<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 3, 1996.
REGISTRATION NO. 333-02359
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_______________
ASARCO INCORPORATED
(Exact name of registrant as specified in its charter)
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<S> <C>
NEW JERSEY 13-4924440
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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)
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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)
_______________
COPY TO:
Kevin Keogh, Esq.
Timothy B. Goodell, Esq.
White & Case
1155 Avenue of the Americas
New York, New York 10036
_______________
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)
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. ( )__________.
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
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under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. ( )__________.
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box ( ).
_______________
Pursuant to Rule 429 promulgated under the Securities Act of 1933, as
amended, the prospectus which is a part of this Registration Statement
includes all the information currently required in a prospectus relating to
the securities covered by Registration Statement No. 33-55993 of the Company
and such combined prospectus constitutes Post-Effective Amendment No. 1 to,
and will be used in connection with, Registration Statement No. 33-55993. The
amount of Securities carried forward from Registration Statement No. 33-55993
is $150,000,000, in respect of which the registrant has previously paid a
filing fee of $51,724.14.
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.
PROSPECTUS
ASARCO Incorporated
$300,000,000
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. The Company 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
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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.
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 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.
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 ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The date of this Prospectus is May ___, 1996.
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
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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 (Commission File No. 1-164) for the
fiscal year ended December 31, 1995; and
(ii) Proxy Statement for the Annual Meeting of Stockholders on April 24,
1996 (filed with the Commission on March 8, 1996).
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 Augustus
B. Kinsolving, Esq., Vice President and General Counsel, 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.
THE COMPANY
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Asarco is one of the world's leading producers of nonferrous metals,
principally copper, lead, zinc, silver and molybdenum, from its own mines and
through its 54.0% interest in Southern Peru Copper Corporation ("SPCC").
Asarco also produces specialty chemicals and construction aggregates and
provides environmental services. Asarco has substantial investments in two
mining companies: a 15.1% interest in M.I.M. Holdings Limited ("MIM") in
Australia; and a 23.6% interest in Grupo Mexico, S.A. de C.V. Such companies
are referred to herein as "associated companies."
Asarco and its subsidiaries or associated companies operate mines in the
United States, Peru, Australia and Mexico. Asarco and these companies
together in 1995 accounted for about 12% of the western world mine production
of copper, 10% of silver, 21% of lead, 9% of zinc and 13% of molybdenum.
The executive offices of Asarco 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.
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CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES AND COMBINED
FIXED CHARGES AND PREFERRED SHARE DIVIDEND REQUIREMENTS
<CAPTION>
Year Ended December 31,
1995 1994 1993 1992 1991
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5.2 1.6 (a) (a) 1.5
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_______________
(a) For the years 1992 and 1993, earnings were insufficient to cover fixed
charges by $73.3 million and $134.6 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, fixed charges and minority
interest, 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.
DESCRIPTION OF COMMON STOCK
The Company has authorized 80 million shares of Common Stock, without par
value, of which 42,630,720 shares were issued and outstanding as of February
29, 1996. The shares of Common Stock currently outstanding are, and the
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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, 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".
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 February 29, 1996, 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
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.
<PAGE>
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."
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
<PAGE>
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
<PAGE>
two times the exercise price of that Right.
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.
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. Upon
surrender of Depositary Receipts at the designated office of the Depositary
(unless the related Depositary Shares have previously been called for
redemption), the owner of the Depositary Shares evidenced thereby is entitled
to delivery of the number of whole shares of Preferred Stock and any money or
property then represented by such Depositary Shares.
Pending the preparation of definitive Depositary Receipts, the Depositary
shall, 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
<PAGE>
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.
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
<PAGE>
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 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
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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
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
<PAGE>
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 form, 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.
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,
<PAGE>
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 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
<PAGE>
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 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
<PAGE>
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
(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
<PAGE>
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 such 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 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
<PAGE>
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
<PAGE>
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.
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, 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 662/3% 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 Original Issue 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
<PAGE>
(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 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
<PAGE>
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 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
<PAGE>
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, 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
<PAGE>
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.
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 a 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
<PAGE>
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 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
<PAGE>
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 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
<PAGE>
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 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
<PAGE>
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.
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
<PAGE>
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 herein 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.
The Company's Board of Directors believes that the provisions described
<PAGE>
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 may sell Securities to or through underwriters, and also may
sell Securities directly to other purchasers or through agents.
<PAGE>
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.
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.
EXPERTS
The consolidated financial statements and financial statement schedules
of ASARCO Incorporated and Subsidiaries included in the latest Annual Report
of the Company on Form 10-K incorporated herein by reference, have been
audited by Coopers & Lybrand L.L.P., 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 unaudited interim financial information included in the
Company's Quarterly Reports on Form 10-Q that are incorporated herein by
reference, Coopers & Lybrand L.L.P. has applied limited procedures in
accordance with professional standards for reviews of such information. As
stated in any of their reports that are included in the Company's Quarterly
Reports on Form 10-Q that are incorporated herein by reference, Coopers &
Lybrand L.L.P. did not audit and did not express an opinion on such interim
financial information. Accordingly, the degree of reliance on any of their
reports on such information should be restricted in light of the limited
nature of the review procedures applied. Coopers & Lybrand L.L.P. are not
subject to the liability provisions of Section 11 of the Act for their reports
<PAGE>
on such unaudited interim financial information because those reports are not
"reports" or "parts" of the Registration Statement prepared or certified by
them within the meaning of Sections 7 and 11 of the Act.
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, Esq., Vice
President and General Counsel of the Company.
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $51,724.14
Accounting fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . 30,000.00
Legal fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40,000.00
Blue Sky and Legal Investment fees and expenses . . . . . . . . . . . . . . . . 5,000.00
Transfer Agent's fees and expenses . . . . . . . . . . . . . . . . . . . . . . 5,000.00
Printing expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,000.00
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,275.86
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $150,000.00
</TABLE>
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,
<PAGE>
(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;
(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
<PAGE>
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
(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
<PAGE>
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 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, 1996, 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
<PAGE>
effect.
ITEM 16. EXHIBITS.
Exhibit
Number Description of Documents
1 Form of Underwriting Agreement relating to the Securities*
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)
(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)
<PAGE>
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**
23.1 Consent of Coopers & Lybrand L.L.P.**
23.2 Consent of White & Case (contained in its opinion filed as
Exhibit 5.1)**
24 Power of attorney (previously filed)
25.1 Statement of Eligibility of Chemical Bank as Trustee on Form T-1*
_______________
* Previously filed as an Exhibit to the Company's Registration Statement on
Form S-3 (No. 33-55993) and incorporated herein by reference.
** Previously filed as an Exhibit to this Registration Statement.
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.
<PAGE>
(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. 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 Amendment No. 1
to the 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
3rd day of May, 1996.
ASARCO Incorporated
By: /s/ Kevin R. Morano
Name: Kevin R. Morano
Title: Vice President and
Chief Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
NO. 1 TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING
PERSONS IN THE CAPACITIES STATED BELOW ON THE 3RD DAY OF MAY, 1996.
<TABLE>
<PAGE>
<CAPTION>
Signature Title
<S> <C>
* Chairman of the Board, Chief Executive
_______________________________ Officer, President and Director
(Richard de J. Osborne)
/s/ Kevin R. Morano Vice President and Chief Financial
_______________________________ Officer (Principal Financial Officer)
(Kevin R. Morano)
* Controller (Principal Accounting Officer)
_______________________________
(William Dowd)
* Director
_______________________________
(Willard C. Butcher)
* Director
_______________________________
(James C. Cotting)
* Director
_______________________________
(David C. Garfield)
* Director
_______________________________
(E. Gordon Gee)
* Director
_______________________________
(Harry Holiday, Jr.)
* Director
_______________________________
(James W. Kinnear, III)
* Director
_______________________________
(Francis R. McAllister)
* Director
_______________________________
(Martha T. Muse)
* Director
_______________________________
(Michael T. Nelligan)
* Director
______________________________
(John D. Ong)
* Director
______________________________
(James Wood)
* By: /s/ Kevin R. Morano
______________________________
(Kevin R. Morano)
<PAGE>
</TABLE>
EXHIBIT INDEX
Exhibit
Number Description of Documents Page
1 Form of Underwriting Agreement relating to the Securities*
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)
(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)
<PAGE>
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**
23.1 Consent of Coopers & Lybrand L.L.P.**
23.2 Consent of White & Case (contained in its opinion filed as
Exhibit 5.1)**
24 Power of Attorney (Previously filed)
25.1 Statement of Eligibility of Chemical Bank as Trustee on Form T-1*
_______________
* Previously filed as an Exhibit to the Company's Registration Statement on
Form S-3 (No. 33-55993) and incorporated herein by reference.
** Previously filed as an Exhibit to this Registration Statement.
EXHIBIT 4.2
Deposit Agreement
----------------, AS DEPOSITARY,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
<PAGE>
DEPOSIT AGREEMENT
Dated as of ---------------- --, 1994
<TABLE>
TABLE OF CONTENTS*
<CAPTION>
Page
<S> <C> <C>
ARTICLE I. Definitions 1
ARTICLE II. Form of Receipts, Deposit of Stock, Execution and
Delivery, Transfer, Surrender and Redemption 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 3
SECTION 2.03. Redemption of Stock 4
SECTION 2.04. Registration of Transfer of Receipts 5
SECTION 2.05. Split-ups and Combinations of Receipts 5
SECTION 2.06. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts 6
SECTION 2.07. Lost Receipts, etc. 6
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts 6
SECTION 2.09 Withdrawal of Stock 6
ARTICLE III. Certain Obligations of Holders of Receipts and
Warranties of the Company 7
SECTION 3.01. Filing Proofs, Certificates and Other Information 7
SECTION 3.02. Payment of Taxes or Other Governmental Charges 7
SECTION 3.03. Warranty as to Stock 7
SECTION 3.04. Warranty as to Receipts 7
ARTICLE IV. The Deposited Securities: Notices 7
SECTION 4.01. Cash Distributions 7
SECTION 4.02. Distributions Other than Cash 8
SECTION 4.03. Notice of Dividends, etc.; Fixing of Record Date for
Holders of Receipts 8
SECTION 4.04. Voting Rights 9
SECTION 4.05. Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, etc. 9
SECTION 4.06. Inspection of Reports 10
SECTION 4.07. Lists of Receipt Holders 10
ARTICLE V. The Depositary, the Depositary's Agents, the Registrar
and the Company 10
SECTION 5.01. Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar 10
SECTION 5.02. Prevention of or Delay in Performance by the Depositary,
the Depositary's Agents, the Registrar or the Company 11
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company 11
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary 12
SECTION 5.05. Corporate Notices and Reports 12
SECTION 5.06. Indemnification 13
SECTION 5.07. Charges and Expenses 13
<PAGE>
SECTION 5.08. Retention of Depositary Documents 14
ARTICLE VI. Amendment and Termination 14
SECTION 6.01. Amendment 14
SECTION 6.02. Termination 14
ARTICLE VII. Miscellaneous 15
SECTION 7.01. Counterparts 15
SECTION 7.02. Exclusive Benefit of Parties 15
SECTION 7.03. Invalidity of Provisions 15
SECTION 7.04. Notices 15
SECTION 7.05. Depositary's Agents 16
SECTION 7.06. Holders of Receipts Are Parties 16
SECTION 7.07. Governing Law 16
SECTION 7.08. Inspection of Deposit Agreement 16
SECTION 7.09. Headings 16
EXHIBIT A - FORM OF DEPOSITARY RECEIPT
* This table of contents does not constitute a part of the Agreement to which it is attached.
</TABLE>
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>
"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, 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
<PAGE>
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 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 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
<PAGE>
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 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 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
<PAGE>
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 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.
SECTION 2.09. Withdrawal of Stock. Upon surrender of Receipts at the
Depositary's Office, unless a Redemption Date for the Depositary Shares
evidenced by such Receipts shall have been fixed, the Record Holder of the
Depositary Shares evidenced thereby shall be entitled to delivery, at the
Depositary's Office or to or upon the order of such Record Holder, of the
number of whole shares of Stock and any money or other property then
represented by such Depositary Shares.
ARTICLE III.
Certain Obligations of Holders of Receipts
and Warranties of the Company
<PAGE>
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 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 property received by it as are, as nearly as
<PAGE>
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 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
<PAGE>
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 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 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
<PAGE>
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 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. 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
<PAGE>
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 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 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
<PAGE>
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 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 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
<PAGE>
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.
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 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
<PAGE>
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 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:
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
<PAGE>
(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 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 (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
<PAGE>
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 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 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
<PAGE>
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 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 made
available to holders of Receipts as provided in the Deposit Agreement.
<PAGE>
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
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>
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 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. The corporation will furnish without charge to each stockholder
<PAGE>
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
