the overdue installments of interest at the
Overdue Rate applicable to such Securities, such payments to be made
ratably to the persons entitled thereto, without discrimination or
preference; provided, however, that such payments shall be made
subject to the provisions of Article Fifteen hereunder, if applicable;
THIRD: In case the principal of the Outstanding Securities in
respect of which money has been collected shall have become and shall
be then due and payable by declaration or otherwise, to the payment of
the whole amount then owing and unpaid upon such Securities for
principal and, any premium and interest, with interest upon the
overdue principal, and (to the extent that such interest has been
collected by the Trustee and to the extent permitted by applicable
law) upon overdue premium and installments of interest, if any, at the
Overdue Rate applicable to such Securities; and in case such money
shall be insufficient to pay in full the whole amount so due and
unpaid upon such Securities, then to the payment of such principal and
any premium and interest, without preference or priority of principal
over premium and interest, if any, or of interest, if any, over
principal and premium, if any, or of premium, if any, over principal
and interest, if any, or of any installment of interest, if any, over
any other installment of interest, if any, or of any Security over any
other Security, ratably to the aggregate of such principal and accrued
and unpaid premium and interest, if any; provided, however, that such
payments shall be made
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subject to the provisions of Article Fifteen hereunder, if applicable;
and
FOURTH: To the payment of the remainder, if any, to the
Company.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right
by virtue or by availing of any provision of this Indenture to institute any
action or proceeding at law or in equity or in bankruptcy or otherwise upon or
under or with respect to this Indenture, or for the appointment of a trustee in
bankruptcy, receiver or other similar official or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of default with respect to Securities of such series and of
the continuance thereof, as hereinbefore provided;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of such series shall have made
written request to the Trustee to institute such action, suit or
proceedings in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has neglected or refused to institute
any such action, suit or proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period pursuant to
Section 512;
it being understood and intended, and being expressly covenanted by the taker
and Holder of every Security with every other taker and Holder and the Trustee,
that no one or more Holders of any Securities shall have any right in any
manner whatever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holder of Securities, or
to obtain or to seek to obtain priority or preference over any other Holder or
to enforce any right under this Indenture, except in the manner herein provided
and for the equal, ratable and common benefit of all Holders of Securities.
For the protection and enforcement of the provisions of this Section, each
Holder and the Trustee
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shall be entitled to such relief as can be given either at law or in equity.
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to Section 307) any interest on such Security on the Stated Maturity
or Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
In case the Trustee or any Holder shall have proceeded to
enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Holder, then and in every such case the
Company, the Trustee and the Holders shall be restored respectively to their
former positions and rights hereunder, and all rights, remedies and powers of
the Company, the Trustee and the Holders shall continue as though no such
proceedings had been taken.
Section 510. Rights and Remedies Cumulative.
Except as provided in Section 507 and except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to
exercise any right, power or remedy accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right, power or
remedy or shall be construed to be a waiver of any such Event of Default or an
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acquiescence therein. Subject to Section 507, every power and remedy given by
this Indenture or by law to the Trustee or to the Holders of any or all series,
as the case may be, may be exercised from time to time, and as often as shall
be deemed expedient, by the Trustee or by the Holders of such series or all
series, as the case may be.
Section 512. Control by Holders.
The Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee by this Indenture with respect to Securities of such series;
provided, however, that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee (subject to the requirements of the Trust
Indenture Act) shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or
if the Trustee shall determine that the action or proceedings so
directed would involve the Trustee in personal liability or be unduly
prejudicial to the Holders not joining therein.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction or directions by Holders.
Section 513. Waiver of Past Defaults.
Prior to the declaration of the acceleration of the Maturity
of the Securities of any particular series, the Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series waive
any past default or Event of Default with respect to such series and its
consequences, except a default not theretofore cured
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which cannot
be modified or amended without the consent
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of the Holder of each Outstanding Security of such series affected as
provided in Section 902.
In the case of any such waiver, the Company, the Trustee and
the Holders of the Securities of each series affected shall be restored to
their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit and may assess
costs against any such party litigant, in the manner and to the extent provided
in the Trust Indenture Act; provided, however, that neither this Section 514
nor the Trust Indenture Act shall be deemed to authorize any court to require
such an undertaking or to make such an assessment in any suit instituted by the
Company.
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
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ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to any series of Securities,
(1) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture
with respect to the Securities of such series, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may, with respect to Securities of such series, conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise with
respect to the Securities of such series such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it
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in good faith in accordance with the direction of the Holders of a
majority in principal amount of the Outstanding Securities of any
series relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture with
respect to the Securities of such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
Section 602. Notice of Defaults.
The Trustee shall transmit notices of default to the Holders
in accordance with section 315(b) and related provisions of the Trust Indenture
Act. For the purpose of this Section 602, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
Section 603. Certain Rights of the Trustee.
Subject to the requirements of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or
any other certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Company Order or
Company Request (unless other evidence in respect thereof be herein
specifically prescribed) and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
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(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request, order
or direction;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document unless
requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities
of any series affected; but the Trustee, in its discretion may make
such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ and the
Trustee shall not be responsible for any misconduct or negligence on
the part of any such agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it
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to be authorized or within the discretion, rights or powers conferred
upon it by this Indenture.
Section 604. Not Responsible for Recitals
or Issuance of Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representation as
to the validity or sufficiency of this Indenture or of the Securities, provided
that the Trustee shall not be relieved of its duty to authenticate Securities
only as authorized by this Indenture. The Trustee or any Authenticating Agent
shall not be accountable for the use or application by the Company of any of
the Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not the Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other agent and, subject to the
requirements of the Trust Indenture Act, may otherwise deal with the Company
and receive, collect, hold and retain collections from the Company with the
same rights it would have if it were not the Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Subject to the provisions of Section 1003, all money received
by the Trustee or any Paying Agent, all money and Government Obligations
deposited with the Trustee pursuant to Section 1302 or Section 1303 and all
money received by the Trustee in respect of Government Obligations deposited
with the Trustee pursuant to Section l302 or Section 1303, shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any Paying
Agent shall be under any liability for interest on any money received by it
hereunder except as otherwise agreed by the Company. So long as no Event of
Default shall have occurred and be continuing, all interest allowed on any such
money shall be paid from time to time in accordance with a Company Order.
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Section 607. Compensation and Reimbursement.
The Company covenants and agrees
(1) to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation for all services
rendered by it hereunder (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of the
Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability, or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts
hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The obligations of the Company under this Section 607 to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of this Indenture.
Such additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the Holders of particular
Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(6) or (7), the
expenses and the compensation for the services are intended to constitute
expenses of administration under any bankruptcy law.
Section 608. Right to Rely on Officers' Certificate.
Subject to the requirements of the Trust Indenture Act,
whenever in the administration of the trusts of this Indenture the Trustee
shall deem it necessary or desirable
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that a matter be proved or established prior to taking or suffering or omitting
any action to be taken hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or
omitted by it under the provisions of this Indenture upon the faith thereof.
Section 609. Eligibility.
The Trustee for each series of Securities hereunder shall at
all times be a Person organized and doing business under the laws of the United
States of America or of any State or the District of Columbia, having a
combined capital and surplus of at least $50,000,000, and eligible under the
provisions of the Trust Indenture Act. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person at any time shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect specified in this
Article.
Section 610. Resignation and Removal;
Appointment of Successor.
(a) Any resignation or removal of the Trustee with respect to
any series and any appointment of a successor Trustee with respect to such
series pursuant to any of the provisions of this Section 610 shall become
effective upon acceptance of appointment by the successor Trustee as provided
in Section 611.
(b) The Trustee may resign at any time with respect to one or
more or all series of Securities by giving 90 days written notice of
resignation to the Company. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor Trustee with respect to the
applicable series by written instrument in duplicate, executed by authority of
the Board of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor Trustee. If no successor
Trustee shall have been so appointed with respect to any series and have
accepted appointment within 30 days after the
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mailing of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee, or
any Holder who has been a bona fide Holder of a Security of the applicable
series for at least six months may, subject to the requirements of the Trust
Indenture Act, on behalf of itself and all others similarly situated, petition
any such court for the appointment of a successor Trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor Trustee.
(c) The Holders of a majority in aggregate principal amount
of the Outstanding Securities of any series may at any time remove the Trustee
with respect to Securities of such series and appoint a successor Trustee with
respect to the Securities of such series by delivering to the Trustee so
removed, to the successor Trustee so appointed and to the Company the evidence
provided for in Section 104 of the action in that regard taken by the Holders.
(d) In case at any time any of the following shall occur:
(1) the Trustee shall cease to be eligible in accordance with
the provisions of Section 609 with respect to any series of Securities
and shall fail to resign after written request therefor by the Company
or by any such Holder; or
(2) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company may remove the Trustee with respect to
the applicable series of Securities (or all series, if required) and appoint a
successor Trustee for such series by written instrument, in duplicate, executed
by authority of the Board of Directors, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor Trustee, or
(ii) subject to the requirements of the Trust Indenture Act, any Holder who has
been a bona fide Holder of a Security of such series for at least six months
may on behalf of itself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee with respect to such series. Such court may thereupon,
after such notice, if any, as it may deem
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proper and prescribe, remove the Trustee and appoint a successor Trustee with
respect to such series.
(e) If the Trustee shall resign, be removed or become
incapable of acting with respect to any series of Securities, or if a vacancy
shall occur in the office of the Trustee with respect to any series of
Securities for any cause, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee for that series of Securities. If, within one year
after such resignation, removal or incapacity, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to
such series and supersede the successor Trustee appointed by the Company with
respect to such series. If no successor Trustee with respect to such series
shall have been so appointed by the Company or the Holders of such series and
accepted appointment in the manner hereinafter provided, subject to Section
514, any Holder who has been a bona fide Holder of a Security of that series
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to such series.
Section 611. Acceptance of Appointment by Successor.
Any successor Trustee appointed as provided in Section 610
shall execute, acknowledge and deliver to the Company and to its predecessor
Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee with respect to all or any
applicable series shall become effective and such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations with respect to such series of its predecessor
Trustee hereunder, with like effect as if originally named as Trustee for such
series hereunder; but, nevertheless, on the written request of the Company or
of the successor Trustee, upon payment (or due provision therefor) of any
amounts then due it pursuant to Section 607, the predecessor Trustee ceasing to
act shall, subject to Section 1003, pay over to the successor Trustee all money
at the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor Trustee all such rights, powers, duties and
obligations. Upon request of any such successor Trustee, the Company shall
execute any and all instruments in writing for more fully and certainly vesting
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in and confirming to such successor Trustee all such rights and powers. Any
Trustee ceasing to act shall, nevertheless, retain a lien upon all property or
funds held or collected by such Trustee to secure any amounts then due it
pursuant to the provisions of Section 607.
If a successor Trustee is appointed with respect to the
Securities of one or more (but not all) series, the Company, the predecessor
Trustee and each successor Trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the
predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be Trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee.
No successor Trustee with respect to any series of Securities
shall accept appointment as provided in this Section unless at the time of such
acceptance such successor Trustee shall, with respect to such series, be
qualified under the requirements of the Trust Indenture Act and eligible under
the provisions of Section 609.
Upon acceptance of appointment by any successor Trustee as
provided in this Section 611, the Company shall give notice thereof to the
Holders of Securities of any series for which such successor Trustee is acting
as Trustee in the manner provided for notices to the Holders of Securities in
Section 106. If the Company fails to give such notice within ten days after
acceptance of appointment by the successor Trustee, the successor Trustee shall
cause such notice to be given at the expense of the Company.
Section 612. Merger, Conversion, Consolidation
or Succession to Business.
Any Person into which the Trustee may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided
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that such Person shall be qualified under the requirements of the Trust
Indenture Act and eligible under this Article, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities of any
series shall have been authenticated but not delivered, any such successor to
the Trustee by merger, conversion or consolidation may adopt the certificate of
authentication of any predecessor Trustee and deliver such Securities so
authenticated; and, in case at that time any of the Securities of any series
shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of such successor to the
Trustee or, if such successor to the Trustee is a successor by merger,
conversion or consolidation, in the name of any predecessor hereunder;
provided, however, that such successor shall use the predecessor's name only in
such circumstances set forth in this Section and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have.
Section 613. Preferential Collection of Claims
Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities or such series issued upon
original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an
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Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of such supervising or examining authority, then
for the purposes of this Section 614, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 614, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 614.
Any Person into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Person succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such Person shall be otherwise eligible under
this Section 614, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 614, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth
in Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section 614.
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The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section 614,
and the Trustee shall be entitled to be reimbursed for such payments, subject
to the provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section 614, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
and referred to in the within-mentioned Indenture.
----------------------------,
As Trustee
By
--------------------------,
As Authenticating Agent
By
--------------------------,
Authorized Officer
ARTICLE SEVEN
Holders' List and Reports by Trustee and Company
Section 701. Company to Furnish Trustee
Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the
Trustee:
(a) semi-annually, not later than 15 days after each Record
Date for the Securities of any series (and on dates as specified as
contemplated in Section 301 for any series of Original Issue Discount
Securities which by their terms bear interest only after Maturity), a
list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of the Securities of such series as of
each such Record Date (and as of dates as specified as contemplated in
Section 301 of this Indenture), and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the
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Company of any such request, a list of similar form and content as of
a date not more than 15 days prior to the time such is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar for Securities of a series, no such list need be furnished with
respect to such series of Securities.
Section 702. Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Registered Holders received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list furnished to
it as provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall
be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) The Trustee shall transmit to the Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to the Holders, be filed by the Trustee with each stock exchange
upon which any Securities are listed, with the Commission and with the Company.
The Company will notify the Trustee when any Securities are listed on any stock
exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to the Holders, such information,
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documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Trust Indenture Act.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only
on Certain Terms.
Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the Company with or
into any other Person (whether or not affiliated with the Company), or
successive consolidations or mergers in which the Company or its successor or
successors shall be a party or parties, or shall prevent any conveyance,
transfer or lease of all or substantially all the property or assets of the
Company, to any other Person (whether or not affiliated with the Company)
authorized to acquire and operate the same; provided, however, and the Company
hereby covenants and agrees, that upon any such consolidation, merger,
transfer, conveyance or lease:
(1) the due and punctual payment of the principal of and any
premium and interest on all of the Securities, according to their
tenor, and the due and punctual performance and observance of all of
the covenants and conditions of this Indenture to be performed or
observed by the Company, shall be expressly assumed, by supplemental
indenture satisfactory in form to the Trustee, executed and delivered
to the Trustee by the Person (if other than the Company) formed by
such consolidation, or into which the Company shall have been merged,
or by the Person which shall have acquired or leased such property or
assets and such person shall be organized and existing under the laws
of the United States of America or of any State or the District of
Columbia;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing;provided, however, that a transaction will be deemed to be
in violation of this clause (2) only with respect to those series of
Securities whereby such Event of Default or such event shall have
occurred and be continuing; and
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(3) the Trustee, subject to the requirements of the Trust
Indenture Act and Section 603, shall receive an Opinion of Counsel and
Officers' Certificate to the effect that such consolidation, merger,
conveyance, transfer or lease and any such assumption complies with
the provisions of this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of all or
substantially all the property or assets of the Company in accordance with
Section 801, the successor Person formed by such consolidation or into which
the Company is merged or to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except
in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
In case of any such consolidation, merger, conveyance,
transfer or lease, such changes in phraseology and form (but not in substance)
may be made in the Securities thereafter to be issued as may be appropriate.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without
Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Secur-
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ities (and if such covenants are to be for the benefit of less than
all series of Securities, stating that such covenants are expressly
being included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default and to provide
with respect thereto for any particular periods of grace after default
(which may be shorter or longer than that allowed in the case of other
defaults) or for immediate enforcement upon such default or for any
limitation of the remedies available to the Trustee upon such default;
or
(4) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities;
provided, however, that any such addition, change or elimination (i)
shall neither (A) apply to any Security of any series created prior to
the execution of such supplemental indenture and entitled to the
benefit of such provision nor (B) modify the rights of the Holder of
any such Security with respect to such provision or (ii) shall become
effective only when there is no such Security Outstanding; or
(5) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any
property or assets; or
(6) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611; or
(8) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or
in any supplemental indenture; or to change or eliminate any provision
or to make any other provisions with respect to matters or questions
arising under this Indenture or under any supplemental indenture as
the Company may deem necessary or desirable;provided, however, that
such action shall not adversely affect the interests of the Holders of
the Outstanding Securities of any series.
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Any supplemental indenture authorized by the provisions of
this Section may be executed by the Company and the Trustee without the consent
of the Holders of the Outstanding Securities of any Series, notwithstanding any
of the provisions of Section 902.
Section 902. Supplemental Indentures with
Consent of Holders.
With the consent of the Holders of not less than 66-2/3% in
aggregate principal amount of the Outstanding Securities of each series
affected by such supplemental indenture (each such series voting as a single
class), by act of such Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights and obligations of the Company and the rights of the Holders of the
Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce
the principal amount thereof, or reduce any premium thereof or change
the time of payment of any premium thereon, or reduce the rate or
change the time of payment of interest thereon, if any, or reduce any
amount payable on redemption or reduce the Overdue Rate thereof or
make the principal thereof or any premium or interest thereon, payable
at any place of payment or in any coin or currency other than as
provided in the Security or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon an
acceleration of the Maturity thereof pursuant to Section 502 or the
amount thereof provable in bankruptcy pursuant to Section 504, or
impair, if the Securities provide therefor, any right of repayment at
the option of the Holder, or impair the right to institute a suit for
the enforcement of any payment on or with respect to any Security
pursuant to Section 507;
(2) reduce the aforesaid percentage of Outstanding Securities
the consent of the Holders of which is required for any such
supplemental indenture; or
(3) alter or impair the right of any Holder to convert
Securities of any series, the terms of which
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provide for conversion, at the rate and upon the terms provided in the
Indenture.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series. The preceding
sentence shall not, however, raise any inference as to whether or not a
particular series is affected by any supplemental indenture not referred to in
such sentence.
It shall not be necessary for the consent of the Holders under
this Section 902 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section 902, the
Company shall give notice thereof to the Holders of Securities of each series
affected thereby in the manner provided for notices to the Holders of
Securities in Section 106, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Company to give such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties
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and immunities under this Indenture of the Trustee, the Company and the Holders
of Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and any such supplemental indenture shall form a part of this
Indenture for all purposes and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as in effect at
the date such supplemental indenture is executed.
Section 906. Reference in Securities to
Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may bear a
notation in form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture. If the Company or the Trustee
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company, authenticated and delivered by the
Trustee in exchange for the Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay or cause to be paid
the principal of, and any premium and interest on, the Securities of that
series in accordance with the terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will designate and maintain in the Borough of
Manhattan, The City of New York, for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange, where notices and demands to or upon
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the Company in respect of the Securities of that series and this Indenture may
be served and where Securities of each series that is convertible may be
presented for conversion. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in The City of New York for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Section 1003. Money for Securities Payments to
Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date
of the principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal or any premium or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, prior to each due date of the principal of
and any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal and any premium or interest
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent to execute and
deliver to the Trustee an instrument in which such Paying
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Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will
(1) hold all sums held by it for the payment of the principal
of and any premium or interest on the Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of the principal of or any premium or interest on the
Securities of that series; and
(3) at any time during the continuance of any such default
referred to in clause (2) above, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in trust by
such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of and any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal and any premium or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper
in The City of New York or other place of payment, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such
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publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
Section 1004. Limitation on Liens.
The Company will not itself, and will not permit any
Subsidiary to, incur, issue, assume or guarantee any notes, bonds, debentures
or other similar evidences of indebtedness for money borrowed (notes, bonds,
debentures or other similar evidences of indebtedness for money borrowed being
hereinafter in this Article called "Debt"), secured after the date hereof by
pledge of, or mortgage or other lien on, any Principal Property of the Company
or any Significant Subsidiary, or any shares of stock or Debt of any
Significant Subsidiary (pledges, mortgages and other liens being hereinafter in
this Article called "Mortgage" or "Mortgages"), without effectively providing
that the Securities of all series (together with, if the Company shall so
determine, any other Debt of the Company or such Significant Subsidiary then
existing or thereafter created which is not subordinate to the Securities)
shall be secured equally and ratably with (or, at the option of the Company,
prior to) such secured Debt, so long as such secured Debt shall be so secured,
unless after giving effect thereto, the aggregate principal amount of all such
secured Debt then outstanding which would otherwise be prohibited, plus all
Attributable Debt of the Company and its Significant Subsidiaries in respect of
sale and leaseback transactions (as defined in Section 1005) occurring after
the date hereof which would otherwise be prohibited by Section 1005 would not
exceed 10% of Consolidated Net Tangible Assets; provided, however, that this
Section 1004 shall not apply to, and there shall be excluded from secured Debt
in any computation under this Section 1004, Debt secured by:
(1) Mortgages on property of, or on any shares of stock or
Debt of, any corporation existing at the time such corporation becomes
a Significant Subsidiary;
(2) Mortgages in favor of the Company or any Significant
Subsidiary;
(3) Mortgages in favor of the United States of America or any
State thereof, or any department, agency or instrumentality or
political subdivision of the United States of America or any State
thereof, or in favor of any other country, or any political
subdivision thereof, to secure partial, progress, advance or other
payments pursuant to any contract or statute, or Mortgages for taxes,
assessments or governmental charges or levies in each case (i) not
then due and delinquent or (ii) the validity of which is being
contested in good
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faith by appropriate proceedings, and materialmen's, mechanics',
carriers', workmen's, repairmen's, landlord's or other like Mortgages,
or deposits to obtain the release of such Mortgages;
(4) Mortgages on property, shares of stock or Debt existing
at the time of acquisition thereof (including acquisition through
merger or consolidation) or to secure the payment of all or any part
of the purchase price or construction cost thereof or to secure any
Debt incurred prior to, at the time of, or within 180 days after, the
acquisition of such property or shares or Debt or the completion of
any such construction for the purpose of financing all or any part of
the purchase price or construction cost thereof, provided that any
such Mortgage shall only extend to the property acquired or
constructed or property on which the acquired or constructed property
is situated;
(5) Mortgages securing obligations issued by a State,
territory or possession of the United States of America, or any
political subdivision of any of the foregoing, to finance the
acquisition or construction of property, and on which the interest is
not, in the opinion of tax counsel of recognized standing or in
accordance with a ruling issued by the Internal Revenue Service,
includible in gross income of the holder by reason of Section 103(a)
of the Internal Revenue Code (or any successor to such provision) as
in effect at the time of the issuance of such obligations, including,
without limitation, Debt related to the financing of pollution control
or other equipment or facilities financed by State or local government
units;
(6) Mortgages created in connection with a project financed,
or assets acquired, with, and created to secure, indebtedness or lease
payment obligations substantially related to (i) the acquisition of
assets not currently owned by the Company or any of its Significant
Subsidiaries or (ii) the financing of the construction or improvement
of equipment, mines or facilities involving the development of
properties of the Company or any of its Significant Subsidiaries, as
to which the obligee with respect to such indebtedness or obligation
has no recourse to the general corporate funds or the assets, in
general, of the Company or any of its Significant Subsidiaries (such
indebtedness or lease payment obligations being hereinafter in this
Article called "Nonrecourse Obligations");
(7) Production payments or other related rights of others to
the output of mines, refineries, smelters,
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concentrators or production facilities, including project financings,
with respect to any property or assets acquired, constructed or
improved by the Company or a Subsidiary with the proceeds of such
project financings or Mortgages to secure payment of workmen's
compensation or to secure performance in connection with tenders,
leases of real property, bids or contracts or to secure (or in lieu
of) surety or appeal bonds and Mortgages made in the ordinary course
of business for similar purposes; and
(8) Any extension, renewal, refunding or replacement (or
successive extensions, renewals, refundings or replacements), as a
whole or in part, of any Mortgage referred to in the foregoing clauses
(1) to (7), inclusive;provided, however, that (i) such extension,
renewal, refunding or replacement Mortgage shall be limited to all or
a part of the same property, shares of stock or Debt that secured the
Mortgage extended, renewed, refunded or replaced (plus improvements on
such property) and (ii) the Debt secured by such Mortgage at such time
is not increased.
Section 1005. Limitation on Sales and Leasebacks.
The Company will not itself, and will not permit any
Significant Subsidiary to, enter into any arrangement with any bank, insurance
company or other lender or investor (not including the Company or any
Significant Subsidiary) or to which any such lender or investor is a party,
providing for the leasing by the Company or any such Significant Subsidiary of
any Principal Property which has been or is to be sold or transferred by the
Company or such Significant Subsidiary to such lender or investor or to any
Person to whom funds have been or are to be advanced by such lender or investor
(herein referred to as a "sale and leaseback transaction") unless, after giving
effect thereto, the aggregate amount of all Attributable Debt with respect to
all such transactions occurring after the date hereof and existing at such time
plus all secured Debt then outstanding of the Company and its Significant
Subsidiaries incurred after the date hereof which would otherwise be
prohibited by Section 1004 would not exceed 10% of Consolidated Net Tangible
Assets. This covenant shall not apply to, and there shall be excluded from
Attributable Debt in any computation under this Section 1005, Attributable Debt
with respect to any sale and leaseback transaction if:
(1) the lease in such sale and leaseback transaction is for a
period, including renewals, of not in excess of three years, or
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(2) such sale and leaseback transaction is entered into prior
to, at the time of, or within 180 days after the later of the
acquisition of the Principal Property to which such sale and leaseback
transaction relates or the completion of construction thereon, or
(3) the lease in such sale and leaseback transaction secures
or relates to obligations issued by a State, territory or possession
of the United States of America, or any political subdivision of any
of the foregoing, to finance the acquisition or construction of
property, and on which the interest is not, in the opinion of tax
counsel of recognized standing or in accordance with a ruling issued
by the Internal Revenue Service, includible in gross income of the
holder by reason of Section 103(a) of the Internal Revenue Code (or
any successor to such provision) as in effect at the time of the
issuance of such obligations, including, without limitation, Debt
related to the financing of pollution control or other equipment or
facilities financed by State or local government units, or
(4) such sale and leaseback transaction is entered into
between the Company and a Significant Subsidiary or between
Significant Subsidiaries, or
(5) such sale and leaseback transaction is created in
connection with a project financed, or assets acquired, with, and such
obligation constitutes, a Nonrecourse Obligation, or
(6) the Company or a Significant Subsidiary, within 180 days
after the sale or transfer shall have been made by the Company or by
any such Significant Subsidiary, applies an amount not less than the
greater of (i) the net proceeds of the sale of the Principal Property
sold and leased back pursuant to such arrangement or (ii) the fair
market value of the Principal Property so sold and leased back at the
time of entering into such arrangement (as determined by any two of
the following officers of the Company: the Chairman of the Board of
Directors, the President, any Vice President, the Treasurer and the
Controller) to (x) the purchase of property, facilities or equipment
(other than the property, facilities or equipment involved in such
sale) which will constitute Principal Property or (y) the retirement
of Funded Debt of the Company or any Significant Subsidiary;provided,
however, that the amount to be applied to the retirement of Funded
Debt of the Company or any Significant Subsidiary shall be reduced by
(i) the principal amount of any Funded Debt (including the Securities
of any series) of the Company
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or any Significant Subsidiary (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal
amount as may be due and payable with respect to such series pursuant
to a declaration in accordance with Section 502), delivered within 180
days after such sale to the Trustee or other applicable trustee for
retirement and cancellation, and (ii) the principal amount of Funded
Debt, other than any Funded Debt referred to in the immediately
preceding clause (i) of this proviso, voluntarily retired by the
Company or a Significant Subsidiary within 180 days after such sale;
andprovided, further, that, notwithstanding the foregoing, no
retirement referred to in this clause (y) may be effected by payment
at Maturity or pursuant to any mandatory sinking fund payment or any
mandatory redemption provision.
Section 1006. Certificate of Compliance.
The Company shall deliver a certificate of compliance of the
Company to the Trustee on or before April 30 of each year pursuant to section
314(a)(4) of the Trust Indenture Act.
Section 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 1004 and 1005 with
respect to the Securities of any series if before the time for such compliance
the Holders of at least a majority in aggregate principal amount of the
Outstanding Securities of such series shall, by the act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and
the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise
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specified as contemplated in Section 301 for Securities of any series) in
accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of the redemption at the election of
the Company of the Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed at
the Redemption Price and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities
to Be Redeemed.
If less than all the Securities of any series are to be
redeemed (unless all of the Securities of such series and of a specified tenor
are to be redeemed), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series.
If less than all of the Securities of such series and of a specified tenor are
to be redeemed, the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For the purpose of such selection in case of redemption of
less than all of the Securities of any series,
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the Trustee and the Company shall have the option to treat as Outstanding
Securities any Securities of such series which are surrendered for conversion
after the fifteenth date immediately preceding the mailing of notice of such
redemption and need not treat as Outstanding Securities any Securities
authenticated and delivered during such period in exchange for the unconverted
portion of any Securities converted in part during such period.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106 not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be redeemed, to
each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) if applicable, the current conversion price or rate,
(5) if applicable, that the right of the Holder to convert
Securities called for redemption shall terminate at the close of
business on the Redemption Date (or such other day as may be specified
as contemplated in Section 301 for Securities of any series),
(6) if applicable, that Holders who want to convert
Securities called for redemption must satisfy the requirements for
conversion contained in such Securities,
(7) that on the Redemption Date the Redemption Price will
become due and payable upon each such
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Security to be redeemed and, if applicable, that, unless the Company
defaults in making such redemption payment, interest thereon, if any,
or in the case of Original Issue Discount Securities, the original
issue discount, shall cease to accrue on and after such date,
(8) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(9) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at Company Request,
by the Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
On or prior to 10:00 A.M. New York City time on any Redemption
Date, the Company shall deposit in immediately available funds with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003 and as required by the
Trust Indenture Act) an amount of money (in the currency or units of currency
in which the Securities so called for redemption are denominated or an
appropriate equivalent thereof) sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date, other
than any Securities called for redemption on such date which have been
converted prior to the date of such deposit.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest and the right to
convert such Securities or portions thereof, if the terms of such Securities
provide for conversion pursuant to Section 301, shall terminate at the close of
business on the Redemption Date or such other day as may be specified as
contemplated in Section 301 for Securities of such series. On presentation and
surrender of such Securities for redemption in accordance with such notice,
such Securities shall be paid and redeemed by the Company at the Redemption
Price, together with accrued
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interest to the Redemption Date; provided, however, that, unless otherwise
specified as contemplated in Section 301, installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal thereof so to be redeemed
shall, until paid, bear interest from the Redemption Date at the Overdue Rate
applicable to such Security and such Security shall remain convertible into
Capital Stock until the principal of such Security shall have been paid. If
any Security called for redemption pursuant to Section 1101 is converted
pursuant to Article Fourteen, any monies deposited with the Trustee for the
purpose of paying or redeeming any such Security shall be promptly paid to the
Company.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at the place specified in the notice of redemption (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
Section 1108. Rescission of Redemption.
In the event that this Section 1108 is specified to be
applicable to a series of Securities pursuant to Section 301 and a Redemption
Rescission Event shall occur following any day on which a notice of redemption
shall have been given pursuant to Section 1104 hereof but at or prior to the
time and date fixed for redemption as set forth in such notice of redemption,
the Company may, at its sole option, at any time prior to the earlier of (i)
the close of business on that day which is two Trading Days following such
Redemption Rescission Event and (ii) the time and date fixed for redemption as
set forth in such notice, rescind the redemption to which such notice of
redemption shall have related by making a public announcement of such
rescission
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(the date on which such public announcement shall have been made being
hereinafter referred to as the "Rescission Date"). The Company shall be deemed
to have made such announcement if it shall issue a release to the Dow Jones
News Service, Reuters Information Services or any successor news wire service.
From and after the making of such announcement, the Company shall have no
obligation to redeem Securities called for redemption pursuant to such notice
of redemption or to pay the Redemption Price therefor and all rights of Holders
of Securities shall be restored as if such notice of redemption had not been
given. As promptly as practicable following the making of such announcement,
the Company shall telephonically notify the Trustee and the Paying Agent of
such rescission. The Company shall give notice of any such rescission by
first-class mail, postage prepaid, mailed as promptly as practicable but in no
event later than the close of business on that day which is five Trading Days
following the Rescission Date to each Holder of Securities at the close of
business on the Rescission Date, to any other Person that was a Holder of
Securities and that shall have surrendered Securities for conversion following
the giving of notice of the subsequently rescinded redemption and to the
Trustee and the Paying Agent. Each notice of rescission shall (w) state that
the redemption described in the notice of redemption has been rescinded, (x)
state that any Converting Holder shall be entitled to rescind the conversion of
Securities surrendered for conversion following the day on which notice of
redemption was given but on or prior to the date of the mailing of the
Company's notice of rescission, (y) be accompanied by a form prescribed by the
Company to be used by any Converting Holder rescinding the conversion of
Securities so surrendered for conversion (and instructions for the completion
and delivery of such form, including instructions with respect to any payment
that may be required to accompany such delivery) and (z) state that such form
must be properly completed and received by the Company no later than the close
of business on a date which shall be 15 Trading Days following the date of the
mailing of such notice of rescission.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
Securities of any series which are subject to a sinking fund
for the retirement of Securities of a series shall be subject to such sinking
fund in accordance with their terms and (except as otherwise specified as
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contemplated in Section 301 for Securities of such series) in accordance with
this Article.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to as
an "optional sinking fund payment". If provided for by the terms of Securities
of any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 1202. Satisfaction of Sinking Fund
Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities and for any Securities which have been converted pursuant to the
terms of such Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of such series required
to be made pursuant to the terms of such Securities as provided for by the
terms of such series; provided, however, that such Securities have not been
previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 1202 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
1103 and cause notice
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of the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Defeasance
Section 1301. Applicability of Article; Company's Option to Effect Defeasance
or Covenant Defeasance.
If pursuant to Section 301 provision is made for either or
both of (1) defeasance of the Securities of a series under Section 1302 or (2)
covenant defeasance of the Securities of a series under Section 1303, then the
provisions of such Section or Sections, as the case may be, together with the
other provisions of this Article, shall be applicable to the Securities of such
series, and the Company may at its option by or pursuant to a Board Resolution,
at any time, with respect to the Securities of such series, elect to have
either Section 1302 (if applicable) or Section 1303 (if applicable) be applied
to the Outstanding Securities of such series upon compliance with the
conditions set forth below in this Article.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section
1301 to have this Section 1302 applied to the Outstanding Securities of a
defeasible series, the Company shall be deemed to have been discharged from
its obligations with respect to the Outstanding Securities of such series on
the date the conditions set forth in Section 1304 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
the Outstanding Securities of such series and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged hereunder: (1) the
rights of Holders of Outstanding Securities of such series to receive, solely
from the trust fund described in Section 1304 and as more fully set forth in
such Section, payments in respect of the principal of and any premium or
interest on such Securities when such payments are due, (2) the Company's
obligations with respect to such Securities under Sections 304, 305, 306,
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1002 and 1003, (3) the rights, powers, trusts, duties, and immunities of the
Trustee under Sections 304, 305, 306, 308, 309, 506 and 1003, and otherwise the
duty of the Trustee to authenticate Securities of such series issued on
registration of transfer or exchange and (4) this Article. Subject to
compliance with this Article, the Company may exercise its option provided in
Section 1301 to have this Section 1302 applied to the Outstanding Securities of
any defeasible series notwithstanding the prior exercise of its option provided
in Section 1301 to have Section 1303 applied to the Outstanding Securities of
such series.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section
1301 to have this Section 1303 applied to the Outstanding Securities of any
defeasible series, the Company shall be released from its obligations under
Sections 1004 and 1005 and Sections 501(4) and 501(5) with respect to the
Outstanding Securities of such series on and after the date the conditions set
forth in Section 1304 are satisfied (hereinafter, "covenant defeasance"). For
this purpose, such covenant defeasance means that, with respect to the
Outstanding Securities of such series, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such specified Section with respect to it, whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or
by reason of any reference in any such Section to any other provision herein or
in any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant
Defeasance.
The following shall be the conditions to application of either
Section l302 or Section 1303 to the Outstanding Securities of such series:
(1) the Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another Trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders
of such Securities, (A) money in an amount, or (B) Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day
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before the due date of any payment, money in an amount, or (C) a
combination thereof, sufficient, without reinvestment, in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee,
to pay and discharge, and which shall be applied by the Trustee (or
other qualifying Trustee) to pay and discharge, (i) the principal of
and any premium on and each installment of principal of and any
premium and interest on the Outstanding Securities of such series on
the Stated Maturity of such principal or installment of principal or
interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to the Outstanding Securities of such series on
the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities. For this purpose,
"Government Obligations" means securities that are (x) direct
obligations of the United States of America or, if specified as
contemplated in Section 301, the government which issued the currency
in which the Securities of such series are payable, for the payment of
which its full faith and credit is pledged or (y) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or, if specified as
contemplated in Section 301, such government which issued the currency
in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government,
which, in either case, are not callable or redeemable at the option of
the obligor thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act
of 1933, as amended) as custodian with respect to any such Government
Obligation or a specific payment of principal of or interest on any
such Government Obligation held by such custodian for the account of
the holder of such depository receipt; provided, however, that (except
as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of principal of or
interest on the Government Obligation evidenced by such depository
receipt;
(2) No Event of Default or event which, with notice or lapse
of time or both, would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit;
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(3) Such defeasance or covenant defeasance shall not cause
the Trustee for the Securities of such series to have a conflicting
interest for purposes of the Trust Indenture Act with respect to any
securities of the Company;
(4) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company is
a party or by which it is bound;
(5) Such defeasance or covenant defeasance shall not cause
any Securities of such series then listed on any registered national
securities exchange under the Securities Exchange Act of 1934, as
amended, to be delisted;
(6) In the case of an election under Section l302, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (ii) since the
date of this Indenture there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
Outstanding Securities of such series will not recognize income, gain
or loss for Federal income tax purposes as a result of such defeasance
and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
defeasance had not occurred;
(7) In the case of an election under Section 1303, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant defeasance
had not occurred;
(8) Such defeasance or covenant defeasance shall not result
in the trust arising from such deposit constituting an investment
company as defined in the Investment Company Act of 1940, as amended,
or such trust shall be qualified under such Act or exempt from
regulation thereunder;
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(9) Such defeasance or covenant defeasance shall be effected
in compliance with any additional terms, conditions or limitations
which may be imposed on the Company in connection therewith pursuant
to Section 301; and
(10) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section l302 or the covenant defeasance under Section 1303 (as
the case may be) have been complied with.
Section 1305. Deposited Money and Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions.
Subject to the provisions of Section 1003, all money and
Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying Trustee--collectively, for purposes of this
Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through a Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may determine, to
the Holders of such Securities, of all sums due and to become due thereon in
respect of principal and any premium and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1304 or the principal and any premium
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Outstanding
Securities of such series.
Anything in this Article to the contrary notwithstanding, the
Trustee 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 Section
1304 which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect an equivalent defeasance or covenant defeasance.
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Section 1306. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
Government Obligations in accordance with this Article by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and each series of Securities shall
be revived and reinstated as though no deposit had occurred pursuant to this
Article until such time as the Trustee or the Paying Agent is permitted to
apply all such money or Governmental Obligations in accordance with this
Article; provided, however, that, if the Company has made any payment of
interest on or principal of any series of Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such series of Securities to receive such payment from the
money or Government Obligations held by the Trustee or the Paying Agent.
ARTICLE FOURTEEN
Convertible Securities
Section 1401. Applicability of Article.
Securities of any series which are convertible into Capital
Stock at the option of the Holders thereof shall be convertible in accordance
with their terms and (unless otherwise specified in one or more indentures
supplemental hereto or in a resolution of the Board of Directors as
contemplated in Section 301 for Securities of any series) in accordance with
this Article. Each reference in this Article Fourteen to "a Security" or "the
Securities" refers to the Securities of the particular series that are
convertible into Capital Stock. Each reference in this Article to "Capital
Stock" into which Securities of any series are convertible refers to Capital
Stock into which the Securities of such series are convertible in accordance
with their terms (as specified as contemplated in Section 301). If more than
one series of Securities with conversion privileges are Outstanding at any
time, the provisions of this Article Fourteen shall be applied separately to
each such series.
Section 1402. Right of Holders to Convert Securities.
Subject to and upon compliance with the terms of the
Securities and this Article Fourteen, at the option of the Holder thereof, any
Security of any series of any authorized denomination, or any portion of the
principal amount thereof which is $1,000 or any integral multiple of
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$1,000, may, at any time during the period specified in the Securities of such
series, be converted into duly authorized, validly issued, fully paid and
nonassessable shares of the class, or combination of classes, of Capital Stock,
as specified in such Security, at the conversion rate for each $1,000 principal
amount of Securities (such initial conversion rate reflecting an initial
conversion price specified in such Security) in effect on the conversion date,
or if such Security or portion thereof shall have been called for redemption,
then in respect of such Security or portion thereof until and including, but
not after (unless the Company shall default in payment due upon the redemption
thereof) the close of business on the date fixed for redemption except that in
the case of redemption at the option of the Holder, if specified in the terms
of such securities, such option to convert shall terminate upon receipt of
written notice of the exercise of such option to redeem, or if an adjustment in
the conversion rate has taken place pursuant to the provisions of Section 1405,
then at the applicable conversion rate as so adjusted, upon surrender of the
Security or Securities, the principal amount of which is so to be converted, to
the Company at any time during usual business hours at the office or agency to
be maintained by it in accordance with the provisions of Section 1002
accompanied by a written notice of election to convert as provided in Section
1403 and, if so required by the Company and the Trustee, by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee duly executed by the Holder or his attorney duly authorized in
writing. All Securities surrendered for conversion shall, if surrendered to
the Company or any conversion agent, be delivered to the Trustee for
cancellation and canceled by it, or shall, if surrendered to the Trustee, be
canceled by it, as provided in Section 309.
The initial conversion price or conversion rate in respect of
a series of Securities shall be as specified in the Securities of such series.
The conversion price or conversion rate will be subject to adjustment on the
terms set forth in Section 1405 or such other or different terms, if any, as
may be specified by Section 301 for Securities of such series. Provisions of
this Indenture that apply to conversion of all of a Security also apply to
conversion of a portion of it.
Section 1403. Issuance of Shares of Capital
Stock on Conversion.
(1) As promptly as practicable after the surrender, as
herein provided, of any Security or Securities for conversion, the Company
shall deliver or cause to be delivered at its said office or agency to or upon
the written
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order of the Holder of the Security or Securities so surrendered a certificate
or certificates representing the number of duly authorized, validly issued,
fully paid and nonassessable shares of Capital Stock into which such Security
or Securities may be converted in accordance with the terms thereof and the
provisions of this Article Fourteen. Prior to the delivery of such certificate
or certificates, the Company shall require a written notice at its said office
or agency from the Holder of the Security or Securities so surrendered stating
that the Holder irrevocably elects to convert such Security or Securities, or,
if less than the entire principal amount thereof is to be converted, stating
the portion thereof to be converted. Such notice shall also state the name or
names (with address and social security or other taxpayer identification
number) in which said certificate or certificates are to be issued. Such
conversion shall be deemed to have been made at the time that such Security or
securities shall have been surrendered for conversion and such notice shall
have been received by the Company or the Trustee, the rights of the Holder of
such Security or Securities as a Holder shall cease at such time, the person or
persons entitled to receive the shares of Capital Stock upon conversion of such
Security or Securities shall be treated for all purposes as having become the
record holder or holders of such shares of Capital Stock at such time and such
conversion shall be at the conversion rate in effect at such time. In the case
of any Security of any series which is converted in part only, upon such
conversion, the Company shall execute and the Trustees or any Authenticating
Agent shall authenticate and deliver to the Holder thereof, as requested by
such Holder, a new Security or Securities of such series of authorized
denominations in aggregate principal amount equal to the unconverted portion of
such Security.
If the last day on which a Security may be converted is not a
Business Day in a place where the conversion agent for the applicable series of
Securities is located, the Security may be surrendered to that conversion agent
on the next succeeding day that is a Business Day.
The Company will not be required to deliver certificates for
shares of Capital Stock upon conversion while its stock transfer books are
closed for a meeting of shareholders or for the payment of dividends or for any
other purpose, but certificates for shares of Capital Stock shall be delivered
as soon as the stock transfer books shall again be opened.
(2) Notwithstanding anything to the contrary contained
herein, in the event the Company shall have rescinded a redemption of
Securities pursuant to Section 1108
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hereof, any Holder of Securities that shall have surrendered Securities for
conversion following the day on which notice of the subsequently rescinded
redemption shall have been given but prior to the later of (a) the close of
business on the Trading Day next succeeding the date on which public
announcement of the rescission of such redemption shall have been made and (b)
the date of the mailing of the notice of rescission required by Section 1108
hereof (a "Converting Holder") may rescind the conversion of such Securities
surrendered for conversion by (i) properly completing a form prescribed by the
Company and mailed to Holders of Securities (including Converting Holders) with
the Company's notice of rescission, which form shall provide for the
certification by any Converting Holder rescinding a conversion on behalf of any
beneficial owner (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934) of Securities that the beneficial ownership (within the
meaning of such Rule) of such Securities shall not have changed from the date
on which such Securities were surrendered for conversion to the date of such
certification and (ii) delivering such form to the Company no later than the
close of business on that date which is fifteen Trading Days following the date
of the mailing of the Company's notice of rescission. The delivery of such
form by a Converting Holder shall be accompanied by (x) any certificates
representing shares of Capital Stock or other securities issued to such
Converting Holder upon a conversion of Securities that shall be rescinded by
the proper delivery of such form (the "Surrendered Securities"), (y) any
securities, evidences of indebtedness or assets (other than cast) distributed
by the Company to such Converting Holder by reason of such Converting Holder
being a record holder of Surrendered Securities and (z) payment in New York
Clearing House funds or other funds acceptable to the Company of an amount
equal to the sum of (I) any cash such Converting Holder may have received in
lieu of the issuance of fractional Surrendered Securities and (II) any cash
paid or payable by the Company to such Converting Holder by reason of such
Converting Holder being a record holder of Surrendered Securities. Upon
receipt by the Company of any such form properly completed by a Converting
Holder and any certificates, securities, evidences of indebtedness, assets or
cash payments required to be returned by such Converting Holder to the Company
as set forth above, the Company shall instruct the transfer agent or agents for
shares of Capital Stock or other securities to cancel any certificates
representing Surrendered Securities (which Surrendered Securities shall be
deposited in the treasury of the Company) and shall instruct the Security
Registrar to reissue certificates representing Securities to such Converting
Holder (which Securities shall be deemed to have been Outstanding at all times
during the period following their surrender for conversion). The Company
shall, as promptly as
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practicable, and in no event more than five Trading Days following the receipt
of any such properly completed form and any such certificates, securities,
evidences of indebtedness, assets or cash payments required to be so returned,
pay to the Holder of Securities surrendered to the Company pursuant to a
rescinded conversion or as otherwise directed by such Holder any interest paid
or other payment made to Holders of Securities during the period from the time
such Securities shall have been surrendered for conversion to the rescission of
such conversion. All questions as to the validity, form, eligibility
(including time of receipt) and acceptance of any form submitted to the Company
to rescind the conversion of Securities, including questions as to the proper
completion or execution of any such form or any certification contained
therein, shall be resolved by the Company, whose determination shall be final
and binding.
Section 1404. No Payment or Adjustment for
Interest or Dividends.
Unless otherwise specified as contemplated in Section 301 for
Securities of such series, Securities surrendered for conversion during the
period from the close of business on any regular record date (or special record
date for payment of defaulted interest) next preceding any Interest Payment
Date to the opening of business on such Interest Payment Date (except
Securities called for redemption on a Redemption Date within such period) when
surrendered for conversion must be accompanied by payment of an amount equal to
the interest thereon which the Holder is to receive on such Interest Payment
Date. Payment of interest shall be made, as of such Interest Payment Date or
such date, as the case may be, to the Holder of the Securities as of such
regular or special record date, as applicable. Except where Securities
surrendered for conversion must be accompanied by payment as described above,
no interest on converted Securities will be payable by the Company on any
Interest Payment Date subsequent to the date of conversion. No other payment
or adjustment for interest or dividends is to be made upon conversion.
Notwithstanding the foregoing, upon conversion of any Original Issue Discount
Security, the fixed number of shares of Capital Stock into which such Security
is convertible delivered by the Company to the Holder thereof shall be applied,
first, to pay the accrued original issue discount attributable to the period
from the date of issuance to the date of conversion of such Security, and,
second, to pay the balance of the principal amount of such Security.
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Section 1405. Adjustment of Conversion Rate.
Unless otherwise specified as contemplated in Section 301 for
Securities of such series, the conversion rate for Securities in effect at any
time shall be subject to adjustment as follows:
(a) In case the Company shall (i) declare a dividend or
make a distribution on the class of Capital Stock into which
Securities of such series are convertible in shares of such Capital
Stock, (ii) subdivide the outstanding shares of the class of Capital
Stock into which Securities of such Shares are convertible into a
greater number of shares, (iii) combine the outstanding shares of the
class of Capital Stock into which Securities of such series are
convertible into a smaller number of shares, (iv) issue by
reclassification of the shares of the class of Capital Stock into
which securities of such series are convertible (including any such
reclassification in connection with a consolidation or merger in which
the Company is the continuing corporation) any shares, the conversion
rate for the Securities of such series in effect at the time of the
record date for such dividend or distribution, or the effective date
of such subdivision, combination or reclassification, shall be
proportionately adjusted so that the Holder of any Security of such
series surrendered for conversion after such time shall be entitled to
receive the number and kind of shares which he would have owned or
have been entitled to receive had such Security been converted
immediately prior to such time. Similar adjustments shall be made
whenever any event listed above shall occur.
(b) In case the Company shall fix a record date for the
issuance of rights or warrants to all holders of the class of Capital
Stock into which Securities of such series are convertible entitling
them (for a period expiring within 45 days after such record date) to
subscribe for or purchase shares of such class of Capital Stock (or
securities convertible into shares of such class of Capital Stock) at
a price per share (or, in the case of a right or warrant to purchase
securities convertible into such class of Capital Stock, having a
conversion price per share, after adding thereto the exercise price,
computed on the basis of the maximum number of shares of such class of
Capital Stock issuable upon conversion of such convertible securities,
per share of such class of Capital Stock, so issuable) less than the
current market price per share of such class of Capital Stock (as
defined in subsection (d) below) on
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the date on which such issuance was declared or otherwise announced by
the Company (the "Determination Date"), the number of shares of such
class of Capital Stock into which each $1,000 principal amount of
Securities shall be convertible after such record date shall be
determined by multiplying the number of shares of such class of
Capital Stock into which such principal amount of Securities was
convertible immediately prior to such record date by a fraction, of
which the numerator shall be the number of shares of such class of
Capital Stock outstanding on the Determination Date plus the number of
additional shares of such class of Capital Stock offered for
subscription or purchase (or in the case of a right or warrant to
purchase securities convertible into such class of Capital Stock, the
aggregate number of additional shares of such class of Capital Stock
into which the convertible securities so offered are initially
convertible), and of which the denominator shall be the number of
shares of such class of Capital Stock outstanding on the Determination
Date plus the number of shares of such class of Capital Stock obtained
by dividing the aggregate offering price of the total number of shares
so offered (or, in the case of a right or warrant to purchase
securities convertible into such class of Capital Stock, the aggregate
initial conversion price of the convertible securities so offered,
after adding thereto the aggregate exercise price of such rights or
warrants computed on the basis of the maximum number of shares of such
class of Capital Stock issuable upon conversion of such convertible
securities) by such current market price. Shares of such class of
Capital Stock of the Company 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 to the extent that shares of such class of
Capital Stock are not delivered (or securities convertible into shares
of such class of Capital Stock are not delivered) after the expiration
of such rights or warrants (or, in the case of rights or warrants to
purchase securities convertible into such class of Capital Stock once
exercised, the expiration of the conversion right of such securities)
the conversion rate shall be readjusted to the conversion rate which
would then be in effect had the adjustments made upon the issuance of
such rights or warrants (or securities convertible into shares) been
made upon the basis of delivery of only the number of shares actually
delivered. In the event that such rights or warrants are not so
issued, the conversion rate shall again be adjusted to be the
conversion rate which would be in effect if such record date had not
been fixed.
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(c) In case the Company shall fix a record date for the
making of a distribution to all holders of the class of Capital Stock
into which Securities of such series are convertible (including any
such distribution made in connection with a consolidation or merger in
which the Company is the continuing corporation) of evidences of its
indebtedness or assets (excluding any cash dividends paid from earned
surplus and dividends payable in capital Stock for which adjustment is
made pursuant to subsection (a) above) or subscription rights or
warrants (excluding subscription rights or warrants to purchase the
class of Capital Stock into which securities of such series are
convertible), the number of shares of such class of Capital Stock into
which each $1,000 principal amount of Securities of such series shall
be convertible after such record date shall be determined by
multiplying the number of shares of such class of Capital Stock into
which such principal amount of Securities was convertible immediately
prior to such record date by a fraction, of which the numerator shall
be the fair market value of the assets of the Company, after deducting
therefrom all liabilities of the Company and all preferences
(including accrued but unpaid dividends) in respect of classes of
Capital Stock of the Company having a preference with respect to the
assets of the Company over such class of Capital Stock (all as
determined by the Board of Directors, whose determination shall be
conclusive, and described in an Officers' Certificate, filed with the
Trustee and each conversion agent) on such record date, and of which
the denominator shall be such fair market value after deducting
therefrom such liabilities and preferences, less the fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive, and described in a statement filed with the Trustee and
each conversion agent) of the assets or evidences of indebtedness, so
distributed or of such subscription rights or warrants applicable, so
distributed. Such adjustment shall be made successively whenever such
a record date is fixed; and in the event that such distribution is not
so made, the conversion rate shall again be adjusted to the conversion
rate which would then be in effect if such record date had not been
fixed.
(d) For the purpose of any computation under subsection
(b) above and Section 1406, the current market price per share of the
Capital Stock on any date as of which such price is to be computed
shall mean the average of the Closing Price Per Share for the 30
consecutive Business Days commencing 45 Business Days before such
date.
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(e) No adjustment in the conversion rate shall be
required unless such adjustment would require a cumulative increase or
decrease of at least 1% in such rate; provided, however, that any
adjustments which by reason of this subsection (e) are not required to
be made shall be carried forward and taken into account in any
subsequent adjustment; and provided, further, that adjustments shall be
required and made in accordance with the provisions of this Article
Fourteen (other than this subsection (e)) not later than such time as
may be required in order to preserve the taxfree nature of a
distribution for United States income tax purposes to the Holders of
Securities of the class of Capital Stock into which such Securities
are convertible. All calculations under this Article Fourteen shall
be made to the nearest cent or to the nearest one-thousandth of a
share, as the case may be. Anything in this Section 1405 to the
contrary notwithstanding, the Company shall be entitled to make such
adjustments in the conversion rate, in addition to those required by
this Section 1405, as it in its discretion shall determine to be
advisable in order that any stock dividend, subdivision of shares,
distribution of rights to purchase stock or securities, or
distribution of securities convertible into or exchangeable for stock
hereafter made by the Company to its shareholders shall not be taxable
for United States income tax purposes.
(f) Whenever the conversion rate is adjusted, as herein
provided, the Company shall promptly file with the Trustees and with
the office or agency maintained by the Company for the conversion of
Securities of such series pursuant to Section 1002, a certificate of a
firm of independent public accountants of recognized national standing
selected by the Board of Directors (who may be the regular accountants
employed by the Company) setting forth the conversion rate after such
adjustment and setting forth a brief statement of the facts requiring
such adjustment and a computation thereof. Such certificate shall be
conclusive evidence of the correctness of such adjustment. Neither
the Trustee nor any conversion agent shall be under any duty or
responsibility with respect to any such certificate or any facts or
computations set forth therein, except to exhibit said certificate
from time to time to any Holder of Securities of such series desiring
to inspect the same. The Company shall promptly cause a notice
setting forth the adjusted conversion rate to be mailed to the Holders
of Securities of such series, as their names and addresses appear upon
the registration books of the Company.
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(g) In the event that at any time, as a result of shares
of any other class of Capital Stock of the Company becoming issuable
in exchange or substitution for or in lieu of shares of the class of
Capital Stock into which such Securities are convertible or as a
result of an adjustment made pursuant to subsection (a) above, the
Holder of any Security of such series thereafter surrendered for
conversion shall become entitled to receive any shares of the Company
other than shares of the class of Capital Stock into which the
Securities of such series are convertible, thereafter the number of
such other shares so receivable upon conversion of any Security 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
class of Capital Stock into which the Securities of such series are
convertible contained in subsections (a) to (k), inclusive, above, and
the provisions of this Article Fourteen with respect to the class of
Capital Stock into which the Securities of such series are convertible
shall apply on like terms to any such other shares.
(h) In any case in which this Section 1405 shall require
that any adjustment be made effective as of or retroactively
immediately following a record date, the Company may elect to defer
(but only for five (5) Trading Days following the filing of the
statement referred to in Section 1408) issuing to the Holder of any
Securities converted after such record date the shares of Capital
Stock issuable upon such conversion over and above the shares of
Capital Stock of the Company issuable upon such conversion on the
basis of the conversion price prior to 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.
(i) The conversion rate with respect to any Original
Issue Discount Securities, the terms of which provide for
convertibility, shall not be adjusted during the term of such Original
Issue Discount Securities for accrued original issue discount.
(j) In the event that the Securities of any series are
convertible into more than one class of Capital Stock, the provisions
of this Section 1405 shall apply separately to events affecting each
such class.
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(k) No adjustment shall be made pursuant to this Section
1405 (i) if the effect thereof would be to reduce the conversion price
below the par value (if any) of the Capital Stock or (ii) subject to
1403(h) hereof, with respect to any Security that is converted prior
to the time such adjustment otherwise would be made.
Section 1406. No Fractional Shares to be Issued.
No fractional shares of Capital Stock shall be issued upon
conversions of Securities. If more than one Security of any series shall be
surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities of such series (or
specified portions thereof to the extent permitted hereby) so surrendered.
Instead of a fraction of a share of Capital Stock which would otherwise be
issuable upon conversion of any Security or Securities (or specified portions
thereof), the Company shall pay a cash adjustment in respect of such fraction
of a share in an amount equal to the same fractional interest of the Closing
Price Per Share of Capital Stock on the Business Day next preceding the day of
conversion.
Section 1407. Preservation of Conversion Rights Upon
Consolidation, Merger, Sale or Conveyance.
In case of any consolidation of the Company with, or merger of
the Company into, any other corporation (other than a consolidation or merger
in which the Company is the continuing corporation), or in the case of any sale
or transfer of all or substantially all of the assets of the Company, the
corporation formed by such consolidation or the corporation into which the
Company shall have been merged or the corporation which shall have acquired
such assets, as the case may be, shall execute and deliver to the Trustee, a
supplemental indenture, subject to the provisions of Articles Eight and Nine as
they relate to supplemental indentures, providing that the Holder of each
Security then Outstanding of a series which was convertible into Capital Stock
shall have the right thereafter to convert such security into the kind and
amount of shares of stock and other securities and property, including cash,
receivable upon such consolidation, merger, sale or transfer by a holder of the
number of shares of Capital Stock of the Company into which such Securities
might have been converted immediately prior to such consolidation, merger, sale
or transfer. Such supplemental indenture shall conform to the provisions of
the Trust Indenture Act and shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Article Fourteen. Neither
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the Trustee nor any conversion agent shall be under any responsibility to
determine the correctness of any provision contained in any such supplemental
indenture relating either to the kind or amount of shares of stock or other
securities or property receivable by Holders of Securities upon the conversion
of their Securities after any such consolidation, merger, sale or transfer, or
to any adjustment to be made with respect thereto and, subject to the
provisions of Section 601, may accept as conclusive evidence of the correctness
of any such provisions, and shall be protected in relying upon, an Opinion of
Counsel with respect thereto. If in the case of any such consolidation,
merger, sale or transfer, the stock or other securities and property receivable
by a Holder of Securities includes stock or other securities and property of a
corporation other than the successor or purchasing corporation, then such
supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the
Holders of the Securities as the Board of Directors shall reasonably consider
necessary. The above provisions of this Section 1407 shall similarly apply to
successive consolidations, mergers, sales or transfers.
Section 1408. Notice to Holders of Securities of a Series
Prior to Taking Certain Types of Action.
With respect to the Securities of any series, in case:
(a) the Company shall authorize the issuance to all
holders of the class of Capital Stock into which Securities of such
series are convertible of rights or warrants to subscribe for or
purchase shares of its Capital Stock or any other right;
(b) the Company shall authorize the distribution to all
holders of the class of Capital Stock into which Securities of such
series are convertible of evidences of its indebtedness or assets
(except for the exclusions with respect to certain dividends set forth
in Section 1405(c));
(c) of any subdivision, combination or reclassification
of the class of Capital Stock into which Securities of such series are
convertible or of any consolidation or merger to which the Company is
a party and for which approval by the shareholders of the Company is
required, or of the sale or transfer of all or substantially all of
the assets of the Company; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
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then the Company shall cause to be filed with the Trustee and at the office or
agency maintained for the purpose of conversion of Securities of such series
pursuant to Section 1002, and shall cause to be mailed to the Holders of
Securities of such series, at their last addresses as they shall appear upon
the registration books of the Company, at least ten days prior to the
applicable record date hereinafter specified, a notice stating (i) the date as
of which the holders of such class of Capital Stock to be entitled to receive
any such rights, warrants or distribution are to be determined, or (ii) the
date on which any such subdivision, combination, reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation, winding up or
other action is expected to become effective, and the date as of which it is
expected that holders of record of such class of Capital Stock shall be
entitled to exchange their Capital Stock of such class for securities or other
property, if any, deliverable upon such subdivision, combination,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation, winding up or other action. The failure to give the notice
required by this Section 1408 or any defect therein shall not affect the
legality or validity of any distribution, right, warrant, subdivision,
combination, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation, winding up or other action, or the vote upon any of
the foregoing. Such notice shall also be published by and at the expense of
the Company not later than the aforesaid filing date at least once in an
Authorized Newspaper.
Section 1409. Covenant to Reserve Shares for Issuance
on Conversion of Securities.
The Company covenants that at all times it will reserve and
keep available out of each class of its authorized Capital Stock, free from
preemptive rights, solely for the purpose of issue upon conversion of
Securities of any series as herein provided, such number of shares of Capital
Stock of such class as shall then be issuable upon the conversion of all
outstanding Securities of such series. The Company covenants that all shares
of Capital Stock which shall be so issuable shall, when issued or delivered, be
duly and validly issued shares of the class of authorized Capital Stock into
which Securities of such series are convertible, and shall be fully paid and
nonassessable, free of all liens and charges and not subject to preemptive
rights and that, upon conversion, the appropriate capital stock accounts of the
Company will be duly credited.
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Section 1410. Compliance with Governmental Requirements.
The Company covenants that if any shares of Capital Stock
required to be reserved for purposes of conversion of Securities hereunder
require registration or listing with or approval of any governmental authority
under any Federal or State law, pursuant to the Securities Act of 1933, as
amended, or the Securities Exchange Act, or any national or regional securities
exchange on which such Capital Stock is listed at the time of delivery of any
shares of such Capital Stock, before such shares may be issued upon conversion,
the Company will use its best efforts to cause such shares to be duly
registered, listed or approved, as the case may be.
Section 1411. Payment of Taxes Upon Certificates for
Shares Issued Upon Conversion of Securities.
The issuance of certificates for shares of Capital Stock upon
the conversion of Securities shall be made without charge to the converting
Holders for any tax (including, without limitation, all documentary and stamp
taxes) in respect of the issuance and delivery of such certificates, and such
certificates shall be issued in the respective names of, or in such names as
may be directed by, the Holders of Securities converted; provided, however,
that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issuance and delivery of any such
certificate in a name other than that of the Holder of the Security converted,
and the Company shall not be required to issue or deliver such certificates
unless or until the person or persons requesting the issuance thereof shall
have paid to the Company the amount of such tax or shall have established to
the satisfaction of the Company that such tax has been paid.
Section 1412. Trustee's Duties with Respect
to Conversion Provisions.
The Trustee and any conversion agent shall not at any time be
under any duty or responsibility to any Holder of Securities to determine
whether any facts exist which may require any adjustment of the conversion
rate, or with respect to the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same. Neither the Trustee nor
any conversion agent shall be accountable with respect to the registration
under securities laws, listing, validity or value (or the kind or amount) of
any shares of Capital Stock, or of any other securities or property, which may
at any time be issued or delivered upon the conversion of any Security; and
neither the Trustee nor any conversion agent makes any representation with
respect thereto. Neither the Trustee nor any conversion agent shall
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be responsible or liable for any failure of the Company to make any cash
payment or to issue, transfer or deliver any shares of stock or stock
certificates or other securities or property upon the surrender of any Security
for the purpose of conversion; and the Trustee, subject to the provisions of
Section 601, and any conversion agent shall not be responsible or liable for
any failure of the Company to comply with any of the covenants of the Company
contained in this Article Fourteen.
Section 1413. Corporate Action Regarding
Par Value of Capital Stock.
Before taking any action which would cause an adjustment
reducing the applicable conversion price below the then par value (if any) of
the shares of Capital Stock deliverable upon conversion of the Securities, the
Company will 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 Capital Stock at such adjusted
conversion price.
Section 1414. Company Determination Final.
Any determination that the Company or the Board of Directors
must make pursuant to this Article is conclusive.
ARTICLE FIFTEEN
Subordination
Section 1501. Agreement to Subordinate
The Company covenants and agrees, and each Holder of a
subordinated Security or any Coupon appertaining thereto issued hereunder, by
his acceptance thereof, likewise covenants and agrees, that all subordinated
Securities and any Coupons appertaining thereto shall be issued subject to the
provisions of this Article; and each Person holding any subordinated Security
or any Coupon appertaining thereto, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees that the principal
of and interest (and premium, if any) on all subordinated Securities or any
Coupon appertaining thereto issued hereunder shall, to the extent and in the
manner herein set forth, be subordinated and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and that the subordination is
for the benefit of the holders of the Senior Indebtedness.
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Section 1502. Payments to Holders of Subordinated
Securities.
As to each series of subordinated Securities and any Coupons
appertaining thereto, if any, issued hereunder, in the event (a) of the
occurrence of any event specified in Section 501(6) or (7) herein, or (b) that
(i) a default shall have occurred with respect to the payment of principal of
or interest on or other monetary amounts due and payable with respect to any
Senior Indebtedness, or (ii) there shall have occurred an event of default
(other than a default in the payment of principal or interest or other monetary
amounts due and payable) in respect of any Senior Indebtedness, as defined in
such Senior Indebtedness or in the instrument under which the same is
outstanding, permitting the holder or holders thereof to accelerate the
maturity thereof, and such default or event of default shall not be cured or
was continued beyond the period of grace, if any, in respect thereof, and such
default or event of default shall not have been waived or shall not have ceased
to exist, or (c) separately with respect to each series of Securities, that the
principal of and accrued interest on such Securities shall have been declared
due and payable pursuant to Section 502 and such declaration shall not have
been rescinded and annulled as provided in Section 502, then the holders of all
Senior Indebtedness shall first be entitled to receive payment in full of all
amounts due or to become due thereon, or provision shall be made, in accordance
with the terms of such Senior Indebtedness for such payment in money or money's
worth, before the Holders of such series of subordinated Securities or any
Coupons appertaining thereto are entitled to receive a payment on account of
the principal of or interest on (or premium, if any) the indebtedness evidenced
by such series of subordinated Securities or any such Coupons appertaining
thereto, including, without limitation, any payments made pursuant to Articles
Eleven and Twelve, or any cash payments to purchase such series of subordinated
Securities at the option of the Holders thereof.
Upon the occurrence of any event specified in Section 501(6)
or (7) herein, any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to which the Holders of
the subordinated Securities or any Coupons appertaining thereto and or the
Trustee under this Indenture would be entitled, except for the provisions
hereof, shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution
or, to the extent required by the next succeeding paragraph, by the Holders of
the subordinated Securities or any Coupons appertaining thereto or the Trustee,
if received by them or it, directly to the
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representative of the holders of Senior Indebtedness (which representative
shall pay pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness held by such holders), or to the trustee or trustees under
any indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness may have been issued, as their respective interests may appear, to
the extent necessary to pay all Senior Indebtedness in full after giving effect
to any concurrent payment or distribution to or for the holders of Senior
Indebtedness, before any payment or distribution is made to the Holders of the
indebtedness evidenced by the subordinated Securities or any Coupons
appertaining thereto (including any cash payments to repurchase such Securities
at the option of the Holders thereof) or to the Trustee under this Indenture.
In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing provisions of this
Section, shall be received by the Trustee under this Indenture or the Holders
of the subordinated Securities or any Coupons appertaining thereto before all
Senior Indebtedness is paid in full or provision is made for such payment in
accordance with its terms, and if such fact shall, at or prior to the time of
such payment or distribution, have been known to the Trustee, then such payment
or distribution shall be held in trust for the benefit of and shall be paid
over or delivered to the representative of the holders of such Senior
Indebtedness, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any of such Senior Indebtedness may have been
issued, as their respective interest may appear, for application to the payment
of all Senior Indebtedness remaining unpaid until all such Senior Indebtedness
shall have been paid in full in accordance with its distribution to or for the
holders of such Senior Indebtedness.
For purposes of this Article only, the words "cash, property
or securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of arrangement, reorganization or
readjustment, the payment of which is subordinated (at least to the extent
provided in this Article with respect to the subordinated Securities) to the
payment of all Senior Indebtedness which may at the time be outstanding;
provided that (i) the Senior Indebtedness is assumed by the new corporation, if
any, resulting from any such arrangement, reorganization or readjustment, and
(ii) the rights of the holders of the Senior Indebtedness are not, without the
consent of such holders, altered by such arrangement, reorganization or
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readjustment. The consolidation of the Company with, or the merger of the
Company with or into, another corporation or the liquidation or dissolution of
the Company following the conveyance or transfer of all or substantially all of
its assets to another corporation upon the terms and conditions provided in
Article Eight shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article Eight. Nothing in this Section shall
apply to claims of, or payments to, the Trustee under or pursuant to Article
Six, except as expressly provided therein. This Section shall be subject to
the further provisions of Section 1505.
Section 1503. Subrogation.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the subordinated Securities and any Coupon appertaining thereto
subject to the provisions of Section 1502 shall be subrogated (equally and
ratably with the holders of all obligations of the Company which by their
express terms are subordinated to Senior Indebtedness of the Company to the
same extent as the subordinated Securities are subordinated and which are
entitled to like rights of subrogation) to the rights of the holders of Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to the Senior Indebtedness until the
principal of and interest on such subordinated Securities and the amounts owed
pursuant to any such Coupons appertaining thereto shall be paid in full; and
for the purpose of such subrogation, no payments of distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of such subordinated Securities or any such Coupons or the Trustee
on their behalf would be entitled except for the provisions of this Article,
and no payment over pursuant to the provisions of this Article to the holders
of Senior Indebtedness by Holders of such subordinated Securities or any such
Coupons or the Trustee on their behalf shall, as between the Company, its
creditors other than holders of Senior Indebtedness and the Holders of such
subordinated Securities or any such Coupons, be deemed to be a payment by the
Company to or on account of the Senior Indebtedness; and no payments or
distributions of cash, property or securities to or for the benefit of the
Holders pursuant to the subrogation provision of this Article, which would
otherwise have been paid to the holders of Senior Indebtedness, shall be deemed
to be a payment by the Company to or for the account of such Securities. The
provisions of this Article are intended solely for the purpose of defining the
relative rights of the
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<PAGE> 118
Holders of the Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
Nothing contained in this Article or elsewhere in this
Indenture or in the subordinated Securities is intended to or shall impair, as
between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the subordinated Securities, the obligation of
the Company, which is absolute and unconditional, to pay to the Holders of the
subordinated Securities the principal of and interest on the subordinated
Securities and the amounts owed pursuant to any Coupons appertaining thereto as
and when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights against the Company of
the Holders of the subordinated Securities and creditors of the Company other
than the holders of Senior Indebtedness, nor shall anything herein or therein
prevent the Holder of any subordinated Security or the Trustee on his behalf
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness in respect of cash, property or securities of
the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of Sections
601 and 603, and the Holders of the subordinated Securities and any Coupons
appertaining thereto shall be entitled to rely upon any order or decree made by
any court of competent jurisdiction in which such insolvency, bankruptcy,
dissolution, winding-up, liquidation, arrangement or reorganization proceedings
are pending, or a certificate of the receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of the subordinated Securities and
of any Coupons appertaining thereto, for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article.
Section 1504. Authorization by Holders of Subordinated
Securities.
Each Holder of a subordinated Security or Coupon appertaining
thereto by his acceptance thereof authorizes the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the subordination
provided in
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<PAGE> 119
this Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
Section 1505. Notice to Trustee.
The Company shall give prompt written notice to the Trustee
and to any Paying Agent of any fact known to the Company which would prohibit
the making of any payment of moneys to or by the Trustee or any paying agent in
respect of the subordinated Securities or any Coupons appertaining thereto
pursuant to the provisions of this Article. Regardless of anything to the
contrary contained in this Article or elsewhere in this Indenture, the Trustee
shall not be charged with knowledge of the existence of any Senior Indebtedness
or of any default or event of default with respect to any Senior Indebtedness
or of any other facts which would prohibit the making of any payment of moneys
to or by the Trustee in respect of the subordinated Securities or any Coupons
appertaining thereto, unless and until the Trustee shall have received notice
in writing at its Corporate Trust Office to that effect signed by an officer of
the Company, or by a holder or agent of a holder of Senior Indebtedness who
shall have been certified by the Company or otherwise established to the
reasonable satisfaction of the Trustee to be such holder or agent, or by the
trustee under any indenture pursuant to which Senior Indebtedness shall be
outstanding, and, prior to the receipt of any such written notice, the Trustee
shall, subject to Sections 601 and 603, be entitled to assume that no such
facts exist; provided that if on a date at least two Business Days prior to the
date upon which by the terms hereof any such moneys shall become payable for
any purpose (including, without limitation, the payment of the principal of or
interest on any Security) the Trustee shall not have received with respect to
such moneys the notice provided for in this section, then, regardless of
anything herein to the contrary, the Trustee shall have full power and
authority to receive such moneys and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary
which may be received by it on or after such prior date.
Regardless of anything to the contrary herein (but subject, in
the case of clause (a) of this paragraph, to the second paragraph of Section
1502), nothing shall prevent (a) any payment by the Company or the Trustee to
the Holders of subordinated Securities of amounts in connection with a
redemption of subordinated Securities if (i) notice of such redemption has been
given pursuant to Article Eleven prior to the receipt by the Trustee of written
notice as aforesaid, and (ii) such notice of redemption is given not earlier
than 60 days before the redemption date, or (b) any payment by the
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<PAGE> 120
Trustee to the Holders of subordinated Securities of amounts deposited with it
pursuant to Section 1302.
Subject to Sections 601 and 603, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Indebtedness (or a trustee or other
representative on behalf of such holder) to establish that such notice has been
given by a holder of Senior Indebtedness or a trustee or other representative
on behalf of any such holder. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and, if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section 1506. Trustee's Relation to Senior Indebtedness
The Trustee and any agent of the Company or the Trustee shall
be entitled to all the rights set forth in this Article with respect to any
Senior Indebtedness which may at any time be held by it in its individual or
any other capacity to the same extent as any other holder of Senior
Indebtedness and nothing in the Trust Indenture Act or in this Indenture shall
deprive the Trustee or any such agent of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 607.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not
be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and,
subject to the provisions of Sections 601 and 603, the Trustee shall not be
liable to any holder of Senior Indebtedness if it shall in good faith pay over
or deliver to Holders of subordinated Securities, the Company or any other
Person moneys or assets to which any holder of Senior Indebtedness shall be
entitled by virtue of this Article or otherwise.
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<PAGE> 121
Section 1507. No Impairment of Subordination.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof which any such holder
may have or otherwise be charged with.
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<PAGE> 122
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
ASARCO INCORPORATED
By
-------------------------
Title:
Attest:
By
-------------------------
Title:
[SEAL]
CHEMICAL BANK,
as Trustee
By
------------------------
Attest:
By
-------------------------
Title:
[SEAL]
-110-
<PAGE> 123
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of , 1994, before me personally
came __________________________, to me known, who, being by me duly sworn, did
depose and say that he/she is _______________________________________________
of ASARCO Incorporated, one of the corporations described in and which executed
the foregoing instrument; that he/she knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that
he/she signed his/her name thereto by like authority.
[NOTARIAL SEAL]
---------------------------
Notary Public
<PAGE> 124
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of , 1994, before me
personally came _______________________, to me known, who, being by me duly
sworn, did depose and say that he/she is __________________________________ of
Chemical Bank, one of the corporations described in and which executed the
foregoing instrument; that he/she knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that he/she
signed his/her name thereto by like authority.
[NOTARIAL SEAL]
---------------------------
Notary Public
<PAGE> 1
EXHIBIT 4.2
- --------------------------------------------------------------------------------
------------------------------
---------------, AS DEPOSITARY,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
-------------------------
DEPOSIT AGREEMENT
-------------------------
Dated as of --------------- --, 1994
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS*/
<TABLE>
<CAPTION>
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ARTICLE I. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II. Form of Receipts, Deposit of
Stock, Execution and Delivery,
Transfer, Surrender and Redemp-
tion of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.01. Form and Transfer of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.02. Deposit of Stock; Execution and
Delivery of Receipts in Respect
Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.03. Redemption of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.04. Registration of Transfer of
Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.05. Split-ups and Combinations of
Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.06. Limitations on Execution and
Delivery, Transfer, Surrender
and Exchange of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.07. Lost Receipts, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.08. Cancellation and Destruction of
Surrendered Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
</TABLE>
- ----------------------------------
*/ This table of contents does not constitute a part of the Agreement to
which it is attached.
(i)
<PAGE> 3
<TABLE>
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<S> <C> <C>
ARTICLE III. Certain Obligations of Holders
of Receipts and Warranties of
the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3.01. Filing Proofs, Certificates and
Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3.02. Payment of Taxes or Other Govern-
mental Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3.03. Warranty as to Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3.04. Warranty as to Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE IV. The Deposited Securities:
Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.01. Cash Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.02. Distributions Other than Cash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.03. Notice of Dividends, etc.; Fix-
ing of Record Date for Holders
of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.04. Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.05. Changes Affecting Deposited Secu-
rities and Reclassifications,
Recapitalizations, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.06. Inspection of Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.07. Lists of Receipt Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE V. The Depositary, the Depositary's
Agents, the Registrar and the
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.01. Maintenance of Offices, Agencies
and Transfer Books by the Deposi-
tary; Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
</TABLE>
(ii)
<PAGE> 4
<TABLE>
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SECTION 5.02. Prevention of or Delay in Perfor-
mance by the Depositary, the
Depositary's Agents, the Regis-
trar or the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.03. Obligations of the Depositary,
the Depositary's Agents, the
Registrar and the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.04. Resignation and Removal of the
Depositary; Appointment of Suc-
cessor Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.05. Corporate Notices and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.06. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.07. Charges and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 5.08. Retention of Depositary Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VI. Amendment and Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 6.01. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 6.02. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE VII. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.01. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.02. Exclusive Benefit of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.03. Invalidity of Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.04. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.05. Depositary's Agents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 7.06. Holders of Receipts Are Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 7.07. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 7.08. Inspection of Deposit Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
</TABLE>
(iii)
<PAGE> 5
<TABLE>
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<S> <C> <C>
SECTION 7.09. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
EXHIBIT A - FORM OF DEPOSITARY RECEIPT
</TABLE>
(iv)
<PAGE> 6
DEPOSIT AGREEMENT dated as of
------------ --, 1994 among Asarco Incorporated,
a New Jersey Corporation,
------------------, a -------------------
corporation, and the holders from
time to time of the Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of _________ Depositary Shares with the
Depositary for the purposes set forth in this Deposit Agreement and for the
issuance hereunder of Receipts evidencing Depositary Shares in respect of the
Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of
Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the
parties hereto agree as follows:
ARTICLE I.
Definitions
The following definitions shall for all purposes, unless
otherwise indicated, apply to the respective terms used in this Deposit
Agreement and the Receipts.
"Certificate" shall mean the Certificate of Designations of
the Restated Articles of Incorporation of the Company, as amended form time to
time, filed with the Secretary of State of the State of New Jersey establishing
the Stock as a series of preferred stock of the Company.
"Company" shall mean Asarco Incorporated, a New Jersey
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time.
"Depositary" shall mean __________________, a
____________________, and any successor as Depositary hereunder.
<PAGE> 7
"Depositary Shares" shall mean depositary shares of the
Company, each representing an interest in a share of Stock deposited with the
Depositary hereunder and evidenced by a Receipt. Each Depositary Share shall,
as provided herein, represent an interest in [%], subject to adjustment as
herein provided, of one share of Stock and the same proportionate interest in
any and all moneys and other property received or receivable by the Depositary
in respect of the Stock.
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 7.05.
"Depositary's Office" shall mean the principal office of the
Depositary in the Borough of Manhattan, The City of New York, at which at any
particular time its depositary receipt business shall be administered, which
office is located, at the date of this Deposit Agreement, at
_________________________________________.
"Receipt" shall mean one of the depositary receipts issued
hereunder, whether in definitive or temporary form.
"Record Holder" as applied to a Receipt shall mean the person
in whose name a Receipt is registered on the books of the Depositary maintained
for such purpose.
"Redemption Date" shall have the meaning ascribed to such term
in Section 2.03 hereof.
"Registrar" shall mean any bank or trust company which shall
be appointed to register ownership and transfers of Receipts as herein
provided.
"Stock" shall mean shares of the Company's ____% Series __
Preferred Stock, stated value $___ per share.
ARTICLE II.
Form of Receipts, Deposit of Stock, Execution and
Delivery, Transfer, Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts. Definitive
Receipts shall be engraved or printed or lithographed on steel-engraved
borders and shall be substantially in the form set forth in Exhibit A annexed
to this Deposit Agreement, with appropriate insertions,
-2-
<PAGE> 8
modifications and omissions as hereinafter provided. Pending the preparation
of definitive Receipts, the Depositary, upon the written order of the Company
delivered in compliance with Section 2.02, shall execute and deliver temporary
Receipts which are printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the persons executing such Receipts may
determine, as evidenced by their execution of such Receipts. If temporary
Receipts are issued, the Company and the Depositary will cause definitive
Receipts to be prepared without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for
definitive Receipts upon surrender of the temporary Receipts at an office
described in the last paragraph of Section 2.02, without charge to the holder.
Upon surrender for cancellation of any one or more temporary Receipts, the
Depositary shall execute and deliver in exchange therefor definitive Receipts
representing the same number of Depositary Shares as represented by the
surrendered temporary Receipt or Receipts. Such exchange shall be made at the
Company's expense and without any charge therefor to the holder. Until so
exchanged, the temporary Receipts shall in all respects be entitled to the same
benefits under this Deposit Agreement, and with respect to the Stock, as
definitive Receipts.
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized signatory of the Depositary; provided, that such
signature may be a facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such Receipts are countersigned by
manual signature of a duly authorized signatory of the Registrar. No Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless it shall have been executed manually by a
duly authorized signatory of the Depositary or, if a Registrar for the Receipts
(other than the Depositary) shall have been appointed, by manual or facsimile
signature of a duly authorized signatory of the Depositary and countersigned
manually by a duly authorized signatory of such Registrar. Receipts executed
as provided in this Section may be issued notwithstanding that any authorized
signatory of the Depositary or Registrar, as the case may be, signing such
Receipts shall have ceased to be such an authorized signatory at the time of
issuance of such Receipts. The Depositary or, if a Registrar (other
-3-
<PAGE> 9
than the Depositary) shall have been appointed, the Registrar shall record on
its books each Receipt so signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole
Depositary Shares.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or any regulation thereunder or with
the rules and regulations of any national securities exchange upon which the
Stock, the Depositary Shares or the Receipts may be listed or to conform with
any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is
properly endorsed, or accompanied by a properly executed instrument of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument; provided, however, that until transfer of a Receipt
shall be registered on the books of the Depositary as provided in Section 2.04,
the Depositary may, notwithstanding any notice to the contrary, treat the
Record Holder thereof at such time as the absolute owner thereof for the
purpose of determining the person entitled to distributions of dividends or
other distributions or to any notice provided for in this Deposit Agreement and
for all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this
Deposit Agreement, the Company may form time to time deposit, or cause or
permit to be deposited, shares of Stock under this Deposit Agreement by
delivery to the Depositary of a certificate or certificates for the Stock to be
deposited, properly endorsed or accompanied, in each case if required by the
Depositary, by a duly executed instrument of transfer or endorsement in form
reasonably satisfactory to the Depositary, together with all such
certifications as may be required by the Depositary in accordance with the
provisions of this Deposit Agreement, and together with a written order
directing the Depositary to execute and deliver to, or upon the written order
of, the person or persons specified in such order a Receipt or Receipts for the
number of
-4-
<PAGE> 10
Depositary Shares representing such deposited Stock. Subject to the terms and
conditions of this Deposit Agreement, shares of Stock may also be deposited
hereunder in connection with the delivery of Receipts to represent
distributions under Section 4.02 and upon exercise of the rights to subscribe
referred to in Section 4.03.
Deposited Stock shall be held by the Depositary in safekeeping
at the Depositary's Office or at such other place or places as the Depositary
shall determine.
Upon receipt by the Depositary of a certificate or
certificates for Stock deposited in accordance with the provisions of this
Section, together with the other documents required as above specified, and
upon recordation of the Stock on the books of the Company in the name of the
Depositary or its nominee, the Depositary, subject to the terms and conditions
of this Deposit Agreement, shall execute and deliver, to or upon the order of
the person or persons specified in the written order delivered to the
Depositary referred to in the first paragraph of this Section, a Receipt or
Receipts for the number of Depositary Shares representing the Stock so
deposited and registered in such name or names and in such denomination or
denominations as may be requested by such person or persons or specified in
such order. The Depositary shall execute and deliver such Receipt or Receipts
at the Depositary's Office or such other offices, if any, as the Depositary may
designate.
SECTION 2.03. Redemption of Stock. Whenever the Company
shall elect to redeem shares of Stock held by the Depositary in accordance with
the provisions of the Certificate, the Company shall (unless otherwise agreed
in writing with the Depositary) give the Depositary not less than 40 and not
more than 70 days' notice of the date of such proposed redemption of Stock, the
number of shares of Stock held by the Depositary to be so redeemed and the
redemption price for the shares of Stock to be redeemed in accordance with
Section (e) of the Certificate. On the date of such proposed redemption,
provided that the Company shall then have paid in full to the Depositary the
redemption price of the Stock to be redeemed (plus all other amounts referred
to below), the Depositary shall redeem the Depositary Shares representing such
Stock. The Depositary shall mail notice of such proposed redemption and the
proposed simultaneous redemption of the number of Depositary Shares
representing the Stock to be redeemed, first-class postage prepaid, not less
than 30 and not more
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than 60 days prior to the date fixed for redemption of such Stock and
Depositary Shares (the "Redemption Date"), to the Record Holders of the
Receipts evidencing the Depositary Shares to be so redeemed, at the addresses
of such Record Holders as they appear on the books of the Depositary; but
neither failure to mail any such notice to one or more such holders nor any
defect in any notice to one or more such holders shall affect the sufficiency
of the proceedings for redemption as to other holders. Each such notice shall
state: (i) the Redemption Date; (ii) the number of Depositary Shares to be
redeemed and, if less than all the Depositary Shares held by any such holder
are to be redeemed, the number of such Depositary Shares held by such holder to
be so redeemed; (iii) the redemption price (which shall include full cumulative
dividends to the Redemption Date); (iv) the place or places where Receipts
evidencing Depositary Shares are to be surrendered for payment of the
redemption price; and (v) that dividends in respect of the Stock represented by
the Depositary Shares to be redeemed will cease to accumulate on such
Redemption Date. In case less than all the outstanding Depositary Shares are
to be redeemed, the Depositary Shares to be so redeemed shall be selected by
lot or pro rata (subject to rounding to avoid fractions of Depositary Shares)
as may be determined by the Depositary to be equitable.
Notice having been mailed by the Depositary as aforesaid, from
and after the Redemption Date (unless the Company shall have failed to redeem
the shares of Stock held by the Depositary to be redeemed by the Company as set
forth in the Company's notice provided for in the preceding paragraph) all
dividends in respect of the shares of Stock so called for redemption shall
cease to accumulate, the Depositary Shares being redeemed from such proceeds
shall no longer be deemed to be outstanding, all rights of the holders of
Receipts evidencing such Depositary Shares (except the right to receive the
redemption price plus accumulated but unpaid dividends and all money and other
property, if any, payable with respect to such Depositary Shares) shall, to the
extent of such Depositary Shares, cease and terminate and, upon surrender in
accordance with such notice of the Receipts evidencing any such Depositary
Shares (properly endorsed or assigned for transfer, if the Depositary shall so
require), such Depositary Shares shall be redeemed by the Depositary at a
redemption price per Depositary Share equal to ___________ (subject to
adjustment as hereinafter provided) of the redemption price per share paid in
respect of the shares of Stock plus all money and other property, if any,
payable with respect to
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such Depositary Shares, including all amounts payable by the Company in respect
of dividends which on the Redemption Date have accumulated on the shares of
Stock to be so redeemed and have not theretofore been paid.
If less than all the Depositary Shares evidenced by a receipt
are called for redemption, the Depositary will deliver to the holder of such
Receipt, without charge to such holder, upon surrender of such Receipt to the
Depositary, a new Receipt evidencing the Depositary Shares evidenced by such
prior Receipt and not called for redemption, together with the redemption
payment.
SECTION 2.04. Registration of Transfer of Receipts. Subject
to the terms and conditions of this Deposit Agreement, the Depositary shall
register on its books from time to time transfers of Receipts upon any
surrender thereof at the Depositary's Office or at such other office or offices
as may be designated by the Depositary for such purpose by the holder in person
or by a duly authorized attorney, properly endorsed or accompanied by a
properly executed instrument of Transfer. Thereupon the Depositary shall
execute a new Receipt or Receipts evidencing the same aggregate number of
Depositary Shares as those evidenced by the Receipt or Receipts surrendered and
deliver such new Receipt or Receipts to or upon the order of the person
entitled thereto.
SECTION 2.05. Split-ups and Combinations of Receipts. Upon
surrender of a Receipt or Receipts, at the Depositary's Office or at such other
office or offices as it may designate for the purpose of effecting a split-up
or combination of such Receipt or Receipts, by the holder in person or by its
duly authorized attorney, properly endorsed or accompanied by a properly
executed instrument of transfer, and subject to the terms and conditions of
this Deposit Agreement, the Depositary shall execute and deliver a new Receipt
or Receipts in the authorized denomination or denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the Receipt
or Receipts surrendered.
SECTION 2.06. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of Receipts. As a condition precedent to the
execution and delivery, registration of transfer, split-up, combination,
surrender or exchange of any Receipt, the Depositary, any of the
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Depositary's Agents or the Company may require (i) payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement to it) of any charges or
expenses payable by the holder of such Receipt pursuant to Section 5.07, (ii)
the production of evidence reasonably satisfactory to it as to the identity and
genuineness of any signature and (iii) compliance with such reasonable
regulations, if any, as the Depositary or the Company may establish consistent
with the provisions of this Deposit Agreement.
The registration of transfer of Receipts may be refused and
the registration of transfer, split-up, combination, surrender or exchange of
outstanding Receipts may be suspended (i) during any period when the Company's
register of holders of Stock is closed or (ii) if any such action is reasonably
deemed necessary or advisable by the Depositary, any of the Depositary's Agents
or the Company at any time or from time to time because of any requirement of
law or of any government or governmental body or commission or under any
provision of this Deposit Agreement.
SECTION 2.07. Lost Receipts, etc. In case any Receipt shall
be mutilated, destroyed, lost or stolen, the Depositary shall execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt, or in lieu of and in substitution for such destroyed, lost
or stolen Receipt, upon (i) the filing by the holder thereof with the
Depositary of evidence reasonably satisfactory to the Depositary of such
mutilation, destruction, loss or theft of such Receipt, of the authenticity
thereof and of his or her ownership thereof and (ii) if requested by the
Depositary, the furnishing of the Depositary with reasonable indemnification
satisfactory to it.
SECTION 2.08. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's Agent
shall be cancelled by the Depositary. Except as prohibited by applicable law
or regulation, the Depositary is authorized but shall not be required to
destroy all Receipts so cancelled so long as it shall deliver a certificate,
signed by one of its duly authorized officers, to the Company attesting as to
such destruction.
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ARTICLE III.
Certain Obligations of Holders
of Receipts and Warranties of the Company
SECTION 3.01. Filing Proofs, Certificates and Other
Information. Any holder of a Receipt may be required from time to time to file
such proof of residence, or other matters or other information, to execute such
certificates and to make such representations and warranties as the Depositary
or the Company may reasonably deem necessary or proper. The Depositary or the
Company may withhold the delivery, or delay the registration of transfer,
redemption or exchange, of any Receipt or the distribution of any dividend or
other distribution or the sale of any rights or of the proceeds thereof until
such proof or other information is filed or such certificates are executed or
such representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make payments to the Depositary of
certain taxes and governmental charges, as provided in Section 5.07.
Registration of transfer, split-up, combination, surrender or exchange of any
Receipt and all money or other property, if any, represented by the Depositary
Shares evidenced by such Receipt may be refused until any such payment in
respect of such Receipt is made, and any dividends or other distributions may
be withheld or any part of or all the Stock or other property represented by
the Depositary Shares evidenced by such Receipt and not theretofore sold may be
sold for the account of the holder thereof (after attempting by reasonable
means to notify such holder prior to such sale), and such dividends or other
distributions or the proceeds of any such sale and all money, if any,
represented by the Depositary Shares evidenced by such Recepit, may be applied
to any payment of such charges or taxes, the holder of such Receipt remaining
liable for any deficiency.
SECTION 3.03. Warranty as to Stock. The company hereby
represents and warrants that the Stock, when issued, will be duly authorized,
validly issued, fully paid
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and nonassessable and free and clear of any liens, claims or encumbrances.
Such representation and warranty shall survive the deposit of the Stock and the
issuance of Receipts.
SECTION 3.04. Warranty as to Receipts. The Depositary hereby
represents and warrants that the Receipts, when issued, will be validly issued,
fully paid and nonassessable. Such representation and warranty shall survive
the deposit of the Stock and the issuance of Receipts.
ARTICLE IV.
The Deposited Securities: Notices
SECTION 4.01. Cash Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution on Stock, the
Depositary shall, subject to Section 3.02, promptly distribute to those persons
who were Record Holders of Receipts on the record date fixed pursuant to
Section 4.03 such amounts of such dividend or distribution as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders on such record date; provided,
however, that in case the Company or the Depositary shall be required to
withhold and shall withhold from any cash dividend or other cash distribution
payable to a Record Holder in respect of the Stock an amount on account of
taxes, the amount made available for distribution or distributed to such Record
Holder in respect of Depositary Shares shall be reduced accordingly. The
Depositary shall distribute or make available for distribution, as the case may
be, only such amount, however, as can be distributed without attributing to any
Record Holder a fraction of one cent, and any balance not so distributable
shall be held by the Depositary (without liability for interest thereon) and
shall be added to and be treated as part of the next sum received by the
Depositary for distribution to Record Holders of Receipts then outstanding.
SECTION 4.02. Distributions Other than Cash. Whenever the
Depositary shall receive any distribution other than cash upon Stock, the
Depositary shall, subject to Section 3.02, promptly distribute to those persons
who were Record Holders of Receipts on the record date fixed pursuant to
Section 4.03 such amounts of the securities or
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<PAGE> 16
property received by it as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders on such record date, in any manner that the Depositary may deem
equitable and practicable for accomplishing such distribution. If in the
opinion of the Depositary such distribution cannot be made proportionately
among such Record Holders, or if for any other reason (including any
requirement that the Company or the Depositary withhold an amount on account of
taxes) the Depositary deems, after consultation with the Company, such
distribution not to be feasible, the Depositary may, with the approval of the
Company, adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the sale (at public or
private sale) of the securities or property thus received, or any part thereof,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Section 3.02, be distributed or
made available for distribution, as the case may be, by the Depositary to
Record Holders of Receipts entitled thereto as provided by Section 4.01 in the
case of a distribution received in cash.
SECTION 4.03. Notice of Dividends, etc.; Fixing of Record
Date for Holders of Receipts. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall be
made, or if rights, preferences or privileges shall at any time be offered with
respect to Stock, or whenever the Depositary shall receive notice of any
meeting at which holders of Stock are entitled to vote or of which holders of
Stock are entitled to notice or whenever the Depositary shall receive notice of
any other event as to which a record date for the Stock shall have been fixed
by the Company, the Depositary shall in each such instance fix a record date
(which shall be the same date as the record date fixed by the Company with
respect to the Stock) for the determination of the Record Holders of Receipts
who shall be entitled to receive such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such meeting or for the
giving of any such consent, or who shall be entitled to notice of such meeting
or to otherwise participate with respect to such event or for any other
appropriate reasons.
SECTION 4.04. Voting Rights. Upon receipt of notice of any
meeting or action to be taken written consent
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at or as to which the holders of Stock are entitled to vote or consent, the
Depositary shall, as soon as practicable thereafter, mail to the Record Holders
of Receipts on the record date set pursuant to Section 4.03 above a notice
(which notice will be prepared by the Company in its sole discretion) which
shall contain (i) such information as is contained in such notice of meeting or
the solicitation or notice of such consent and (ii) a statement informing the
holders of Receipts that they may instruct the Depositary as to the exercise of
the voting rights or the giving or refusal of any consent, as the case may be,
pertaining to the amount of Stock represented by their respective Depositary
Shares and a brief statement as to the manner in which such instructions may be
given. Upon the written request of any Record Holder of a Receipt or Receipts
on such record date, the Depositary shall endeavor insofar as practicable to
vote or cause to be voted, or to give or withhold such consent (or cause the
same to be given or withheld) with respect to, the maximum number of whole
shares of Stock represented by the Depositary Shares evidenced by all Receipts
as to which any particular instructions are received, in each case in
accordance with such instructions. The Company hereby agrees to take all
action which may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted or to give such
consent or cause such consent to be given, as the case may be. In the absence
of specific instructions from the Record Holder of a Receipt, the Depositary
will abstain from voting or giving consent (but, at its discretion, not from
appearing at any meeting with respect to such Stock unless directed to the
contrary by the Record Holders of all the Receipts) to the extent of the Stock
represented by the Depositary Shares evidenced by such Receipt.
SECTION 4.05. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or stated
value, split-up, combination or any other reclassification of the Stock or upon
any recapitalization, reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party or upon the sale of all or
substantially all of the Company's assets, the Depositary may in its discretion
with the approval of the Company, and shall upon the instructions of the
Company, which the Company hereby agrees to give, and (in either case) in such
manner as the Depositary reasonably may deem equitable, (i) make such
adjustments in (x) the fraction of an interest represented by one Depositary
Share in one share of Stock
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and other money and other property, if any, received or receivable in respect
thereof and (y) the ratio of the redemption price per Depositary Share to the
redemption price of a share of Stock, in each case as may be necessary fully to
reflect the effects of such change in par or stated value, split-up,
combination or other reclassification of Stock, or of such recapitalization,
reorganization, merger, amalgamation or consolidation or sale and (ii) treat
any securities which shall be received by the Depositary in exchange for or
upon conversion of or in respect of the Stock as new deposited securities under
this Deposit Agreement and the Receipts then outstanding shall thereafter
represent the securities so received in exchange for or upon conversion or in
respect of such Stock. In any such case the Depositary may in its discretion,
with the approval of the Company, execute and deliver, without charge to the
holders, additional Receipts, or may call for the surrender of all outstanding
Receipts to be exchanged, without charge to the holders, or new Receipts
specifically describing such new deposited securities.
SECTION 4.06. Inspection of Reports. The Depositary shall
make available for inspection by holders of Receipts at the Depositary's
Office, during normal business hours and at such other places as it may from
time to time deem advisable, any reports and communications received from the
Company which are received by the Depositary as the holder of stock.
SECTION 4.07. Lists of Receipt Holders. Promptly upon
request from time to time by the Company, the Depositary shall, at the expense
of the Company, furnish to the Company a list, as of a recent date, of the
names, addresses and holdings of Depositary Shares of all persons in whose
names Receipts are registered on the books of the Depositary or the Registrar,
as the case may be.
ARTICLE V.
The Depositary, the Depositary's Agents,
the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar. Until termination of this Deposit
Agreement, the Depositary shall maintain at an office or agency in the Borough
of Manhattan, The City of New York (which may be the
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Depositary's Office), for the execution and delivery, registration and
registration of transfer, surrender, split-up, combination, redemption and
exchange of Receipts and for any other purposes required by the rules of any
national securities exchange upon which the Stock, the Depositary Shares or the
Receipts are listed, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender and exchange
of Receipts, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for
the registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the Record Holders of
Receipts; provided, that any such holder requesting to exercise such right
shall certify to the Depositary that such inspection shall be for a proper
purpose reasonably related to such person's interest as an owner of Depositary
Shares evidenced by the Receipts.
If the Receipts or the Depositary Shares evidenced thereby or
the Stock represented by such Depositary Shares shall be listed on the New York
Stock Exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be removed
and a substitute registrar appointed by the Depositary upon the request or with
the approval of the Company. If the Receipts, such Depositary Shares or such
Stock are listed on one or more other stock exchanges, the Depositary will, at
the request of the Company, arrange such facilities for the delivery,
registration, registration of transfer, surrender and exchange of such
Receipts, such Depositary Shares or such Stock as may be required by law or
applicable stock exchange regulations.
SECTION 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Company. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor the Company shall
incur any liability to any holder of any Receipt if by reason of any provision
of any present or future law, or regulation thereunder, of the United States of
America or of any other governmental authority or, with respect to the
Depositary, the Depositary's Agent or the Registrar, by
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reason of any provision, present or future, of the Company's Certificate of
Incorporation (including the Certificate) or by reason of any act of God or war
or other circumstance beyond the control of the relevant party, the Depositary,
the Depositary's Agent, the Registrar or the Company shall be prevented or
forbidden from doing or performing any act or thing which the terms of this
Deposit Agreement provide shall be done or performed; nor shall the Depositary,
any Depositary's Agent, any Registrar or the Company incur any liability to any
holder of a Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing which the terms of this
Deposit Agreement provide shall or may be done or performed, or (ii) by reason
of any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement unless caused by the negligence or willful misconduct of the
party charged with such exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. Neither the Depositary nor any
Depositary's Agent nor any Registrar nor the Company assumes any obligation or
shall be subject to any liability under this Deposit Agreement to Record
Holders of Receipts other than for the relevant party's negligence or willful
misconduct.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding in respect of the Stock, the
Depositary Shares or the Receipts which in the relevant party's opinion may
involve it in expense or liability unless indemnity reasonably satisfactory to
it against all expense and liability shall be furnished.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be liable for any action or any failure to act
by it in reliance upon and in conformity with the written advice of legal
counsel or accountants, or information from any holder of a Receipt or any
other person believed by it in good faith to be competent to give such advice
or information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or parties.
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The Depositary shall not be responsible for any failure to
carry out any instruction to vote any of the shares of Stock or for the manner
or effect of any such vote made, as long as any such action or non-action is in
good faith and without negligence. The Depositary undertakes, and any
Registrar shall be required to undertake, to perform such duties and only such
duties as are specifically set forth in this Deposit Agreement, and no implied
covenants or obligations shall be read into this Deposit Agreement against the
Depositary. The Depositary, the Depositary's Agents and any Registrar may own
and deal in any class of securities of the Company and its affiliates and in
Receipts. The Depositary may also act as transfer agent or registrar of any of
the securities of the Company and its affiliates, may loan money to the Company
and its affiliates and may engage in any other business with or for the Company
and its affiliates.
The Depositary shall not be liable for any acts or omissions
made by a successor Depositary whether in connection with a previous act or
omission of the Depositary or in connection with any matter arising wholly
after the removal or resignation of the Depositary, provided that the
Depositary exercised its best judgment and acted without negligence and in good
faith while it acted as Depositary.
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by written notice of its election to do so delivered to
the Company, such resignation to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by
written notice of such removal delivered to the Depositary, such removal to
take effect upon the appointment of a successor Depositary and its acceptance
of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall, within 60 days after the delivery of
the notice of resignation or removal, as the case may be, appoint a successor
Depositary which shall be a bank or trust company having its principal office
in the United States of America and having a combined capital and surplus of at
least $50,000,000. Every successor Depositary shall execute and
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<PAGE> 22
deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor Depositary,
without any further act or deed, shall become fully vested with all rights,
powers, duties and obligations of its predecessor and for all purposes shall be
the Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Stock and any moneys or property held hereunder to
such successor, and shall deliver to such successor a list of the Record
Holders of all outstanding Receipts. Any successor Depositary shall promptly
mail notice of its appointment to the Record Holders of Receipts. If the
instrument of acceptance by a successor Depositary required by this Section
5.04 shall not have been delivered to the Depositary within 60 days after the
delivery of the notice of resignation or removal, the Depositary may petition
any court of competent jurisdiction for the appointment of a successor
Depositary.
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such Depositary
without the execution or filing of any document or any further act. Such
successor Depositary may authenticate the Receipts in the name of the
predecessor Depositary or in the name of the successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The Company
agrees that it will deliver to the Depositary, and the Depositary will,
promptly after receipt thereof, transmit to the Record Holders of Receipts, in
each case at the address recorded in the Depositary's books, copies of all
notices and reports (including, without limitation, financial statements)
required by law, by rules of any national securities exchange upon which the
Stock, the Depositary Shares or the Receipts are listed or by the Company's
Certificate of Incorporation (including the Certificate) to be furnished by the
Company to holders of Stock, Depositary Shares or Receipts. Such transmission
will be at the Company's expense and the Company will provide the Depositary,
on or prior to the first date on which the Company gives or mails such
documents, with such number of copies of such documents as the Depositary may
reasonably request or as may be necessary to effect such transmission. In
addition, the Depositary will transmit to
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the Record Holders of Receipts (at the Company's expense) such other documents
as may be requested by the Company.
SECTION 5.06. Indemnification. (a) The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including all
legal costs and expenses relating thereto, including reasonable attorneys'
fees) which may arise out of (1) acts performed or omitted in connection with
this Deposit Agreement and the Receipts (i) by the Depositary, any Registrar or
any of their respective agents (including any Depositary's Agent), except for
any liability arising out of negligence, bad faith or intentional misconduct on
the respective parts of any such person or persons, or (ii) by the Company or
any of its agents, or (2) the offer, sale or registration of the Receipts or
the Stock pursuant to the provisions hereof.
(b) The Depositary shall indemnify the Company against, and
hold it harmless from, any loss, liability or expense (including all legal
costs and expenses relating thereto, including reasonable attorneys' fees)
arising from demands, actions, suits or proceedings (civil, criminal,
administrative or investigative) that may arise out of the acts performed or
omitted by the Depositary or Depositary's Agents due to negligence, bad faith
or intentional misconduct.
(c) The indemnification provided for in this Section for
the Company, the Depositary, and any Depositary's Agent shall extend to their
respective officers, directors, stockholders, employees and agents, and shall
survive the termination of this Agreement and, as to the Depositary, the
appointment of a successor thereto in any function.
(d) Notwithstanding paragraphs (a), (b) and (c) above, in
order to induce the New York Stock Exchange, Inc. (the "NYSE") to permit the
Depositary to act as transfer agent pursuant to NYSE Rule 496, the Company will
cause to be executed a Letter of Guaranty whereby the Company will guaranty,
indemnify and hold harmless all persons doing business with the Depositary as a
NYSE transfer agent and will pay all charges or costs incurred by the
Depositary acting in its capacity as a NYSE transfer agent. The Letter of
Guaranty will remain in force until effective cancellation by the Company,
which cancellation will not
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<PAGE> 24
become effective until thirty (30) days after notice of such cancellation is
given to the Secretary of the NYSE.
SECTION 5.07. Charges and Expenses. The Company shall pay
all transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements or upon the deposit of any new
securities as contemplated by clause (ii) of the first sentence of Section
4.05. All other transfer and other taxes and governmental charges with respect
to any Depositary Shares shall be at the expense of the respective holders
thereof. The Company shall pay to the Depositary such compensation for
services rendered by it hereunder and shall pay all charges and expenses of the
Depositary and of each Depositary's Agent and Registrar (if any), all as the
Company and the Depositary shall from time to time agree in writing, except
that, if, at the request of a holder of a Receipt or Receipts, the Depositary
incurs charges or expenses other than those arising from the performance of
duties and obligations that the Depositary is required to perform under this
Deposit Agreement, such holder will be liable for such charges and expenses.
All charges and expenses of the Depositary and any Depositary's Agent hereunder
and of any Registrar (including, in each case, fees and expenses of counsel)
incident to the performance of their respective obligations hereunder will be
paid upon consultation and agreement between the Depositary and the Company as
to the amount and nature of such charges and expenses. The Depositary shall
present its statement for charges and expenses to the Company once every three
months or at such other intervals as the Company and the Depositary may agree.
SECTION 5.08. Retention of Depositary Documents. Subject to
Section 2.08, the Depositary is authorized to destroy those documents, records,
bills and other data compiled during the term of this Deposit Agreement at the
times permitted by law but in no event less than two years unless the Company
requests that such papers be retained for a longer period or turned over to the
Company or to a successor Depositary.
ARTICLE VI.
Amendment and Termination
SECTION 6.01. Amendment. The form of the Receipts and any
provisions of this Deposit Agreement may
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<PAGE> 25
at any time and from time to time be amended by agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable;
provided, however, that no such amendment which imposes or increases any fees,
taxes or charges upon holders of Depositary Shares or Receipts or which
materially prejudices any substantial existing right of such holders of
Depositary Shares or Receipts shall be effective unless such amendment shall
have been approved by the Record Holders of at least a majority of the
Depositary Shares then outstanding. Notwithstanding the foregoing, no such
amendment may impair the right of any holder of Depositary Shares or Receipts
to receive any moneys or other property to which such holder may be entitled
under the terms of such Receipts or this Deposit Agreement at the times and in
the amount and manner provided for herein. Every holder of an outstanding
Receipt at the time any such amendment becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such amendment and to
be bound by the Deposit Agreement as amended thereby.
SECTION 6.02. Termination. This Deposit Agreement may be
terminated by the Company or the Depositary only after (i) all outstanding
Depositary Shares shall have been redeemed pursuant to Section 2.03 and all
accumulated and unpaid dividends on the Stock represented by Depositary Shares,
together with all other moneys and property, if any, to which holders of
Depositary Receipts are entitled under the Receipts and this Deposit Agreement,
shall have been paid or distributed as provided herein or provision therefor
duly made or (ii) there shall have been made a final distribution in respect of
the Stock in connection with any liquidation, dissolution or winding up of the
Company and such distribution shall have been distributed to the holders of
Depositary Shares pursuant to Section 4.01 or 4.02, as applicable.
Upon the termination of this Deposit Agreement, the Company
shall be discharged from all obligations under this Deposit Agreement except
for its obligations to the Depositary, any Depositary's Agent and any Registrar
under Sections 5.06 and 5.07.
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<PAGE> 26
ARTICLE VII.
Miscellaneous
SECTION 7.01. Counterparts. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts taken
together shall constitute one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal or
equitable right, remedy or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or
more of the provisions contained in this Deposit Agreement or in the Receipts
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to
the Company hereunder or under the Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by mail or by
telecopy confirmed by letter, addressed to the Company at 180 Maiden Lane, New
York, New York 10038, Attention: the Treasurer, or at any other address of
which the Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or
under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail or by telecopy confirmed by
letter, addressed to the Depositary at the Depositary's Office, at
_________________________________________, or at any other address of which the
Depositary shall have notified the Company in writing.
Any and all notices to be given to any Record Holder of a
Receipt hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or by telecopy
confirmed by letter, addressed to such Record Holder at the
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<PAGE> 27
address of such Record Holder as it appears on the books of the Depositary, or
if such holder shall have filed with the Depositary a written request that
notices intended for such holder be mailed to some other address, at the
address designated in such request.
Delivery of a notice sent by mail or by telecopy shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a duly addressed letter containing a confirmation thereof in the case
of a telecopy message) is deposited, postage prepaid, in a post office letter
box. The Depositary or the Company may, however, act upon any telecopy message
received by it from the other or from any holder of a Receipt, notwithstanding
that such telecopy message shall not subsequently be confirmed by letter or as
aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from
time to time with the prior consent of the Company appoint Depositary's Agents
to act in any respect for the Depositary for the purposes of this Deposit
Agreement and may at any time appoint additional Depositary's Agents and vary
or terminate the appointment of such Depositary's Agents.
SECTION 7.06. Holders of Receipts Are Parties. The holders
of Receipts from time to time shall be deemed to be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions hereof and of
the Receipts by acceptance of delivery thereof.
SECTION 7.07. Governing Law. THIS DEPOSIT AGREEMENT AND THE
RECEIPTS AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND
THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
SECTION 7.08. Inspection of Deposit Agreement. Copies of
this Deposit Agreement shall be filed with the Depositary and the Depositary's
Agents and shall be open to inspection during business hours at the
Depositary's Office and the respective offices of the Depositary's Agents, if
any, by any holder of a Receipt.
SECTION 7.09. Headings. The headings of articles and
sections in this Deposit Agreement and in the form of the Receipt set forth in
Exhibit A hereto have been inserted for convenience only and are not to be
regarded as a part of this Deposit Agreement or the Receipts or to have
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<PAGE> 28
any bearing upon the meaning or interpretation of any provision contained
herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Deposit Agreement as of the day and year first above set forth,
and all holders of Receipts shall become parties hereto by and upon acceptance
by them of delivery of Receipts issued in accordance with the terms hereof.
ASARCO INCORPORATED
By:
-------------------------
Name:
Title:
[ ]
By: -------------------------
Name:
Title:
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<PAGE> 29
EXHIBIT A
FORM OF DEPOSITARY RECEIPT
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES
EACH REPRESENTING _____________ INTEREST
(SUBJECT TO ADJUSTMENT) IN A SHARE OF
PREFERRED STOCK, ___________________
-----------------------------------
OF
ASARCO INCORPORATED
(Incorporated under the laws of the State of New Jersey)
-----------------------------------
No. _____________________ EACH DEPOSITARY SHARE REPRESENTS A _______
INTEREST (SUBJECT TO ADJUSTMENT) IN A SHARE
OF ____________ STOCK,
____________________________
____________________________
1. ______________________, a
_________________ corporation, as Depositary (the "Depositary"), hereby
certifies that ____________________________________ is the registered owner of
- ------------------- Depositary Shares ("Depositary Shares"), each Depositary
Share representing a ________________ (as such fraction may from time to time
be adjusted as provided in the Deposit Agreement, as defined below) interest in
a share __________________________________________________ (the "Stock") of
Asarco Incorporated, a corporation duly organized and existing under the laws
of the State of New Jersey (the "Company") deposited with, and held by, the
Depositary. The rights, preferences and limitations of the Stock are set
forth in the Certificates of Amendment adopted by the Company's Board of
Directors (the "Authorizing Resolutions"), copies of which are on file at the
Depositary's Office at ________________________________.
2. The Deposit Agreement. Depositary Receipts (the
"Receipts"), of which this Receipt is one, are made
<PAGE> 30
EXHIBIT A
Page 2
available upon the terms and conditions set forth in the Deposit Agreement,
dated as of __________ ____, 1994 (the "Deposit Agreement"), among the Company,
the Depositary and all holders from time to time of Receipts. The Deposit
Agreement (copies of which are on file at the Depositary's Office) sets forth
the rights of holders of Receipts and the rights and duties of the Depositary
in respect of the Stock deposited, and any and all money and other property
from time to time held thereunder. The statements made on the face and the
reverse of this Receipt are summaries of certain provisions of the Deposit
Agreement and are subject to the detailed provisions thereof, to which
reference is hereby made. The holder of this Receipt from time to time shall
be deemed to be a party to the Deposit Agreement and shall be bound by, and
entitled to all of the rights and benefits under, all the terms and conditions
hereof and of the Deposit Agreement by acceptance of delivery of this Receipt.
Unless otherwise expressly herein provided, all defined terms shall have the
meanings ascribed thereto in the Deposit Agreement.
3. Redemption. Whenever the Company shall be permitted
and shall elect, under the Certificate of Amendment relating to the Stock (the
"Certificate"), to redeem shares of the Stock held by the Depositary, the
Company shall (unless otherwise agreed with the Depositary) give the Depositary
not less than 40 and not more than 70 days' notice of the date of such proposed
redemption, the number of shares of Stock held by the Depositary to be so
redeemed and the redemption price for the shares of Stock to be redeemed. The
Depositary shall mail notice of such proposed redemption and the proposed
simultaneous redemption of the corresponding Depositary Shares not less than 30
and not more than 60 days prior to the date fixed for redemption (the
"Redemption Date") to the Record Holders of Receipts evidencing the Depositary
Shares to be redeemed. Each such notice shall state: (a) the Redemption Date;
(b) the number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be redeemed, the number of
such Depositary Shares held by such holder to be so redeemed; (c) the
redemption price (which shall include full cumulative dividends to the
Redemption Date); (d) the place or places where Receipts evidencing Depositary
Shares are to be surrendered for payment of the redemption price; and
<PAGE> 31
EXHIBIT A
Page 3
(e) that dividends in respect of the Stock represented by the Depositary Shares
to be redeemed will cease to accumulate on such Redemption Date. In case less
than all the outstanding Depositary Shares are to be redeemed, the Depositary
Shares to be so redeemed shall be selected by lot or pro rata (subject to
rounding to avoid fractions of Depositary Shares) as may be determined by the
Depositary to be equitable. Notice having been mailed by the Depositary as
aforesaid, from and after the Redemption Date (unless the Company shall have
failed to redeem the shares of Stock held by the Depositary to be redeemed by
the Company as set forth in the Company's notice), all dividends in respect of
the shares of Stock so called for redemption shall cease to accumulate, the
Depositary Shares being redeemed from such proceeds shall no longer be deemed
outstanding and all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the redemption price, plus
accumulated but unpaid dividends plus all other moneys and property payable
with respect to such Depositary Shares) shall, to the extent of such Depositary
Shares, cease and terminate and, upon surrender in accordance with such
redemption notice of the Receipts representing any such Depositary Shares
(properly endorsed or assigned for transfer, if the Depositary shall so
require), such Depositary Shares shall be redeemed by the Depositary at the
redemption price per Depositary Share equal to ____________ (subject to
adjustment as provided below) of the redemption price per share paid in respect
of the shares of Stock plus all money and other property, if any, payable with
respect to such Depositary Shares, including all amounts paid by the Company in
respect of dividends which on the Redemption Date have accumulated on the
shares of Stock to be so redeemed and have not theretofore been paid.
If less than all the Depositary Shares evidenced by this
Receipt are called for redemption, the Depositary will deliver to the holder of
this Receipt, without charge to such holder, upon surrender of this Receipt to
the Depositary, together with the redemption payment, a new Receipt evidencing
the Depositary Shares evidenced by this Receipt and not called for redemption.
4. Transfers, Split-ups, Combinations. This Receipt is
transferable on the books of the Depositary upon
<PAGE> 32
EXHIBIT A
Page 4
surrender of this Receipt to the Depositary, properly endorsed or accompanied
by a properly executed instrument of transfer, and upon such transfer the
Depositary shall execute a new Receipt or Receipts to or upon the order for the
person entitled thereto, as provided in the Deposit Agreement. This Receipt
may be split into other Receipts or combined with other Receipts into one
Receipt, representing the same aggregate number of Depositary Shares as the
Receipt or Receipts surrendered, all in the manner specified in the Deposit
Agreement.
5. Suspension of Delivery, Transfer, etc. The
registration of transfer, split-up, combination, surrender or exchange of this
Receipt may be suspended (a) during any period when the Company's register of
holders of Stock is closed or (b) if any such action is reasonably deemed
necessary or advisable by the Depositary, any of the Depositary's Agents or the
Company at any time or from time to time because of any requirement of law or
of any government or governmental body or commission or under any provision of
the Deposit Agreement.
6. Payment of Taxes or Other Governmental Charges. If
any tax (including transfer taxes, if any) or other governmental charge shall
become payable by or on behalf of the Depositary with respect to this Receipt,
such tax or governmental charge shall be payable by the holder hereof;
provided, however, that the holder hereof shall not be required to pay any such
transfer or other tax or other governmental charge arising solely from the
existence of the depositary arrangements or upon the deposit of any new
securities as contemplated by clause (ii) of the first sentence of Section 4.05
of the Deposit Agreement. Registration of transfer, split-up, combination,
surrender or exchange of this Receipt and all money or other property, if any,
represented by the Depositary Shares evidenced by this Receipt may be refused
until such payment is made, and any dividends or other distributions may be
withheld or any part of or all the Stock or other property represented by the
Depositary Shares evidenced by this Receipt and not theretofore sold may be
sold for the account of the holder hereof (after attempting by reasonable means
to notify such holder prior to such sale), and such dividends or other
distributions or the proceeds of any such sale and all money represented by the
<PAGE> 33
EXHIBIT A
Page 5
Depositary Shares evidenced by this Receipt may be applied to any payment of
such tax or charge, the holder of this Receipt remaining liable for any
deficiency.
7. Warranty by Company. The Company has warranted that
the Stock, when issued, will be duly authorized, validly issued, fully paid and
nonassessable and free and clear of any liens, claims or encumbrances.
8. Amendment. The form of this Receipt and any
provisions of the Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect
which they may deem necessary or desirable; provided, however, that no such
amendment which imposes or increases any fees, taxes or charges upon holders of
Depositary Shares or Receipts or which materially prejudices any substantial
existing right of such holders of Depositary Shares or Receipts shall be
effective unless such amendment shall have been approved by the Record Holders
of at least a majority of the Depositary Shares then outstanding.
Notwithstanding the foregoing, no such amendment may impair the right of any
holder of Depositary Shares or Receipts to receive any moneys or other property
to which such holder may be entitled under the terms of the Deposit Agreement
at the times and in the amount and manner provided for therein. The holder of
this Receipt at the time any such amendment so becomes effective shall be
deemed, by continuing to hold this Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby.
9. Charges of Depositary. The Company will pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements or upon the deposit of any new
securities as contemplated by clause (ii) of the first sentence of Section 4.05
of the Deposit Agreement. All other transfer and other taxes and governmental
charges with respect to any Depositary Shares shall be at the expense of the
respective holders thereof. The Company shall pay to the Depositary such
compensation for services rendered by it pursuant to the terms of the Deposit
Agreement and shall pay all charges and expenses of the Depositary and of each
Depositary's Agent and Registrar (if any), all as the Company and the
Depositary shall from time to time agree in
<PAGE> 34
EXHIBIT A
Page 6
writing, except that, if, at the request of a holder of a Receipt or Receipts,
the Depositary incurs charges or expenses other than those arising from the
performance of duties and obligations that the Depositary is required to
perform under the Deposit Agreement, such holder will be liable for such
charges and expenses. All charges and expenses of the Depositary and any
Depositary's Agent and of any Registrar (including, in each case, fees and
expenses of counsel) will be paid upon consultation and agreement between the
Depositary and the Company.
10. Title to Receipts. This Receipt (and the Depositary
Shares evidenced hereby), when properly endorsed or accompanied by a properly
executed instrument of transfer, is transferable by delivery with the same
effect as in the case of a negotiable instrument; provided, however, that until
transfer of this Receipt shall be registered on the books of the Depositary,
the Depositary may, notwithstanding any notice to the contrary, treat the
Record Holder hereof at such time as the absolute owner hereof for the purpose
of determining the person entitled to distributions of dividends or other
distributions or to any notice provided for herein or in the Deposit Agreement
and for all other purposes.
11. Dividends and Distributions. Whenever the Depositary
receives any cash dividend or other cash distribution on Stock, the Depositary
will, subject to the provisions of Section 6 above, promptly distribute to
those persons who were Record Holders of Receipts on the record date fixed
pursuant to Section 12 such amounts of such dividend or distribution as are, as
nearly as practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such holders on such record date;
provided, however, that the amount distributed will be reduced by any amounts
required to be withheld by the Company or the Depositary on account of taxes.
The Depositary shall distribute or make available for distribution, as the case
may be, only such amount, however, as can be distributed without attributing to
any Record Holder a fraction of one cent, and any balance not so distributable
shall be applied as provided in Section 4.01 of the Deposit Agreement. Other
distributions received on the Stock and other rights, preferences or privileges
offered by the Company will be distributed or
<PAGE> 35
EXHIBIT A
Page 7
made available to holders of Receipts as provided in the Deposit Agreement.
12. Fixing of Record Date. Whenever any cash dividend or
other cash distribution shall become payable or any distribution other than
cash shall be made, or if rights, preferences or privileges shall at any time
be offered with respect to Stock, or whenever the Depositary shall receive
notice of any meeting at which holders of Stock are entitled to vote or of
which holders of Stock are entitled to notice, or whenever the Depositary shall
receive notice of any solicitation of consents from holders of Stock or in the
case of any other event as to which a record date for the Stock shall have been
fixed by the Company, the Depositary shall in each such instance fix a record
date (which shall be the record date fixed by the Company with respect to the
Stock) for the determination of the Record Holders of Receipts who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or to give instructions for
the exercise of voting rights at any such meeting or for the giving of any such
consent, or who shall be entitled to notice of such meeting or to otherwise
participate with respect to such event.
13. Voting Rights. Upon receipt of notice of any meeting
or action to be taken by written consent at or as to which the holders of Stock
are entitled to vote or consent, the Depositary shall, as soon as practicable
thereafter, mail to the Record Holders of Receipts on the record date set
pursuant to Section 12 above a notice (which notice shall be prepared by the
Company in its sole discretion) which shall contain (i) such information as is
contained in such notice of meeting or the solicitation or notice of such
consent and (ii) a statement informing the holders of Receipts that they may
instruct the Depositary as to the exercise of the voting rights or the giving
or refusal of any consent, as the case may be, pertaining to the amount of
Stock represented by their respective Depositary Shares a brief statement as to
the manner in which such instructions may be given. Upon the written request
of any Record Holder of a Receipt or Receipts on such record date, the
Depositary shall endeavor insofar as practicable to vote or cause to be voted,
or to give or withhold such consent (or cause the same to be given or
<PAGE> 36
EXHIBIT A
Page 8
withheld) with respect to, the maximum number of whole shares of Stock
represented by the Depositary Shares evidenced by all Receipts as to which any
particular instructions are received, in each case in accordance with the
instructions set forth in such request. In the absence of specific
instructions from the holder of a Receipt, the Depositary will abstain from
voting or giving consent (but, at its discretion, not from appearing at any
meeting with respect to such Stock unless directed to the contrary by the
holders of all the Receipts) to the extent of the Stock represented by the
Depositary Shares evidenced by such Receipt.
14. Changes Affecting Deposited Securities. Upon any
change in par or stated value, split-up, combination or any other
reclassification of the Stock or upon any recapitalization, reorganization,
merger, amalgamation or consolidation affecting the Company or to which it is a
party or upon the sale of all or substantially all of the Company's assets, the
Depositary may in its discretion with the approval of the Company (and shall
upon the instructions of the Company), and in such manner as the Depositary
reasonably may deem equitable, (i) make such adjustments in (a) the fraction of
an interest represented by one Depositary Share in one share of Stock and other
money and other property, if any, received or receivable in respect thereof and
(b) the ratio of the redemption price per Depositary Share to the redemption
price of a share of Stock, in each case as may be necessary fully to reflect
the effects of such change in par or stated value, split-up, combination or
other reclassification of Stock, or of such recapitalization, reorganization,
merger, amalgamation or consolidation or sale and (ii) treat any securities
which shall be received by the Depositary in exchange for or upon conversion or
in respect of the Stock as new deposited securities under the Deposit Agreement
and the Receipts then outstanding shall thereafter represent the securities so
received in exchange for or upon conversion or in respect of such Stock. In
any such case the Depositary may in its discretion, with the approval of the
Company, execute and deliver, without charge to the holders, additional
Receipts, or may call for the surrender of all outstanding Receipts to be
exchanged, without charge to the holders, for new Receipts specifically
describing such new deposited securities.
<PAGE> 37
EXHIBIT A
Page 9
15. Liability and Obligations of the Depositary, the
Depositary's Agents or the Company. Neither the Depositary nor any
Depositary's Agent nor any Registrar nor the Company assumes any obligation or
shall be subject to any liability under the Deposit Agreement to holders of
Receipts other than for the relevant party's negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor the
Company shall incur any liability to any holder of any Receipt if by reason of
any provision of any present or future law, or regulation thereunder, of the
United States of America or of any other governmental authority or, with
respect to the Depositary, any Depositary's Agent, or the Registrar by reason
of any provision, present or future, of the Company's Certificate of
Incorporation (including the Certificate) or by reason of any act of God or war
or other circumstance beyond the control of the relevant party, the Depositary,
any Depositary's Agent, the Registrar or the Company shall be prevented or
forbidden from doing or performing any act or thing which the terms of the
Deposit Agreement provide shall be done or performed; nor shall the Depositary,
any Depositary's Agent, any Registrar or the Company incur any liability to any
holder of a Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing which the terms of the
Deposit Agreement provide shall or may be done or performed, or (ii) by reason
of any exercise of, or failure to exercise, any discretion provided for in the
Deposit Agreement unless caused by the negligence or willful misconduct of the
party charged with such exercise or failure to exercise. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor the Company shall
be under any obligation to appear in, prosecute or defend any action, suit or
other proceeding in respect of the Stock, the Depositary Shares or the
Receipts, which in the relevant party's opinion may involve it in expense or
liability, unless indemnity reasonably satisfactory to it against all expense
and liability shall be furnished. The Deposit Agreement contains various other
exculpatory, indemnification and related provisions, to which reference is
hereby made.
16. Resignation and Removal of Depositary. The
Depositary may at any time (i) resign by written notice of its election to do
so delivered to the Company, such
<PAGE> 38
EXHIBIT A
Page 10
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment, or (ii) be removed by the Company by
written notice of such removal delivered to the Depositary, such removal to
take effect upon the appointment of a successor Depositary and its acceptance
of such appointment.
17. Termination of Deposit Agreement. The Deposit
Agreement may be terminated by the Company or the Depositary only after (i) all
outstanding Depositary Shares shall have been redeemed and all accumulated and
unpaid dividends on the Stock represented by Depositary Shares, together with
all other moneys and property, if any, to which holders of Depositary Shares
are entitled under the terms of the Receipts and the Deposit Agreement, shall
have been paid or distributed as provided in the Deposit Agreement or provision
therefor duly made or (ii) there shall have been made a final distribution in
respect of the Stock in connection with any liquidation, dissolution or winding
up of the Company and such distribution shall have been distributed to the
holders of Depositary Shares pursuant to the terms of the Deposit Agreement.
Upon the termination of the Deposit Agreement, the Company shall be discharged
from all obligations thereunder except for its obligations to the Depositary,
any Depositary's Agent and any Registrar with respect to indemnification,
charges and expenses.
18. Governing Law. THIS RECEIPT AND THE DEPOSIT
AGREEMENT AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND
THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
This Receipt shall not be entitled to any benefits under the
Deposit Agreement or be valid or obligatory for any purpose unless this Receipt
shall have been executed manually by a duly authorized signatory of the
Depositary or, if a Registrar for the Receipts (other than the Depositary)
shall have been appointed, by facsimile by the Depositary provided this Receipt
is countersigned manually by the signature of a duly authorized signatory of
such Registrar.
<PAGE> 39
EXHIBIT A
Page 11
The corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
Dated: [ ]
as Depositary and Registrar
By
---------------------------
Authorized Officer
<PAGE> 1
EXHIBIT 4.3
FORM OF COMMON STOCK WARRANT AGREEMENT
-----------------------------------------------------------
ASARCO INCORPORATED
and
---------------------
As Warrant Agent
WARRANT AGREEMENT
Dated as
------------------, ----
-----------------------------------------------------------
<PAGE> 2
THIS WARRANT AGREEMENT, dated as of ______________, ____,
between ASARCO Incorporated, a corporation duly organized and existing under
the laws of the State of New Jersey (the "Company") and _______________, a
[corporation] [national banking association] organized and existing under the
laws of ______________, as warrant agent (herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell [If offered securities
and warrants -- [title of offered securities being offered] (the "Offered
Securities") with] warrant certificates (such warrant certificates and other
warrant certificates issued pursuant to this Agreement herein called the
"Warrant Certificates") evidencing one or more warrants (the "Warrants" or,
individually, a "Warrant") representing the right to purchase shares of common
stock of the Company, without par value (the "Common Stock"); and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing to so act, in
connection with the issuance, exchange, exercise and replacement of the Warrant
Certificates, and in this Agreement wishes to set forth, among other things,
the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE, EXECUTION AND COUNTERSIGNATURE
OF WARRANT CERTIFICATES
Section 1.01 Issuance of Warrant Certificates. [If Warrants
alone -- Upon issuance, each Warrant Certificate shall evidence one or more
Warrants.] [If Offered Securities and Warrants -- Warrant Certificates shall
be initially issued in units with the Offered Securities and shall not be
separately transferable [before ____________, ____ (the
<PAGE> 3
Page 2
"Detachable Date"]. Each Warrant Certificate included in each such unit shall
evidence an aggregate of ___________ Warrants.] Each Warrant evidenced thereby
shall represent the right, subject to the provisions contained herein and
therein, to purchase ___ share[s] of Common Stock.
Section 1.02 Form of Warrant Certificates. The Warrant
Certificates (including the Form[s] of Exercise and Assignment to be set forth
on the reverse thereof) shall be in substantially the form set forth in Exhibit
A hereto, shall be printed, lithographed or engraved on steel engraved borders
(or in any other manner determined by the officers executing such Warrant
Certificates, as evidenced by their execution of such Warrant Certificates) and
may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which the Warrant Certificates may be
listed or as may, consistently herewith, be determined by the officers
executing such Warrant Certificates, as evidenced by their execution of the
Warrant Certificates.
Section 1.03 Execution and Countersignature of Warrant
Certificates. The Warrant Certificates shall be executed on behalf of the
Company by its Chairman of the Board, President, Chief Financial Officer or its
Treasurer attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Warrant Certificates may be manual or
facsimile.
Warrant Certificates evidencing the right to purchase a number
of shares of Common Stock having an aggregate value not exceeding $________
(except as provided in Sections 1.04, 2.03(c), 4.01 and 4.02) may be executed
by the Company and delivered to the Warrant Agent upon the execution of this
Warrant Agreement or from time to time thereafter. The Warrant Agent shall,
upon receipt of Warrant Certificates duly executed on behalf of the Company,
authenticate Warrant Certificates evidencing Warrants representing the right to
purchase a number of shares of Common Stock having an aggregate value not
exceeding $____________ and shall deliver such Warrant Certificates to or upon
the order of the Company. Subsequent to such original issuance of the Warrant
Certificates, the Warrant
<PAGE> 4
Page 3
Agent shall authenticate a Warrant Certificate only if the Warrant Certificate
is issued in exchange or substitution for one or more previously authenticated
Warrant Certificates or in connection with their transfer, as hereinafter
provided.
Each Warrant Certificate shall be dated the date of its
authentication by the Warrant Agent.
No Warrant Certificate shall be entitled to any benefit under
this Agreement or be valid or obligatory for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
authenticated by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence, and the only evidence, that the Warrant Certificate so
authenticated has been duly issued hereunder.
Warrant Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Warrant Certificates or did not hold such offices at the date of such
Warrant Certificates.
Section 1.04 Temporary Warrant Certificates. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company the Warrant Agent shall authenticate and deliver,
temporary Warrant Certificates which are printed, lithographed, typewritten,
mimeographed or otherwise produced substantially of the tenor of the definitive
Warrant Certificates in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, as evidenced by their
execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable
delay. After the preparation of definitive Warrant Certificates, the temporary
Warrant Certificates shall be exchangeable for definitive Warrant Certificates
upon surrender of the temporary Warrant
<PAGE> 5
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Certificates at the corporate trust office of the Warrant Agent [or ___],
without charge to the Holder (as defined in Section 1.06 below). Upon
surrender for cancellation of any one or more temporary Warrant Certificates
the Company shall execute and the Warrant Agent shall authenticate and deliver
in exchange therefor definitive Warrant Certificates representing the same
aggregate number of Warrants. Until so exchanged, the temporary Warrant
Certificates shall in all respects be entitled to the same benefits under this
Agreement as definitive Warrant Certificates.
Section 1.05 Payment of Taxes. The Company will pay all
stamp taxes and other duties, if any, to which, under the laws of the United
States of America or any State or political subdivision thereof, this Agreement
or the original issuance of the Warrant Certificates may be subject.
Section 1.06 Definition of Holder. The term "Holder" as used
herein shall mean [If Offered Securities and Warrants which are not immediately
detachable -- Prior to the Detachable Date, the registered owner of the Offered
Security to which such Warrant Certificate was initially attached, and, after
such Detachable Date,] the person in whose name at the time such Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4.01. [If Offered Securities and
Warrants which are not immediately detachable -- Prior to the Detachable Date,
the Company will, or will cause the registrar of the Offered Securities to make
available to the Warrant Agent current information as to Holders of the Offered
Securities.]
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.01 Warrant Price.1/ During the period from
________ ____ through and including ___________, ____ each Warrant shall
entitle the Holder thereof, subject to the provisions of this Agreement, to
purchase from the Company
__________________________________
1/ Complete and modify the provisions of this Section as appropriate to
reflect the exact terms of the Warrants.
<PAGE> 6
Page 5
____ share[s] of Common Stock at the exercise price of $__________. During the
period from _________, __
__ through and including ____________, ____ , each Warrant shall entitle the
Holder thereof, subject to the provisions of this Agreement, to purchase from
the Company ____ share[s] of Stock at the exercise price of $______. Such
exercise price of each Warrant is referred to in this Agreement as the
"Exercise Price."
Section 2.02 Duration of Warrants. Any Warrant evidenced by
a Warrant Certificate may be exercised at any time, as specified herein, on or
after [the date thereof] [_________, ____] and at or before 5:00 p.m. New York
City time on __________, ____ (the "Expiration Date"). Each Warrant not
exercised at or before 5:00 p.m. New York City time on the Expiration Date
shall become void, and all rights of the Holder of the Warrant Certificate
evidencing such Warrant under this Agreement or otherwise shall cease.
Section 2.03 Exercise of Warrants.
(a) During the period specified in Section 2.02, any
whole number of Warrants may be exercised by surrendering the Warrant
Certificate evidencing such Warrants at the place or at the places set forth in
the Warrant Certificate, with the purchase form set forth in the Warrant
Certificate duly executed, accompanied by payment in full, in lawful money of
the United States of America, [in cash or by certified check or official bank
check in New York Clearing House funds] [by bank wire transfer in immediately
available funds], of the Exercise Price for each Warrant exercised. The date
on which payment in full of the Exercise Price for a Warrant and the duly
executed and completed Warrant Certificate are received by the Warrant Agent
shall be deemed to be the date on which such Warrant is exercised. The Warrant
Agent shall deposit all funds received by it as payment for the exercise of
Warrants to the account of the Company maintained with it for such purpose and
shall advise the Company by telephone at the end of each day on which such a
payment is received of the amount so deposited to its account. The Warrant
Agent shall promptly confirm such telephonic advice to the Company in writing.
(b) The Warrant Agent shall from time to time, as
promptly as practicable after the exercise of any Warrants in
<PAGE> 7
Page 6
accordance with the terms and conditions of this Agreement and the Warrant
Certificates, advise the Company of (i) the number of Warrants so exercised,
(ii) the instructions of each Holder of the Warrant Certificates evidencing
such Warrants with respect to delivery of the certificate or certificates
representing shares of Common Stock to which such Holder is entitled upon such
exercise, and instructions of such Holder as to delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants remaining after
such exercise, and (iii) such other information as the Company shall reasonably
require.
(c) As soon as practicable after the exercise of any
Warrants, the Company shall issue, to or upon the order of the Holder of the
Warrant Certificate evidencing such Warrants, a certificate or certificates
representing the number of shares of Common Stock to which such Holder is
entitled in such name or names as may be directed by such Holder; and, if fewer
than all of the Warrants evidenced by such Warrant Certificate were exercised,
the Company shall execute and an authorized officer of the Warrant Agent shall
manually authenticate and deliver a new Warrant Certificate evidencing the
number of Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer involved in the issuance of the Common Stock; and in the event
that any such transfer is involved, the Company shall not be required to issue
or deliver any shares of Common Stock until such tax or other charge shall have
been paid or it has been established to the Company's satisfaction that no such
tax or other charge is due.
Section 2.04 Reservation of Shares. For the purpose of
enabling it to satisfy any obligation to issue shares of Common Stock upon
exercise of Warrants, the Company will at all times through 5:00 p.m. New York
City time on the Expiration Date, reserve and keep available, free from
preemptive rights and out of its aggregate authorized but unissued shares of
Common Stock, the number of shares deliverable upon the exercise of all
outstanding Warrants.
<PAGE> 8
Page 7
ARTICLE III.
OTHER TERMS OF WARRANTS
Section 3.01 Call of Warrants by the Company.2/ [If Warrants
issued hereunder are callable by the Company -- The Company shall have the
right to call and repurchase any or all Warrants at the price and on or after
_______, ____ (the "Call Date") and upon the occurrence of [insert events or
circumstances under which Company may call the Warrants] (the "Call Terms") of
$______ per Warrant (the "Call Price"). Notice of such Call Price, Call Date
and Call Terms shall be given to registered holders of Warrants in the manner
provided in Section 7.05.
Section 3.02 Adjustment of Exercise Price and Number of
Shares Purchasable or Number of Warrants.3/ The Exercise Price, the number of
shares of Common Stock purchasable upon the exercise of each Warrant and the
number of Warrants outstanding are subject to adjustment from time to time upon
the occurrence of the events enumerated in this Section 3.02. [Additional
events may be added, and this Agreement modified accordingly, prior to the
issuance of Warrants hereunder.]
(a) If the Company shall (i) pay a dividend in or make a
distribution of shares of its capital stock, whether shares of Common Stock or
shares of its capital stock of any other class, (ii) subdivide its outstanding
shares of Common Stock, (iii) combine its outstanding shares of Common Stock
into a smaller number of shares of Common Stock or (iv) issue any shares of its
capital stock in a reclassification of the Common Stock (other than (x) a
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation and (y) a reclassification involving only
a change from par value to no par value or from no par value to par value), the
number of shares of Common Stock purchasable upon exercise of each Warrant
immediately prior
__________________________________
2/ Complete and modify the provisions of this Section as appropriate to
reflect the exact terms of the Warrants.
3/ Complete and modify the provisions of this Section as appropriate to
reflect the exact terms of the Warrants.
<PAGE> 9
Page 8
thereto shall be adjusted so that the holder of each Warrant shall be entitled
to receive the kind and number of shares of Common Stock or other securities of
the Company which such holder would have owned or have been entitled to receive
after the happening of any of the events described above, had such Warrant been
exercised immediately prior to the happening of such event or any record date
with respect thereto. An adjustment made pursuant to this paragraph (a) shall
become effective immediately after the effective date of such event retroactive
to the record date, if any, for such event.
(b) If the Company shall issue rights, options or
warrants to all holders of its outstanding Common Stock, without any charge to
holders, entitling them to subscribe for or purchase such shares of Common
Stock at a price per share that is lower than the market price per share of
Common Stock (as defined in paragraph (e) below) at the record date mentioned
below, the number of shares of Common Stock thereafter purchasable upon the
exercise of each Warrant shall be determined by multiplying the number of
shares of Common Stock theretofore purchasable upon exercise of each Warrant by
a fraction, of which the numerator shall be (i) the number of shares of Common
Stock outstanding on the date of issuance of such rights, options or warrants
plus the number of additional shares of Common Stock offered for subscription
or purchase, and of which the denominator shall be (ii) the number of shares of
Common Stock outstanding on the date of issuance of such rights, options or
warrants plus the number of shares which the aggregate offering price of the
total numbers of shares of Common Stock so offered would purchase at the market
price per share of Common Stock at such record date. Such adjustment shall be
made whenever such rights, options or warrants are issued, and shall become
effective retroactively immediately after the record date for the determination
of stockholders entitled to receive such rights, options or warrants.
(c) If the Company shall distribute to all holders of its
shares of Common Stock evidences of its indebtedness or assets (excluding cash
dividends or distributions payable out of capital surplus and dividends or
distributions referred to in paragraph (a) above) or rights, options or
warrants or convertible or exchangeable securities containing the right to
subscribe for or purchase shares of Common Stock
<PAGE> 10
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(excluding those referred to in paragraph (b) above), then in each case the
number of shares of Common Stock thereafter purchasable upon the exercise of
each Warrant shall be determined by multiplying the number of shares of Common
Stock theretofore purchasable upon the exercise of each Warrant, by a fraction,
of which the numerator shall be (i) the then current market price per share of
Common Stock (as defined in paragraph (e) below) on the date of such
distribution, and of which the denominator shall be (ii) the then current
market price per share of Common Stock less the then fair value (as determined
by the Board of Directors of the Company, whose determination shall be
conclusive) of the portion of the assets or evidences of indebtedness so
distributed or of such subscription rights, options or warrants or convertible
or exchangeable securities applicable to one share of Common Stock. Such
adjustment shall be made whenever any such distribution is made, and shall
become effective on the date of distribution retroactive to the record date for
the determination of stockholders entitled to receive such distribution.
(d) In the event of any capital reorganization or any
reclassification of the Common Stock (except as provided in paragraphs (a)
through (c) above), any holder of Warrants upon exercise thereof shall be
entitled to receive, in lieu of the Common Stock to which he would have become
entitled upon exercise immediately prior to such reorganization or
reclassification, the shares (of any class or classes) or other securities or
property of the Company that he would have been entitled to receive at the same
aggregate Exercise Price upon such reorganization or reclassification if his
Warrants had been exercised immediately prior thereto.
(e) For the purpose of any computation under paragraphs
(b) and (c) of this Section 3.02, the current or closing market price per share
of Common Stock at any date shall be deemed to be the average of the daily
closing prices for _________ consecutive trading days commencing ______ trading
days before the date of such computation. The closing price for each day shall
be [the last sale price] [the average of the closing bid and asked prices] for
such day, 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.
<PAGE> 11
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(f) Whenever the number of shares of Common Stock
purchasable upon the exercise of each Warrant is adjusted as herein provided,
the Exercise Price payable upon exercise of each Warrant shall be adjusted by
multiplying such Exercise Price immediately prior to such adjustment by a
fraction, of which the numerator shall be the number of shares purchasable upon
the exercise of each Warrant immediately prior to such adjustment, and of which
the denominator shall be the number of shares so purchasable immediately
thereafter.
(g) The Company may elect, on or after the date of any
adjustment required by paragraphs (a) through (d) of this Section 3.02, to
adjust the number of Warrants in substitution for an adjustment in the number
of shares of Common Stock purchasable upon the exercise of a Warrant. Each of
the Warrants outstanding after such adjustment of the number of Warrants shall
be exercisable for the same number of shares of Common Stock as immediately
prior to such adjustment. Each Warrant held of record prior to such adjustment
of the number of Warrants shall become that number of Warrants (calculated to
the nearest hundredth) obtained by dividing the Exercise Price in effect prior
to adjustment of the Exercise Price by the Exercise Price in effect after
adjustment of the Exercise Price. The Company shall notify the holders of
Warrants in the same manner as provided in the first paragraph of Section 7.05,
of its election to adjust the number of Warrants, 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 Exercise Price is
adjusted or any day thereafter. Upon each adjustment of the number of Warrants
pursuant to this paragraph (g) the Company shall, as promptly as practicable,
cause to be distributed to holders of record of Warrants on such record date
Warrant Certificates evidencing, subject to paragraph (h), the additional
Warrants 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 Warrant
Certificates held by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Warrant Certificates
evidencing all the Warrants to be issued, executed and registered in the manner
specified in Section 1 (and which may bear, at the option of the Company, the
adjusted Exercise Price) and shall be registered in the names of the holders of
<PAGE> 12
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record of Warrant Certificates on the record date specified in the notice.
(h) The Company shall not be required to issue fractions
of Warrants on any distribution of Warrants to holders of Warrant Certificates
pursuant to paragraph (g) or to distribute Warrant Certificates that evidence
fractional Warrants. In lieu of such fractional Warrants there shall be paid
to the registered holders of the Warrant Certificates with regard to which such
fractional Warrants would otherwise be issuable, an amount in cash equal to the
same fraction of the current market value of a full Warrant. For purposes of
this paragraph (h), the current market value of a Warrant shall be the closing
price of one Warrant (determined as set forth in paragraph (e)) for the trading
day immediately prior to the date on which such fractional Warrant would have
been otherwise issuable.
(i) Notwithstanding any adjustment pursuant to Section
3.02 in the number of shares of Common Stock purchasable upon the exercise of a
Warrant, the Company shall not be required to issue fractions of shares of
Common Stock upon exercise of the Warrants or to distribute certificates which
evidence fractional shares. In lieu of fractional shares, there shall be paid
to the registered holders of Warrant Certificates at the time such Warrant
Certificates are exercised as herein provided an amount in cash equal to the
same fraction of the current market value of a share of Common Stock. For
purposes of this paragraph (i), the current market value of a share of Common
Stock shall be the closing price (determined as set forth in paragraph (e)) of
a share of Common Stock for the trading day immediately prior to the date of
such exercise.
ARTICLE IV.
REGISTRATION; EXCHANGE, TRANSFER AND SUBSTITUTION OF
WARRANT CERTIFICATES
Section 4.01 Registration; Exchange and Transfer of Warrant
Certificates. The Warrant Agent shall keep, at its corporate trust office [and
at _________], books in which, subject to such reasonable regulations as it may
<PAGE> 13
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prescribe, it shall register Warrant Certificates and transfers of outstanding
Warrant Certificates.
[If Offered Securities and Warrants which are immediately
detachable -- Prior to the Detachable Date, each Warrant Certificate may be
exchanged or transferred only together with the Offered Security to which such
Warrant Certificate was initially attached, and only for the purpose of
effecting, or in conjunction with, an exchange or transfer of such Offered
Security. Additionally, on or prior to the Detachable Date, each transfer of
an Offered Security [on the register of the Offered Securities] shall operate
also to transfer the Warrant Certificate or Certificates to which such Offered
Security was initially attached. After the Detachable Date, upon] [If Offered
Securities and Warrants which are immediately detachable or if Warrants alone
- -- upon] surrender at the corporate trust office of the Warrant Agent [or
_______] of Warrant Certificates properly endorsed [or accompanied by
appropriate instruments of transfer] and accompanied by written instructions
for [transfer or] exchange, all in form satisfactory to the Company and the
Warrant Agent, such Warrant Certificates may be exchanged for other Warrant
Certificates or may be transferred in whole or in part; provided that Warrant
Certificates issued in exchange for or upon transfer of surrendered Warrant
Certificates shall evidence the same aggregate number of Warrants as the
Warrant Certificates so surrendered. No service charge shall be made for any
exchange or transfer of Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any stamp or other tax or governmental
charge that may be imposed in connection with any such exchange or transfer.
Whenever any Warrant Certificates are so surrendered for exchange or transfer,
the Company shall execute and an authorized officer of the Warrant Agent shall
manually authenticate and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates as so requested. The Warrant Agent
shall not be required to effect any exchange or transfer which would result in
the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a
number of full Warrants and a fraction of a Warrant. All Warrant Certificates
issued upon any exchange or transfer of Warrant Certificates shall evidence the
same obligations, and be entitled to the same benefits under this Agreement, as
the
<PAGE> 14
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Warrant Certificates surrendered for such exchange or transfer.
Section 4.02 Mutilated, Destroyed, Lost or Stolen Warrant
Certificates. If any mutilated Warrant Certificate is surrendered to the
Warrant Agent, the Company shall execute and an officer of the Warrant Agent
shall manually authenticate and deliver in exchange therefor a new Warrant
Certificate of like tenor and bearing a number not contemporaneously
outstanding. If there shall be delivered to the Company and the Warrant Agent
(i) evidence to their satisfaction of the destruction, loss or theft of any
Warrant Certificate and of the ownership thereof and (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute and upon its request an officer of the
Warrant Agent shall manually authenticate and deliver, in lieu of any such
destroyed, lost or stolen Warrant Certificate, a new Warrant Certificate of
like tenor and bearing a number not contemporaneously outstanding. Upon the
issuance of any new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Warrant Agent) connected therewith.
Every new Warrant Certificate issued pursuant to this Section in lieu of any
destroyed, lost or stolen Warrant Certificate shall evidence an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Warrant Certificate shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly issued
hereunder. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Warrant
Certificates.
Section 4.03 Persons Deemed Owners. [If Offered Securities
and Warrants which are not immediately detachable -- Prior to the Detachable
Date, the Company, the Warrant Agent and all other persons may treat the owner
of any
<PAGE> 15
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Offered Security as the owner of the Warrant Certificates initially attached
thereto for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced by such Warrant Certificates, any notice
to the contrary notwithstanding. After the Detachable Date,] and prior to due
presentment of a Warrant Certificate for registration of transfer, the Company,
the Warrant Agent and all other persons may treat the Holder as the owner
thereof for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced thereby, any notice to the contrary
notwithstanding.
Section 4.04 Cancellation of Warrant Certificates. Any
Warrant Certificate surrendered for exchange, transfer or exercise of the
Warrants evidenced thereby shall, if surrendered to the Company, be delivered
to the Warrant Agent, and all Warrant Certificates surrendered or so delivered
to the Warrant Agent shall be promptly cancelled by it and shall not be
reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in lieu or in exchange thereof. The
Company may at any time deliver to the Warrant Agent for cancellation any
Warrant Certificates previously issued hereunder which the Company may have
acquired in any manner whatsoever, and all Warrant Certificates so delivered
shall be promptly cancelled by the Warrant Agent. All cancelled Warrant
Certificates held by the Warrant Agent shall be destroyed by it, unless, the
Company requests by written order that such cancelled Certificates be returned
to the Company.
ARTICLE V.
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
Section 5.01 No Rights as Stockholders Conferred by Warrants
or Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby
shall entitle the Holder thereof to any of the rights of a stockholder,
including, without limitation, the right to receive dividends.
Section 5.02 Holder of Warrant Certificate May Enforce
Rights. Notwithstanding any of the provisions of
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this Agreement, any Holder of any Warrant Certificate, without the consent of
the Warrant Agent, any stockholder or the Holder of any other Warrant
Certificate, may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce or otherwise in respect of, his right to exercise the
Warrant or Warrants evidenced by his Warrant Certificate in the manner provided
in the Warrant Certificates and in this Agreement.
ARTICLE VI.
CONCERNING THE WARRANT AGENT
Section 6.01 Warrant Agent. The Company hereby appoints
_____________ as Warrant Agent of the Company in respect of the Warrants and
the Warrant Certificates upon the terms and subject to the conditions herein
set forth, and ________ hereby accepts such appointment. The Warrant Agent
shall have the power and authority granted to and conferred upon it in the
Warrant Certificates and hereby and such further power and authority to act on
behalf of the Company as the Company may hereafter grant to or confer upon it.
All of the terms and provisions with respect to such power and authority
contained in the Warrant Certificates are subject to and governed by the terms
and provisions hereof.
Section 6.02 Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth, upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the Holders from time to time of
the Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including counsel fees)
incurred by the Warrant Agent in connection with the services rendered
hereunder by the Warrant Agent. The Company also agrees to indemnify the
Warrant Agent for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on the part of the Warrant
<PAGE> 17
Page 16
Agent, arising out of or in connection with its acting as such Warrant Agent
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance at any time
of its powers or duties hereunder. The obligations of the Company under this
subsection (a) shall survive the exercise of the Warrant Certificates and the
resignation or removal of the Warrant Agent.
(b) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any of the owners or Holders of the
Warrant Certificates.
(c) Counsel. The Warrant Agent may consult with counsel,
which may include counsel for the Company, and the written advice of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered, or omitted by it hereunder in good faith and in
reliance thereon.
(d) Documents. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken or omitted by it
in reliance upon any Warrant Certificates, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the proper
parties.
(e) Certain Transactions. The Warrant Agent, any of its
officers, directors and employees, or any other agent of the Company, in its
individual or any other capacity, may become the owner of, or acquire any
interest in, any Warrant Certificates, with the same rights that it would have
if it were not such Warrant Agent, officer, director, employee or other agent,
and, to the extent permitted by applicable law, it may engage or be interested
in any financial or other transaction with the Company and may act on, or as
depositary, trustee or agent for, any committee or body of holders of Warrant
Debt Securities or other obligations of the Company as freely as if it were not
such Warrant Agent.
<PAGE> 18
Page 17
(f) No Liability for Interest. The Warrant Agent shall
not be under any liability for interest on any monies at any time received by
it pursuant to any of the provisions of this Agreement or of the Warrant
Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall
not incur any liability with respect to the validity of this Agreement or any
of the Warrant Certificates.
(h) No Responsibility for Representations. The Warrant
Agent shall not be responsible for any of the Recitals or representations
contained herein or in the Warrant Certificates (except as to the Warrant
Agent's Certificate of Authentication thereon), all of which are made solely by
the Company.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates
or any exercise of the Warrants evidenced thereby. The Warrant Agent shall
have no duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in the Warrant
Certificates or in the case of the receipt of any written demand from a Holder
of a Warrant Certificate with respect to such default, including, without
limiting the generality of the foregoing, any duty or responsibility to
initiate or attempt to initiate any proceedings at law or otherwise or, except
as provided in Section 7.04 hereof, to make any demand upon the Company.
Section 6.03 Resignation, Removal and Appointment of
Successor.
<PAGE> 19
Page 18
(a) The Company agrees, for the benefit of the Holders
from time to time of the Warrant Certificates, that there shall at all times be
a Warrant Agent hereunder until all of the Warrant Certificates are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such
agent by giving written notice to the Company of such intention on its part,
specifying the date on which it desires its resignation to become effective;
provided that, without the consent of the Company, such date shall not be less
than [three months] after the date on which such notice is given. The Warrant
Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed by or on behalf of the Company and specifying such
removal and the date on which the Company expects such removal to become
effective. Such resignation or removal shall take effect upon the appointment
by the Company of a successor Warrant Agent (which shall be a bank or trust
company organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia and authorized under
such laws to exercise corporate trust powers) by an instrument in writing filed
with such successor Warrant Agent and the acceptance of such appointment by
such successor Warrant Agent pursuant to Section 6.03(d).
(c) In case at any time the Warrant Agent shall resign,
or be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make
an assignment for the benefit of its creditors or consent to the appointment of
a receiver or custodian of all or any substantial part of its property, or
shall admit in writing its inability to pay or meet its debts as they mature,
or if a receiver or custodian of it or of all or any substantial part of its
property shall be appointed, or if an order of any court shall be entered
approving any petition filed by or against it under the provisions of any
applicable bankruptcy or similar law, or if any public officer shall have taken
charge or control of the Warrant Agent or of its property or affairs, a
successor Warrant Agent, qualified as aforesaid, shall be appointed by the
Company by an instrument filed with the successor Warrant Agent. Upon
appointment as aforesaid of a successor Warrant acceptance by the latter of
such appointment, the Warrant
<PAGE> 20
Page 19
Agent so superseded shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as
Warrant Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer,
deliver and pay over, and such successor Warrant Agent shall be entitled to
receive, all monies, securities and other property on deposit with or held by
such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent
hereunder may be merged or converted or any corporation with which the Warrant
Agent may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a party, or any
corporation succeeding to all substantially all the corporate trust business of
the Warrant Agent, provided that it shall be qualified as aforesaid, shall be
the successor Warrant 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.
ARTICLE VII.
MISCELLANEOUS
[Section 7.01 Consolidations and Mergers of the Company and
Sales, Leases and Conveyances Permitted Subject to Certain Conditions. The
Company may consolidate with, or sell, lease or convey all or substantially all
of its assets to, or merge with or into any other corporation, provided that in
any such case, (i) either the Company shall be the continuing corporation, or
the successor corporation shall be a corporation organized and existing under
the laws of the United States of America or a State thereof and such
<PAGE> 21
Page 20
successor corporation shall expressly assume the obligations of the Company
hereunder.]
Section 7.02 Rights and Duties of Successor Corporation. In
case of any such consolidation, merger, sale, lease or conveyance and upon any
such assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it
had been named herein, and the predecessor corporation, except in the event of
a lease, shall be relieved of any further obligation under this Agreement and
the Warrants. Such successor corporation thereupon may cause to be signed, and
may issue either its in own name or in the name of the Company, any or all of
the shares of Common Stock issuable pursuant to the terms hereof.
Section 7.03 Amendment. This Agreement may be amended by the
parties hereto, without the consent of the Holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or curing, correcting or supplementing
any defective provision contained herein, or making such provisions in regard
to matters or questions arising under this Agreement as the Company may deem
necessary or desirable; provided that such action shall not adversely affect
the interests of the Holders of the Warrant Certificates in any material
respect. The Warrant Agent may, but shall not be obligated to, enter into any
amendment to this Agreement which affects the Warrant Agent's own rights,
duties or immunities under this Agreement or otherwise.
Section 7.04 Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to
the Company by the Holder of a Warrant Certificate pursuant to the provisions
of the Warrant Certificates, the Warrant Agent shall promptly forward such
notice or demand to the Company.
Section 7.05 Notices to Warrantholders. Upon any adjustment
of the number of Shares purchasable upon exercise of each Warrant, the Exercise
Price or the number of Warrants outstanding pursuant to Section 3.02, the
Company, within ____ calendar days thereafter, shall (i) cause to be filed with
the Warrant Agent a certificate of an officer of the Company setting forth the
Exercise Price and either the number of shares of Common Stock purchasable upon
exercise of
<PAGE> 22
Page 21
each Warrant or the additional number of Warrants to be issued for each
previously outstanding Warrant, as the case may be, after such adjustment and
setting forth in reasonable detail the method of calculation and the facts upon
which such adjustment is made, which certificate shall be conclusive evidence
of the correctness of the matters set forth therein, and (ii) cause to be given
to each of the registered holders of the Warrant Certificates at such holder's
address appearing on the Warrant Register written notice of such adjustments by
first-class mail, postage prepaid. Where appropriate, such notice may be given
in advance and included as part of the notice required to be mailed under the
other provisions of this Section 7.05.
Pursuant to Sections 3.01 [add other sections as applicable],
the Company shall cause written notice of such Call Price, Call Date and Call
Terms [reference other items as applicable], as the case may be, to be given as
soon as practicable to the Warrant Agent and to each of the registered holders
of the Warrant Certificates by first-class mail, postage prepaid, at such
holder's address appearing on the Warrant Register.
If:
(a) the Company shall declare any dividend payable in any
securities upon its shares of Common Stock or make any distribution (other than
a cash dividend) to the holders of its shares of Common Stock; or
(b) the Company shall offer to the holders of its shares
of Common Stock any additional shares of Common Stock or securities convertible
into shares of Common Stock or any right to subscribe thereto; or
(c) there shall be a dissolution, liquidation or winding
up of the Company (other than in connection with a consolidation, merger, or
sale of all or substantially all of its property, assets, and business as an
entirety);
then the Company shall cause written notice of such event to be filed with the
Warrant Agent and shall cause written notice of such event to be given to each
of the registered holders of the Warrant Certificates at such holder's address
appearing on the Warrant Register, by first- class mail,
<PAGE> 23
Page 22
postage prepaid. Such notice shall specify such record date or the date of
closing the transfer books, as the case may be. The failure to give the notice
required by this Section 7.05 or any defect therein shall not affect the
legality or validity of any distribution, right, warrant, dissolution,
liquidation or winding up or the vote upon or any other action taken in
connection therewith.
Section 7.06 Addresses. Any communications from the Company
to the Warrant Agent with respect to this Agreement shall be addressed to
_____________, Attention: ____________________ and any communications from the
Warrant Agent to the Company with respect to this Agreement shall be addressed
to ASARCO Incorporated, 180 Maiden Lane, New York, New York 10038, Attention:
________________, with a copy to the ___________________ (or such other address
as shall be specified in writing by the Warrant Agent or by the Company).
Section 7.07 Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be governed by and construed in accordance
with the laws of the State of New York.
Section 7.08 Delivery of Prospectus. The Company will
furnish to the Warrant Agent sufficient copies of a prospectus, appropriately
supplemented, relating to the Common Stock (the "Prospectus"), and the Warrant
Agent agrees that, upon the exercise of any Warrant Certificate, the Warrant
Agent will deliver to the person designated to receive a certificate
representing shares of Common Stock, prior to or concurrently with the delivery
of such securities, a Prospectus.
Section 7.09 Obtaining of Governmental Approvals. The
Company will from time to time take all action which may be necessary to obtain
and keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under United States
Federal and State laws (including, without limitation, the maintenance of the
effectiveness of a registration statement in respect of the Common Stock under
the Securities Act of 1933), which may be or become required in connection with
exercise of the Warrant Certificates and the original issuance and delivery of
the Common Stock in connection with such exercise.
<PAGE> 24
Page 23
Section 7.10 Persons Having Rights under Warrant Agreement.
Nothing in this Agreement expressed or implied and nothing that may be inferred
from any of the provisions hereof is intended, or shall be construed, to confer
upon, or give to, any person or corporation other than the Company, the Warrant
Agent and the Holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement or of any covenant, condition,
stipulation, promise or agreement hereof; and all covenants, conditions,
stipulations, promises and agreements in this Agreement contained shall be for
the sole and exclusive benefit of the Company and the Warrant Agent and their
successors and of the Holders of the Warrant Certificates.
Section 7.11 Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
Section 7.12 Counterparts. This Agreement may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the same
instrument.
Section 7.13 Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent [and at ________] for inspection by the
Holder of any Warrant Certificate. The Warrant Agent may require such Holder
to submit his Warrant Certificate for inspection by it.
<PAGE> 25
Page 24
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, and their respective corporate seal to be
hereunto affixed and attested, all as of the day and year first above written.
ASARCO INCORPORATED
By:
----------------
Name:
Title:
Attest:
- ----------------------------
[Assistant] Secretary
Attest:
[Assistant] Secretary
[WARRANT AGENT]
By:
----------------
Name:
Title:
Attest:
- ---------------------------
[Assistant] Secretary
<PAGE> 26
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Face]
Form of Legend if Offered [Prior to _______, this
Securities with Warrant Certificate may
Warrants which are not be transferred or
immediately detachable: exchanged if and only if
the [Title of Securi-ty] to which it
was initially attached is so
transferred or exchanged.]
Form of Legend if Warrants [Prior to ________,
are not immediately Warrants evidenced by
exercisable: this Warrant Certificate
cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER 5:00 P.M. NEW YORK CITY TIME ON ________, ____
ASARCO INCORPORATED
Warrant Certificate representing
Warrants to purchase
Common Stock
as described herein
-------------------
No. _____________ Warrants
This certifies that ________ or registered assigns is the
registered owner of the above indicated number of Warrants, each Warrant
entitling such registered owner to purchase, at any time after 5:00 p.m New
York City time on __________, ____, and on or before 5:00 p.m New York City
time on ____________, ____, one share of the common stock, without par value
("Common Stock") of ASARCO Incorporated
<PAGE> 27
EXHIBIT A
Page 2
(the "Company"), on the following basis.1/ [During the period from ________,
____ through and including ____________, ____, each Warrant shall entitle the
Holder thereof, subject to the provisions of this Agreement, to purchase from
the Company one share of Common Stock at the exercise price of $____; during
the period from _________, ____ through and including ________, ____, each
Warrant shall entitle the Holder thereof, subject to the provisions of this
Agreement, to purchase from the Company the one share of Common Stock at the
exercise price of $_____ (the "Exercise Price"). The Holder of this Warrant
Certificate may exercise the Warrants evidenced hereby, in whole or in part, by
surrendering this Warrant Certificate, with the purchase form set forth hereon
duly completed, accompanied by payment in full, in lawful money of the United
States of America, [in cash or by certified check or official bank check in New
York Clearing House funds or by bank wire transfer in immediately available
funds], the Exercise Price for each Warrant exercised, to the Warrant Agent (as
hereinafter defined), at the corporate trust office of [name of Warrant Agent],
or its successor as warrant agent (the "Warrant Agent") [or at _____________],
at the addresses specified on the reverse hereof and upon compliance with and
subject to the conditions set forth herein and in the Warrant Agreement (as
hereinafter defined).
The term "Holder" as used herein shall mean [If Offered
Securities with Warrants which are not immediately detachable -- Prior to
_______, ____ (the "Detachable Date"), the registered owner of the Company's
[title of Offered Securities] to which such Warrant Certificate was initially
attached, and after such Detachable Date,] the person in whose name at the time
such Warrant Certificate shall be registered upon the books to be maintained by
the Warrant Agent for that purpose pursuant to Section 4.01.
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase shares of Common Stock. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the registered owner hereof a new Warrant
- ----------------------------------
1/ Complete and modify the following provisions as appropriate to reflect the
terms of the Warrants.
<PAGE> 28
EXHIBIT A
Page 3
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of ___________, ____ (the "Warrant
Agreement"), between the Company and the Warrant Agent and is subject to the
terms and provisions contained in the Warrant Agreement, to all of which terms
and provisions the holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at ___________].
[If Offered Securities with Warrants which are not immediately
detachable -- Prior to ___________, ____ (the "Detachable Date"), this Warrant
Certificate may be exchanged or transferred only together with the [title of
Offered Security] (the "Offered Security") to which this Warrant Certificate
was initially attached, and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Offered Security.
Additionally, on or prior to the Detachable Date, each transfer of such Offered
Security on the register of the Offered Securities shall operate also to
transfer this Warrant Certificate. After the Detachable Date, this] [If
Offered Securities with Warrants which are immediately detachable or Warrants
alone--This] Warrant Certificate, and all rights hereunder, may be transferred
when surrendered at the corporate trust office of the Warrant Agent [or _____]
by the registered owner or his assigns, in person or by an attorney duly
authorized in writing, in the manner and subject to the limitations provided in
the Warrant Agreement.
[If Offered Securities with Warrants which are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable or
Warrants alone -- After] authentication by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or at
___________] for Warrant Certificates representing the same aggregate number of
Warrants.
<PAGE> 29
EXHIBIT A
Page 4
This Warrant Certificate shall not entitle the registered
owner hereof to any of the rights of a stockholder, including, without
limitation, the right to receive dividends.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid obligatory for any
purpose until authenticated by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed.
Dated:
-------------------, ----
ASARCO INCORPORATED
By:
---------------------------
Name:
Title:
Attest:
- -------------------------
Countersigned:
- -------------------------
As Warrant Agent
By
-----------------------
Authorized Signature
<PAGE> 30
EXHIBIT A
Page 5
[REVERSE] [FORM OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby, the Holder of this
Warrant Certificate must pay [in cash or by certified check or official bank
check in New York Clearing House funds or by bank wire transfer in immediately
available funds], the Exercise Price in full for each of the Warrants
exercised, to _________________, Corporate Trust Department, ______________,
Attn: [or _________________], which payment should specify the name of the
Holder of this Warrant Certificate and the number of Warrants exercised by such
Holder. In addition, the Holder of this Warrant Certificate should complete
the information required below and present in person or mail by registered mail
this Warrant Certificate to the Warrant Agent at the addresses set forth below.
[FORM OF EXERCISE]
(To be executed upon exercise of Warrants)
The undersigned hereby irrevocably elects to exercise
Warrants, represented by this Warrant Certificate, to purchase _______ shares
of the common stock, without par value ("Common Stock") of ASARCO Incorporated
and represents that he has tendered payment for such shares of Common Stock [in
cash or by certified check or official bank check in New York Clearing House
funds or by bank wire transfer in immediately available funds] to the order of
ASARCO Incorporated, c/o _______________, in the amount of $________ in
accordance with the terms hereof. The undersigned requests that said shares of
Common Stock be registered in such names and delivered, all as specified in
accordance with the instructions set forth below.
If said number of shares of Common Stock is less than all of
the shares of Common Stock purchasable hereunder, the undersigned requests that
a new Warrant Certificate representing the remaining balance of the Warrants
evidenced hereby be issued and delivered to the undersigned unless otherwise
specified in the instructions below.
<PAGE> 31
EXHIBIT A
Page 6
Dated:
Name
------------------
- -------------------------- (Please Print)
(Insert Social Security or
Other Identifying Number
of Holder)
Address
---------------
----------------------
-----------------------
Signature (Signature must conform in
all respects to name of holder as
specified on the face of this Warrant
Certificate and must bear a signature
guarantee by a bank, trust company or
member broker of the New York, Midwest
or Pacific Stock Exchange)
This Warrant may be exercised at the following
addresses:
By hand at
---------------------------
---------------------------
---------------------------
---------------------------
By mail at
---------------------------
---------------------------
---------------------------
---------------------------
(Instructions as to form and delivery of certificates representing shares of
Common Stock and/or Warrant Certificates):
<PAGE> 32
EXHIBIT A
Page 7
[FORM OF ASSIGNMENT]
(TO BE EXECUTED TO TRANSFER
THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED __________________ hereby sells,
assigns and transfers unto
Please insert social
security or other
identifying number
---------------------
- ---------------------------
Please print name and
address including zip code
__________________________________________________________
the right represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _____________, Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution.
Dated:
-----------------------------
Signature
(Signature must conform in
all respects to name of
holder as specified on the
face of this Warrant
Certificate and must bear
a signature guarantee by
a bank, trust company or
member broker of the New
York, Midwest or Pacific
Stock Exchange)
Signature Guaranteed:
<PAGE> 33
EXHIBIT A
Page 8
- --------------------------
<PAGE> 1
EXHIBIT 4.4
FORM OF PREFERRED STOCK WARRANT AGREEMENT
-----------------------------------------------------------
ASARCO INCORPORATED
and
---------------------
As Warrant Agent
WARRANT AGREEMENT
Dated as of
---------------, ----
-----------------------------------------------------------
<PAGE> 2
THIS WARRANT AGREEMENT, dated as of ______________, ____,
between ASARCO Incorporated, a corporation duly organized and existing under
the laws of the State of New Jersey (the "Company") and _______________, a
[corporation] [national banking association] organized and existing under the
laws of ______________, as warrant agent (herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell [If offered securities
and warrants -- [title of offered securities being offered] (the "Offered
Securities") with] warrant certificates (such warrant certificates and other
warrant certificates issued pursuant to this Agreement herein called the
"Warrant Certificates") evidencing one or more warrants (the "Warrants" or,
individually, a "Warrant") representing the right to purchase shares of [insert
title of Preferred Stock or Depository Shares (the "Warrant Securities"); and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing to so act, in
connection with the issuance, exchange, exercise and replacement of the Warrant
Certificates, and in this Agreement wishes to set forth, among other things,
the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE, EXECUTION AND COUNTERSIGNATURE
OF WARRANT CERTIFICATES
Section 1.01 Issuance of Warrant Certificates. [If Warrants
alone -- Upon issuance, each Warrant Certificate shall evidence one or more
Warrants.] [If Offered Securities and Warrants -- Warrant Certificates shall
be initially issued in units with the Offered Securities and shall not be
separately transferable [before ____________, ____ (the
<PAGE> 3
Page 2
"Detachable Date"]. Each Warrant Certificate included in each such unit shall
evidence an aggregate of ___________ Warrants.] Each Warrant evidenced thereby
shall represent the right, subject to the provisions contained herein and
therein, to purchase ___ Warrant Security(ies).
Section 1.02 Form of Warrant Certificates. The Warrant
Certificates (including the Form[s] of Exercise and Assignment to be set forth
on the reverse thereof) shall be in substantially the form set forth in Exhibit
A hereto, shall be printed, lithographed or engraved on steel engraved borders
(or in any other manner determined by the officers executing such Warrant
Certificates, as evidenced by their execution of such Warrant Certificates) and
may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which the Warrant Certificates may be
listed or as may, consistently herewith, be determined by the officers
executing such Warrant Certificates, as evidenced by their execution of the
Warrant Certificates.
Section 1.03 Execution and Countersignature of Warrant
Certificates. The Warrant Certificates shall be executed on behalf of the
Company by its Chairman of the Board, President, Chief Financial Officer or its
Treasurer attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Warrant Certificates may be manual or
facsimile.
Warrant Certificates evidencing the right to purchase a number
of shares of Warrant Securities having an aggregate value not exceeding
$________ (except as provided in Sections 1.04, 2.03(c), 3.01 and 3.02) may be
executed by the Company and delivered to the Warrant Agent upon the execution
of this Warrant Agreement or from time to time thereafter. The Warrant Agent
shall, upon receipt of Warrant Certificates duly executed on behalf of the
Company, authenticate Warrant Certificates evidencing Warrants representing the
right to purchase a number of shares of Warrant Securities having an aggregate
value not exceeding $____________ and shall deliver such Warrant Certificates
to or upon the order of the Company. Subsequent to such original issuance of
the Warrant Certificates, the Warrant
<PAGE> 4
Page 3
Agent shall authenticate a Warrant Certificate only if the Warrant Certificate
is issued in exchange or substitution for one or more previously authenticated
Warrant Certificates or in connection with their transfer, as hereinafter
provided.
Each Warrant Certificate shall be dated the date of its
authentication by the Warrant Agent.
No Warrant Certificate shall be entitled to any benefit under
this Agreement or be valid or obligatory for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
authenticated by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence, and the only evidence, that the Warrant Certificate so
authenticated has been duly issued hereunder.
Warrant Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Warrant Certificates or did not hold such offices at the date of such
Warrant Certificates.
Section 1.04 Temporary Warrant Certificates. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company the Warrant Agent shall authenticate and deliver,
temporary Warrant Certificates which are printed, lithographed, typewritten,
mimeographed or otherwise produced substantially of the tenor of the definitive
Warrant Certificates in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, as evidenced by their
execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable
delay. After the preparation of definitive Warrant Certificates, the temporary
Warrant Certificates shall be exchangeable for definitive Warrant Certificates
upon surrender of the temporary Warrant
<PAGE> 5
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Certificates at the corporate trust office of the Warrant Agent [or ___],
without charge to the Holder (as defined in Section 1.06 below). Upon
surrender for cancellation of any one or more temporary Warrant Certificates
the Company shall execute and the Warrant Agent shall authenticate and deliver
in exchange therefor definitive Warrant Certificates representing the same
aggregate number of Warrants. Until so exchanged, the temporary Warrant
Certificates shall in all respects be entitled to the same benefits under this
Agreement as definitive Warrant Certificates.
Section 1.05 Payment of Taxes. The Company will pay all
stamp taxes and other duties, if any, to which, under the laws of the United
States of America or any State or political subdivision thereof, this Agreement
or the original issuance of the Warrant Certificates may be subject.
Section 1.06 Definition of Holder. The term "Holder" as used
herein shall mean [If Offered Securities and Warrants which are not immediately
detachable -- Prior to the Detachable Date, the registered owner of the Offered
Security to which such Warrant Certificate was initially attached, and, after
such Detachable Date,] the person in whose name at the time such Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4.01. [If Offered Securities and
Warrants which are not immediately detachable -- Prior to the Detachable Date,
the Company will, or will cause the registrar of the Offered Securities to make
available to the Warrant Agent current information as to Holders of the Offered
Securities.]
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.01 Warrant Price.1/ During the period from
________, ____ through and including ___________, ____ each Warrant shall
entitle the Holder thereof, subject to the provisions of this Agreement, to
purchase from the Company
- ----------------------------------
1/ Complete and modify the provisions of this Section as appropriate to
reflect the exact terms of the Warrants.
<PAGE> 6
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______ Warrant Securities at the exercise price of $__________. During the
period from _________, ____ through and including ____________, ____ , each
Warrant shall entitle the Holder thereof, subject to the provisions of this
Agreement, to purchase from the Company ______ Warrant Securities at the
exercise price of $______. Such exercise price of each Warrant is referred to
in this Agreement as the "Exercise Price." No adjustment shall be made for any
dividends on any Warrant Securities issuable upon exercise of any Warrant.
Section 2.02 Duration of Warrants. Any Warrant evidenced by
a Warrant Certificate may be exercised at any time, as specified herein, on or
after [the date thereof] [_________, ____] and at or before 5:00 p.m. New York
City time on __________, ____ (the "Expiration Date"). Each Warrant not
exercised at or before 5:00 p.m. New York City time on the Expiration Date
shall become void, and all rights of the Holder of the Warrant Certificate
evidencing such Warrant under this Agreement or otherwise shall cease.
Section 2.03 Exercise of Warrants.
(a) During the period specified in Section 2.02, any
whole number of Warrants may be exercised by surrendering the Warrant
Certificate evidencing such Warrants at the place or at the places set forth in
the Warrant Certificate, with the purchase form set forth in the Warrant
Certificate duly executed, accompanied by payment in full, in lawful money of
the United States of America, [in cash or by certified check or official bank
check in New York Clearing House funds] [by bank wire transfer in immediately
available funds], of the Exercise Price for each Warrant exercised. The date
on which payment in full of the Exercise Price for a Warrant and the duly
executed and completed Warrant Certificate are received by the Warrant Agent
shall be deemed to be the date on which such Warrant is exercised. The Warrant
Agent shall deposit all funds received by it as payment for the exercise of
Warrants to the account of the Company maintained with it for such purpose and
shall advise the Company by telephone at the end of each day on which such a
payment is received of the amount so deposited to its account. The Warrant
Agent shall promptly confirm such telephonic advice to the Company in writing.
<PAGE> 7
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(b) The Warrant Agent shall from time to time, as
promptly as practicable after the exercise of any Warrants in accordance with
the terms and conditions of this Agreement and the Warrant Certificates, advise
the Company of (i) the number of Warrants so exercised, (ii) the instructions
of each Holder of the Warrant Certificates evidencing such Warrants with
respect to delivery of Warrant Securities to which such Holder is entitled upon
such exercise, and instructions of such Holder as to delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants remaining after
such exercise, and (iii) such other information as the Company shall reasonably
require.
(c) As soon as practicable after the exercise of any
Warrants, the Company shall issue, to or upon the order of the Holder of the
Warrant Certificate evidencing such Warrants, Warrant Securities to which such
Holder is entitled in such name or names as may be directed by such Holder;
and, if fewer than all of the Warrants evidenced by such Warrant Certificate
were exercised, the Company shall execute and an authorized officer of the
Warrant Agent shall manually authenticate and deliver a new Warrant Certificate
evidencing the number of Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer involved in the issuance of the Warrant Securities; and in the
event that any such transfer is involved, the Company shall not be required to
issue or deliver any Warrant Securities until such tax or other charge shall
have been paid or it has been established to the Company's satisfaction that no
such tax or other charge is due.
Section 2.04 Reservation of Shares. For the purpose of
enabling it to satisfy any obligation to issue shares of Warrant Securities
upon exercise of Warrants, the Company will at all times through 5:00 p.m. New
York City time on the Expiration Date, reserve and keep available, free from
preemptive rights and out of its aggregate authorized but unissued Warrant
Securities, the number of shares deliverable upon the exercise of all
outstanding Warrants.
<PAGE> 8
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ARTICLE III.
REGISTRATION; EXCHANGE, TRANSFER AND SUBSTITUTION OF
WARRANT CERTIFICATES
Section 3.01 Registration; Exchange and Transfer of Warrant
Certificates. The Warrant Agent shall keep, at its corporate trust office [and
at _________], books in which, subject to such reasonable regulations as it may
prescribe, it shall register Warrant Certificates and transfers of outstanding
Warrant Certificates.
[If Offered Securities and Warrants which are immediately
detachable -- Prior to the Detachable Date, each Warrant Certificate may be
exchanged or transferred only together with the Offered Security to which such
Warrant Certificate was initially attached, and only for the purpose of
effecting, or in conjunction with, an exchange or transfer of such Offered
Security. Additionally, on or prior to the Detachable Date, each transfer of
an Offered Security [on the register of the Offered Securities] shall operate
also to transfer the Warrant Certificate or Certificates to which such Offered
Security was initially attached. After the Detachable Date, upon] [If Offered
Securities and Warrants which are immediately detachable or if Warrants alone
- -- upon] surrender at the corporate trust office of the Warrant Agent [or
_______] of Warrant Certificates properly endorsed [or accompanied by
appropriate instruments of transfer] and accompanied by written instructions
for [transfer or] exchange, all in form satisfactory to the Company and the
Warrant Agent, such Warrant Certificates may be exchanged for other Warrant
Certificates or may be transferred in whole or in part; provided that Warrant
Certificates issued in exchange for or upon transfer of surrendered Warrant
Certificates shall evidence the same aggregate number of Warrants as the
Warrant Certificates so surrendered. No service charge shall be made for any
exchange or transfer of Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any stamp or other tax or governmental
charge that may be imposed in connection with any such exchange or transfer.
Whenever any Warrant Certificates are so surrendered for exchange or transfer,
the Company shall execute and an authorized officer of the Warrant Agent shall
manually authenticate and deliver to the
<PAGE> 9
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person or persons entitled thereto a Warrant Certificate or Warrant
Certificates as so requested. The Warrant Agent shall not be required to
effect any exchange or transfer which would result in the issuance of a Warrant
Certificate evidencing a fraction of a Warrant or a number of full Warrants and
a fraction of a Warrant. All Warrant Certificates issued upon any exchange or
transfer of Warrant Certificates shall evidence the same obligations, and be
entitled to the same benefits under this Agreement, as the Warrant Certificates
surrendered for such exchange or transfer.
Section 3.02 Mutilated, Destroyed, Lost or Stolen Warrant
Certificates. If any mutilated Warrant Certificate is surrendered to the
Warrant Agent, the Company shall execute and an officer of the Warrant Agent
shall manually authenticate and deliver in exchange therefor a new Warrant
Certificate of like tenor and bearing a number not contemporaneously
outstanding. If there shall be delivered to the Company and the Warrant Agent
(i) evidence to their satisfaction of the destruction, loss or theft of any
Warrant Certificate and of the ownership thereof and (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute and upon its request an officer of the
Warrant Agent shall manually authenticate and deliver, in lieu of any such
destroyed, lost or stolen Warrant Certificate, a new Warrant Certificate of
like tenor and bearing a number not contemporaneously outstanding. Upon the
issuance of any new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Warrant Agent) connected therewith.
Every new Warrant Certificate issued pursuant to this Section in lieu of any
destroyed, lost or stolen Warrant Certificate shall evidence an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Warrant Certificate shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly issued
hereunder. The provisions of this
<PAGE> 10
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Section are exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Warrant Certificates.
Section 3.03 Persons Deemed Owners. [If Offered Securities
and Warrants which are not immediately detachable -- Prior to the Detachable
Date, the Company, the Warrant Agent and all other persons may treat the owner
of any Offered Security as the owner of the Warrant Certificates initially
attached thereto for any purpose and as the person entitled to exercise the
rights represented by the Warrants evidenced by such Warrant Certificates, any
notice to the contrary notwithstanding. After the Detachable Date,] and prior
to due presentment of a Warrant Certificate for registration of transfer, the
Company, the Warrant Agent and all other persons may treat the Holder as the
owner thereof for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced thereby, any notice to the contrary
notwithstanding.
Section 3.04 Cancellation of Warrant Certificates. Any
Warrant Certificate surrendered for exchange, transfer or exercise of the
Warrants evidenced thereby shall, if surrendered to the Company, be delivered
to the Warrant Agent, and all Warrant Certificates surrendered or so delivered
to the Warrant Agent shall be promptly cancelled by it and shall not be
reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in lieu or in exchange thereof. The
Company may at any time deliver to the Warrant Agent for cancellation any
Warrant Certificates previously issued hereunder which the Company may have
acquired in any manner whatsoever, and all Warrant Certificates so delivered
shall be promptly cancelled by the Warrant Agent. All cancelled Warrant
Certificates held by the Warrant Agent shall be destroyed by it, unless, by
written order, the Company requests their return to it.
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ARTICLE IV.
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
Section 4.01 No Rights as Stockholders Conferred by Warrants
or Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby
shall entitle the Holder thereof to any of the rights of a stockholder,
including, without limitation, the right to receive dividends.
Section 4.02 Holder of Warrant Certificate May Enforce
Rights. Notwithstanding any of the provisions of this Agreement, any Holder of
any Warrant Certificate, without the consent of the Warrant Agent, any
stockholder or the Holder of any other Warrant Certificate, may, in his own
behalf and for his own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company suitable to enforce or otherwise
in respect of, his right to exercise the Warrant or Warrants evidenced by his
Warrant Certificate in the manner provided in the Warrant Certificates and in
this Agreement.
ARTICLE V.
CONCERNING THE WARRANT AGENT
Section 5.01 Warrant Agent. The Company hereby appoints
_____________ as Warrant Agent of the Company in respect of the Warrants and
the Warrant Certificates upon the terms and subject to the conditions herein
set forth, and ________ hereby accepts such appointment. The Warrant Agent
shall have the power and authority granted to and conferred upon it in the
Warrant Certificates and hereby and such further power and authority to act on
behalf of the Company as the Company may hereafter grant to or confer upon it.
All of the terms and provisions with respect to such power and authority
contained in the Warrant Certificates are subject to and governed by the terms
and provisions hereof.
Section 5.02 Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth, upon the terms and
conditions hereof, including the following, to all of which the Company agrees
<PAGE> 12
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and to all of which the rights hereunder of the Holders from time to time of
the Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon
with the Company for all services rendered by the Warrant Agent and to
reimburse the Warrant Agent for reasonable out-of-pocket expenses
(including counsel fees) incurred by the Warrant Agent in connection
with the services rendered hereunder by the Warrant Agent. The
Company also agrees to indemnify the Warrant Agent for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Warrant Agent, arising out
of or in connection with its acting as such Warrant Agent hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance at any
time of its powers or duties hereunder. The obligations of the
Company under this subsection (a) shall survive the exercise of the
Warrant Certificates and the resignation or removal of the Warrant
Agent.
(b) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant
Agent is acting solely as agent of the Company and does not assume any
obligation or relationship of agency or trust for or with any of the
owners or Holders of the Warrant Certificates.
(c) Counsel. The Warrant Agent may consult with counsel,
which may include counsel for the Company, and the written advice of
such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered, or omitted by it hereunder
in good faith and in reliance thereon.
(d) Documents. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken or
omitted by it in reliance upon any Warrant Certificates, notice,
direction, consent, certificate, affidavit, statement or other paper
or document reasonably believed by it to be genuine and to have been
presented or signed by the proper parties.
<PAGE> 13
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(e) Certain Transactions. The Warrant Agent, any of its
officers, directors and employees, or any other agent of the Company,
in its individual or any other capacity, may become the owner of, or
acquire any interest in, any Warrant Certificates, with the same
rights that it would have if it were not such Warrant Agent, officer,
director, employee or other agent, and, to the extent permitted by
applicable law, it may engage or be interested in any financial or
other transaction with the Company and may act on, or as depositary,
trustee or agent for, any committee or body of holders of Warrant
Securities or other obligations of the Company as freely as if it were
not such Warrant Agent.
(f) No Liability for Interest. The Warrant Agent shall
not be under any liability for interest on any monies at any time
received by it pursuant to any of the provisions of this Agreement or
of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall
not incur any liability with respect to the validity of this Agreement
or any of the Warrant Certificates.
(h) No Responsibility for Representations. The Warrant
Agent shall not be responsible for any of the Recitals or
representations contained herein or in the Warrant Certificates
(except as to the Warrant Agent's Certificate of Authentication
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or
obligations shall be read into this Agreement or the Warrant
Certificates against the Warrant Agent. The Warrant Agent shall not
be under any obligation to take any action hereunder which may tend to
involve it in any expense or liability, the payment of which within a
reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Company of any of the Warrant
Certificates authenticated by the Warrant Agent
<PAGE> 14
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and delivered by it to the Company pursuant to this Agreement or for
the application by the Company of the proceeds of the Warrant
Certificates or any exercise of the Warrants evidenced thereby. The
Warrant Agent shall have no duty or responsibility in case of any
default by the Company in the performance of its covenants or
agreements contained herein or in the Warrant Certificates or in the
case of the receipt of any written demand from a Holder of a Warrant
Certificate with respect to such default, including, without limiting
the generality of the foregoing, any duty or responsibility to
initiate or attempt to initiate any proceedings at law or otherwise
or, except as provided in Section 6.04 hereof, to make any demand upon
the Company.
Section 5.03 Resignation, Removal and Appointment of
Successor.
(a) The Company agrees, for the benefit of the Holders
from time to time of the Warrant Certificates, that there shall at all times be
a Warrant Agent hereunder until all of the Warrant Certificates are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such
agent by giving written notice to the Company of such intention on its part,
specifying the date on which it desires its resignation to become effective;
provided that, without the consent of the Company, such date shall not be less
than [three months] after the date on which such notice is given. The Warrant
Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed by or on behalf of the Company and specifying such
removal and the date on which the Company expects such removal to become
effective. Such resignation or removal shall take effect upon the appointment
by the Company of a successor Warrant Agent (which shall be a bank or trust
company organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia and authorized under
such laws to exercise corporate trust powers) by an instrument in writing filed
with such successor Warrant Agent and the acceptance of such appointment by
such successor Warrant Agent pursuant to Section 5.03(d).
<PAGE> 15
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(c) In case at any time the Warrant Agent shall resign,
or be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make
an assignment for the benefit of its creditors or consent to the appointment of
a receiver or custodian of all or any substantial part of its property, or
shall admit in writing its inability to pay or meet its debts as they mature,
or if a receiver or custodian of it or of all or any substantial part of its
property shall be appointed, or if an order of any court shall be entered
approving any petition filed by or against it under the provisions of any
applicable bankruptcy or similar law, or if any public officer shall have taken
charge or control of the Warrant Agent or of its property or affairs, a
successor Warrant Agent, qualified as aforesaid, shall be appointed by the
Company by an instrument filed with the successor Warrant Agent. Upon
appointment as aforesaid of a successor Warrant acceptance by the latter of
such appointment, the Warrant Agent so superseded shall cease to be Warrant
Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as
Warrant Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer,
deliver and pay over, and such successor Warrant Agent shall be entitled to
receive, all monies, securities and other property on deposit with or held by
such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent
hereunder may be merged or converted or any corporation with which the Warrant
Agent may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a party, or any
corporation succeeding to all substantially all the corporate trust business of
the Warrant Agent, provided that it shall be qualified as aforesaid, shall be
the successor Warrant Agent under this Agreement without the execution or
<PAGE> 16
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filing of any paper or any further act on the part of any of the parties
hereto.
ARTICLE VI.
MISCELLANEOUS
[Section 6.01 Consolidations and Mergers of the Company and
Sales, Leases and Conveyances Permitted Subject to Certain Conditions. The
Company may consolidate with, or sell, lease or convey all or substantially all
of its assets to, or merge with or into any other corporation, provided that in
any such case, (i) either the Company shall be the continuing corporation, or
the successor corporation shall be a corporation organized and existing under
the laws of the United States of America or a State thereof and such successor
corporation shall expressly assume the obligations of the Company hereunder.]
Section 6.02 Rights and Duties of Successor Corporation. In
case of any such consolidation, merger, sale, lease or conveyance and upon any
such assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it
had been named herein, and the predecessor corporation, except in the event of
a lease, shall be relieved of any further obligation under this Agreement and
the Warrants. Such successor corporation thereupon may cause to be signed, and
may issue either its in own name or in the name of the Company, any or all of
the Warrant Securities issuable pursuant to the terms hereof.
Section 6.03 Amendment. This Agreement may be amended by the
parties hereto, without the consent of the Holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or curing, correcting or supplementing
any defective provision contained herein, or making such provisions in regard
to matters or questions arising under this Agreement as the Company may deem
necessary or desirable; provided that such action shall not adversely affect
the interests of the Holders of the Warrant Certificates in any material
respect. The Warrant Agent may, but shall not be obligated to, enter into any
amendment to
<PAGE> 17
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this Agreement which affects the Warrant Agent's own rights, duties or
immunities under this Agreement or otherwise.
Section 6.04 Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to
the Company by the Holder of a Warrant Certificate pursuant to the provisions
of the Warrant Certificates, the Warrant Agent shall promptly forward such
notice or demand to the Company.
Section 6.05 Addresses. Any communications from the Company
to the Warrant Agent with respect to this Agreement shall be addressed to
_____________, Attention: ____________________ and any communications from the
Warrant Agent to the Company with respect to this Agreement shall be addressed
to ASARCO Incorporated, 180 Maiden Lane, New York, New York 10038, Attention:
________________, with a copy to the ___________________ (or such other address
as shall be specified in writing by the Warrant Agent or by the Company).
Section 6.06 Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be governed by and construed in accordance
with the laws of the State of New York.
Section 6.07 Delivery of Prospectus. The Company will
furnish to the Warrant Agent sufficient copies of a prospectus, appropriately
supplemented, relating to the Warrant Securities (the "Prospectus"), and the
Warrant Agent agrees that, upon the exercise of any Warrant Certificate, the
Warrant Agent will deliver to the person designated to receive a certificate
representing Warrant Securities, prior to or concurrently with the delivery of
such securities, a Prospectus.
Section 6.08 Obtaining of Governmental Approvals. The
Company will from time to time take all action which may be necessary to obtain
and keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under United States
Federal and State laws (including, without limitation, the maintenance of the
effectiveness of a registration statement in respect of the Warrant Securities
under the Securities Act of 1933), which may be or become required in
connection with exercise of the Warrant Certificates and the original
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issuance and delivery of the Warrant Securities in connection with such
exercise.
Section 6.09 Persons Having Rights under Warrant Agreement.
Nothing in this Agreement expressed or implied and nothing that may be inferred
from any of the provisions hereof is intended, or shall be construed, to confer
upon, or give to, any person or corporation other than the Company, the Warrant
Agent and the Holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement or of any covenant, condition,
stipulation, promise or agreement hereof; and all covenants, conditions,
stipulations, promises and agreements in this Agreement contained shall be for
the sole and exclusive benefit of the Company and the Warrant Agent and their
successors and of the Holders of the Warrant Certificates.
Section 6.10 Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
Section 6.11 Counterparts. This Agreement may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the same
instrument.
Section 6.12 Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent [and at ________] for inspection by the
Holder of any Warrant Certificate. The Warrant Agent may require such Holder
to submit his Warrant Certificate for inspection by it.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, and their respective corporate seal to be
hereunto affixed and attested, all as of the day and year first above written.
ASARCO INCORPORATED
By:
----------------
Name:
Title:
Attest:
- ----------------------------
[Assistant] Secretary
Attest:
[Assistant] Secretary
[WARRANT AGENT]
By:
----------------
Name:
Title:
Attest:
- ----------------------------
[Assistant] Secretary
<PAGE> 20
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Face]
Form of Legend if Offered [Prior to _______, this
Securities with Warrant Certificate may
Warrants which are not be transferred or
immediately detachable: exchanged if and only if
the [Title of Security] to
which it was initially attached
is so transferred or exchanged.]
Form of Legend if Warrants [Prior to ________,
are not immediately Warrants evidenced by
exercisable: this Warrant Certificate
cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER 5:00 P.M. NEW YORK CITY TIME ON ________, ____
ASARCO INCORPORATED
Warrant Certificate representing
Warrants to purchase
Warrant Securities
as described herein
No. _____________ Warrants
This certifies that ________ or registered assigns is the
registered owner of the above indicated number of Warrants, each Warrant
entitling such registered owner to purchase, at any time after 5:00 p.m New
York City time on __________, ____, and on or before 5:00 p.m New York City
time on ____________, ____, ______ shares(s) of [insert title of Preferred
Stock or Depository Shares ("Warrant Securities") of ASARCO Incorporated (the
"Company"), on the
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following basis.1/ [During the period from ________, ____ through and
including ____________, ____, each Warrant shall entitle the Holder thereof,
subject to the provisions of this Agreement, to purchase from the Company _____
Warrant Security(ies) at the exercise price of $____; during the period from
_________, ____ through and including ________, ____, each Warrant shall
entitle the Holder thereof, subject to the provisions of this Agreement, to
purchase from the Company ______ Warrant Security(ies) at the exercise price of
$_____ (the "Exercise Price"). The Holder of this Warrant Certificate may
exercise the Warrants evidenced hereby, in whole or in part, by surrendering
this Warrant Certificate, with the purchase form set forth hereon duly
completed, accompanied by payment in full, in lawful money of the United States
of America, [in cash or by certified check or official bank check in New York
Clearing House funds or by bank wire transfer in immediately available funds],
the Exercise Price for each Warrant exercised, to the Warrant Agent (as
hereinafter defined), at the corporate trust office of [name of Warrant Agent],
or its successor as warrant agent (the "Warrant Agent") [or at _____________],
at the addresses specified on the reverse hereof and upon compliance with and
subject to the conditions set forth herein and in the Warrant Agreement (as
hereinafter defined).
The term "Holder" as used herein shall mean [If Offered
Securities with Warrants which are not immediately detachable -- Prior to
_______, ____ (the "Detachable Date"), the registered owner of the Company's
[title of Offered Securities] to which such Warrant Certificate was initially
attached, and after such Detachable Date,] the person in whose name at the time
such Warrant Certificate shall be registered upon the books to be maintained by
the Warrant Agent for that purpose pursuant to Section 3.01.
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities. Upon any exercise
of fewer than all of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the registered owner hereof a new Warrant
- ---------------------
1/ Complete and modify the following provisions as appropriate to reflect the
terms of the Warrants.
<PAGE> 22
Page 3
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of ___________, ____ (the "Warrant
Agreement"), between the Company and the Warrant Agent and is subject to the
terms and provisions contained in the Warrant Agreement, to all of which terms
and provisions the holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at ___________].
[If Offered Securities with Warrants which are not immediately
detachable -- Prior to ___________, ____ (the "Detachable Date"), this Warrant
Certificate may be exchanged or transferred only together with the [title of
Offered Security] (the "Offered Security") to which this Warrant Certificate
was initially attached, and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Offered Security.
Additionally, on or prior to the Detachable Date, each transfer of such Offered
Security on the register of the Offered Securities shall operate also to
transfer this Warrant Certificate. After the Detachable Date, this] [If
Offered Securities with Warrants which are immediately detachable or Warrants
alone--This] Warrant Certificate, and all rights hereunder, may be transferred
when surrendered at the corporate trust office of the Warrant Agent [or _____]
by the registered owner or his assigns, in person or by an attorney duly
authorized in writing, in the manner and subject to the limitations provided in
the Warrant Agreement.
[If Offered Securities with Warrants which are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable or
Warrants alone -- After] authentication by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or at
___________] for Warrant Certificates representing the seem aggregate number of
Warrants.
<PAGE> 23
Page 4
This Warrant Certificate shall not entitle the registered
owner hereof to any of the rights of a stockholder, including, without
limitation, the right to receive dividends.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid obligatory for any
purpose until authenticated by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly
executed.
Dated: ___________________, ____
ASARCO INCORPORATED
By:
----------------------------
Name:
Title:
Attest:
- -------------------------
Countersigned:
- -------------------------
As Warrant Agent
By:
----------------------
Authorized Signature
<PAGE> 24
Page 5
[REVERSE] [FORM OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby, the Holder of this
Warrant Certificate must pay [in cash or by certified check or official bank
check in New York Clearing House funds or by bank wire transfer in immediately
available funds], the Exercise Price in full for each of the Warrants
exercised, to _________________, Corporate Trust Department, ______________,
Attn: [or _________________], which payment should specify the name of the
Holder of this Warrant Certificate and the number of Warrants exercised by such
Holder. In addition, the Holder of this Warrant Certificate should complete
the information required below and present in person or mail by registered mail
this Warrant Certificate to the Warrant Agent at the addresses set forth below.
[FORM OF EXERCISE]
(To be executed upon exercise of Warrants)
The undersigned hereby irrevocably elects to exercise
Warrants, represented by this Warrant Certificate, to purchase _______ shares
of [insert title of Preferred Stock or Depository Shares], without par value ("
Warrant Securities") of ASARCO Incorporated and represents that he has tendered
payment for such Warrant Securities [in cash or by certified check or official
bank check in New York Clearing House funds or by bank wire transfer in
immediately available funds] to the order of ASARCO Incorporated, c/o
_______________, in the amount of $________ in accordance with the terms
hereof. The undersigned requests that said Warrant Securities be registered in
such names and delivered, all as specified in accordance with the instructions
set forth below.
If said number of shares of Warrant Securities is less than
all of the Warrant Securities purchasable hereunder, the undersigned requests
that a new Warrant Certificate representing the remaining balance of the
Warrants evidenced hereby be issued and delivered to the undersigned unless
otherwise specified in the instructions below.
<PAGE> 25
Page 6
Dated:
Name
------------------
(Please Print)
- --------------------------
(Insert Social Security or
Other Identifying Number
of Holder)
Address
---------------
----------------------
----------------------
Signature (Signature must con-
form in all respects to name of
holder as specified on the
face of this Warrant
Certificate and must bear a
signature guarantee by a
bank, trust company or member
broker of the New York,
Midwest or Pacific Stock
Exchange)
This Warrant may be exercised at the following
addresses:
By hand at
------------------------
------------------------
------------------------
------------------------
By mail at
------------------------
------------------------
------------------------
------------------------
(Instructions as to form and delivery of certificates representing Warrant
Securities and/or Warrant Certificates):
<PAGE> 26
Page 7
[FORM OF ASSIGNMENT]
(TO BE EXECUTED TO TRANSFER
THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED __________________ hereby sells, assigns and transfers unto
Please insert social
security or other
identifying number
--------------------
- ---------------------------
Please print name and
address including zip code
__________________________________________________________
the right represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _____________, Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution.
Dated:
------------------------------
Signature
(Signature must conform in all respects
to name of holder as specified
on the face of this Warrant Certificate
and must bear a signature guarantee by
a bank, trust company or member broker
of the New York, Midwest or Pacific
Stock Exchange)
Signature Guaranteed:
<PAGE> 27
Page 8
- -------------------------
<PAGE> 1
EXHIBIT 4.5
FORM OF DEBT WARRANT AGREEMENT
-----------------------------------------------------------
ASARCO INCORPORATED
and
---------------------
As Warrant Agent
WARRANT AGREEMENT
Dated as of
---------------,-----
-----------------------------------------------------------
<PAGE> 2
THIS WARRANT AGREEMENT, dated as of ______________, ____,
between ASARCO Incorporated, a corporation duly organized and existing under
the laws of the State of New Jersey (the "Company") and _______________, a
[corporation] [national banking association] organized and existing under the
laws of ______________, as warrant agent (herein called the "Warrant Agent").
WHEREAS, the Company has entered into an Indenture dated as of
October 1, 1994 (the "Indenture"), with __________________, a _________________
corporation, as trustee, herein called the "Trustee"), providing for the
issuance from time to time of its unsecured debentures, notes or other
evidences of senior indebtedness, to be issued in one or more series as
provided in the Indenture;
WHEREAS, the Company proposes to sell [If offered securities
and warrants -- [title of offered securities being offered] (the "Offered Debt
Securities") with] warrant certificates (such warrant certificates and other
warrant certificates issued pursuant to this Agreement herein called the
"Warrant Certificates") evidencing one or more warrants (the "Warrants" or,
individually, a "Warrant") representing the right to purchase [title of Debt
Securities purchasable through the exercise of warrants] (the "Warrant Debt
Securities"); and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing to so act, in
connection with the issuance, exchange, exercise and replacement of the Warrant
Certificates, and in this Agreement wishes to set forth, among other things,
the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
<PAGE> 3
Page 2
ARTICLE I.
ISSUANCE, EXECUTION AND COUNTERSIGNATURE
OF WARRANT CERTIFICATES
Section 1.01 Issuance of Warrant Certificates. [If Warrants
alone -- Upon issuance, each Warrant Certificate shall evidence one or more
Warrants.] [If Offered Debt Securities and Warrants -- Warrant Certificates
shall be initially issued in units with the Offered Debt Securities and shall
not be separately transferable [before ____________, 19__ (the "Detachable
Date"]. Each Warrant Certificate included in each such unit shall evidence an
aggregate of ___________ Warrants.] Each Warrant evidenced thereby shall
represent the right, subject to the provisions contained herein and therein, to
purchase Warrant Debt Securities in the aggregate principal amount of
$_____________.
Section 1.02 Form of Warrant Certificates. The Warrant
Certificates (including the Form[s] of Exercise and Assignment to be set forth
on the reverse thereof) shall be in substantially the form set forth in Exhibit
A hereto, shall be printed, lithographed or engraved on steel engraved borders
(or in any other manner determined by the officers executing such Warrant
Certificates, as evidenced by their execution of such Warrant Certificates) and
may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which the Warrant Certificates may be
listed or as may, consistently herewith, be determined by the officers
executing such Warrant Certificates, as evidenced by their execution of the
Warrant Certificates. [Global Warrant Certificate?]
Section 1.03 Execution and Countersignature of Warrant
Certificates. The Warrant Certificates shall be executed on behalf of the
Company by its Chairman of the Board, President, Chief Financial Officer or its
Treasurer attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Warrant Certificates may be manual or
facsimile.
<PAGE> 4
Page 3
Warrant Certificates evidencing the right to purchase an
aggregate principal amount not exceeding $________ (except as provided in
Sections 1.04, 2.03(c), 3.01 and 3.02) may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Warrant Agreement or
from time to time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, authenticate Warrant
Certificates evidencing Warrants representing the right to purchase up to
$________ aggregate principal amount of Warrant Debt Securities and shall
deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Warrant Certificates, the Warrant
Agent shall authenticate a Warrant Certificate only if the Warrant Certificate
is issued in exchange or substitution for one or more previously authenticated
Warrant Certificates or in connection with their transfer, as hereinafter
provided.
Each Warrant Certificate shall be dated the date of its
authentication by the Warrant Agent.
No Warrant Certificate shall be entitled to any benefit under
this Agreement or be valid or obligatory for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
authenticated by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence, and the only evidence, that the Warrant Certificate so
authenticated has been duly issued hereunder.
Warrant Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Warrant Certificates or did not hold such offices at the date of such
Warrant Certificates.
Section 1.04 Temporary Warrant Certificates. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company the Warrant Agent shall authenticate and deliver,
temporary Warrant Certificates which are printed, lithographed, typewritten,
mimeographed or otherwise produced substantially
<PAGE> 5
Page 4
of the tenor of the definitive Warrant Certificates in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Warrant Certificates may determine,
as evidenced by their execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable
delay. After the preparation of definitive Warrant Certificates, the temporary
Warrant Certificates shall be exchangeable for definitive Warrant Certificates
upon surrender of the temporary Warrant Certificates at the corporate trust
office of the Warrant Agent [or ___], without charge to the Holder (as defined
in Section 1.06 below). Upon surrender for cancellation of any one or more
temporary Warrant Certificates the Company shall execute and the Warrant Agent
shall authenticate and deliver in exchange therefor definitive Warrant
Certificates representing the same aggregate number of Warrants. Until so
exchanged, the temporary Warrant Certificates shall in all respects be entitled
to the same benefits under this Agreement as definitive Warrant Certificates.
Section 1.05 Payment of Taxes. The Company will pay all
stamp taxes and other duties, if any, to which, under the laws of the United
States of America or any State or political subdivision thereof, this Agreement
or the original issuance of the Warrant Certificates may be subject.
Section 1.06 Definition of Holder. The term "Holder" as used
herein shall mean [If Offered Debt Securities and Warrants which are not
immediately detachable -- Prior to the Detachable Date, the registered owner of
the Offered Security to which such Warrant Certificate was initially attached,
and, after such Detachable Date,] the person in whose name at the time such
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose pursuant to Section 3.01. [If Offered Debt
Securities and Warrants which are not immediately detachable -- Prior to the
Detachable Date, the Company will, or will cause the registrar of the Offered
Debt Securities to make available to the Warrant Agent current information as
to Holders of the Offered Debt Securities.]
<PAGE> 6
Page 5
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.01 Warrant Price.1/ During the period from
_____________, ____ through and including ____________, ____, each Warrant
shall entitle the Holder thereof, subject to the provisions of this Agreement,
to purchase from the Company the principal amount of Warrant Debt Securities
stated in the Warrant Certificate at the exercise price of _____% of the
principal amount thereof [plus accrued amortization, if any, of the original
issue discount of the Warrant Debt Securities] [plus accrued interest, if any,
from the most recent date from which interest shall have been paid on the
Warrant Debt Securities or, if no interest shall have been paid on the Warrant
Debt Securities, from _____________, ____]. During the period from
_______________, ____ through and including ____________, ____, each Warrant
shall entitle the Holder thereof, subject to the provisions of this Agreement,
to purchase from the Company the principal amount of Warrant Debt Securities
stated in the Warrant Certificate at the exercise price of _______% of the
principal amount thereof [plus accrued amortization, if any, of the original
issue discount of the Warrant Debt Securities] [plus accrued interest, if any,
from the most recent date from which interest shall have been paid on the
Warrant Debt Securities or, if no interest shall have been paid on the Warrant
Debt Securities, from __________, ____]. [In each case, the original issue
discount ($_____________ for each $1,000 principal amount of Warrant Debt
Securities) will be amortized at a $______ annual rate, computed on a[n]
[semi-] annual basis [using a 360-day year consisting of twelve 30-day
months].] Such exercise price of each Warrant is referred to in this Agreement
as the "Exercise Price."
Section 2.02 Duration of Warrants. Any Warrant evidenced by
a Warrant Certificate may be exercised at any time, as specified herein, on or
after [the date thereof] [_________, 19__] and at or before 5:00 p.m. New York
City time on __________, 19__ (the "Expiration Date"). Each
- ----------------------------------
1/ Complete and modify the provisions of this Section as appropriate to
reflect the exact terms of the Warrants and the Warrant Debt Securities.
<PAGE> 7
Page 6
Warrant not exercised at or before 5:00 p.m. New York City time on the
Expiration Date shall become void, and all rights of the Holder of the Warrant
Certificate evidencing such Warrant under this Agreement or otherwise shall
cease.
Section 2.03 Exercise of Warrants.
(a) During the period specified in Section 2.02, any
whole number of Warrants may be exercised by surrendering the Warrant
Certificate evidencing such Warrants at the place or at the places set forth in
the Warrant Certificate, with the purchase form set forth in the Warrant
Certificate duly executed, accompanied by payment in full, in lawful money of
the United States of America, [in cash or by certified check or official bank
check in New York Clearing House funds] [by bank wire transfer in immediately
available funds], of the Exercise Price for each Warrant exercised. The date
on which payment in full of the Exercise Price for a Warrant and the duly
executed and completed Warrant Certificate are received by the Warrant Agent
shall be deemed to be the date on which such Warrant is exercised. The Warrant
Agent shall deposit all funds received by it as payment for the exercise of
Warrants to the account of the Company maintained with it for such purpose and
shall advise the Company by telephone at the end of each day on which such a
payment is received of the amount so deposited to its account. The Warrant
Agent shall promptly confirm such telephonic advice to the Company in writing.
(b) The Warrant Agent shall from time to time, as
promptly as practicable after the exercise of any Warrants in accordance with
the terms and conditions of this Agreement and the Warrant Certificates, advise
the Company of (i) the number of Warrants so exercised, (ii) the instructions
of each Holder of the Warrant Certificates evidencing such Warrants with
respect to delivery of the Warrant Debt Securities to which such Holder is
entitled upon such exercise, and instructions of such Holder as to delivery of
Warrant Certificates evidencing the balance, if any, of the Warrants remaining
after such exercise, and (iii) such other information as the Company shall
reasonably require.
(c) As soon as practicable after the exercise of any
Warrants, the Company shall issue, pursuant to the Indenture, in authorized
denominations, to or upon the order
<PAGE> 8
Page 7
of the Holder of the Warrant Certificate evidencing such Warrants, the Warrant
Debt Security or Warrant Debt Securities to which such Holder is entitled in
[fully registered form, registered in such name or names as may be directed by
such holder] [bearer form]; and, if fewer than all of the Warrants evidenced by
such Warrant Certificate were exercised, the Company shall execute and an
authorized officer of the Warrant Agent shall manually authenticate and deliver
a new Warrant Certificate evidencing the number of Warrants remaining
unexercised. [Unless otherwise instructed by the Company, Warrant Debt
Securities in bearer form shall be delivered to or upon the order of the Holder
of such Warrant Certificate only outside the United States, its territories and
possessions and all areas subject to its jurisdiction.]2/
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer involved in the issuance of the Warrant Debt Securities; and in
the event that any such transfer is involved, the Company shall not be required
to issue or deliver any Warrant Debt Securities until such tax or other charge
shall have been paid or it has been established to the Company's satisfaction
that no such tax or other charge is due.
ARTICLE III.
[REGISTRATION]; EXCHANGE, TRANSFER AND SUBSTITUTION OF
WARRANT CERTIFICATES
Section 3.01 [Registration]; Exchange and Transfer of Warrant
Certificates. If registered Warrants -- The Warrant Agent shall keep, at its
corporate trust office [and at _________], books in which, subject to such
reasonable regulations as it may prescribe, it shall register Warrant
Certificates and transfers of outstanding Warrant Certificates.
- ----------------------------------
2/ Add additional restrictions required to comply with the TEFRA D Rules
relating to bearer securities.
<PAGE> 9
Page 8
[If Offered Debt Securities and Warrants which are immediately
detachable -- Prior to the Detachable Date, each Warrant Certificate may be
exchanged or transferred only together with the Offered Debt Security to which
such Warrant Certificate was initially attached, and only for the purpose of
effecting, or in conjunction with, an exchange or transfer of such Offered Debt
Security. Additionally, on or prior to the Detachable Date, each transfer of
an Offered Debt Security [on the register of the Offered Debt Securities] shall
operate also to transfer the Warrant Certificate or Certificates to which such
Offered Debt Security was initially attached. After the Detachable Date, upon]
[If Offered Debt Securities and Warrants which are immediately detachable or if
Warrants alone -- upon] surrender at the corporate trust office of the Warrant
Agent [or _______] of Warrant Certificates properly endorsed [or accompanied
by appropriate instruments of transfer] and accompanied by written instructions
for [transfer or] exchange, all in form satisfactory to the Company and the
Warrant Agent, such Warrant Certificates may be exchanged for other Warrant
Certificates or may be transferred in whole or in part; provided that Warrant
Certificates issued in exchange for or upon transfer of surrendered Warrant
Certificates shall evidence the same aggregate number of Warrants as the
Warrant Certificates so surrendered. No service charge shall be made for any
exchange or transfer of Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any stamp or other tax or governmental
charge that may be imposed in connection with any such exchange or transfer.
Whenever any Warrant Certificates are so surrendered for exchange or transfer,
the Company shall execute and an authorized officer of the Warrant Agent shall
manually authenticate and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates as so requested. The Warrant Agent
shall not be required to effect any exchange or transfer which would result in
the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a
number of full Warrants and a fraction of a Warrant. All Warrant Certificates
issued upon any exchange or transfer of Warrant Certificates shall evidence the
same obligations, and be entitled to the same benefits under this Agreement, as
the Warrant Certificates surrendered for such exchange or transfer.
<PAGE> 10
Page 9
Section 3.02 Mutilated, Destroyed, Lost or Stolen Warrant
Certificates. If any mutilated Warrant Certificate is surrendered to the
Warrant Agent, the Company shall execute and an officer of the Warrant Agent
shall manually authenticate and deliver in exchange therefor a new Warrant
Certificate of like tenor and bearing a number not contemporaneously
outstanding. If there shall be delivered to the Company and the Warrant Agent
(i) evidence to their satisfaction of the destruction, loss or theft of any
Warrant Certificate and of the ownership thereof and (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute and upon its request an officer of the
Warrant Agent shall manually authenticate and deliver, in lieu of any such
destroyed, lost or stolen Warrant Certificate, a new Warrant Certificate of
like tenor and bearing a number not contemporaneously outstanding. Upon the
issuance of any new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Warrant Agent) connected therewith.
Every new Warrant Certificate issued pursuant to this Section in lieu of any
destroyed, lost or stolen Warrant Certificate shall evidence an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Warrant Certificate shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly issued
hereunder. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Warrant
Certificates.
Section 3.03 Persons Deemed Owners. [If Offered Debt
Securities and Warrants which are not immediately detachable -- Prior to the
Detachable Date, the Company, the Warrant Agent and all other persons may treat
the owner of any Offered Debt Security as the owner of the Warrant Certificates
initially attached thereto for any purpose and as the person entitled to
exercise the rights represented by
<PAGE> 11
Page 10
the Warrants evidenced by such Warrant Certificates, any notice to the contrary
notwithstanding. After the Detachable Date,] and prior to due presentment of a
Warrant Certificate for registration of transfer, the Company, the Warrant
Agent and all other persons may treat the Holder as the owner thereof for any
purpose and as the person entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary notwithstanding.
Section 3.04 Cancellation of Warrant Certificates. Any
Warrant Certificate surrendered for exchange, transfer or exercise of the
Warrants evidenced thereby shall, if surrendered to the Company, be delivered
to the Warrant Agent, and all Warrant Certificates surrendered or so delivered
to the Warrant Agent shall be promptly cancelled by it and shall not be
reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in lieu or in exchange thereof. The
Company may at any time deliver to the Warrant Agent for cancellation any
Warrant Certificates previously issued hereunder which the Company may have
acquired in any manner whatsoever, and all Warrant Certificates so delivered
shall be promptly cancelled by the Warrant Agent. All cancelled Warrant
Certificates held by the Warrant Agent shall be destroyed by it, unless the
Company requests by written order that such cancelled Certificates be returned
to the Company.
ARTICLE IV.
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
Section 4.01 No Rights as Holders of Warrant Debt Securities
Conferred by Warrants or Warrant Certificates. No Warrant Certificate or
Warrant evidenced thereby shall entitle the Holder thereof to any of the rights
of a Holder of the Warrant Debt Securities, including, without limitation, the
right to receive the payment of principal of (or premium, if any) or interest,
if any, on the Warrant Debt Securities or to enforce any of the covenants in
the Indenture.
Section 4.02 Holder of Warrant Certificate May Enforce
Rights. Notwithstanding any of the provisions of
<PAGE> 12
Page 11
this Agreement, any Holder of any Warrant Certificate, without the consent of
the Warrant Agent, any stockholder or the Holder of any other Warrant
Certificate, may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce or otherwise in respect of, his right to exercise the
Warrant or Warrants evidenced by his Warrant Certificate in the manner provided
in the Warrant Certificates and in this Agreement.
ARTICLE V.
CONCERNING THE WARRANT AGENT
Section 5.01 Warrant Agent. The Company hereby appoints
_____________ as Warrant Agent of the Company in respect of the Warrants and
the Warrant Certificates upon the terms and subject to the conditions herein
set forth, and ________ hereby accepts such appointment. The Warrant Agent
shall have the power and authority granted to and conferred upon it in the
Warrant Certificates and hereby and such further power and authority to act on
behalf of the Company as the Company may hereafter grant to or confer upon it.
All of the terms and provisions with respect to such power and authority
contained in the Warrant Certificates are subject to and governed by the terms
and provisions hereof.
Section 5.02 Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth, upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the Holders from time to time of
the Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon
with the Company for all services rendered by the Warrant Agent and to
reimburse the Warrant Agent for reasonable out-of-pocket expenses
(including counsel fees) incurred by the Warrant Agent in connection
with the services rendered hereunder by the Warrant Agent. The
Company also agrees to indemnify the Warrant Agent for, and to hold it
harmless against, any loss, liability or expense incurred without
<PAGE> 13
Page 12
negligence or bad faith on the part of the Warrant Agent, arising out
of or in connection with its acting as such Warrant Agent hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance at any
time of its powers or duties hereunder. The obligations of the
Company under this subsection (a) shall survive the exercise of the
Warrant Certificates and the resignation or removal of the Warrant
Agent.
(b) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant
Agent is acting solely as agent of the Company and does not assume any
obligation or relationship of agency or trust for or with any of the
owners or Holders of the Warrant Certificates.
(c) Counsel. The Warrant Agent may consult with counsel,
which may include counsel for the Company, and the written advice of
such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered, or omitted by it hereunder
in good faith and in reliance thereon.
(d) Documents. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken or
omitted by it in reliance upon any Warrant Certificates, notice,
direction, consent, certificate, affidavit, statement or other paper
or document reasonably believed by it to be genuine and to have been
presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, any of its
officers, directors and employees, or any other agent of the Company,
in its individual or any other capacity, may become the owner of, or
acquire any interest in, any Warrant Certificates, with the same
rights that it would have if it were not such Warrant Agent, officer,
director, employee or other agent, and, to the extent permitted by
applicable law, it may engage or be interested in any financial or
other transaction with the Company and may act on, or as depositary,
trustee or agent for, any committee or body of holders of Warrant Debt
Securities or other obligations of the Company as freely as if it were
not such Warrant Agent.
<PAGE> 14
Page 13
(f) No Liability for Interest. The Warrant Agent shall
not be under any liability for interest on any monies at any time
received by it pursuant to any of the provisions of this Agreement or
of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall
not incur any liability with respect to the validity of this Agreement
or any of the Warrant Certificates.
(h) No Responsibility for Representations. The Warrant
Agent shall not be responsible for any of the Recitals or
representations contained herein or in the Warrant Certificates
(except as to the Warrant Agent's Certificate of Authentication
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or
obligations shall be read into this Agreement or the Warrant
Certificates against the Warrant Agent. The Warrant Agent shall not
be under any obligation to take any action hereunder which may tend to
involve it in any expense or liability, the payment of which within a
reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Company of any of the Warrant
Certificates authenticated by the Warrant Agent and delivered by it to
the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the Warrant Certificates or any exercise of
the Warrants evidenced thereby. The Warrant Agent shall have no duty
or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in the
Warrant Certificates or in the case of the receipt of any written
demand from a Holder of a Warrant Certificate with respect to such
default, including, without limiting the generality of the foregoing,
any duty or responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided
<PAGE> 15
Page 14
in Section 6.04 hereof, to make any demand upon the Company.
Section 5.03 Resignation, Removal and Appointment of
Successor.
(a) The Company agrees, for the benefit of the Holders
from time to time of the Warrant Certificates, that there shall at all times be
a Warrant Agent hereunder until all of the Warrant Certificates are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such
agent by giving written notice to the Company of such intention on its part,
specifying the date on which it desires its resignation to become effective;
provided that, without the consent of the Company, such date shall not be less
than [three months] after the date on which such notice is given. The Warrant
Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed by or on behalf of the Company and specifying such
removal and the date on which the Company expects such removal to become
effective. Such resignation or removal shall take effect upon the appointment
by the Company of a successor Warrant Agent (which shall be a bank or trust
company organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia and authorized under
such laws to exercise corporate trust powers) by an instrument in writing filed
with such successor Warrant Agent and the acceptance of such appointment by
such successor Warrant Agent pursuant to Section 5.03(d).
(c) In case at any time the Warrant Agent shall resign,
or be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make
an assignment for the benefit of its creditors or consent to the appointment of
a receiver or custodian of all or any substantial part of its property, or
shall admit in writing its inability to pay or meet its debts as they mature,
or if a receiver or custodian of it or of all or any substantial part of its
property shall be appointed, or if an order of any court shall be entered
approving any petition filed by or against it under the provisions of any
applicable bankruptcy or similar law, or if any public officer shall have taken
charge or control of the
<PAGE> 16
Page 15
Warrant Agent or of its property or affairs, a successor Warrant Agent,
qualified as aforesaid, shall be appointed by the Company by an instrument
filed with the successor Warrant Agent. Upon appointment as aforesaid of a
successor Warrant Agent acceptance by the latter of such appointment, the
Warrant Agent so superseded shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as
Warrant Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer,
deliver and pay over, and such successor Warrant Agent shall be entitled to
receive, all monies, securities and other property on deposit with or held by
such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent
hereunder may be merged or converted or any corporation with which the Warrant
Agent may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Warrant Agent, provided that it shall be qualified as aforesaid, shall be
the successor Warrant 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.
ARTICLE VI.
MISCELLANEOUS
[Section 6.01 Consolidations and Mergers of the Company and
Sales, Leases and Conveyances Permitted Subject to Certain Conditions. The
Company may consolidate with, or sell, lease or convey all or substantially all
of its assets to, or merge with or into any other corporation, provided
<PAGE> 17
Page 16
that in any such case, (i) either the Company shall be the continuing
corporation, or the successor corporation shall be a corporation organized and
existing under the laws of the United States of America or a State thereof and
such successor corporation shall expressly assume the obligations of the
Company hereunder.]
Section 6.02 Rights and Duties of Successor Corporation. In
case of any such consolidation, merger, sale, lease or conveyance and upon any
such assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it
had been named herein, and the predecessor corporation, except in the event of
a lease, shall be relieved of any further obligation under this Agreement and
the Warrants. Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of the Company, any or all of
the Warrant Debt Securities issuable pursuant to the terms hereof.
Section 6.03 Amendment. This Agreement may be amended by the
parties hereto, without the consent of the Holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or curing, correcting or supplementing
any defective provision contained herein, or making such provisions in regard
to matters or questions arising under this Agreement as the Company may deem
necessary or desirable; provided that such action shall not adversely affect
the interests of the Holders of the Warrant Certificates in any material
respect. The Warrant Agent may, but shall not be obligated to, enter into any
amendment to this Agreement which affects the Warrant Agent's own rights,
duties or immunities under this Agreement or otherwise.
Section 6.04 Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to
the Company by the Holder of a Warrant Certificate pursuant to the provisions
of the Warrant Certificates, the Warrant Agent shall promptly forward such
notice or demand to the Company.
Section 6.05 Addresses. Any communications from the Company
to the Warrant Agent with respect to this Agreement shall be addressed to
_____________, Attention: ____________________ and any communications from the
Warrant
<PAGE> 18
Page 17
Agent to the Company with respect to this Agreement shall be addressed to
ASARCO Incorporated, 180 Maiden Lane, New York, New York 10038, Attention:
________________, with a copy to the ___________________ (or such other address
as shall be specified in writing by the Warrant Agent or by the Company).
Section 6.06 Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be governed by and construed in accordance
with the laws of the State of New York.
Section 6.07 Delivery of Prospectus. The Company will
furnish to the Warrant Agent sufficient copies of a prospectus, appropriately
supplemented, relating to the [ ] (the "Prospectus"), and the
Warrant Agent agrees that, upon the exercise of any Warrant Certificate, the
Warrant Agent will deliver to the person designated to receive a Warrant Debt
Security, prior to or concurrently with the delivery of such securities, a
Prospectus.
Section 6.08 Obtaining of Governmental Approvals. The
Company will from time to time take all action which may be necessary to obtain
and keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under United States
Federal and State laws (including, without limitation, the maintenance of the
effectiveness of a registration statement in respect of the Warrant Debt
Securities under the Securities Act of 1933), which may be or become required
in connection with exercise of the Warrant Certificates and the original
issuance and delivery of the Warrant Debt Securities in connection with such
exercise.
Section 6.09 Persons Having Rights under Warrant Agreement.
Nothing in this Agreement expressed or implied and nothing that may be inferred
from any of the provisions hereof is intended, or shall be construed, to confer
upon, or give to, any person or corporation other than the Company, the Warrant
Agent and the Holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement or of any covenant, condition,
stipulation, promise or agreement hereof; and all covenants, conditions,
stipulations, promises and agreements in this Agreement contained shall be for
the sole and exclusive benefit of the
<PAGE> 19
Page 18
Company and the Warrant Agent and their successors and of the Holders of the
Warrant Certificates.
Section 6.10 Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
Section 6.11 Counterparts. This Agreement may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the same
instrument.
Section 6.12 Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent [and at ________] for inspection by the
Holder of any Warrant Certificate. The Warrant Agent may require such Holder
to submit his Warrant Certificate for inspection by it.
<PAGE> 20
Page 19
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, and their respective corporate seal to be
hereunto affixed and attested, all as of the day and year first above written.
ASARCO INCORPORATED
By:
----------------
Name:
Title:
Attest:
- ----------------------------
[Assistant] Secretary
Attest:
[Assistant] Secretary
[WARRANT AGENT]
By:
----------------
Name:
Title:
Attest:
- ----------------------------
[Assistant] Secretary
<PAGE> 21
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Face]
Form of Legend if Offered Debt Securities [Prior to ___________,
with Warrants which are not immediately this Warrant Certificate
detachable: may be transferred or
exchanged if and only
if the [Title of Debt
Security] to which it
was initially attached
is so transferred or
exchanged.]
Form of Legend if Warrants are not [Prior to ___________,
immediately exercisable: Warrants evidenced by
this Warrant Certificate
cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER 5:00 P.M. NEW YORK CITY TIME ON --------, 199--
ASARCO INCORPORATED
Warrant Certificate representing
Warrants to purchase
[Title of Warrant Debt Securities]
as described herein.
--------------------
No. _____________ Warrants
This certifies that [the bearer is the] [____________ or
registered assigns is the registered] owner of the above indicated number of
Warrants, each Warrant entitling such [bearer [If Offered Debt Securities with
Warrants which are not immediately detachable -- , subject to the bearer
qualifying as a "Holder" of this Warrant Certificate, as hereinafter defined]]
[registered owner] to purchase, at any time [after 5:00 p.m. New York
<PAGE> 22
Page 2
City time on __________, ____, and] on or before 5:00 p.m. New York City time
on __________, ____, $ __________ principal amount of [Title of Warrant Debt
Securities] (the "Warrant Debt Securities") of ASARCO Incorporated (the
"Company"), issued or to be issued under the Indenture hereinafter defined), on
the following basis.1/ [During the period from __________, ____ through and
including __________, ____, each Warrant shall entitle the Holder thereof,
subject to the provisions of this Agreement, to purchase from the Company the
principal amount of Warrant Debt Securities stated in the Warrant Certificate
at the exercise price of __% of the principal amount thereof [plus accrued
amortization, if any, of the original issue discount of the amortization, if
any, of the original issue discount of the Warrant Debt Securities) (plus
accrued interest, if any, from the most recent date from which interest shall
have been paid on the Warrant Debt Securities or, if no interest shall have
been paid on the Warrant Debt Securities, from __________, ____]; during the
period from __________, ____ through and including __________, ____, each
Warrant shall entitle the Holder thereof, subject to the provisions of this
Agreement, to purchase from the Company the principal amount of Warrant Debt
Securities stated in the Warrant Certificate at the exercise price of __% of
the principal amount thereof [plus accrued amortization, if any, of the
original issue discount of the Warrant Debt Securities] [plus accrued interest,
if any, from the most recent date from which interest shall have been paid on
the Warrant Debt Securities or, if no interest shall have been paid on the
Warrant Debt Securities, from __________, ____] in each case, the original
issue discount ($__________ for each $1,000 principal amount of Warrant Debt
Securities) will be amortized at a __% annual rate, computed on a[n]
[semi]-annual basis[, using a 360-day year consisting of twelve 30-day months]
(the "Exercise Price"). The Holder of this Warrant Certificate may exercise
the Warrants evidenced hereby, in whole or in part, by surrendering this
Warrant Certificate, with the purchase form set forth hereon duly completed,
accompanied by payment in full, in lawful money of the United
- ----------------------------------
1/ Complete and modify the following provisions as appropriate to reflect the
terms of the Warrants and the Warrant Debt Securities.
<PAGE> 23
Page 3
States of America, [in cash or by certified check or official bank check in New
York Clearing House funds or by bank wire transfer in immediately available
funds], the Exercise Price for each Warrant exercised, to the Warrant Agent (as
hereinafter defined), at the corporate trust office of [name of Warrant Agent],
or its successor as warrant agent (the "Warrant Agent") [or at __________,], at
the addresses specified on the reverse hereof and upon compliance with and
subject to the conditions set forth herein and in the Warrant Agreement (as
hereinafter defined). This Warrant Certificate may be exercised only for the
purchase of Warrant Debt Securities in the principal amount of [$1,000] or any
integral multiple thereof.
The term "Holder" as used herein shall mean [If Offered Debt
Securities with Warrants which are not immediately detachable -- , prior to
__________, ____ (the "Detachable Date"), the [bearer] [registered owner] of
the Company's [title of Offered Debt Securities] to which such Warrant
Certificate was initially attached, and after such Detachable Date,] [the
bearer of such Warrant Certificate] [the person in whose name at the time such
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose pursuant to Section 3.01].
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Debt Securities in registered
form. Upon any exercise of fewer than all of the Warrants evidenced by this
Warrant Certificate, there shall be issued to the [bearer] [registered owner]
hereof a new Warrant Certificate evidencing the number of Warrants remaining
unexercised.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of _________, ____ (the "Warrant
Agreement"), between the Company and the Warrant Agent and is subject to the
terms and provisions contained in the Warrant Agreement, to all of which terms
and provisions the holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at __________].
<PAGE> 24
Page 4
The Warrant Debt Securities to be issued and delivered upon
the exercise of Warrants evidenced by this Warrant Certificate will be issued
under and in accordance with an Indenture, dated as of October 1, 1994 (the
"Indenture"), between the Company and Chemical Bank, a New York banking
corporation, as trustee (such trustee, and any successors to such trustee, the
"Trustee") and will be subject to the terms and provisions contained in the
Warrant Debt Securities and in the Indenture. Copies of the Indenture,
including the form of the Warrant Debt Securities, are on file at the corporate
trust office of the Trustee [and at ________].
[If Offered Debt Securities with Warrants which are not
immediately detachable -- Prior to __________, 19__ (the "Detachable Date"),
this Warrant Certificate may be exchanged or transferred only together with the
[title of Offered Debt Security] (the "Offered Debt Security") to which this
Warrant Certificate was initially attached, and only for the purpose of
effecting, or in conjunction with, an exchange or transfer of such Offered Debt
Security. Additionally, on or prior to the Detachable Date, each transfer of
such Offered Debt Security on the register of the Offered Debt Securities shall
operate also to transfer this Warrant Certificate. After the Detachable Date,
this] [If Offered Debt Securities with Warrants which are immediately
detachable or Warrants alone -- This] Warrant Certificate, and all rights
hereunder, may be transferred [If bearer Warrants -- by delivery and the
Company and the Warrant Agent may treat the bearer hereof as the owner for all
purposes] [If registered Warrants -- when surrendered at the corporate trust
office of the Warrant Agent [or __________] by the registered owner or his
assigns, in person or by an attorney duly authorized in writing, in the manner
and subject to the limitations provided in the Warrant Agreement.]
[If Offered Debt Securities with Warrants which are not
immediately detachable -- Except as provided in the immediately preceding
paragraph, after] [If Offered Debt Securities with Warrants which are
immediately detachable or Warrants alone -- After] authentication by the
Warrant Agent and prior to the expiration of this Warrant Certificate, this
Warrant Certificate may be exchanged at the corporate trust office of the
Warrant Agent [or at
<PAGE> 25
Page 5
__________] for Warrant Certificates representing the same aggregate number of
Warrants.
This Warrant Certificate shall not entitle the [bearer]
[registered owner] hereof to any of the rights of a [registered] [holder] of
the Warrant Debt Securities, including, without limitation, the right to
receive payments of principal of (and premium, if any) or interest, if any, on
the Warrant Debt Securities or to enforce any of the covenants of the
Indenture.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid or obligatory for
any purpose until authenticated by the Warrant Agent.
<PAGE> 26
Page 6
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed under its corporate seal.
Dated:
----------, ----
ASARCO INCORPORATED
By:
----------------------------------
Name:
Title:
Attest:
- ----------------------------
Countersigned:
- ----------------------------
As Warrant Agent
By:
-------------------------
Authorized Signature
<PAGE> 27
Page 7
[REVERSE] [FORM OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby, the Holder of this
Warrant Certificate must pay (in cash or by certified check or official bank
check in New York Clearing House funds or by bank wire transfer in immediately
available funds), the Exercise Price in full for each of the Warrants
exercised, to __________, Corporate Trust Department, __________, Attn:
__________ [or __________], which payment should specify the name of the Holder
of this Warrant Certificate and the number of Warrants exercised by such
Holder. In addition, the Holder of this Warrant Certificate should complete
the information required below and present in person or mail by registered mail
this Warrant Certificate to the Warrant Agent at the addresses set forth below.
[FORM OF EXERCISE]
(To be executed upon exercise of Warrants.)
The undersigned hereby irrevocably elects to exercise Warrants,
represented by this Warrant Certificate, to purchase $__________ principal
amount of the [Title of Warrant Debt Securities] (the "Warrant Debt
Securities") of ASARCO Incorporated and represents that he has tendered payment
for such Warrant Debt Securities [in cash or by certified check or official
bank check in New York Clearing House funds or by bank wire transfer in
immediately available funds] to the order of ASARCO Incorporated, c/o
__________, in the amount of $__________ in accordance with the terms hereof.
The undersigned requests that said principal amount of Warrant Debt Securities
be in [bearer] [fully registered] form, in the authorized denominations,
[registered in such names] and delivered, all as specified in accordance with
the instructions set forth below.
If said principal amount of Warrant Debt Securities is less
than all of the Warrant Debt Securities purchasable hereunder, the undersigned
requests that a new Warrant Certificate representing the remaining balance of
the Warrants evidenced hereby be issued and delivered to the undersigned unless
otherwise specified in the instructions below.
<PAGE> 28
Page 8
Dated:
Name
-----------------------------------
(Please Print)
- ---------------------------
(Insert Social Security or
Other Identifying Number of
Holder)
Address
---------------------------------
----------------------------------------
Signature
------------------------------
[If registered warrant -- (Signature
must conform in all respects to name
of holder as specified on the face
of this Warrant Certificate and must
bear a signature guarantee by a
bank, trust company or member broker
of the New York, Midwest or Pacific
Stock Exchange.)]
This Warrant may be exercised at the following addresses:
By hand at
-----------------------------
-----------------------------
-----------------------------
-----------------------------
By mail at
-----------------------------
-----------------------------
-----------------------------
-----------------------------
(Instructions as to form and delivery of Warrant
Debt Securities and/or Warrant Certificates):
<PAGE> 29
Page 9
[If registered Warrant --]
[FORM OF ASSIGNMENT]
(TO BE EXECUTED TO TRANSFER
THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED __________ hereby sells, assigns and
transfers unto
Please insert social security or other
identifying number
--------------------------------------
- ------------------------------
(Please print name and address
including zip code)
_____________________________________________________________________________
the right represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint____________, Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution.
Dated:
--------------------------------------
Signature
(Signature must conform in all respects
to name of holder as specified on
the face of this Warrant Certificate
and must bear a signature guarantee
by a bank, trust company or member
broker of the New York, Midwest or
Pacific Stock Exchange.)
Signature Guaranteed:
- -------------------------------
<PAGE> 30
Page 10
CERTIFICATION AS TO NON-U.S. OWNERSHIP1/
[To be completed if Securities
in bearer form are requested]
This is to certify that as of the date hereof, the Warrant
Debt Securities which are to be delivered to the undersigned in bearer form
upon the exercise by the undersigned of this Warrant Certificate are not being
acquired by or on behalf of, or for offer to resell or for resale to, a United
States person, other than a financial institution, as defined in the Treasury
Regulations under Section 165(j), that agrees to comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended (the "Code"), and the regulations thereunder. As used herein, "United
States person" means a citizen or a resident of the United States of America,
its territories, its possessions or any area subject to its jurisdiction
("United States"), or a corporation, partnership or other entity created or
organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust the income of which is subject to
United States Federal income tax regardless of its source.
Signature:
-------------------------
- -------------------------
1/ Add additional restrictions required to comply with the TEFRA D Rules
relating to bearer securities.
<PAGE> 31
Page 11
[Form of certificate to be given by person requesting
delivery of bearer Warrant Debt Security upon
exercise of Warrant]
CERTIFICATE1/
ASARCO INCORPORATED
[Title of Warrant Debt Securities] Issuable Upon Exercise of Warrants ("Warrant
Debt Securities")
TO: ASARCO Incorporated
[Name of Warrant Agent], or
Warrant Agent
This certificate is submitted in connection with the exercise
of the Warrant Certificate relating to the Warrant Debt Securities, by delivery
to you of the Election to Purchase dated as of __________, ____.
The undersigned hereby certifies that as of the date hereof,
the Warrant Debt Securities which are to be delivered to the undersigned in
bearer form upon the exercise by the undersigned of such Warrant Certificate
are not being acquired by or on behalf of, or for offer to resell or for resale
to, a United States person, other than a financial institution, as defined in
the Treasury Regulations under Section 165(i), that agrees to comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code
of 1986, as amended (the "Code"), and the regulations thereunder. As used
herein, "United States person" means a citizen or a resident of the United
States of America, its territories, its possessions or any area subject to its
jurisdiction ("United States"), or a corporation, partnership or other entity
created or organized in or under the laws of the United States or any
- ----------------------
1/ Add additional restrictions required to comply with the TEFRA D Rules
relating to bearer securities.
<PAGE> 32
Page 12
political subdivision thereof, or an estate or trust the income of which is
subject to United States Federal income tax regardless of its source.
Dated:
----------------------------------
Person Entitled to Delivery of
Warrant Debt Securities
Described Herein
<PAGE> 1
EXHIBIT 4.6
FORM OF CURRENCY WARRANT AGREEMENT
------------------------------------------------
ASARCO INCORPORATED
and
--------------------
As Warrant Agent
------------------------------
WARRANT AGREEMENT
dated as of ----------------- ---, ----
-------------------------------
UP TO ----------- CURRENCY [PUT/CALL] WARRANTS
EXPIRING ---------------, ----
<PAGE> 2
WARRANT AGREEMENT
THIS AGREEMENT, dated as of _______ __, ____, between ASARCO
INCORPORATED, a corporation duly organized and existing under the laws of the
State of New Jersey (the "Company"), and [name of Warrant Agent], a [banking
association] duly incorporated and existing under the laws of _______________,
as Warrant Agent (the "Warrant Agent"),
W I T N E S S E T H T H A T :
WHEREAS, the Company proposes to sell warrants (the "Warrants"
or, individually, a "Warrant") representing the right to receive from the
Company the Cash Settlement Value (as defined herein) in U.S. dollars of the
right to [purchase/sell] ___________ at a price of U.S. ($________; and
WHEREAS, the Company wishes the Warrant Agent to act on behalf
of the Company in connection with the issuance, transfer and exercise of the
Warrants, and wishes to set forth herein, among other things, the provisions of
the Warrants and the terms and conditions on which they may be issued,
transferred, exercised and cancelled.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE, FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANTS
SECTION 1.01 Issuance of Warrants; Book Entry Procedures;
Successor Depository. (a) The Warrants shall be represented by a single
certificate (the "Global Warrant Certificate"). Each Warrant shall represent
the right, subject to the provisions contained herein and in the Global Warrant
Certificate, to receive the Cash Settlement Value (as defined in paragraph (f)
of Section 2.02) of such Warrant. In no event shall Holders (as defined in
Section 2.01) be entitled to receive any interest on any Cash Settlement Value
(unless the Company shall default in the
<PAGE> 3
Page 2
payment of such Cash Settlement Value). Holders will not be entitled to
receive definitive Warrants evidencing the Warrants; provided, however, that if
the Depository (as defined in Section 1. is at any time unwilling or unable to
continue as Depository for the Warrants and a successor Depository is not
appointed by the Company within 90 days, the Company will issue Warrants in
definitive form in exchange for the Global Warrant Certificate. In addition,
the Company may at any time determine not to have the Warrants represented by a
Global Warrant Certificate and, in such event, will issue Warrants in
definitive form in exchange for the Global Warrant Certificate. In either
instance, and in accordance with the provisions of this Agreement, each Holder
will be entitled to have a number of Warrants equivalent to such Holder's
beneficial interest in the Global Warrant Certificate registered in its name
and will be entitled to physical delivery of such Warrants in definitive form
by the Depository Participant (as defined in Section 1.01(c)) through which
such Holder's beneficial interest is reflected. The provisions of Section 1.05
shall apply only if and when Warrants in definitive form ("Warrant
Certificates") are issued hereunder. Unless the context shall otherwise
require, all references in this Agreement to the Global Warrant Certificate
shall include the Warrant Certificates in the event that Warrant Certificates
are issued.
(b) The Global Warrant Certificate shall be deposited with
the Depository or its agent (the term "Depository," as used herein, initially
refers to The Depository Trust Company and includes any successor depository
selected by the Company as provided in Section 1.01(d)) for credit to the
accounts of the Depository Participants as shown on the records of the
Depository from time to time.
(c) The Global Warrant Certificate will initially be
registered in the name of a nominee of the Depository selected by the Company
for the Warrants. The Warrant holdings of Depository Participants will be
recorded on the books of the Depository. The holdings of customers of
Depository Participants will be reflected on the books and records of such
Depository Participants and will not be known to the Warrant Agent, the Company
or to the Depository. "Depository Participants" include securities brokers and
dealers, banks and trust companies, clearing organizations and certain other
organizations which are participants in the DTC system. Access to the
Depository's system is also available to others such as
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banks, securities dealers and trust companies that clear or maintain a
custodial relationship with a Depository Participant, either directly or
indirectly. The Global Warrant Certificate will be held by the Depository or
its agent.
(d) The Company may from time to time select a new entity to
act as Depository and, if such selection is made, the Company shall promptly
give the Warrant Agent notice to such effect identifying the new Depository and
the Global Warrant Certificate shall be delivered to the Warrant Agent and
shall be transferred to the new Depository as provided in Section 1.04 as
promptly as possible. Appropriate changes may be made in the Global Warrant
Certificate, the notice of exercise and the related notices delivered in
connection with an exercise of Warrants to reflect the selection of the new
Depository.
SECTION 1.02 Form, Execution and Delivery of Global Warrant
Certificate. The Global Warrant Certificate may have imprinted or otherwise
reproduced thereon such letters, numbers or other marks of identification or
designation and such legends or endorsements as the officers of the Company
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any stock exchange on
which the Warrants may be listed or of the Depository, or to conform to usage.
The Global Warrant Certificate shall be signed on behalf of the Company by its
President, Chairman of the Board, officer serving as Chief Financial Officer,
Treasurer, any Executive Vice President or any Vice President, manually or by
facsimile signature, and a facsimile of its corporate seal shall be impressed,
imprinted or engraved thereon, which shall be attested by its Secretary or any
Assistant Secretary, either manually or by facsimile signature. Typographical
and other minor errors or defects in any such reproduction of the seal or any
such signature shall not affect the validity or enforceability of the Global
Warrant Certificate that has been duly countersigned and delivered by the
Warrant Agent.
In case any officer of the Company who shall have signed the
Global Warrant Certificate either manually or by facsimile signature shall
cease to be such officer before the Global Warrant Certificate so signed shall
have been countersigned and delivered by the Warrant Agent to the
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Company or delivered by the Company, such Global Warrant Certificate
nevertheless may be countersigned and delivered as though the person who signed
such Global Warrant Certificate had not ceased to be such officer of the
Company ; and the Global Warrant Certificate may be signed on behalf of the
Company by such persons as, at the actual date of the execution of such Global
Warrant Certificate, shall be the proper officers of the Company, although at
the date of the execution of this Agreement any such person was not such
officer.
SECTION 1.03 Global Warrant Certificate. One or more Global
Warrant Certificates relating to no more than _______ Warrants originally
issued may be executed by the Company and delivered to the Warrant Agent on or
after the date of execution of this Agreement, provided that only one Global
Warrant Certificate shall be outstanding at any one time. The Warrant Agent is
authorized, upon receipt of a Global Warrant Certificate from the Company, duly
executed on behalf of the Company, to countersign such Global Warrant
Certificate. The Global Warrant Certificate shall be manually countersigned
and dated the date of countersignature by the Warrant Agent and shall not be
valid for any purpose unless so countersigned. The Warrant Agent shall
countersign and deliver the Global Warrant Certificate to or upon the order of
the Company.
The Global Warrant Certificate may be exchanged for a new
Global Warrant Certificate to reflect the issuance by the Company of additional
Warrants; provided, however, that in no event shall the number of Warrants
represented by the Global Warrant Certificate exceed _______________ originally
issued. To effect such an exchange the Company shall deliver to the Warrant
Agent a new Global Warrant Certificate duly executed on behalf of the Company
as provided in Section 1.02. The Warrant Agent shall countersign the new
Global Warrant Certificate as provided in this Section 1.03 and, upon and
written order of the Company, shall deliver the new Global Warrant Certificate
to the Depository in exchange for, and upon receipt of, the Global Warrant
Certificate then held by the Depository. The Warrant Agent shall cancel the
Global Warrant Certificate delivered to it by the Depository and return the
cancelled Global Warrant Certificate to the Company.
SECTION 1.04 Registration of Transfers and Exchanges. Except
as otherwise provided herein or in the Global Warrant Certificate, the Warrant
Agent shall from
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time to time register the transfer of the Global Warrant Certificate in the
records of the Warrant Agent only to the Depository, to a nominee of the
Depository, to a successor Depository or to a nominee of a successor
Depository, upon surrender of such Global Warrant Certificate, duly endorsed
and accompanied by a written instrument or instruments of transfer in form
satisfactory to the Warrant Agent and the Company, duly signed by the
registered Holder thereof or by the duly appointed legal representative thereof
or by a duly authorized attorney, such signature to be guaranteed by a bank or
trust company, by a broker or dealer which is a member of the National
Association of Securities Dealers, Inc. or by a member of a national securities
exchange. Upon any such registration of transfer, the Company shall execute
and the Warrant Agent shall countersign and deliver in the name of the
designated transferee a new Global Warrant Certificate of like tenor and
evidencing a like number of unexercised Warrants as evidenced by the Global
Warrant Certificate at the time of such registration of transfer.
The Global Warrant Certificate may be transferred as provided
above at the option of the Holder thereof when surrendered to the Warrant Agent
at its office or agency maintained for the purpose of transferring and
exercising the Warrants, which shall be south of Chambers Street in the Borough
of Manhattan, The City of New York (the "Warrant Agent Office"), and which is,
on the date of this Agreement, _______________, New York, New York
_______________, Attention: [Corporate Trust Department], or at the office of
any successor Warrant Agent as provided in Section 5.03, for another Global
Warrant Certificate of like tenor and representing a like number of unexercised
Warrants.
SECTION 1.05 Warrant Certificates. Any Warrant Certificates
issued in accordance with Section 1.01(a) shall be in registered form
substantially in the form set forth in Exhibit A hereto, with such appropriate
insertions, omissions, substitutions and other variations as are necessary or
desirable for individual Warrant Certificates, and may represent any integral
multiple of Warrants. The Warrant Certificates may have imprinted or otherwise
reproduced thereon such letters, numbers or other marks of identification or
designation and such legends or endorsements as the officers of the Company
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and are not inconsistent with
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the provisions of this Agreement, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Warrants may be listed or of the
Depository, or to conform to usage. Warrant Certificates shall be signed on
behalf of the Company upon the same conditions, in substantially the same
manner and with the same effect as the Global Warrant Certificate.
Each Warrant Certificate, when so signed on behalf of the
Company, shall be delivered to the Warrant Agent, which shall manually
countersign and deliver the same to or upon the written order of the Company.
Each Warrant Certificate shall be dated the date of its countersignature.
No Warrant shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.
Warrant Certificates delivered in exchange for the Global
Warrant Certificate shall be registered in such names and addresses (including
tax identification numbers) and in such denominations as shall be requested in
writing by the Depository or its nominee in whose name the Global Warrant
Certificate is registered, upon written certification to the Company and the
Warrant Agent in form satisfactory to each of them of a beneficial ownership
interest in the Global Warrant Certificate.
The Company shall cause to be kept at an office of the Warrant
Agent in the [City of New York] a register (the register maintained in such
office and in any other office or agency maintained by or on behalf of the
Company for such purpose being herein sometimes collectively referred to as the
"Warrant Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Warrant
Certificates and of transfers of Warrant Certificates. The Warrant Agent is
hereby appointed "Warrant Registrar" for the purpose of registering Warrant
Certificates and transfers of Warrant Certificates as herein provided.
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For purposes of this Section 1.05, a "Warrantholder" of a
Warrant Certificate at any particular time is the person in whose name such
Warrant Certificate is registered in the Warrant Register at such time.
Upon surrender for registration of transfer of any Warrant
Certificate at an office or agency of the Company maintained for such purpose,
the Company shall execute, and the Warrant Agent shall countersign and deliver,
in the name of the designated transferee or transferees, one or more new
Warrant Certificates of any authorized denominations and representing Warrants
of a like aggregate number.
At the option of the Warrantholder, Warrant Certificates may
be exchanged for other Warrant Certificates of any authorized denominations and
representing Warrants of a like aggregate number, upon surrender of the Warrant
Certificates to be exchanged at such office or agency. Whenever any Warrant
Certificates are so surrendered for exchange, the Company shall execute, and
the Warrant Agent shall countersign and deliver, the Warrant Certificates which
the Warrantholder making the exchange is entitled to receive.
All Warrant Certificates issued upon any registration of
transfer or exchange of Warrant Certificates shall be the valid obligations of
the Company, evidencing the same obligations of the Company, and entitled to
the same benefits under this Warrant Agreement, as the Warrant Certificates
surrendered upon such registration of transfer or exchange.
Every Warrant Certificate presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Warrant Agent) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Warrant
Registrar duly executed, by the Warrantholder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Warrant Certificates.
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If any mutilated Warrant Certificate is surrendered to the
Warrant Agent, the Company shall execute and the Warrant Agent shall
countersign and deliver in exchange therefor a new Warrant Certificate of like
tenor representing Warrants of a like number and bearing a number not
contemporaneously outstanding.
If there shall be delivered by a Warrantholder to the Company
and the Warrant Agent (i) evidence to their satisfaction of the destruction,
loss or theft of any Warrant Certificate, (ii) such security or indemnity as
may be required by them to save each of them and any agent of either of them
harmless and (iii) funds sufficient to cover any cost or expense to the Company
(including any fees charged by the Warrant Agent) relating to the issuance of a
new Warrant Certificate, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Warrant Agent
shall countersign and deliver, in lieu of any such destroyed, lost or stolen
Warrant Certificate, a new Warrant Certificate of like tenor representing
Warrants of a like number and bearing a number not contemporaneously
outstanding.
In case the Warrants evidenced by any such mutilated,
destroyed, lost or stolen Warrant Certificate have been exercised, or have been
or are about to be deemed to be exercised, the Company in its discretion may,
instead of issuing a new Warrant Certificate, treat the same as if it had
received written irrevocable notice of exercise in good form in respect
thereof, as provided herein.
Every new Warrant Certificate issued pursuant to this Section
1.05 in lieu of any destroyed, lost or stolen Warrant Certificate shall
constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Warrant Certificate shall be at
any time enforceable by anyone, and shall be entitled to all the benefits of
this Warrant Agreement equally and proportionately with any and all other
Warrant Certificates duly issued hereunder.
The provisions of this Section 1.05 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Warrant
Certificates.
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Prior to due presentment of a Warrant Certificate for
registration of transfer, the Company, the Warrant Agent and any agent of the
Company or the Warrant Agent may treat the person in whose name such Warrant
Certificate for all purposes hereunder whatsoever, whether or not such Warrant
Certificate be exercised or deemed to be exercised and neither the Company, the
Warrant Agent nor any agent of the Company or the Warrant Agent shall be
affected by notice to the contrary.
All Warrant Certificates surrendered for exercise,
registration of transfer or exchange shall, if surrendered to any person other
than the Warrant Agent, be delivered to the Warrant Agent and shall be promptly
cancelled by it. The Company may at any time deliver to the Warrant Agent for
cancellation any Warrant Certificates previously countersigned and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Warrant Certificates so delivered shall be promptly cancelled by the Warrant
Agent. No Warrant Certificates shall be countersigned in lieu of or in
exchange for any Warrant Certificates cancelled as provided in this Section
1.05, except as expressly permitted by this Warrant Agreement. All cancelled
Warrant Certificates held by the Warrant Agent shall be disposed of as directed
by the Company.
ARTICLE II.
DURATION AND EXERCISE OF WARRANTS
SECTION 2.01 Duration of Warrants; Minimum Exercise Amounts;
Notice of Exercise. Subject to the limitations described herein, each Warrant
evidenced by the Global Warrant Certificate may be irrevocably exercised in
whole but not in part on any New York Business Day from its date of issuance
until 3:00 p.m., Now York City time, five New York Business Days prior to
____________, ___ (the "Expiration Date") or until earlier an exercise provided
in Section 2.03. Except in the case of automatic exercise, each Warrant may be
exercised by written notice to the Warrant Agent from a Depository Participant
acting on behalf of the beneficial owner of such Warrant (each a "Holder");
provided, however, that notices of exercise are subject to rejection by the
Warrant Agent as provided herein. Not fewer than ________ Warrants may be
exercised by or on behalf of any one Holder at any one time, except that no
such minimum exercise amount shall apply in the
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case of automatic exercise on the Expiration Date or earlier automatic exercise
as provided in Section 2.03. Irrevocable notice of exercise to the Warrant
Agent shall be in the form set forth in Exhibit B hereto and shall be sent to
the Warrant Agent in writing (which shall include facsimile transmissions) at
its address set forth in such form of notice or at such other address as the
Warrant Agent may specify from time to time. As used herein, "New York
Business Day" means any day other than a Saturday or a Sunday or a day on which
commercial banks in the City of New York are required or authorized to be
closed. Except as provided in Section 2.02(b), the Warrant Agent shall be
entitled to rely conclusively on any notice of exercise received by it with no
duty of inquiry by the Warrant Agent.
SECTION 2.02 Exercise and Delivery of Warrants. (a) Except
in the case of automatic exercise on the Expiration Date or earlier automatic
exercise as provided in Section 2.03 of this Agreement and subject to Section
2.02(b)(i) of this Agreement, the exercise date (the "Exercise Date") for a
Warrant shall be the New York Business Day next succeeding the date on which
the Warrant Agent has received written irrevocable notice of exercise in good
form at or prior to 3:00 p.m., New York City time; and if the Warrant Agent
shall receive such notice of exercise after 3:00 p.m., New York City time, on
such date, such notice shall be deemed to have been received at or prior to
3:00 p.m., New York City time, on the next succeeding New York Business Day,
and in such event the Exercise Date shall be the second New York Business Day
succeeding the date on which the Warrant Agent actually received such notice of
exercise. Any notice of exercise received after 3:00 p.m., New York City time,
on the fifth New York Business Day preceding the Expiration Date or, if
earlier, any Delisting Date (as defined in Section 2.03(a)) shall be void and
of no effect and shall be deemed not to have been delivered.
(b) Following receipt of a written irrevocable notice of
exercise in good form, the Warrant Agent shall (i) promptly verify that the
entity that executed such notice is listed as a Depository Participant in the
most recent published edition of the Depository's Eligible Corporate Securities
Book (or comparable publication of a successor Depository) and, if such entity
is not listed therein, the Warrant Agent shall make reasonable efforts to
obtain telephonic verification from the Depository's Planning Department
(telephone no. 709-1000) (or comparable
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department of a successor Depository) that such entity is a Depository
Participant, and if the Warrant Agent is unable through the above described
procedures to verify that such entity is a Depository Participant, the Warrant
Agent shall reject the notice of exercise; (ii) notify the Company by 5:00
p.m., New York City time, on the New York Business Day such notice of exercise
is received (or deemed to have been received) of the number of Warrants in
respect of which exercise notices, not rejected pursuant to clause (i) above,
were received after 3:00 p.m., New York City time, the preceding New York
Business Day and at or prior to 3:00 p.m., New York City time, on such date;
(iii) obtain the Spot Rate (as defined in Section 2.02(f)) and determine the
Cash Settlement Value of the exercised Warrants in the manner described in
Section 2.02(f); (iv) advise the Company by 5:00 p.m., New York City time, on
the Exercise Date of the amount payable in respect of the exercise of such
Warrants, and of the Spot Rate and Cash Settlement Value with respect to such
Warrants, and send notice of confirmation of exercise in the form set forth in
Exhibit 3 hereto to such Depository Participant; and (v) promptly deliver a
copy of such notice of exercise to the Company and advise the Company of such
other matters relating to the exercised Warrants as the Company shall
reasonably request. Any notice to be given to the Company by the Warrant Agent
pursuant to this Section 2.02 or Section 2.03 shall be by telephone and shall
be promptly confirmed in writing. Any notice to be given to the Spot Rate
Reference Bank pursuant to this Section 2.02 or Section 2.03 shall be by
facsimile transmission to the address of the Spot Rate Reference Bank set forth
in Section 6.03.
(c) Provided that the Company has made adequate funds
available to the Warrant Agent in a timely manner, which shall, in no event, be
later that 3:00 p.m., New York City time on the second New York Business Day
(the "Settlement Date") following an Exercise Date of the Warrants, the Warrant
Agent will be responsible for making its payment available to the Depository in
the form of a treasurer's check or official bank check, after 3:00 p.m., New
York City time, but prior to the close of business, on such Settlement Date,
such payment to be in the amount of the aggregate Cash Settlement Value in
respect of such exercised Warrants for which delivery has been accepted by the
Warrant Agent.
(d) The Warrant Agent shall cause its records, which may be
kept electronically, to be marked to reduce the number of Warrants evidenced by
the Global Warrant
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Certificate, by the number of Warrants delivered to the Warrant Agent's
Depository Participant Account (entitled _____________), or such other account
of the Warrant Agent at the Depository as the Warrant Agent shall designate in
writing to the Company (the "Warrant Account"), promptly after such delivery.
(e) If any Depository Participant fails to transfer Warrants
with respect to which it delivered a notice of exercise (a "Failed Delivery")
by 11:30 a.m., New York City time, on the Settlement Date therefor, the Warrant
Agent shall notify the Company (and, if requested by the Company in writing, a
designated agent of the Company) of such Failed Delivery and the number of
Warrants to which it relates by _____ p.m., New York City time, on such
Settlement Date by telephone, promptly confirmed in writing by transmitting to
the Company by telecopy or other similar rapid communication system) a copy of
the notice of exercise to which such Failed Delivery relates. At such times as
the Warrants are evidenced by a Global Warrant Certificate, a Failed Delivery
shall be deemed to occur as a result of a failure by a Depository Participant
to take any action required to effectuate a transfer of the Warrants on the
records of the Depository.
(f) Except as provided in Section 2.03, "Cash Settlement
Value" of an exercised Warrant is an amount stated in U.S. dollars which is the
greater of (i) zero and (ii) the amount computed by subtracting [from 50]1/ [50
from]2/ an amount equal to 50 times a fraction, the numerator of which is the
spot rate on the Exercise Date and the denominator of which is _____________
(the "Strike Price"). The "Spot Rate" on such Exercise Date shall mean the
offered spot rate of ____________ U.S. dollars for _________________ as quoted
by ____________ (the "Spot Rate Reference Bank") at 10:00 a.m., New York City
time, on such date or, if such bank is not quoting such rate at such time, the
rate quoted by such other leading bank in the foreign exchange markets as may
be selected by the Company in good faith and notified to the Warrant Agent.
The Spot Rate shall be calculated to _____________ decimal places. References
in this Agreement to "U.S. dollars," "U.S. $" or "$" are to the currency of
the United States of America.
- ---------------------
1/ In the case of Put Warrants.
2/ In the case of Call Warrants.
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References to _______________ or _______________ are to the currency of
_______________.
SECTION 2.03 Automatic Exercise of the Warrants. (a) All
Warrants with respect to which no accepted notice of exercise in good form has
been received by the Warrant Agent by 3:00 p.m., New York City time, on the
fifth New York Business Day preceding the earliest to occur of (i) the
Expiration Date, (ii) the close of business on the New York Business Day on
which the Warrants are delisted from the ____________ Stock Exchange, and (iii)
the close of business on the New York Business Day that the Warrants are
permanently suspended from trading on the ___________ Stock Exchange (the
effective date of any such delisting or permanent suspension, the "Delisting
Date") will be automatically exercised, without any required delivery of notice
of exercise from any relevant Depository Participant to the Warrant Agent.
Such Expiration Date or Delisting Date, as the case may be, shall be the
Exercise Date for such Warrants and the Spot Rate and Cash Settlement Value of
such Warrants shall be determined as of the New York Business Day following
such Exercise Date. The Company will advise the Warrant Agent of the date of
any expected delisting or permanent suspension of trading of the Warrants as
soon as is practicable and will immediately inform the Warrant Agent after the
Company has received notice that such delisting or suspension has occurred, but
in no event will notice of such delisting or suspension be given to the Warrant
Agent later than 5:00 p.m., New York City time, on the New York Business Day
preceding the date that such delisting or suspension occurs.
(b) By 5:00 p.m., New York City time, on the fifth New York
Business Day preceding the Expiration Date or the Delisting Date, as the case
may be, the Warrant Agent shall advise the Company of the number of Unexercised
Warrants outstanding after 3:00 p.m., New York City time, on such day. The
Warrant Agent shall, on the New York Business Day following the Expiration Date
or the Delisting Date, as the case may be, (i) obtain the Spot Rate and
determine the Cash Settlement Value (in the manner provided in paragraph (f) of
Section 2.02, except that the Spot Rate shall be the Spot Rate on the New York
Business Day next succeeding the Expiration Date or the Delisting Date, as the
case may be) of the Unexercised Warrants, (ii) advise the Company of the Spot
Rate and the Cash Settlement Value of the Unexercised Warrants evidenced by the
Global Warrant Certificate, and (iii) advise the Company of such other
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matters relating to the Unexercised Warrants as the Company shall reasonably
request. Provided that the Company has made adequate funds available to the
Warrant Agent in a timely manner which shall, in no event, be later than 3:00
p.m., New York time, on the third New York Business Day following the
Expiration Date or the Delisting Date, as the case may be, the Warrant Agent
will make its treasurer's check or an official bank check available to the
Depository against receipt by the Warrant Agent from the Depository of the
Global Warrant Certificate on the third New York Business Day following the
Expiration Date, such check to be in the amount of the aggregate Cash
Settlement Value in respect of the number of Unexercised Warrants evidenced by
the Global Warrant Certificate at the close of business on the Expiration Date.
The Warrant Agent shall promptly cancel the Global Warrant Certificate
following its receipt thereof from the Depository.
(c) The Company will notify the Holders, or will cause the
Holders to be notified, as promptly as is practicable of any expected delisting
or suspension of trading of the Warrants.
SECTION 2.04 Covenant of the Company. The Company covenants,
for the benefit of the Holders, that it will not seek the delisting of the
Warrants, or suspension of their trading on, the _________ Stock Exchange.
SECTION 2.05 Return of Global Warrant Certificate. At such
time as all of the Warrants have been exercised, deemed automatically exercised
or otherwise cancelled, the Warrant Agent shall return the cancelled Global
Warrant Certificate to the Company.
SECTION 2.06 Return of Money Held Unclaimed for Two Years.
Any money deposited with or paid to the Warrant Agent for the payment of the
Cash Settlement Value of any Warrants and not applied but remaining unclaimed
for two years after the date upon which such Cash Settlement Value shall have
become due and payable, shall be repaid by the Warrant Agent to the Company and
the Holder of such warrants shall thereafter look only to the Company for any
payment which such Holder may be entitled to collect and all liability of the
Warrant Agent with respect to such money shall thereupon cease; provided,
however, that the Warrant Agent before making such repayment, may at the
expense of the Company notify the Holders concerned that said money has not
been so applied and remains unclaimed and that after a date named therein any
unclaimed balance
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of said money then remaining will be returned to the Company.
SECTION 2.07 Designation of Agent for Receipt of Notice. The
Company may from time to time Designate in writing to the Warrant Agent a
designee for receipt of all notices required to be given by the Warrant Agent
pursuant to this Article II and all such notices thereafter shall be given in
the manner herein provided by the Warrant Agent to such designee.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
SECTION 3.01 Holder of Warrant May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any Holder, without
the consent of the Warrant Agent, may, in and for his own behalf, enforce, and
may institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, his right to exercise, and to
receive payment for, his Warrants as provided in the Global Warrant Certificate
and in this Agreement.
SECTION 3.02 Merger, Consolidation, Sale, Transfer or
Conveyance. If at any time there shall be a merger, consolidation, sale,
transfer, conveyance or other disposition of substantially all of the assets of
the Company, then in any such event the successor or assuming corporation shall
succeed to and be substituted for the Company, with the same effect as if it
had been named herein and in the Warrants as the Company; the Company shall
thereupon be relieved of any further obligation hereunder or under the
Warrants, and, in the event of any such sale, transfer, conveyance (other than
by way of lease) or other disposition, the Company as the predecessor
corporation may thereupon or at any time thereafter be dissolved, wound up or
liquidated. Such successor or assuming corporation thereupon may cause to be
signed, and may issue, either in its own name or in the name of the Company, a
new Global Warrant Certificate representing the Warrants not theretofore
exercised, in exchange and substitution for the Global Warrant Certificate
theretofore issued. Such Global Warrant Certificate shall in all respects have
the same legal rank and benefit under this Agreement as the Global Warrant
Certificate theretofore issued in accordance with the terms of this Agreement
as
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though such new Global Warrant Certificate had been issued at the date of the
execution hereof. In any case of any such consolidation, merger, sale,
transfer, conveyance or other disposition of substantially all of the assets of
the Company, such changes in phraseology and form (but not in substance) may be
made in the new Global Warrant Certificate as may be appropriate.
The Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such consolidation, merger, sale,
transfer, conveyance or other disposition of substantially all of the assets of
the Company complies with the provisions of this Section 3.02 and that the
assumption of this Agreement by the successor or assuming corporation is
effective.
ARTICLE IV.
CANCELLATION OF WARRANTS
SECTION 4.01 Cancellation of Warrants. In the event the
Company shall purchase or otherwise acquire Warrants, such Warrants may, at the
option of the Company and upon notification to the Warrant Agent, be
surrendered free through a Depository Participant for credit to the Warrant
Account and if so credited the Warrant Agent shall promptly note the
cancellation of such Warrants by notation on the records of the Warrant Agent.
SECTION 4.02 Treatment of Holders. The Company, the Warrant
Agent and any agent of the Company or the Warrant Agent may deem and treat the
person in whose name the Global Warrant Certificate shall be registered in the
records of the Warrant Agent as the absolute owner of such Global Warrant
Certificate (notwithstanding any notation of ownership or other writing
thereon) for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced hereby, and neither the Company nor the
Warrant Agent, nor any agent of the Company or the Warrant Agent shall be
affected by any notice to the contrary, except that the Warrant Agent and the
Company shall be entitled to rely on and act pursuant to instructions of
Depository Participants as contemplated by Article II of this Agreement. This
Section 4.02 shall be without prejudice to the rights of Holders as described
elsewhere herein.
<PAGE> 18
Page 17
ARTICLE V.
CONCERNING THE WARRANT AGENT
SECTION 5.01 Warrant Agent. The Company hereby appoints
_______________ as Warrant Agent of the Company in respect of the Warrants and
the Global Warrant Certificate upon the terms and subject to the conditions set
forth herein and in the Global Warrant Certificate; and _______________ hereby
accepts such appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it in the Global Warrant Certificate
and hereby and such further powers and authority acceptable to it to act on
behalf of the Company as the Company may hereafter grant to or confer upon it.
All of the terms and provisions with respect to such powers and authority
contained in the Global Warrant Certificate are subject to and governed by the
terms and provisions hereof.
SECTION 5.02 Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof and of the Global Warrant Certificate, including the
following, to all of which the Company agrees and to all of which the rights
hereunder of the Holders from time to time of the Warrants shall be subject;
(a) The Company agrees promptly to pay the Warrant Agent the
compensation to be agreed upon with the Company for all services rendered by
the Warrant Agent and to reimburse the Warrant Agent for its reasonable
out-of-pocket expenses (including counsel fees and expenses) incurred by the
Warrant Agent without negligence, bad faith or breach of this Agreement on its
part in connection with the services rendered by it hereunder. The Company
also agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense (including reasonable attorneys' fees
and expenses) incurred without negligence, bad faith or breach of this
Agreement on the part of the Warrant Agent, arising out of or in connection
with its acting as such Warrant Agent hereunder or with respect to the Global
Warrant Certificate, as well as the reasonable costs and expenses of defending
against any claim of liability in the premises.
(b) In acting under this Warrant Agreement and in connection
with the Global Warrant Certificate, the Warrant Agent is acting solely as
agent of the Company and
<PAGE> 19
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does not assume any obligation or relationship of agency or trust for or with
any of the owners or Holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory
to it, and the opinion of such counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or omitted or thing suffered by
it in reliance upon any Global Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the proper
parties.
(e) The Warrant Agent, and its officers, directors and
employees, may become the owner of, or acquire any interest in, any Warrants or
other obligations of the Company, with the same rights that it or they would
have if it were not the Warrant Agent hereunder, and, to the extent permitted
by applicable law, it or they may engage or be interested in any financial or
other transaction with the Company and may act on, or as depositary, trustee or
agent for, any committee or body of Holders of Warrants or other obligations of
the Company as freely as if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for
interest on any monies at any time received by it pursuant to any of the
provisions of this Agreement or of the Global Warrant Certificate nor shall it
be obligated to segregate such monies from other monies held by it, except as
required by law. The Warrant Agent shall not be responsible for advancing
funds on behalf of the Company.
(g) The Warrant Agent shall not be under any responsibility
with respect to the validity or sufficiency of this Agreement or the execution
and delivery hereof (except the due execution and delivery hereof by the
Warrant Agent) or with respect to the validity or execution of the Global
Warrant Certificate (except its countersignature thereof).
<PAGE> 20
Page 19
(h) The recitals contained herein and in the Global Warrant
Certificate (except as to the Warrant Agent's countersignature thereon) shall
be taken as the statements of the Company, and the Warrant Agent assumes no
responsibility for the correctness of the same.
(i) The Warrant Agent shall be obligated to perform only such
duties as are herein and in the Global Warrant Certificate specifically set
forth and no implied duties or obligations shall be read into this Agreement or
the Global Warrant Certificate against the Warrant Agent. The Warrant Agent
shall not be under any obligation to take any action hereunder likely to
involve it in any expense or liability, the payment of which is not, in its
reasonable opinion, assured to it. The Warrant Agent shall not be accountable
or under any duty or responsibility for the use by the Company of the Global
Warrant Certificate countersigned by the Warrant Agent and delivered by it to
the Company pursuant to this Agreement or for the application by the Company of
any proceeds. The Warrant Agent shall have no duty or responsibility in case
of any default by the Company in the performance of its covenants or agreements
contained herein or in the Global Warrant Certificate or in the case of the
receipt of any written demand from a Holder of a Warrant with respect to such
default, except as provided in Section 6.02 hereof, including, without limiting
the generality of the foregoing, any duty or responsibility to initiate or
attempt to initiate any proceedings at law or otherwise or to make any demand
upon the Company.
(j) Unless herein or in the Global Warrant Certificate
otherwise specifically provided, any order, certificate, notice, request,
direction or other communication from the Company made or given by the Company
under any provision of this Agreement shall be sufficient if signed by its
President, Chairman of the Board, officer serving as Chief Financial Officer,
Treasurer, any Executive Vice President or any Vice President.
SECTION 5.03 Resignation and Appointment of Successor. (a)
The Company agrees, for the benefit of the Holders from time to time of the
Warrants, that there shall at all times be a Warrant Agent hereunder until all
the Warrants are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which its
<PAGE> 21
Page 20
desired resignation shall become effective, subject to the appointment of a
successor Warrant Agent, and acceptance of such appointment by such successor
Warrant Agent, as hereinafter provided. The Warrant Agent hereunder may be
removed at any time by the filing with it of an instrument in writing signed by
or on behalf of the Company and ratifying such removal and the date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a banking institution organized under the laws of the
United States of America, or one of the states thereof and having an office or
an agent's office south of Chambers Street in the Borough of Manhattan, the
City of New York) and the acceptance of such appointment by such successor
Warrant Agent. In the event a successor Warrant Agent has not been appointed
and accepted its duties within 90 days of the Warrant Agent's notice of
resignation, the Warrant Agent may apply to any court of competent jurisdiction
for the designation of a successor Warrant Agent. The obligation of the
Company under Section 5.02(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant Agent and shall
survive the termination of this Agreement.
(c) In case at any time the Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or make an assignment for the benefit of its creditors
or consent to the appointment of a receiver or custodian of all or any
substantial part of its property, or shall admit in writing its inability to
pay or meet its debts as they mature, or if a receiver or custodian of it or
all or any substantial part of its property shall be appointed, or if any
public officer shall have taken charge or control of the Warrant Agent or of
its property or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Warrant Agent, qualified as aforesaid, shall be
appointed by the Company by an instrument in writing, filed with the successor
Warrant Agent. Upon the appointment as aforesaid of a successor Warrant Agent
and acceptance by the latter of such appointment, the Warrant Agent so
superseded shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall
<PAGE> 22
Page 21
become vested with all the authority, rights, powers, trusts, immunities,
duties and obligations of such predecessor with like effect as if originally
named as Warrant Agent hereunder, and such predecessor, upon payment of its
charges and disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Warrant Agent shall be
entitled to receive, all monies, securities and other property on deposit with
or held by such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder
may be merged or converted or any corporation with which the Warrant Agent may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or
substantially all of the corporate trust business of the Warrant Agent,
provided that it shall be qualified as aforesaid, shall be the successor
Warrant 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.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.01 Amendment. (a) This Agreement and the Global
Warrant Certificate may be amended by the Company and the Warrant Agent,
without the consent of the Holder of the Global Warrant Certificate or the
Holders, for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective or inconsistent provision contained herein or
therein, for the purpose of appointing a successor Depository in accordance
with paragraph (d) of Section 1.01, for the purpose of issuing warrants in
definitive form in accordance with paragraph (a) of Section 1.01, or in any
other manner which the Company may deem to be necessary or desirable and which
will not materially and adversely affect the interests of the Holders of the
Warrants. Notwithstanding anything in this Section 6.01 to the contrary, this
Agreement may not be amended to provide for the countersigning by the Warrant
Agent of one or more Global Warrant Certificates evidencing in excess of
_________ Warrants originally issued.
<PAGE> 23
Page 22
(b) The Company and the Warrant Agent may modify or amend
this Agreement and the Global Warrant Certificate, with the Consent of the
Holders holding not fewer than a majority in number of the then outstanding
Unexercised Warrants affected by such modification or amendment, for any
purpose; provided, however, that no such modification or amendment that
increases the Strike Price in the case of a Call Warrant, or decreases the
Strike Price in the case of a Put Warrant, shortens the period of time during
which the Warrants may be exercised, or otherwise materially and adversely
affects the exercise rights of the Holders or reduces the percentage of the
number of outstanding Warrants the consent of the Holders of which is required
for modification or amendment of this Agreement or the Global Warrant
Certificate may be made without the consent of each Holder affected thereby.
SECTION 6.02 Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to
the Company by any Holder pursuant to the provisions of the Global Warrant
Certificate, the Warrant Agent shall promptly forward such notice or demand to
the Company.
SECTION 6.03 Addresses for Notices. Any communications from
the Company to the Warrant Agent with respect to this Agreement shall be
addressed to [name of Warrant Agent], [address], New York (facsimile:
__________) (telephone: _____________ ), Attention: Corporate Trust Department;
any communications from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to ASARCO Incorporated, _____________________
(facsimile:________________________) (telephone: ___________), Attention:
Treasurer (first copy) and Secretary (second copy); and any communications from
the Warrant Agent to the Spot Rate Reference Bank with respect to this
Agreement shall be addressed to _______________ , (address), Attention:
Corporate Foreign Exchange (facsimile: ___________ ) (telephone:
________________), Attention:_____________ (or such of an address as may be
specified in writing by the Warrant Agent, the Company or the Spot Rate
Reference Bank, respectively).
SECTION 6.04 Notices to Holders. The Company or the Warrant
Agent may cause to have notice given to the Holders of Warrants by providing the
Depository with a form of notice to be distributed by the Depository to
Depository
<PAGE> 24
Page 23
Participants in accordance with the custom and practices of the Depository.
SECTION 6.05 Applicable Law. The validity, interpretation
and performance of this Agreement and each Warrant issued hereunder and of the
respective terms and provisions thereof shall be governed by the laws of the
State of New York.
SECTION 6.06 Obtaining of Governmental Approvals. The
Company will from time to time take all action which may be necessary to obtain
and keep effective any and all permits, consents and approvals of governmental
agencies and authorities and the Stock Exchange and securities acts filings
under United States Federal and State laws, which may be or become requisite in
connection with the issuance, sale, trading, transfer or delivery of the
Warrants, the Global Warrant Certificate and the exercise of the Warrants.
SECTION 6.07 Persons Having Rights under Warrant Agreement.
Nothing in this Agreement express or implied and nothing that may be inferred
from any of the provisions hereof is intended, or shall be construed, to confer
upon, or give to, any person or corporation other than the Company, the Warrant
Agent, the registered Holder of the Global Warrant Certificate and the Holders
any right, remedy or claim under or by reason of this Agreement or of any
covenant, condition, stipulation, promise or agreement hereof; and all
covenants, conditions, stipulations, promises and agreements in this Agreement
contained shall be for the sole and exclusive benefit of the Company and the
Warrant Agent and their successors and of the registered Holder of the Global
Warrant Certificate and the Holders.
SECTION 6.08 Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.09 Counterparts. This Agreement may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.10 Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent,
<PAGE> 25
Page 24
for inspection by the registered holder of the Global Warrant Certificate,
Depository Participants and Holders.
IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties hereto as of the day and year first above written.
ASARCO INCORPORATED
By
------------------------
[Title]
[name of Warrant Agent]
By
------------------------
[Title]
<PAGE> 26
EXHIBIT A
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
NO. CUSIP NO.
GLOBAL WARRANT CERTIFICATE
representing
up to __________ Currency [Put/Call] Warrants
Expiring ____________, ___
ASARCO INCORPORATED
This certifies that [__________] or registered assigns is the
registered Holder of _____________ Currency [Call/Put)] warrants (the
"Warrants") or successor amount as is indicated in the records of [name of
Warrant Agent], as Warrant Agent. Each Warrant entitles the beneficial owner
thereof (a "Holder"), subject to the provisions contained herein and in the
Warrant Agreement referred to below, to receive from ASARCO Incorporated (the
"Company") the cash settlement value (the "Cash Settlement Value") of the right
to [sell/purchase]: __________ at a price of U.S. ($___, as further described
below, Holders will not be entitled to any interest on any Cash Settlement
Value to which they are otherwise entitled (unless the Company shall default in
the payment of such Cash Settlement Value). The Warrants may be exercised at
or prior to 3:00 p.m., New York City time, on any New York Business Day from
their date of issuance until 3:00 p.m., New York City time, on the fifth New
York Business Day preceding (i) their expiration on ___________, ____ (the
"Expiration Date") or (ii) the date of earlier automatic exercise as further
described below and as provided in the Warrant Agreement. Except in the case
of automatic exercise, not fewer than [2,000] Warrants may be exercised by or
on behalf of any one Holder on any one day. Reference herein to "U.S. dollars"
or "U.S.$" are to the currency of the United States of America. References to
_________ or _________ are to the currency of _______. The term "New York
Business Day," as used herein, means any day other than a Saturday or Sunday or
a day on which
<PAGE> 27
Page 2
commercial banks in New York City are required or authorized to be closed.
This Global Warrant Certificate is issued under and in
accordance with the Warrant Agreement, dated as of ____ (the "Warrant
Agreement"), between the Company and the Warrant Agent, and is subject to the
terms and provisions contained in the Warrant Agreement, to all of which terms
and provisions all beneficial owners of the Warrants evidenced by this Global
Warrant Certificate and the Holder of this Global Warrant Certificate consent
by acceptance hereof by the Depository (as defined below). Copies of the
Warrant Agreement are on file at the principal corporate trust office of the
Warrant Agent in New York City. Except as provided in the Warrant Agreement,
Holders will not be entitled to receive definitive warrants evidencing their
Warrants. Warrant holdings will be held through a depository selected by the
Company which initially is The Depository Trust Company (the "Depository,"
which term, as used herein, includes any successor depository selected by the
Company) as further provided in the Warrant Agreement.
Capitalized terms including herein but not defined herein have
the meanings assigned thereto in the Warrant Agreement.
The Cash Settlement Value of an exercised Warrant will be an
amount stated in U.S. dollars which is the greater of (i) zero and (ii) the
amount computed by subtracting [from 501]1/ [50 from]2/ an amount equal to 50
times a fraction, the numerator of which is the Spot Rate on the Exercise Date
and the denominator of which is ______ (except in the case of automatic
exercises as described below). The "Spot Rate" on any date will be the offered
spot rate of U.S. dollars for _______ as quoted by __________ at 10:00 a.m.,
New York City time, on such date or, if such bank is not quoting such rate at
such time, the rate quoted by such other lending bank in the foreign exchange
markets as may be selected by the Company in good faith and notified to the
Warrant Agent.
- --------------------
1/ In the case of Put Warrants.
2/ In the case of Call Warrants.
<PAGE> 28
Page 3
Subject to the provisions hereof and of the Warrant Agreement,
each Warrant shall be deemed to be exercised on the next New York Business Day
after the New York Business Day on which the notice of exercise in good form is
received by the Warrant Agent at or prior to 3:00 p.m., New York City time, on
such date (the 'Exercise Date'). If the Warrant Agent receives such notice of
exercise after 3:00 p.m., New York City time, on such date, such notice shall
be deemed to have been received at or prior to 3:00 p.m., New York City time,
on the next New York Business Day, and in such event the Exercise Date shall be
the second New York Business Day succeeding the date on which the Warrant Agent
actually received such notice. If the notice of exercise is not rejected as
provided in the Warrant Agreement, the Warrant Agent will obtain the Spot Rate
and determine the Cash Settlement Value of the exercised Warrants in the manner
described in the Warrant Agreement. Any notice of exercise received after 3:00
p.m., New York City time, on the fifth New York Business Day preceding the
Expiration Date or the date of earlier automatic exercise as further described
below and as provided in the Warrant Agreement shall be void and of no effect
and shall be deemed not to have been delivered. Provided that the Company has
made adequate funds available to the Warrant Agent in a timely manner, the
Warrant Agent will be responsible for making its payment available by
treasurer's check or official bank check to the Depository on the second New
York Business Day following an Exercise Date (the 'Settlement Date'), all as
provided in the Warrant Agreement, such payment to be in the amount of the
aggregate Cash Settlement Value in respect of such exercised warrants for which
delivery has been accepted by the Warrant Agent. If any Depository Participant
fails to transfer by 11:30 a.m., New York City time, on the Settlement Date the
Warrants with respect to which it delivered a notice of exercise, such
Depository Participant will be liable to the Company as provided in the notice
of exercise and be subject to all of the provisions set forth therein and in
the Warrant Agreement.
The Warrant Agent will promptly cause its records to be marked
to reduce the number of Unexercised Warrants evidenced by this Global Warrant
Certificate by the number of Warrants transferred to the Warrant Agent's
Depository Participant Account (No. ____) from time to time.
<PAGE> 29
Page 4
All Warrants with respect to which no notice of exercise in
good form has been received by the Warrant Agent by 3:00 p.m., New York City
time, on the fifth New York Business Day preceding the earliest to occur of (i)
the Expiration Date, (ii) the close of business on the New York Business Day on
which the Warrants are delisted from the ________ Stock Exchange, and (iii) the
close of business on the New York Business Day that the Warrants are
permanently suspended from trading on the Stock Exchange will be automatically
exercised, without any required delivery of notice of exercise for the
Depository Participant to the Warrant Agent, in the case of clause (i), as of
the Expiration Date, in the case of clause (ii), as of the date of such
delisting, and, in the case of clause (iii), as of the date of such suspension.
The Cash Settlement Value of such Warrants will be determined as provided
above, except that, in the case of clause (i), the Spot Rate shall be the Spot
Rate on the New York Business Day next succeeding the Expiration Date and, in
the case of clauses (ii) and (iii), the Spot Rate shall be the Spot Rate on the
New York Business Day following the date of such delisting or suspension, as
the case may be. The Settlement Date with respect to any such automatically
exercised Warrants shall be the third New York Business Day following the
Expiration Date or the date of such delisting or permanent suspension.
The Company, the Warrant Agent and any agent of the Company or
the Warrant Agent may deem and treat the registered owner hereof as the
absolute owner of the warrants evidenced hereby (notwithstanding any notation
of ownership or other writing hereon) for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced hereby,
and neither the Company nor the Warrant Agent nor any agent of the Company or
the Warrant Agent shall be affected by any notice to the contrary, subject to
certain provisions of the Warrant Agreement, except that the Company and the
Warrant Agent shall be entitled to rely on and act pursuant to instructions of
Depository Participants as contemplated herein and in the Warrant Agreement.
Subject to the terms of the Warrant Agreement, upon due
presentment for registration of transfer of this Global Warrant Certificate at
the principal corporate trust offices
<PAGE> 30
Page 5
of the Warrant Agent in New York City, the Company shall execute and the
Warrant Agent shall countersign and deliver in the name of the designated
transferee a new Global Warrant Certificate of like tenor and evidencing a like
number of Unexercised Warrants as evidenced by this Global Warrant Certificate
at the time of such registration of transfer and shall be issued to the
designated transferee in exchange for this Global Warrant Certificate, subject
to the limitations provided in the Warrant Agreement, without charge.
This Global Warrant Certificate and the Warrant Agreement are
subject to amendment as provided in the Warrant Agreement.
This Global Warrant Certificate shall not be valid or
obligatory for any purpose until countersigned by the Warrant Agent.
<PAGE> 31
Page 6
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed by ASARCO Incorporated.
Dated as of
-----------, ----
ASARCO INCORPORATED
By
----------------------
[SEAL] [Title]
Attest
----------------------
[Title]
Countersigned on the date above written:
[name of Warrant Agent],
as Warrant Agent
By
----------------------
[Title]
<PAGE> 32
Page 7
Form of Transfer of Global Warrant Certificate
___________________________________, as Warrant Agent
Corporate Trust Department
[address]
(Telex: __________)
(Facsimile: __________)
______________________, the registered Holder of the Global
Warrant Certificate representing all unexercised ASARCO Incorporated
Currency Put/Call Warrants Expiring ______________, ____, hereby requests the
transfer of such Global Warrant effaced to _______________________.
Dated: [NAME OF REGISTERED HOLDER]
---------------
By
-------------------------
<PAGE> 33
EXHIBIT B
Form of Irrevocable Notice of Exercise
____________________________.
as Warrant Agent
[address]
Attention: [Corporate Trust Department]
(Telex: ________)
(Facsimile: _________)
Re: Exercise of ASARCO Incorporated Currency
[Put/Call] warrants Expiring _________, ____
("Warrants")
1. We refer to the Warrant Agreement dated as of
_________, ____ (the "Warrant Agreement") between ASARCO Incorporated (the
"Company") and [name of Warrant Agent] ( the "Warrant Agent"). On behalf of
certain clients, each of whom is exercising no fewer than [2,000] Warrants and
whose warrants are held in our name, we hereby irrevocably exercise warrants
(the "Exercised Warrants"). We hereby certify that, at the time this notice is
delivered to you, we hold in our name on behalf of each such client a settled
position of warrants in an amount at least equal to the number of Warrants that
we are hereby exercising on behalf of such client. We hereby acknowledge that
this Irrevocable Notice of Exercise must be received by you by 3:00 p.m., New
York City time, on the date hereof in order for the Exercise Date of the
Exercised Warrants to be the next succeeding New York Business Day and that if
this Irrevocable Notice of Exercise is received by you after 3:00 p.m., New
York City time, the Exercise Date of the Exercised Warrants shall be the second
succeeding New York Business Day.
2. We hereby certify that we are a participant of (The
Depository Trust Company) (the "Depository") with the present right to use and
receive its services.
3. We hereby agree to transfer such warrants by 11:30
a.m., New York City time, on the second New York Business Day following the
Exercise Date of the Exercised Warrants (___________, ____) (the "Settlement
Date") to the Warrant Agent's Participant Account No. (the "Warrant Account").
We hereby acknowledge that once we have
<PAGE> 34
Page 2
delivered this irrevocable Notice of Exercise to you in good form we must
transfer the Exercised Warrants by 1:30 a.m., New York City time, on the
Settlement Date and, from and after the time this notice is delivered to you,
we will not effect any transactions with respect to the Exercised Warrants
except for the transfer to the Warrant Account of the Exercised Warrants on the
Settlement Date.
4. We understand and agree that if we fail to transfer
any of the Exercised Warrants by 11:30 a.m., New York City time, on the
Settlement Date: (i) we shall be held liable for any and all damages which may
accrue to the Company, in accordance with (a) the rules and procedures of the
_____________ Stock Exchange governing the Warrants, and (b) market custom and
usage; (ii) we shall be held liable to our client for, and agree to hold the
Company and the Warrant Agent harmless against any liability resulting from,
any and all damages which may accrue to such client with respect to such
failure; (iii) we will promptly pay to the Company any funds credited to our
account in excess of the aggregate Cash Settlement Value of the Exercised
Warrants that we fail to transfer to the Warrant Account on the Settlement
Date; and (iv) we agree that, at such time as transfer of the Warrants to which
this irrevocable Notice of Exercise relates is made, the Cash Settlement Value
for such Warrants will be determined in accordance with the Warrant Agreement
as if such warrants had been timely transferred as required in paragraph 3
above.
<PAGE> 35
Page 3
Capitalized terms used herein and not defined have the
meanings assigned thereto in the Warrant Agreement.
Dated:
--------, ----
[NAME OF DEPOSITORY PARTICIPANT]
By
-----------------------------
Authorized Signature
[Address]
Telephone:
--------------------
Facsimile:
--------------------
Participant Number:
------------
<PAGE> 36
Page 4
CONFIRMATION OF EXERCISE
We hereby confirm that the total number of Warrants mentioned
above (the "Exercised Warrants") have been exercised at a Spot Rate of
______________ per U.S. $1.00 and that the aggregate Cash Settlement Value of
U.S. $ __________ (U.S $ ____per warrant) will be made available to the [The
Depository Trust Company] in the form of a treasurer's check or an official
check for payment against transfer of warrants, in New York Clearing House
funds, two New York Business Days after the date hereof.
Capitalized terms included herein but not defined have the
meanings assigned thereto in the Warrant Agreement, dated as of _________,
____, between ASARCO Incorporated and [name of Warrant Agent], as Warrant
Agent.
Dated:
-----------, ----
[name of Warrant Agent],
as Warrant Agent
By
-----------------------
Authorized Officer
NOTICE OF REJECTION
You are hereby notified that we were not able to verify that
you are a participant of [The Depository Trust Company] in the manner, and
pursuant to the procedures, set forth in the Warrant Agreement, dated as of
____________, _____ between ASARCO Incorporated and [name of Warrant Agent], as
Warrant Agent. Accordingly, we have rejected your irrevocable Notice of
Exercise as being unsatisfactory as to form.
Dated:
-----------, ----
[name of Warrant Agent], as
Warrant Agent
By
-------------------------
Authorized Officer
<PAGE> 1
EXHIBIT 5.1
WHITE & CASE
1155 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(212) 819-8200
October 12, 1994
ASARCO Incorporated
180 Maiden Lane
New York, New York 10038
Dear Sirs:
We refer to the Registration Statement on Form S-3 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
in the form in which it is to be filed today by Asarco Incorporated, a New
Jersey corporation ("Asarco"), with the Securities and Exchange Commission (the
"Commission"), relating to (A) up to $300,000,000 aggregate principal amount or
initial offering price of Asarco's (i) debt securities or convertible debt
securities consisting of debentures, notes or other unsecured evidences of
indebtedness to be issued from time to time pursuant to the terms of an
Indenture, to be dated as of October 1, 1994, between Asarco and Chemical Bank,
as Trustee, a form of which is being filed as an exhibit to the Registration
Statement (the "Indenture"); (ii) shares of its preferred stock or convertible
preferred stock, the specific titles, rights and terms of which will be set
forth in a Certificate of Designation which will be filed (or incorporated by
reference) as an exhibit to the Registration Statement ("Certificate of
Designation"), fractional shares of which preferred stock may be represented by
depositary receipts for depositary shares issued under a Deposit Agreement, a
form of which is being filed as an exhibit to the Registration Statement
("Deposit Agreement"); (iii) shares of its common stock, and (iv) warrants to
purchase such securities of Asarco or to receive such cash payments as shall be
designated by Asarco pursuant to the terms of Warrant Agreements, forms of which
are being filed as exhibits to the Registration Statement ("Warrant
Agreements"); and (B) up to 10,353,363 outstanding shares of Asarco's common
stock which may be offered and sold by a selling stockholder. The debt
securities, convertible debt securities, preferred stock, convertible preferred
stock, depositary shares, common stock and warrants referred to in the preceding
sentence are herein collectively referred to as the "Securities." The Securities
are to be sold to or through underwriters, to other purchasers or through
agents. The issuance and terms of the Securities to be offered and sold by
Asarco are to be authorized and approved and the manner of sale is to be
determined in additional proceedings proposed to be taken by Asarco's Board of
Directors or a committee thereof.
We have examined the originals, or photostatic or certified copies, of such
records of Asarco, certificates of officers of Asarco and of public officials
and such other documents as we have deemed relevant and necessary as the basis
for the opinion set forth below. We have relied upon such certificates of
officers of Asarco and statements and information furnished by officers of
Asarco with respect to the accuracy of material factual matters contained
therein which were not independently established. In such examination we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as photostatic or certified copies, and the
authenticity of the originals of such copies.
Based upon our examination mentioned above, subject to the assumptions
stated, and subject to such proposed additional proceedings being taken prior to
the issuance of the Securities, to the terms of the Securities being otherwise
in compliance with then applicable law, and, to the extent applicable to the
Securities to be issued, to the execution and delivery of the Indenture, the
Deposit Agreement and the Warrant Agreements, and the authorization, execution,
filing and recording of one or more Certificates of Designation, it is our
opinion that the Securities, upon issuance and sale by Asarco as contemplated in
the Registration Statement and any amendments and Prospectus Supplements
thereto, will have been duty authorized by Asarco and validly issued, fully paid
and non-assessable, that outstanding shares of common
<PAGE> 2
stock when sold by the selling stockholder, will be validly issued, fully paid
and non-assessable, and that the Securities, when duly executed, authenticated,
issued and delivered against payment therefor in accordance with the Indenture
or the Warrant Agreements, will constitute legally binding obligations of
Asarco.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to our firm appearing under the caption "Legal
Matters" in the Prospectus forming part of the Registration Statement. In giving
this consent, we do not thereby admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act or the Rules and
Regulations of the Commission.
Very truly yours,
WHITE & CASE
<PAGE> 1
EXHIBIT 12.1
ASARCO INCORPORATED
STATEMENT RE COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
AND COMBINED FIXED CHARGES AND PREFERRED SHARE DIVIDEND REQUIREMENTS
<TABLE>
<CAPTION>
JUNE
1994 1993 1992 1991 1990 1989
-------- -------- -------- ------- -------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
NET EARNINGS................................. $ 31,968 $ 15,619 $(83,091) $45,957 $135,844 $224,341
ADJUSTMENTS
Taxes on Income......................... 14,951 (36,503) (37,371) 2,199 15,910 56,936
Equity Earnings, Net of Taxes........... (16,947) (27,384) (2,575) (10,393) (36,451) (40,549)
Cumulative Effect of Change in
Accounting Principle.................. 0 (86,295) 53,964 0 0 0
Dividends received from non-consolidated
associated cos. ...................... 4,501 1,676 803 2,078 2,312 1,258
Total Fixed Charges..................... 30,662 64,359 62,200 62,653 45,962 33,825
Interest Capitalized.................... (429) (4,010) (7,433) (12,347) (3,826) (1,430)
Capitalized Interest Amortized.......... 797 1,629 1,825 1,840 2,363 2,082
-------- -------- -------- ------- -------- --------
EARNINGS..................................... $ 65,503 $(70,909) $(11,678) $91,987 $162,114 $276,463
======== ======== ======== ======= ======== ========
FIXED CHARGES
Interest Expense........................ $ 29,001 $ 57,321 $ 51,230 $46,227 $ 38,038 $ 28,942
Interest Capitalized.................... 429 4,010 7,433 12,347 3,826 1,430
Imputed Interest Expense................ 1,232 3,028 3,537 4,079 4,098 3,453
-------- -------- -------- ------- -------- --------
TOTAL FIXED CHARGES.......................... $ 30,662 $ 64,359 $ 62,200 $62,653 $ 45,962 $ 33,825
======== ======== ======== ======= ======== ========
RATIO OF EARNINGS TO FIXED CHARGES........... 2.1 (1.1) (0.2) 1.5 3.5 8.2
======== ======== ======== ======= ======== ========
</TABLE>
<PAGE> 1
EXHIBIT 15.1
SECURITIES AND EXCHANGE COMMISSION
450 FIFTH STREET, N.W.
WASHINGTON, D.C. 20549
Re: ASARCO Incorporated
Registration on Form S-3
We are aware that our reports on our reviews of interim financial
information of ASARCO Incorporated for the periods ended June 30, 1994 and March
31, 1994 dated July 22, 1994 and April 22, 1994 respectively, which are included
in the Company's quarterly reports on Form 10-Q for the quarters ended June 30,
1994 and March 31, 1994 are incorporated by reference in this registration
statement. Pursuant to Rule 436(c) under the Securities Act of 1933, this report
should not be considered a part of the registration statement prepared or
certified by us within the meaning of Sections 7 and 11 of that Act.
Coopers & Lybrand L.L.P.
New York, NY
October 12, 1994
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
of ASARCO Incorporated on Form S-3 (File No. ) of our report dated
January 25, 1994 on our audits of the consolidated financial statements and
financial statement schedules of ASARCO Incorporated as of December 31, 1993 and
1992 and for the years ended December 31, 1993, 1992, and 1991. We also consent
to the reference to our firm under the caption "Experts."
Coopers & Lybrand L.L.P.
New York, NY
October 12, 1994
<PAGE> 1
EXHIBIT 25.1
________________________________________________________________________________
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)_______
_______________________________
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
__________________________________
ASARCO INCORPORATED
(Exact name of obligor as specified in its charter)
NEW JERSEY 13-4924440
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
180 MAIDEN LANE
NEW YORK, NY 10038
(Address of principal executive offices) (Zip Code)
__________________________________
DEBT SECURITIES
(Title of the indenture securities)
_______________________________________________________
<PAGE> 2
GENERAL
Item 1. General Information
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject. New York State Banking Department, State House,
Albany, New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551 and Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977. December 31, 1980,
September 9, 1982, February 28, 1985 and December 2, 1991 (see Exhibit 1 to
Form T-1 filed in connection with Registration Statement No. 33-50010, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 33-46892, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chemical Bank, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all the
City of the New York and State of New York, on the 5th day of October, 1994.
CHEMICAL BANK
By /s/ Michael A. Smith
---------------------------------
Michael A. Smith
Assistant Vice President
- 3 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System.
at the close of business June 30, 1994, published in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
in Millions
<S> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin . . . . . . . . . . . . . . . . . . . . $ 7,253
Interest-bearing balances . . . . . . . . . . . . . . . . 4,282
Securities:
Held to maturity securities . . . . . . . . . . . . . . . . . . . . 6,841
Available for sale securities . . . . . . . . . . . . . . . . . . . 14,520
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 . . . . . . . . . . . . . . . . . . . . 2,011
Securities purchased under agreements to resell . . . . . 144
Loans and lease financing receivables:
Loans and leases, net of unearned income $61,454
Less: Allowance for loan and lease losses 2,026
Less: Allocated transfer risk reserve . . . 115
-------
Loans and leases, net of unearned income,
allowance, and reserve . . . . . . . . . . . . . . . . . . 59,313
Assets held in trading accounts . . . . . . . . . . . . . . . . . . 28,005
Premises and fixed assets (including capitalized
leases) . . . . . . . . . . . . . . . . . . . . . . . . . 1,334
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . 553
Investments in unconsolidated subsidiaries and
associated companies . . . . . . . . . . . . . . . . . . . 127
Customer's liability to this bank on acceptance
outstanding . . . . . . . . . . . . . . . . . . . . . . . 1,181
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . 564
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,063
--------
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . $133,191
========
</TABLE>
- 4 -
<PAGE> 5
<TABLE>
<S> <C>
LIABILITIES
Deposits
In domestic offices . . . . . . . . . . . . . . . . . . . $ 48,229
Noninterest-bearing . . . . . . . . . . . . . . $17,236
Interest-bearing . . . . . . . . . . . . . . . . 30,993
-------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's . . . . . . . . . . . . . . . . . . . . . . . . 25,005
Noninterest-bearing . . . . . . . . . . . . . . $ 221
Interest-bearing . . . . . . . . . . . . . . . . 24,784
-------
Federal funds purchased and securities sold under agree-
ments to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased . . . . . . . . . . . . . . . . . 9,286
Securities sold under agreements to repurchase . . . . . . 2,476
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . 2,000
Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . 19,206
Other Borrowed money:
With original maturity of one year or less . . . . . . . . 7,868
With original maturity of more than one year . . . . . . . 1,033
Mortgage indebtedness and obligations under capitalized
leases . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Bank's liability on acceptances executed and outstanding . . . . . 1,184
Subordinated notes and debentures . . . . . . . . . . . . . . . . . 3,500
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . 5,893
TOTAL LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . 125,699
--------
EQUITY CAPITAL
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . 620
surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,501
Undivided profits and capital reserves . . . . . . . . . . . . . . 2,668
Net unrealized holding gains (losses)
on available-for-sale securities . . . . . . . . . . . . . . . . . (295)
Cumulative foreign currency translation adjustments . . . . . . . . (2)
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . . . . 7,492
--------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL . . . . . . . . . . . . . . . . . $133,191
========
</TABLE>
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition is true and correct to the best of my
knowledge and belief.
/s/ JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this statement of
resources and liabilities. We 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 and is true and correct.
/s/ WALTER V. SHIPLEY )
/s/ EDWARD D. MILLER ) DIRECTORS
/s/ WILLIAM B. HARRISON )
- 5 -
