<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 14, 1994
REGISTRATION NO. 33-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
BATTLE MOUNTAIN GOLD COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
NEVADA 76-0151431
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER IDENTIFICATION NO.)
ORGANIZATION)
</TABLE>
333 CLAY STREET, 42ND FLOOR
HOUSTON, TEXAS 77002
(713) 650-6400
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------------
ROBERT J. QUINN
VICE PRESIDENT AND GENERAL COUNSEL
BATTLE MOUNTAIN GOLD COMPANY
333 CLAY STREET, 42ND FLOOR
HOUSTON, TEXAS 77002
(713) 650-6400
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
---------------------
Copies to:
<TABLE>
<S> <C>
C. MICHAEL WATSON P. DEXTER PEACOCK
BAKER & BOTTS, L.L.P. ANDREWS & KURTH L.L.P.
3000 ONE SHELL PLAZA 4200 TEXAS COMMERCE TOWER
HOUSTON, TEXAS 77002 HOUSTON, TEXAS 77002
(713) 229-1542 (713) 220-4200
</TABLE>
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective as determined by
market conditions.
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
CALCULATION OF REGISTRATION FEE
==============================================================================
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED UNIT(1) PRICE (1) REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities(3)....................
- --------------------------------------
Preferred Stock, par value $1.00 per
share(4)(5).........................
- --------------------------------------
Depositary Shares(5).................. (2) (2) (2) N/A
- --------------------------------------
Common Stock, par value $0.10 per
share (6)(7)........................
- --------------------------------------
Warrants (8)..........................
- --------------------------------------
Total................................. $200,000,000(9) 100% $200,000,000(9) $68,966
</TABLE>
=============================================================================
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933, as amended, and
exclusive of accrued interest, if any.
(2) Not applicable pursuant to Form S-3 General Instruction II.D.
(3) Subject to note (9) below, there are being registered hereunder an
indeterminate principal amount of Debt Securities. If any Debt Securities
are being issued at an original issue discount, then the offering price
shall be in such greater principal amount as shall result in an aggregate
initial offering price not to exceed $200,000,000, less the dollar amount of
any securities previously issued hereunder.
(4) Subject to note (9) below, there are being registered hereunder an
indeterminate number of shares of Preferred Stock as may be sold, from time
to time, by the Registrant.
(5) Subject to note (9) below, there are being registered hereunder an
indeterminate number of Depositary Shares to be evidenced by Depositary
Receipts issued pursuant to a Deposit Agreement. In the event the Registrant
elects to offer to the public fractional interests in shares of Preferred
Stock registered hereunder, Depositary Receipts will be distributed to those
persons purchasing such fractional interests, and the shares of Preferred
Stock will be issued to the depositary under the Deposit Agreement.
(6) Includes the preferred stock purchase rights associated with the Common
Stock.
(7) Subject to note (9) below, there are being registered hereunder an
indeterminate number of shares of Common Stock as may be sold, from time to
time, by the Registrant. There are also being registered hereunder an
indeterminate number of shares of Common Stock as shall be issuable upon
conversion or redemption of Preferred Stock or Debt Securities registered
hereby or upon exercise of Warrants registered hereby.
(8) Subject to note (9) below, there are being registered hereunder an
indeterminate amount and number of Warrants, representing rights to purchase
Debt Securities, Preferred Stock or Common Stock registered hereby.
(9) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
$200,000,000, or its equivalent if some or all of the securities are
denominated in one or more foreign currencies. Any securities registered
hereunder may be sold separately or as units with other securities
registered hereunder.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
===============================================================================
<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY
NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE
REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER
TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN
WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO
REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JANUARY 14, 1994
PROSPECTUS
BATTLE MOUNTAIN GOLD COMPANY
DEBT SECURITIES
PREFERRED STOCK
DEPOSITARY SHARES
COMMON STOCK
WARRANTS
---------------------
Battle Mountain Gold Company ("BMG") may offer from time to time (i)
unsecured debt securities ("Debt Securities") consisting of debentures, notes
and/or other evidences of unsecured indebtedness in one or more series, (ii)
shares of preferred stock, par value $1.00 per share ("Preferred Stock"), in one
or more series, or fractional interests in shares of Preferred Stock represented
by depositary shares ("Depositary Shares"), (iii) shares of common stock, par
value $0.10 per share ("Common Stock"), or (iv) warrants ("Warrants") to
purchase Debt Securities, Preferred Stock or Common Stock (the Debt Securities,
Preferred Stock, Depositary Shares, Common Stock and Warrants are collectively
referred to as "Securities"), or any combination of the foregoing, at an
aggregate initial offering price not to exceed $200,000,000, or its equivalent
if some or all of the Securities are denominated in one or more foreign
currencies, at prices and on terms to be determined at or prior to the time of
sale in light of market conditions at the time of sale.
Specific terms of the particular Securities in respect of which this
Prospectus is being delivered will be set forth in one or more accompanying
Prospectus Supplements (each a "Prospectus Supplement"), together with the terms
of the offering of the Securities and the initial price and the net proceeds to
BMG from the sale thereof. The Prospectus Supplement will set forth with regard
to the particular Securities, without limitation, the following: (i) in the case
of Debt Securities, the specific designation, aggregate principal amount,
ranking as senior debt or subordinated debt, authorized denomination, maturity,
rate or method of calculation of interest and dates for payment thereof, any
exchangeability, conversion, redemption, prepayment or sinking fund provisions,
the currency or currencies or currency unit or currency units in which
principal, premium, if any, or interest, if any, is payable, any modification of
the covenants and any other specific terms thereof; (ii) in the case of
Preferred Stock, the designation, number of shares, liquidation preference per
share, initial public offering price, dividend rate (or method of calculation
thereof), dates on which dividends will be payable and dates from which
dividends will accrue, any redemption or sinking fund provisions, any conversion
or exchange rights, any other relative rights and whether BMG has elected to
offer fractional interests in the Preferred Stock in the form of Depositary
Shares evidenced by depositary receipts; (iii) in the case of Common Stock, the
number of shares of Common Stock and the terms of the offering and sale thereof;
and (iv) in the case of Warrants, the number and terms thereof, the designation
and the number of Securities issuable upon their exercise, the exercise price,
the terms of the offering and sale thereof and, where applicable, the duration
and detachability thereof. The amounts payable by the Company in respect of
Securities may be calculated by reference to the value, rate or price of one or
more specified commodities, currencies or indices as set forth in the Prospectus
Supplement. The Prospectus Supplement will also contain information, where
applicable, about certain United States federal income tax considerations
relating to the Securities covered by the Prospectus Supplement.
The outstanding Common Stock is listed on the New York Stock Exchange, The
Toronto Stock Exchange, the Australian Stock Exchange Limited, the Swiss Stock
Exchanges and the Frankfurt Stock Exchange under the symbol "BMG". Any Common
Stock offered will be listed, subject to notice of issuance, on such exchanges.
The applicable Prospectus Supplement will contain information about any listing
of the other Securities on a securities exchange.
BMG may sell the Securities directly, through agents designated from time
to time or through underwriters or dealers. If any agents of BMG or any
underwriters or dealers are involved in the sale of the Securities, the names of
such agents, underwriters or dealers, any applicable commissions and discounts,
and the net proceeds to the Company will be set forth in the applicable
Prospectus Supplement. See "Plan of Distribution" for possible indemnification
arrangements for agents, underwriters and dealers.
---------------------
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 COM-
MISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------
THE DATE OF THIS PROSPECTUS IS , 1994
<PAGE> 3
AVAILABLE INFORMATION
BMG 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"), which can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Judiciary Plaza, Room 1024, Washington, D.C. 20549; and at regional offices of
the Commission at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661
and at 7 World Trade Center, New York, New York 10048. Copies of such material
can be obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Judiciary Plaza, Washington, D.C. 20549 at prescribed rates. Such
reports, proxy statements and other information concerning BMG also may be
inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
BMG has filed with the Commission a Registration Statement (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the Securities. This Prospectus does not
contain all of the information set forth in the Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of the
Commission. For further information with respect to BMG and such Securities,
reference is made to such Registration Statement and to the exhibits thereto.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by BMG with the Commission
pursuant to the Exchange Act (File No. 1-9666), are incorporated in this
Prospectus by reference and shall be deemed to be a part hereof:
(a) BMG's Annual Report on Form 10-K for the year ended December 31,
1992;
(b) BMG's Quarterly Reports on Form 10-Q for the quarters ended March
31, 1993, June 30, 1993 and September 30, 1993;
(c) The description of the Common Stock contained in BMG's
Registration Statement on Form 8-A dated August 12, 1987 (as amended by a
Form 8 dated April 25, 1991); and
(d) The description of the preferred stock purchase rights associated
with the Common Stock contained in BMG's Registration Statement on Form 8-A
dated November 15, 1988 (as amended by a Form 8 dated November 29, 1988).
All documents filed by BMG pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering made hereby shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of the filing
of such documents. Any statement contained in this Prospectus, in a supplement
to this Prospectus or 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
subsequently filed supplement to this Prospectus or in any document that also is
or is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
BMG hereby undertakes to provide without charge to each person, including
any beneficial owner, to whom a copy of this Prospectus has been delivered, on
the written or oral 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 in such documents). Written
or telephone requests for such copies should be directed to BMG at its principal
executive office located at 333 Clay Street, 42nd Floor, Houston, Texas 77002,
Attention: Secretary (telephone number: (713) 650-6400).
IN CONNECTION WITH THE OFFERING OF CERTAIN SECURITIES, THE UNDERWRITERS MAY
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES
OF SUCH SECURITIES OR OTHER SECURITIES OF BMG AT LEVELS ABOVE THOSE WHICH MIGHT
OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
2
<PAGE> 4
THE COMPANY
BMG and its consolidated subsidiaries (collectively, the "Company") are
engaged primarily in the mining and processing of gold and silver ore in the
United States, Bolivia, Chile and Australia and in exploration and evaluation of
gold and silver properties in the United States, Australia, Latin America and
the South Pacific. For 1993, the Company produced approximately 474,000 ounces
of gold and approximately 2.8 million ounces of silver (of which BMG's
attributable share was approximately 400,000 ounces of gold and approximately
1.8 million ounces of silver). BMG was incorporated in Nevada in 1985.
The Company's operating properties include the Battle Mountain complex in
Nevada, the San Luis mine in Colorado, the Pajingo and Red Dome mines in
Queensland, Australia, the San Cristobal mine in Chile and the Kori Kollo mine
in Bolivia. BMG owns 85 percent of the outstanding common equity of Empresa
Minera Inti Raymi S.A., a Bolivian company which owns and operates the Kori
Kollo mine. BMG also owns approximately 52.6 percent of the outstanding common
equity of Niugini Mining Limited, a Papua New Guinea company which owns and
operates the San Cristobal and Red Dome mines and, as of December 31, 1993, had
a 20 percent interest in a joint venture for the proposed development of the
Lihir gold project in Papua New Guinea.
The Company's principal executive offices are located at 333 Clay Street,
42nd Floor, Houston, Texas 77002, and its telephone number at such address is
(713) 650-6400.
USE OF PROCEEDS
BMG intends to apply the net proceeds from the sale of the Securities to
its general funds to be used for general corporate purposes. The Company in the
ordinary course of its business regularly reviews the acquisition of gold mining
properties and companies that own gold mining properties. Any specific
allocations of the proceeds to a particular purpose that has been made at the
date of any Prospectus Supplement will be described therein.
RATIO OF EARNINGS TO FIXED CHARGES
The Company's ratio of earnings to fixed charges was as follows for the
years and periods indicated:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
---------------- ----------------------------------------------
1993 1992 1992 1991 1990 1989 1988
------ ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to
Fixed Charges.......... -- -- -- -- 2.08x 16.14x 358.75x
</TABLE>
For purposes of computing the ratios of earnings to fixed charges,
"earnings" consist of income before cumulative effects of accounting changes,
income taxes and fixed charges. "Fixed charges" consist of total interest
charges, whether expensed or capitalized, amortization of debt expense and
one-third of rental expense, which is deemed by the Company to be representative
of an interest factor. Earnings were inadequate to cover fixed charges by $52.9
million for the nine months ended September 30, 1992, and by $56.1 million and
$11.5 million for the years ended December 31, 1992 and 1991, respectively.
Earnings for these periods reflect asset write-downs and write-offs as described
in the following paragraph and other noncash charges. Earnings were inadequate
to cover fixed charges by $14.2 million for the nine months ended September 30,
1993. Prior to the issuance of BMG's $3.25 Convertible Preferred Stock (the
"Convertible Preferred Stock") in May 1993, no shares of Preferred Stock were
outstanding. Accordingly, the ratio of earnings to combined fixed charges and
preferred stock dividends for each of the periods ended prior to such issuance
is the same as the ratio of earnings to fixed charges for such periods. Earnings
were inadequate to cover combined fixed charges and preferred dividends by $18.1
million for the nine months ended September 30, 1993.
In 1992, the Company (i) wrote down $17.6 million, net of a restated $9.1
million income tax benefit, of BMG's investment in its San Luis mine in Colorado
and (ii) wrote off $4 million, net of a restated $2 million
3
<PAGE> 5
income tax benefit, of BMG's investment in the previously closed Canyon Placer
facility, which was abandoned because of a persistently weak gold market. In
1991, the Company wrote down $4.5 million, net of $1.1 million tax benefit, of
BMG's carrying value in its investment in the San Juan Project in California. In
March 1992, BMG sold its interest in the San Juan Project.
DESCRIPTION OF DEBT SECURITIES
The following description of the Debt Securities sets forth certain general
terms and provisions of the Debt Securities to which any Prospectus Supplement
may relate ("Offered Debt Securities"). The particular terms of the Offered Debt
Securities and the extent to which such general provisions may apply will be
described in a Prospectus Supplement relating to such Offered Debt Securities.
The Debt Securities will be general unsecured obligations of BMG and will
constitute either senior debt securities or subordinated debt securities. In the
case of Debt Securities that will be senior debt securities ("Senior Debt
Securities"), the Debt Securities will be issued under an Indenture (the "Senior
Indenture") to be entered into between BMG and The Bank of New York, as trustee
under the Senior Indenture. In the case of Debt Securities that will be
subordinated debt securities ("Subordinated Debt Securities"), the Debt
Securities will be issued under an Indenture (the "Subordinated Indenture") to
be entered into between BMG and The Bank of New York, as trustee under the
Subordinated Indenture. The Senior Indenture and the Subordinated Indenture are
sometimes hereinafter referred to herein individually as an "Indenture" and
collectively as the "Indentures". Copies of the forms of the Indentures have
been filed as exhibits to the Registration Statement. The Bank of New York, as
trustee under each of the Indentures (and any successor thereto under each
Indenture), is referred to herein as the "Trustee". The statements under this
caption relating to the Debt Securities and the Indentures are summaries only
and do not purport to be complete. Such summaries make use of terms defined in
the Indentures. Wherever such terms are used herein or particular provisions of
the Indentures are referred to, such terms or provisions, as the case may be,
are incorporated by reference as part of the statements made herein, and such
statements are qualified in their entirety by such reference. Certain defined
terms in the Indentures are capitalized herein. The italicized references below
apply to the section numbers in each of the Indentures, unless otherwise
indicated.
PROVISIONS APPLICABLE TO BOTH SENIOR AND SUBORDINATED DEBT SECURITIES
General. The Indentures do not limit the aggregate principal amount of Debt
Securities which can be issued thereunder and provide that Debt Securities may
be issued from time to time thereunder in one or more series, each in an
aggregate principal amount authorized by BMG prior to issuance. The Debt
Securities may be issued at various times with different maturity dates and
different principal repayment provisions, may bear interest at different rates,
may be payable in currencies other than United States dollars, in composite
currencies or in amounts determined by reference to the price, rate or value of
one or more specified commodities, currencies or indices, and may otherwise
vary, all as provided in the Indentures. The Company has from time to time
entered into, and will in the future enter into, credit agreements to fund its
operations. Such credit agreements may be secured by the assets of the Company,
secured by the assets of the Company's subsidiaries or guaranteed by the
Company's subsidiaries. To the extent that such credit agreements are so secured
or guaranteed, the lenders under such credit agreements will have priority over
the Holders of the Debt Securities with respect to the assets of the Company or
its subsidiaries which secure such credit agreements.
Unless otherwise indicated in a Prospectus Supplement, the Debt Securities
will not benefit from any covenant or other provision that would afford Holders
of such Debt Securities special protection in the event of a highly leveraged
transaction involving BMG.
Reference is made to the applicable Prospectus Supplement for the following
terms of the Offered Debt Securities: (i) the title and aggregate principal
amount of the Offered Debt Securities; (ii) the date or dates on which the
Offered Debt Securities will mature; (iii) the rate or rates (which may be fixed
or variable) per annum, if any, at which the Offered Debt Securities will bear
interest or the method of determining such rate or rates; (iv) the date or dates
from which such interest, if any, will accrue and the date or dates at which
such
4
<PAGE> 6
interest, if any, will be payable; (v) the terms for redemption or early
payment, if any, including any mandatory or optional sinking fund or analogous
provision; (vi) the terms for conversion or exchange, if any, of the Offered
Debt Securities; (vii) whether such Offered Debt Securities will be issued in
fully registered form or in bearer form or any combination thereof; (viii)
whether such Offered Debt Securities will be issued in the form of one or more
global securities and whether such global securities are to be issuable in
temporary global form or permanent global form; (ix) information with respect to
book-entry procedures, if any; (x) the currency, currencies or currency unit or
units in which such Offered Debt Securities will be denominated and in which the
principal of, and premium and interest, if any, on such Offered Debt Securities
will be payable; (xi) whether, and the terms and conditions on which, BMG or a
Holder may elect that, or the other circumstances under which, payment of
principal of, or premium or interest, if any, on such Offered Debt Securities is
to be made in a currency or currencies or currency unit or units other than that
in which such Offered Debt Securities are denominated; (xii) any index or
formula to be used to determine the amount of payments of principal of (and
premium, if any) and interest on such Offered Debt Securities, and any
commodities, currencies, currency units or indices, or value, rate or price,
relevant to such determination; and (xiii) any other specific terms of the
Offered Debt Securities. (Section 301) Reference is also made to the applicable
Prospectus Supplement for information with respect to (x) the classification of
the Offered Debt Securities as Senior Debt Securities or Subordinated Debt
Securities, (y) the price (expressed as a percentage of the aggregate principal
amount of the Offered Debt Securities) at which the Offered Debt Securities will
be issued, if other than 100 percent, and (z) any additional covenants that may
be included in the terms of the Offered Debt Securities.
No service charge will be made for any registration of transfer or exchange
of the Debt Securities, but BMG may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. (Section
305)
BMG currently conducts substantial operations through subsidiaries, and the
Holders of Debt Securities will have a junior position to any claims of
creditors and any preferred stockholders of the Company's subsidiaries. Claims
of creditors of such subsidiaries, including trade creditors, secured creditors,
taxing authorities and creditors holding guarantees, and claims of holders of
any preferred stock will generally have priority as to the assets of such
subsidiaries over the claims and equity interest of the Company and, thereby
indirectly, the holders of indebtedness of the Company, including the Debt
Securities.
Offered Debt Securities may be sold at a discount (which may be
substantial) below their stated principal amount bearing no interest or interest
at a rate which at the time of issuance is below market rates. Any material
United States federal income tax consequences and other special considerations
applicable thereto will be described in the Prospectus Supplement relating to
any such Offered Debt Securities.
If any of the Offered Debt Securities are sold for any foreign currency or
currency unit or if the principal of, or premium or interest, if any, on any of
the Offered Debt Securities is payable in any foreign currency or currency unit,
the restrictions, elections, tax consequences, specific terms and other
information with respect to such Offered Debt Securities and such foreign
currency or currency unit will be set forth in the Prospectus Supplement
relating thereto.
Covenants. The Indentures require the Company to covenant, among other
things, with respect to each series of Debt Securities: (i) to duly and
punctually pay the principal of (and premium, if any) and interest, if any, on
such series of Debt Securities; (ii) to maintain an office or agency in each
Place of Payment where Debt Securities may be presented or surrendered for
payment, transferred or exchanged and where notices to the Company may be
served; (iii) if the Company shall act as its own Paying Agent for any series of
Debt Securities, to segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest, if any, so becoming due; (iv) to deliver to the Trustee, within 120
days after the end of each fiscal year, a written statement to the effect that
the Company has fulfilled all its obligations under the Indenture throughout
such year; (v) to preserve its corporate existence; (vi) to maintain its
properties; and (vii) to pay its taxes and other claims, in each case, as
required by the Indentures. (Article Ten)
5
<PAGE> 7
Events of Default. Unless otherwise provided with respect to any series of
Debt Securities, the following are Events of Default under each Indenture with
respect to the Debt Securities of such series issued under such Indenture: (a)
failure to pay principal of (or premium, if any, on) any Debt Security of such
series when due; (b) failure to pay any interest on any Debt Security of such
series when due, continued for 30 days; (c) failure to deposit any mandatory
sinking fund payment, when due, in respect of the Debt Securities of such
series; (d) failure to perform any other covenant of BMG in the applicable
Indenture (other than a covenant included in the applicable Indenture for the
benefit of a series of Debt Securities other than such series), continued for 60
days after written notice as provided in the applicable Indenture; (e) certain
events of bankruptcy, insolvency or reorganization; and (f) any other Event of
Default as may be established with respect to Debt Securities of such series
(including, without limitation, any Event of Default arising out of a default
which results in the acceleration of certain indebtedness or a default in the
payment of any amounts due on certain indebtedness). (Sections 301 and 501)If an
Event of Default with respect to any outstanding series of Debt Securities
occurs and is continuing, either the Trustee or the Holders of at least 25% in
principal amount of the outstanding Debt Securities of such series (subject to
the following sentence, in the case of an Event of Default described in clause
(a), (b), (c) or (f) above) or at least 25% in principal amount of all
outstanding Debt Securities under the applicable Indenture (subject to the
following sentence, in the case of other Events of Default) may declare the
principal amount of all the Debt Securities of the applicable series (or of all
outstanding Debt Securities under the applicable Indenture, as the case may be)
to be due and payable immediately. If an Event of Default described in clause
(e) shall occur, the principal amount of the Debt Securities of all series ipso
facto shall become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder. At any time after a
declaration of acceleration has been made, but before a judgment has been
obtained, the Holders of a majority in principal amount of the outstanding Debt
Securities of such series (or of all outstanding Debt Securities under the
applicable Indenture, as the case may be) may, under certain circumstances,
rescind and annul such acceleration. (Section 502) Depending on the terms of
other indebtedness of BMG outstanding from time to time, an Event of Default
under an Indenture may give rise to cross defaults on such other indebtedness of
BMG.
Each Indenture provides that the Trustee will, within 90 days after the
occurrence of a default in respect of any series of Debt Securities, give to the
Holders of the Debt Securities of such series notice of all uncured and unwaived
defaults known to it; provided, however, that, except in the case of a default
in the payment of the principal of (or premium, if any) or any interest on, or
any sinking fund installment with respect to, any Debt Securities of such
series, the Trustee will be protected in withholding such notice if it in good
faith determines that the withholding of such notice is in the interest of the
Holders of the Debt Securities of such series; and provided, further, that such
notice shall not be given until at least 30 days after the occurrence of a
default in the performance, or breach, of any covenant or warranty of BMG under
such Indenture other than for the payment of the principal of (or premium, if
any) or any interest on, or any sinking fund installment with respect to, any
Debt Securities of such series. For the purpose of this provision, "default"
with respect to Debt Securities of any series means any event which is, or after
notice or lapse of time, or both, would become, an Event of Default with respect
to the Debt Securities of such series. (Section 602)
The Holders of a majority in principal amount of the outstanding Debt
Securities of any series (or, in certain cases, all outstanding Debt Securities
under the applicable Indenture) have the right, subject to certain limitations,
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Debt Securities of such series (or of all
outstanding Debt Securities under the applicable Indenture). (Section 512) Each
Indenture provides that in case an Event of Default shall occur and be
continuing with respect to the Debt Securities of any series, the Trustee shall
exercise such of its rights and powers under the applicable Indenture and use
the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(Section 601) Subject to such provisions, the Trustee will be under no
obligation to exercise any of its rights or powers under either Indenture at the
request of any of the Holders of the Debt Securities unless they shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request. (Section 603)
6
<PAGE> 8
The Holders of a majority in principal amount of the outstanding Debt
Securities of any series (or, in certain cases, all outstanding Debt Securities
under the applicable Indenture) may on behalf of the Holders of all Debt
Securities of such series (or of all outstanding Debt Securities under the
applicable Indenture) waive any past default under the applicable Indenture,
except a default in the payment of the principal of (or premium, if any) or
interest on any Debt Security or in respect of a provision which under the
applicable Indenture cannot be modified or amended without the consent of the
Holder of each outstanding Debt Security affected. (Section 513) The Holders of
a majority in principal amount of the outstanding Debt Securities affected
thereby may on behalf of the Holders of all such Debt Securities waive
compliance by BMG with certain restrictive provisions of the Indentures.
(Section 1008)
BMG is required to furnish to the Trustee annually a statement as to the
performance by BMG of certain of its obligations under each Indenture and as to
any default in such performance. (Section 1007)
Modification. Modifications and amendments of each Indenture may be made by
BMG and the Trustee with the consent of the Holders of a majority in principal
amount of the outstanding Debt Securities under the applicable Indenture
affected thereby; provided, however, that no such modification or amendment may,
without the consent of the Holder of each outstanding Debt Security affected
thereby, (a) change the stated maturity date of the principal of, or any
installment of interest on, any Debt Security, (b) reduce the principal amount
of, or the premium (if any) or interest on, any Debt Security, (c) change the
Place of Payment or currency, currencies, or currency unit or units of payment
of principal of, or premium (if any) or interest on, any Debt Security, (d)
impair the right to institute suit for the enforcement of any payment on or with
respect to any Debt Security or (e) reduce the percentage in principal amount of
outstanding Debt Securities the consent of whose Holders is required for
modification or amendment of the Indentures or for waiver of compliance with
certain provisions of the Indentures or for waiver of certain defaults. (Section
902)
Each Indenture provides that BMG and the Trustee may, without the consent
of any Holders of Debt Securities, enter into supplemental indentures for the
purposes, among other things, of adding to BMG's covenants, securing the Debt
Securities, adding additional Events of Default, establishing the form or terms
of Debt Securities or curing ambiguities or inconsistencies in the applicable
Indenture, provided such action to cure ambiguities or inconsistencies shall not
adversely affect the interests of the Holders of the Debt Securities in any
material respect. (Section 901)
Consolidation, Merger and Sale of Assets. BMG, without the consent of any
Holders of outstanding Debt Securities, may consolidate with or merge into, or
convey, transfer or lease its assets substantially as an entirety to, any
Person, provided that the Person formed by such consolidation or into which BMG
is merged or which acquires or leases the assets of BMG substantially as an
entirety is a corporation, partnership or trust organized under the laws of any
United States jurisdiction and assumes by supplemental indenture BMG's
obligations on the Securities and under the Indentures, that after giving effect
to the transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have occurred and
be continuing, and that certain other conditions are met. Upon compliance with
these provisions by a successor Person, BMG will (except in the case of a lease)
be relieved of its obligations under the Indentures and the Debt Securities.
(Article Eight)
Discharge and Defeasance. BMG may terminate its obligations under each
Indenture with respect to Debt Securities of any series, other than its
obligation to pay the principal of (and premium, if any) and interest on such
Debt Securities and certain other obligations, if it (i) irrevocably deposits or
causes to be irrevocably deposited with the Trustee as trust funds money or U.S.
Government Obligations maturing as to principal and interest sufficient to pay
the principal of, any interest on, and any mandatory sinking funds in respect
of, all outstanding Debt Securities of such series on the stated maturity of
such payments or on any redemption date, (ii) has delivered to the Trustee an
opinion of counsel to the effect that the Holders of Debt Securities of such
series will not recognize income, gain or loss for United States federal income
tax purposes as a result of such discharge and will be subject to United States
federal income tax on the same amount and in the same manner and at the same
time as would have been the case if such discharge had not occurred, and (iii)
complies with any additional conditions specified to be applicable with respect
to the covenant defeasance of Debt Securities of such series, and no Default or
Event of Default with respect to the Debt Securities of
7
<PAGE> 9
such issue shall have occurred and be continuing on the date of such deposit or,
in so far as they relate to certain events of bankruptcy or insolvency, at any
time in the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until the
expiration of such period). (Section 401)
The terms of any series of Debt Securities may also provide for legal
defeasance pursuant to each Indenture. In such case, if BMG (i) irrevocably
deposits or causes to be irrevocably deposited money or U.S. Government
Obligations as described above and complies with the other provisions described
above (except that the opinion referred to in clause (ii) above must be based on
a ruling by the Internal Revenue Service or other change under applicable
federal income tax law), (ii) makes a request to the Trustee to be discharged
from its obligations on the Debt Securities of such series and (iii) complies
with any additional conditions specified to be applicable with respect to legal
defeasance of Securities of such series, then BMG shall be deemed to have paid
and discharged the entire indebtedness on all the outstanding Debt Securities of
such series and the obligations of BMG under the applicable Indenture and the
Debt Securities of such series to pay the principal of (and premium, if any) and
interest on the Debt Securities of such series shall cease, terminate and be
completely discharged, and the Holders thereof shall thereafter be entitled only
to payment out of the money or U.S. Government Obligations deposited with the
Trustee as aforesaid, unless BMG's obligations are revived and reinstated
because the Trustee is unable to apply such trust fund by reason of any legal
proceeding, order or judgment. (Sections 403 and 404)
Form, Exchange, Registration and Transfer. Debt Securities are issuable in
definitive form as Registered Debt Securities, as Bearer Debt Securities or
both. Unless otherwise indicated in an applicable Prospectus Supplement, Bearer
Debt Securities will have interest coupons attached. Debt Securities are also
issuable in temporary or permanent global form. (Section 301)
Registered Debt Securities of any series will be exchangeable for other
Registered Debt Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations. In addition, with
respect to any series of Bearer Debt Securities, at the option of the Holder,
subject to the terms of the applicable Indenture, Bearer Debt Securities (with
all unmatured coupons, except as provided below, and all matured coupons in
default) of such series will be exchangeable into Registered Securities of the
same series of any authorized denominations and of a like aggregate principal
amount and tenor. Bearer Debt Securities surrendered in exchange for Registered
Debt Securities between a Regular Record Date or a Special Record Date and the
relevant date for payment of interest shall be surrendered without the coupon
relating to such date for payment of interest, and interest accrued as of such
date will not be payable in respect of the Registered Debt Security issued in
exchange for such Bearer Debt Security, but will be payable only to the Holder
of such coupon when due in accordance with the terms of the applicable
Indenture. (Section 305)
In connection with its sale during the restricted period (as defined
below), no Bearer Debt Security (including a Debt Security in permanent global
form that is either a Bearer Debt Security or exchangeable for Bearer Debt
Securities) shall be mailed or otherwise delivered to any location in the United
States (as defined under "-- Limitations on Issuance of Bearer Debt Securities")
and a Bearer Debt Security may be delivered outside the United States in
definitive form in connection with its original issuance only if prior to
delivery the Person entitled to receive such Bearer Debt Security furnishes
written certification, in the form required by the applicable Indenture, to the
effect that such Bearer Debt Security is owned by: (a) a Person (purchasing for
its own account) who is not a United States Person (as defined under
"-- Limitations on Issuance of Bearer Debt Securities"); (b) a United States
Person who (i) is a foreign branch of a United States financial institution
purchasing for its own account or for resale or (ii) acquired such Bearer Debt
Security through the foreign branch of a United States financial institution and
who for purposes of the certification holds such Bearer Debt Security through
such financial institution on the date of certification and, in either case,
such United States financial institution certifies to BMG or the distributor
selling the Bearer Debt Security within a reasonable time stating that it agrees
to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder, or (c) a United States or foreign financial institution
for purposes of resale within the "restricted period" as defined in United
States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7). A financial
institution described in clause (c) of the preceding sentence (whether or not
also described in clauses (a) and
8
<PAGE> 10
(b)) must certify that it has not acquired the Bearer Debt Security for purpose
of resale, directly or indirectly, to a United States person or to a person
within the United States or its possessions. In the case of a Bearer Debt
Security in permanent global form, such certification must be given in
connection with notation of a beneficial owner's interest therein in connection
with the original issuance of such Debt Security or upon exchange of a portion
of a temporary global Security. (Section 303) See "-- Limitations on Issuance of
Bearer Debt Securities".
Debt Securities may be presented for exchange as provided above, and
Registered Debt Securities may be presented for registration of transfer (with
the form of transfer endorsed thereon duly executed), at the office of the
Security Registrar or at the office of any transfer agent designated by BMG for
such purpose with respect to any series of Debt Securities and referred to in an
applicable Prospectus Supplement, without a service charge and upon payment of
any taxes and other governmental charges as described in the applicable
Indenture. Such transfer or exchange will be effected upon the Security
Registrar or such transfer agent, as the case may be, being satisfied with the
documents of title and identity of the Person making the request. BMG has
appointed the Trustee as Security Registrar. (Section 305) If a Prospectus
Supplement refers to any transfer agents (in addition to the Security Registrar)
initially designated by BMG with respect to any series of Debt Securities, BMG
may at any time rescind the designation of any such transfer agent or approve a
change in the location through which any such transfer agent acts, except that,
if Debt Securities of a series are issuable solely as Registered Debt
Securities, BMG will be required to maintain a transfer agent in each Place of
Payment for such series and, if Debt Securities of a series are issuable as
Bearer Debt Securities, BMG will be required to maintain (in addition to the
Security Registrar) a transfer agent in a Place of Payment located outside the
United States for Registered Securities of such series. BMG may at any time
designate additional transfer agents with respect to any series of Debt
Securities. (Section 1002)
In the event of any redemption in part, BMG shall not be required to (i)
issue, register the transfer of or exchange Debt Securities of any series during
a period beginning at the opening of business 15 days prior to the selection of
Debt Securities of that series for redemption and ending on the close of
business on (A) if Debt Securities of the series are issuable only as Registered
Debt Securities, the day of mailing of the relevant notice of redemption and (B)
if Debt Securities of the series are issuable as Bearer Debt Securities, the day
of the first publication of the relevant notice of redemption except that, if
Securities of the series are also issuable as Registered Debt Securities and
there is no publication, the day of mailing of the relevant notice of
redemption; (ii) register the transfer of or exchange any Registered Debt
Security, or portion thereof, called for redemption, except the unredeemed
portion of any Registered Debt Security being redeemed in part; or (iii)
exchange any Bearer Debt Security called for redemption, except to exchange such
Bearer Debt Security for a Registered Debt Security of that series and like
tenor which is simultaneously surrendered for redemption. (Section 305)
Payment and Paying Agents. Unless otherwise indicated in an applicable
Prospectus Supplement, payment of principal of and any premium and interest on
Bearer Debt Securities will be payable, subject to any applicable laws and
regulations in the designated currency or currency unit, at the offices of such
Paying Agents outside the United States as BMG may designate from time to time,
at the option of the Holder, by check or by transfer to an account maintained by
the payee with a bank located outside the United States; provided, however, that
the written certification described above under "-- Form, Exchange, Registration
and Transfer" has been delivered prior to the first actual payment of interest.
(Section 307) Unless otherwise indicated in an applicable Prospectus Supplement,
payment of interest on Bearer Debt Securities on any Interest Payment Date will
be made only against surrender to the Paying Agent of the coupon relating to
such Interest Payment Date. (Section 1001) No payment with respect to any Bearer
Debt Security will be made at any office or agency of BMG in the United States
or by check mailed to any address in the United States or by transfer to any
account maintained with a bank located in the United States, nor shall any
payments be made in respect of Bearer Debt Securities upon presentation to BMG
or its designated Paying Agents within the United States. Notwithstanding the
foregoing, payments of principal of and any premium and interest on Bearer Debt
Securities denominated and payable in U.S. dollars will be made at the office of
BMG's Paying Agent in the Borough of Manhattan, The City of New York, if (but
only if) payment of the full amount
9
<PAGE> 11
thereof in U.S. dollars at all offices or agencies outside the United States is
illegal or effectively precluded by exchange controls or other similar
restrictions. (Section 1002)
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and any premium and interest on Registered Debt Securities will
be made in the designated currency or currency unit at the office of such Paying
Agent or Paying Agents as BMG may designate from time to time, except that at
the option of BMG payment of any interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register. Unless otherwise indicated in an applicable Prospectus
Supplement, payment of any installment of interest on Registered Debt Securities
will be made to the Person in whose name such Registered Debt Security is
registered at the close of business on the Regular Record Date for such
interest. (Section 307)
Unless otherwise indicated in an applicable Prospectus Supplement, the
Corporate Trust Office of the Trustee in the Borough of Manhattan, The City of
New York will be designated as a Paying Agent for BMG for payments with respect
to Debt Securities which are issuable solely as Registered Debt Securities, and
BMG will maintain a Paying Agent outside the United States for payments with
respect to Debt Securities (subject to limitations described above in the case
of Bearer Debt Securities) which are issuable solely as Bearer Debt Securities,
or as both Registered Debt Securities and Bearer Debt Securities. Any Paying
Agents outside the United States and any other Paying Agents in the United
States initially designated by BMG for the Debt Securities will be named in an
applicable Prospectus Supplement. BMG may at any time designate additional
Paying Agents or rescind the designation of any Paying Agent or approve a change
in the office through which any Paying Agent acts, except that, if Debt
Securities of a series are issuable solely as Registered Debt Securities, BMG
will be required to maintain a Paying Agent in each Place of Payment for such
series and, if Debt Securities of a series are issuable as Bearer Securities,
BMG will be required to maintain (i) a Paying Agent in the Borough of Manhattan,
The City of New York for principal payments with respect to any Registered Debt
Securities of the series (and for payments with respect to Bearer Debt
Securities of the series in the circumstances described above, but not
otherwise), and (ii) a Paying Agent in a Place of Payment located outside the
United States where Securities of such series and any coupons appertaining
thereto may be presented and surrendered for payment; provided that if the Debt
Securities of such series are listed on the International Stock Exchange of the
United Kingdom and the Republic of Ireland Limited, the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and such
stock exchange shall so require, BMG will maintain a Paying Agent in London,
Luxembourg or any other required city located outside the United States, as the
case may be, for the Securities of such series. (Section 1002)
All moneys paid by BMG to a Paying Agent for the payment of principal of
and any premium or interest on any Debt Security which remain unclaimed at the
end of three years after such principal, premium or interest shall have become
due and payable will (subject to applicable escheat laws) be repaid to BMG and
the Holder of such Debt Security or any coupon will thereafter look only to BMG
for payment thereof. (Section 1003)
Temporary Global Securities. If so specified in an applicable Prospectus
Supplement, all or any portion of the Debt Securities of a series which are
issuable as Bearer Debt Securities will initially be represented by one or more
temporary global Debt Securities, without interest coupons, to be deposited with
a common depositary in London for the Euroclear System ("Euroclear") and CEDEL
S.A. ("CEDEL") for credit to the designated accounts. On and after the date
determined as provided in any such temporary global Debt Security and described
in an applicable Prospectus Supplement, each such temporary global Debt Security
will be exchangeable for definitive Bearer Debt Securities, definitive
Registered Debt Securities or all or a portion of a permanent global security,
or any combination thereof, as specified in an applicable Prospectus Supplement,
but, unless otherwise specified in an applicable Prospectus Supplement, only
upon written certification in the form and to the effect described under
"-- Form, Exchange, Registration and Transfer". No Bearer Debt Security
delivered in exchange for a portion of a temporary global Security will be
mailed or otherwise delivered to any location in the United States in connection
with such exchange. (Section 304)
10
<PAGE> 12
Unless otherwise specified in an applicable Prospectus Supplement, interest
in respect of any portion of a temporary global Debt Security payable in respect
of an Interest Payment Date occurring prior to the issuance of definitive Debt
Securities or a permanent global Debt Security will be paid to each of Euroclear
and CEDEL with respect to the portion of the temporary global Debt Security held
for its account. Each of Euroclear and CEDEL will undertake in such
circumstances to credit such interest received by it in respect of a temporary
global Debt Security to the respective accounts for which it holds such
temporary global Debt Security only upon receipt in each case of written
certification in the form and to the effect described above under "-- Form,
Exchange, Registration and Transfer" as of the relevant Interest Payment Date
regarding the portion of such temporary global Debt Security on which interest
is to be so credited. (Section 304)
Permanent Global Securities. If any Debt Securities of a series are
issuable in permanent global form, the applicable Prospectus Supplement will
describe the circumstances, if any, under which beneficial owners of interests
in any such permanent global Debt Securities may exchange such interests for
Debt Securities of such series and of like tenor and principal amount in any
authorized form and denomination. No Bearer Debt Security delivered in exchange
for a portion of a permanent global Debt Security shall be mailed or otherwise
delivered to any location in the United States in connection with such exchange.
(Section 305) A Person having a beneficial interest in a permanent global Debt
Security will, except with respect to payment of principal of and any premium
and interest on such permanent global Debt Security, be treated as a Holder of
such principal amount of Outstanding Debt Securities represented by such
permanent global Debt Security as shall be specified in a written statement of
the Holder of such permanent global Debt Security or, in the case of a permanent
global Debt Security in bearer form, of the operator of Euroclear or CEDEL which
is provided to the Trustee by such Person. Principal of and any premium and
interest on a permanent global Debt Security will be payable in the manner
described in the applicable Prospectus Supplement. (Section 203)
Book-Entry Debt Securities. The Debt Securities of a series may be issued,
in whole or in part, in the form of one or more global Debt Securities that
would be deposited with a depositary or its nominee identified in the applicable
Prospectus Supplement. The specific terms of any depositary arrangement with
respect to any portion of a series of Debt Securities and the rights of, and
limitations on, owners of beneficial interests in any such global Debt Security
representing all or a portion of a series of Debt Securities will be described
in the applicable Prospectus Supplement. (Section 204)
Limitations on Issuance of Bearer Debt Securities. In compliance with
United States federal tax laws and regulations, Bearer Debt Securities
(including securities in permanent global form that are either Bearer Debt
Securities or exchangeable for Bearer Debt Securities) will not be offered or
sold during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)) (generally, the first 40 days after
the closing date, and, with respect to unsold allotments, until sold) within the
United States or to United States Persons (each as defined below) other than to
an office located outside the United States of a United States financial
institution (as defined in Section 1.165-12(c)(1)(v) of the United States
Treasury Regulations), purchasing for its own account or for resale or for the
account of certain customers, that provides a certificate stating that it agrees
to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Code
and the United States Treasury Regulations thereunder, or to certain other
Persons described in Section 1.163-5(c)(2)(i)(D)(1)(iii)(B) of the United States
Treasury Regulations. Moreover, such Bearer Debt Securities will not be
delivered in connection with their sale during the restricted period within the
United States. Any underwriters, agents and dealers participating in the
offering of Bearer Debt Securities must covenant that they will not offer or
sell during the restricted period any Bearer Debt Securities within the United
States or to United States Persons (other than the persons described above) or
deliver in connection with the sale of Bearer Debt Securities during the
restricted period any Bearer Debt Securities within the United States and that
they have in effect procedures reasonably designed to ensure that their
employees and agents who are directly engaged in selling the Bearer Debt
Securities are aware of the restrictions described above. No Bearer Debt
Security (other than a temporary global Bearer Debt Security) will be delivered
in connection with its original issuance nor will interest be paid on any Bearer
Debt Security until receipt by BMG of the written certification described above
under "Form, Exchange, Registration and Transfer". Each Bearer Debt Security,
other than a temporary global Bearer Debt Security, will bear a legend to the
following effect: "Any United States person who holds this obligation will be
subject to limitations
11
<PAGE> 13
under the United States income tax laws, including the limitations provided in
Sections 165(j) and 1287(a) of the Internal Revenue Code."
As used herein, "United States Person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States and any estate or trust the income of
which is subject to United States federal income taxation regardless of its
source, and "United States" means the United States of America (including the
states and the District of Columbia) and its possessions.
Meetings. The Indentures contain provisions for convening meetings of the
Holders of Debt Securities of a series. A meeting may be called at any time by
the Trustee, and also, upon request, by BMG or the Holders of at least 10% in
principal amount of the Outstanding Debt Securities of such series, in any such
case upon notice given as described under "-- Notices" below. Except for any
consent that must be given by the Holder of each Outstanding Debt Security
affected thereby, as described under "-- Modification" above, any resolution
presented at a meeting or adjourned meeting at which a quorum is present may be
adopted by the affirmative vote of the Holders of a majority in principal amount
of the Outstanding Debt Securities of that series; provided, however, that,
except for any consent that must be given by the Holder of each Outstanding Debt
Security affected thereby, as described under "-- Modification" above, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that may be made, given or taken by the
Holders of a specified percentage, which is less than a majority in principal
amount of the Outstanding Debt Securities of a series, may be adopted at a
meeting or adjourned meeting duly reconvened at which a quorum is present by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Debt Securities of that series. Subject to the proviso set
forth above, any resolution passed or decision taken at any meeting of Holders
of Debt Securities of any series duly held in accordance with the Indenture will
be binding on all Holders of Debt Securities of that series and any related
coupons. The quorum at any meeting called to adopt a resolution, and at any
reconvened meeting, will be Persons holding or representing a majority in
principal amount of the Outstanding Debt Securities of a series. (Article
Thirteen of the Senior Indenture and Article Fourteen of the Subordinated
Indenture)
Notices. Except as otherwise provided in the Indentures, notices to Holders
of Bearer Debt Securities will be given by publication at least twice in a daily
newspaper in The City of New York and London or other capital city in Western
Europe and in such other city or cities as may be specified in such Securities.
Notices to Holders of Registered Debt Securities will be given by mail to the
addresses of such Holders as they appear in the Security Register. (Section 107)
The Trustee. Each Indenture contains certain limitations on the right of
the Trustee, as a creditor of BMG, to obtain payment of claims in certain cases
and to realize on certain property received with respect to any such claims, as
security or otherwise. (Section 613) The Trustee is permitted to engage in other
transactions, except that, if it acquires any conflicting interest and there is
a default under the Debt Securities, it must eliminate such conflict or resign.
(Section 608)
The Trustee is a party to BMG's committed revolving credit facility. The
Company maintains depository and other normal banking relationships with the
Trustee. In addition, the Trustee acts as the registrar, transfer agent,
conversion agent and dividend disbursing agent for the Convertible Preferred
Stock and also acts as the transfer agent, registrar and dividend disbursing
agent for the Common Stock.
Governing Law. The Indentures are, and the Debt Securities will be,
governed by and construed in accordance with the laws of the State of New York.
PROVISIONS APPLICABLE SOLELY TO SENIOR DEBT SECURITIES
Senior Debt Securities will be issued under the Senior Indenture and will
rank pari passu with all other unsecured and unsubordinated debt of BMG, and
will be senior in right of payment to all existing and future debt of BMG that
is, by its terms, expressly subordinated to the Senior Debt Securities.
12
<PAGE> 14
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
General. Subordinated Debt Securities will be issued under the Subordinated
Indenture and will rank pari passu with certain other subordinated debt of BMG
that may be outstanding from time to time and will rank junior to all Senior
Indebtedness of BMG (including any Senior Debt Securities) that may be
outstanding from time to time.
Subordination. The payment of the principal of (and premium, if any)and
interest on the Subordinated Debt Securities is expressly subordinated, to the
extent and in the manner set forth in the Subordinated Indenture, in right of
payment to the prior payment in full of all Senior Indebtedness of BMG. (Section
1301 of the Subordinated Indenture)
In the event of any dissolution or winding up, or total or partial
liquidation or reorganization of BMG, whether in bankruptcy, reorganization,
insolvency, receivership or similar proceeding, the holders of Senior
Indebtedness will be entitled to receive payment in full of all amounts due or
to become due on or in respect of all Senior Indebtedness before the Holders of
the Subordinated Debt Securities are entitled to receive any payment on account
of principal (or premium, if any) or interest on the Subordinated Debt
Securities. (Section 1302 of the Subordinated Indenture)
Unless otherwise indicated in the applicable Prospectus Supplement, no
payment in respect of the Subordinated Debt Securities shall be made if, at the
time of such payment, there exists a default in payment of all or any portion of
any Senior Indebtedness, and such default shall not have been cured or waived in
writing or the benefits of such subordination in the Subordinated Indenture
shall not have been waived in writing by or on behalf of the holders of such
Senior Indebtedness. In addition, unless otherwise provided in the applicable
Prospectus Supplement, during the continuance of any event of default (other
than a default referred to in the immediately preceding sentence) with respect
to any Senior Indebtedness permitting the holders to accelerate the maturity
thereof and upon written notice thereof given to the Trustee, with a copy to BMG
(the delivery of which shall not affect the validity of the notice to the
Trustee), by any holder of Senior Indebtedness or its representative, then,
unless and until such an event of default shall have been cured or waived or
shall have ceased to exist, no payment shall be made by BMG with respect to the
principal of or interest on the Subordinated Debt Securities or to acquire any
of the Subordinated Debt Securities or on account of the redemption provisions
for the Subordinated Debt Securities; provided, however, that if the holders of
the Senior Indebtedness to which the default relates have not declared such
Senior Indebtedness to be immediately due and payable within 180 days after the
occurrence of such default (or have declared such Senior Indebtedness to be
immediately due and payable and within such period have rescinded such
declaration of acceleration), then BMG will be required to resume making any and
all required payments in respect of the Subordinated Debt Securities (including
any missed payments). Only one such payment blockage period may be commenced
within any consecutive 365-day period with respect to the Subordinated Debt
Securities. No event of default which existed or was continuing on the date of
the commencement of any 180-day payment blockage period with respect to the
Senior Indebtedness initiating such payment blockage period shall be, or be
made, the basis for the commencement of a second payment blockage period by a
holder or representative of such Senior Indebtedness, whether or not within a
period of 365 consecutive days, unless such event of default shall have been
cured or waived for a period of not less than 90 consecutive days (and, in the
case of any such waiver, no payment shall be made by BMG to the holders of
Senior Indebtedness in connection with such waiver other than amounts due
pursuant to the terms of the Senior Indebtedness as in effect at the time of
such default). (Section 1302 of the Subordinated Indenture)
The term "Senior Indebtedness" is defined in the Subordinated Indenture as
Indebtedness, either outstanding as of the date of the Subordinated Indenture or
issued subsequent to the date of the Subordinated Indenture, that is not
subordinated by its terms in right of payment to any other Indebtedness of BMG
or pari passu with Subordinated Debt Securities of any series, provided that the
term "Senior Indebtedness" shall not include (i) Indebtedness of BMG to any
Subsidiary for money borrowed or advanced from such Subsidiary or (ii) amounts
owed (except to banks and other financial institutions) for goods, materials or
services purchased in the ordinary course of business.
13
<PAGE> 15
The term "Indebtedness", as applied to any Person, is defined in the
Subordinated Indenture as all indebtedness, whether or not represented by bonds,
debentures, notes or other securities, created or assumed by such Person for the
repayment of money borrowed, and obligations, computed in accordance with
generally accepted accounting principles, as lessee under leases that should be,
in accordance with generally accepted accounting principles, treated as capital
leases. All Indebtedness of others guaranteed as to payment of principal by such
Person or in effect guaranteed by such Person through a contingent agreement to
purchase such Indebtedness shall also be deemed to be Indebtedness of such
Person.
If Subordinated Debt Securities are issued under the Subordinated
Indenture, the aggregate principal amount of Senior Indebtedness outstanding as
of a recent date will be set forth in the applicable Prospectus Supplement. The
Subordinated Indenture does not restrict the amount of Senior Indebtedness that
BMG may incur.
CAPITAL STOCK
As of the date hereof, BMG is authorized by its Restated Articles of
Incorporation to issue 200,000,000 shares of Common Stock and 20,000,000 shares
of Preferred Stock. As of December 31, 1993, there were 2,300,000 shares of
Convertible Preferred Stock issued and outstanding and an additional 2,000,000
shares of Preferred Stock designated by the Board of Directors of BMG as Series
A Junior Participating Preferred Stock (the "Series A Preferred Stock"). Shares
of Series A Preferred Stock have been initially reserved for issuance upon
exercise of the Rights hereinafter described. See "Description of Preferred
Stock -- Series A Preferred Stock". On December 31, 1993, there were (i)
80,266,114 shares of Common Stock issued and outstanding and (ii) 4,848,485
shares and 10,952,600 shares of Common Stock reserved for issuance upon
conversion of the Company's 6% Convertible Subordinated Debentures due 2005 and
of the Convertible Preferred Stock, respectively. In addition, as of December
31, 1993, 7,717,301 shares of Common Stock were authorized and remained
available for issuance under BMG's stock option plans and other employee benefit
plans.
BMG's committed revolving credit facility contains certain restrictions
limiting the amount of dividends and other distributions BMG may pay based on
certain measures of BMG's financial performance, applied on a cumulative basis
from the original date of such facility. As of September 30, 1993, cumulative
restriction levels on such dividends and distributions exceeded cumulative
dividends paid or declared by $126.0 million.
OTHER MATTERS
Antitakeover Provisions. The Restated Articles of Incorporation and the
Amended Bylaws of BMG contain certain provisions that might be characterized as
antitakeover provisions. Such provisions may render more difficult certain
possible takeover proposals to acquire control of BMG and make removal of
management of BMG more difficult.
Provisions of the Restated Articles of Incorporation and Amended
Bylaws. The Restated Articles of Incorporation and the Amended Bylaws of BMG set
the number of directors at a minimum of three and a maximum of 12, as may be
fixed from time to time by resolution of the entire Board of Directors, and
provide that the membership of the classified Board of Directors shall be
divided into three classes, as nearly equal in number as possible, each of which
serves for three years, with each class' term ending in a successive year. Under
the General Corporation Law of Nevada (the "GCLN"), any director may be removed
from office upon the vote of stockholders representing not less than two-thirds
of the issued and outstanding capital stock entitled to voting power, unless a
corporation's articles require the concurrence of a larger percentage of the
stock entitled to voting power. As permitted by the GCLN, BMG's Restated
Articles of Incorporation provide that a director may be removed from office
without cause only by the affirmative vote of the holders of not less than 80
percent of the number of shares of Common Stock then outstanding.
Pursuant to BMG's Restated Articles of Incorporation, the vote of holders
of 80 percent of the voting power of all stock of BMG entitled to vote in
elections of directors (excluding stock entitled so to be voted only upon the
happening of some contingency unless such contingency shall have occurred and is
continuing)
14
<PAGE> 16
is required for approval of, with certain exceptions, a merger or consolidation
of BMG with or into another corporation, a sale or lease of all or substantially
all the assets of BMG to another corporation, person or entity and, under
certain conditions, a sale or lease to BMG of assets in exchange for voting
securities (or securities convertible into or exchangeable for voting
securities) of BMG or any of its subsidiaries, in each case where the other
party to the transaction is the beneficial owner, directly or indirectly, of 5
percent or more of the outstanding shares of any class or series of voting stock
of BMG. In addition, for any transaction to be effected for which the foregoing
80 percent vote is required, it is also required that such transaction be
approved by a majority of the outstanding voting power of the voting stock of
BMG, exclusive of the voting stock beneficially owned, directly or indirectly,
by the party whose interest in the transaction and stock ownership in BMG gives
rise to the requirement of the 80 percent vote. The foregoing requirements
described in this paragraph do not apply to a transaction if (i) the Board of
Directors of BMG has approved a memorandum of understanding with respect to such
transaction with the other party to the transaction prior to the time the 5
percent beneficial ownership position is acquired or (ii) the transaction is
made with a corporation of which 50 percent or more of its outstanding voting
stock is beneficially owned, directly or indirectly, by BMG.
As permitted by the GCLN, the Restated Articles of Incorporation of BMG
provide that no action may be taken by stockholders without a meeting except by
the unanimous written consent of all stockholders entitled to vote on such
action. Special meetings of stockholders may be called only by a majority of the
Board of Directors, the Chairman of the Board or the President of BMG.
The Restated Articles of Incorporation of BMG require approval of at least
80 percent of the total voting power of the voting stock of BMG and approval of
the holders of at least a majority of the voting power of the voting stock of
BMG exclusive of all voting stock of BMG owned by beneficial owners of 5 percent
or more of the outstanding shares of any class or series of voting stock of BMG
to effect an amendment or repeal of, or the adoption of any provision
inconsistent with, the provisions of such articles relating to (i) the
alteration, amendment or repeal of the Amended Bylaws of BMG by stockholders,
(ii) the organization and powers of the Board of Directors and the nomination,
election and removal of directors, (iii) stockholder action without meetings and
the calling of special stockholder meetings or (iv) the affirmative vote
required for approval of the transactions described in the preceding paragraph
between BMG and beneficial owners of 5 percent or more of the outstanding shares
of any class or series of voting stock of BMG. The Restated Articles of
Incorporation of BMG also require the same affirmative vote for the amendment or
repeal of the foregoing provision.
The Restated Articles of Incorporation and the Amended Bylaws of BMG
provide that the Amended Bylaws may be altered, amended or repealed by the
stockholders only by the affirmative vote of at least 80 percent of the voting
power of all shares of BMG represented at any regular meeting of stockholders
(or at any special meeting thereof duly called for that purpose) and entitled to
vote generally in the election of directors, voting together as a class.
The ability of the Board of Directors to determine the preferences,
relative rights, qualifications and restrictions of the Preferred Stock and to
issue Preferred Stock without stockholder approval could have an antitakeover
effect.
The Board of Directors has adopted a preferred stock purchase rights plan
which has an antitakeover effect. See "Description of Preferred Stock -- Series
A Preferred Stock" for a description of the plan.
BMG's committed revolving credit facility provides that it is an event of
default thereunder if during any period of up to 24 consecutive months,
individuals who at the beginning of such 24-month period were directors of BMG
shall cease for any reason to constitute a majority of the Board of Directors of
BMG.
Nevada Corporation Law. Sections 78.378 et seq. of the Nevada corporation
-----------------------
law generally disallows the exercise of voting rights with respect to "control
shares" of an "issuing corporation" held by an "acquiring person", unless such
voting rights are conferred by a majority vote of the disinterested
stockholders. "Control shares" are the voting shares of an issuing corporation
acquired in connection with the acquisition of a "controlling interest".
"Controlling interest" is defined in terms of threshold levels of voting share
ownership, which thresholds, whenever each may be crossed, trigger application
of the voting bar with respect to the
15
<PAGE> 17
shares newly acquired. The issue of voting rights is presented at the next
annual or special meeting of stockholders after the acquisition in question,
unless a special meeting of stockholders is requested sooner by the acquiring
person. At such meeting, the votes of an "interested stockholder" are not
counted towards the majority approval requirement under this statute. In the
event that the control shares are accorded full voting rights (but only if the
acquiring person has acquired a majority voting interest in the issuing
corporation), any stockholder, other than the acquiring person, who has not
voted in favor of authorizing voting rights for the control shares is entitled
to demand payment for the fair value of his shares. Such right of payment may,
however, be expressly withdrawn by the corporate charter or bylaws. Any charter
or bylaw amendment withdrawing such right must be adopted prior to the 10th day
following the acquisition of a controlling interest. In the event that the
control shares are not accorded full voting rights, the issuing corporation may
call for redemption of all, but not less than all, of the control shares at the
average price paid for such shares, but only if the corporate charter or bylaws
expressly permit such redemption. Any charter or bylaw amendment providing for
such right of redemption must be adopted prior to the 10th day following the
acquisition of a controlling interest.
BMG is subject to Sections 78.411, et seq. of the Nevada corporation law,
which generally prohibit a publicly held Nevada corporation from engaging in any
"combination" with an "interested stockholder" for three years after the date
the interested stockholder became an interested stockholder unless, prior to
that date, either the combination or the purchase of shares that resulted in the
interested stockholder's becoming such is approved by the board of directors of
the corporation. An "interested stockholder" is a person who, together with
affiliates and associates, is the beneficial owner (or within the previous three
years was the beneficial owner) of 10 percent or more of the voting power of the
corporation's outstanding voting shares. A "business combination" generally
includes mergers, asset sales and share issuances above threshold sizes, and
certain other transactions resulting in financial benefit to the interested
stockholder. Even after the expiration of the three year period in which such
business combinations with an interested stockholder are prohibited, a
corporation may not engage in a business combination with an interested
stockholder unless, in addition to meeting applicable requirements of the
corporation's articles of incorporation, either (1) the combination is approved
by the affirmative vote of a majority of the outstanding voting power of the
corporation not beneficially owned by the interested stockholder (or affiliates
or associates) called not earlier than the end of such three year period or (2)
certain requirements for the minimum consideration payable to holders other than
the disinterested holder are met (based on the higher of (a) the highest price
per share paid by the interested stockholder within prescribed periods and (b)
the market value per share on the date of announcement of the transaction or the
date the interested stockholder became such (in each case plus an amount based
on an interest factor net of certain dividends) and (c) in the case of a class
other than common stock, the highest preferential amount payable upon
liquidation).
Director and Officer Liability Provisions. The Restated Articles of
Incorporation of BMG eliminate the personal liability of each director and
officer of BMG to BMG or any of its stockholders for damages resulting from
breaches of fiduciary duty as a director or officer involving any act or
omission of any such director or officer occurring on or after April 28, 1987.
The Restated Articles of Incorporation of BMG do not limit or eliminate the
liability of a director or officer for actions or omissions involving
intentional misconduct, fraud, a knowing violation of law or payment of an
unlawful dividend.
General. The summary references above regarding the Restated Articles of
Incorporation of BMG and the Amended Bylaws, filed as exhibits to the
Registration Statement of which this Prospectus is a part, do not purport to be
complete and are qualified in their entirety by reference to the Restated
Articles of Incorporation of BMG and the Amended Bylaws.
16
<PAGE> 18
DESCRIPTION OF PREFERRED STOCK
Under the Restated Articles of Incorporation, the Board of Directors of BMG
may provide for the issuance of up to 20,000,000 shares of Preferred Stock in
one or more series. As of December 31, 1993, there were 2,300,000 shares of
Convertible Preferred Stock issued and outstanding and an additional 2,000,000
shares of Series A Junior Participating Preferred Stock initially reserved for
issuance upon exercise of the Rights described below. BMG's Board of Directors
is authorized, without any further vote or action by BMG's stockholders, to
divide the Preferred Stock into series and, with respect to each series, to
determine the dividend rights, dividend rates, conversion rights, voting rights
(which may be greater or lesser than the voting rights of the Common Stock),
redemption rights and terms, liquidation preferences, sinking fund rights and
terms, the number of shares constituting the series and the designation of each
series. Upon issuance against full payment of the purchase price therefor,
shares of Preferred Stock offered hereby will be fully paid and nonassessable.
The descriptions of the Preferred Stock set forth below and the description of
the terms of a particular series of Preferred Stock that will be set forth in a
Prospectus Supplement do not purport to be complete and are qualified in their
entirety by reference to BMG's Restated Articles of Incorporation, the
certificate of resolution establishing designation, preferences and rights
relating to such series or the Rights Agreement referred to below.
The specific terms of a particular series of Preferred Stock offered hereby
will be described in a Prospectus Supplement relating to such series and will
include the following:
(i) The maximum number of shares to constitute the series and the
distinctive designation thereof;
(ii) The annual dividend rate, if any, on shares of the series,
whether such rate is fixed or variable or both, the date or dates from
which dividends will begin to accrue or accumulate and whether dividends
will be cumulative;
(iii) Whether the shares of the series will be redeemable and, if so,
the price at and the terms and conditions on which the shares of the series
may be redeemed, including the time during which shares of the series may
be redeemed and any accumulated dividends thereon that the holders of
shares of the series shall be entitled to receive upon the redemption
thereof;
(iv) The liquidation preference, if any, applicable to shares of the
series;
(v) Whether the shares of the series will be subject to operation of a
retirement or sinking fund and, if so, the extent and manner in which any
such fund shall be applied to the purchase or redemption of the shares of
the series for retirement or for other corporate purposes, and the terms
and provisions relating to the operation of such fund;
(vi) The terms and conditions, if any, on which the shares of the
series shall be convertible into, or exchangeable for, shares of any other
class or classes of capital stock of BMG or another corporation or any
series of any other class or classes, or of any other series of the same
class, including the price or prices or the rate or rates of conversion or
exchange and the method, if any, of adjusting the same;
(vii) The voting rights, if any, on the shares of the series;
(viii) The currency or units based on or relating to currencies in
which such series is denominated and/or in which payments will or may be
payable;
(ix) The methods by which amounts payable in respect of such series
may be calculated and any commodities, currencies or indices, or price,
rate or value, relevant to such calculation;
(x) Whether fractional interests in shares of the series will be
offered in the form of Depositary Shares as described below under
"Description of Depositary Shares"; and
(xi) Any other preferences and relative, participating, optional or
other special rights or qualifications, limitations or restrictions
thereof.
17
<PAGE> 19
CONVERTIBLE PREFERRED STOCK
Holders of shares of Convertible Preferred Stock are entitled to receive,
when, as and if declared by the Board of Directors of BMG, an annual cash
dividend of $3.25 per share, payable in equal quarterly installments. Except as
required by law or as described in the next sentence, holders of shares of
Convertible Preferred Stock have no voting rights. Whenever dividends on the
Convertible Preferred Stock are in arrears for at least six full quarterly
dividends, holders of the Convertible Preferred Stock will be entitled (voting
separately as a class together with holders of shares of any one or more other
series of capital stock of BMG ranking on a parity with the Convertible
Preferred Stock as to dividends and having like voting rights) to elect two
additional directors until such dividend arrearage is eliminated. Each share of
Convertible Preferred Stock is convertible at any time, at the option of the
holder, into shares of Common Stock at a conversion rate of 4.762 shares of
Common Stock for each share of Convertible Preferred Stock, subject to
adjustment under certain circumstances. The Convertible Preferred Stock is
redeemable at any time on and after May 15, 1996, at the option of BMG, in whole
or in part, for shares of Common Stock at a redemption price of $52.275 per
share of Convertible Preferred Stock, and thereafter at prices decreasing
ratably annually to $50.00 per share on or after May 15, 2003, plus accrued and
unpaid dividends. The number of shares of Common Stock to be issued upon the
redemption of any share of Convertible Preferred Stock will be equal to the
then-current redemption price divided by the lower of (i) the average of the
daily closing prices of the Common Stock for the 20 consecutive trading days
immediately preceding the first business day immediately preceding the date of
any applicable redemption notice or (ii) the closing price of the Common Stock
on the trading day immediately preceding the first business day immediately
preceding the date of any applicable redemption notice. At no time is the
Convertible Preferred Stock redeemable for cash.
In the event of any liquidation, dissolution or winding up of BMG, the
holders of shares of Convertible Preferred Stock are entitled to receive a
liquidation preference of $50.00 per share, plus an amount equal to any accrued
and unpaid dividends to the date of payment before any distribution of assets is
made to holders of Common Stock or any other stock that ranks junior to the
Convertible Preferred Stock as to liquidation rights. The holders of Convertible
Preferred Stock and all series or classes of BMG's stock that rank on a parity
as to liquidation rights with the Convertible Preferred Stock are entitled to
share ratably, in accordance with the respective preferential amounts payable on
such stock, in any distribution which is not sufficient to pay in full the
aggregate of the amounts payable thereon.
The Convertible Preferred Stock is listed for trading on the New York Stock
Exchange. The registrar, transfer agent, conversion agent and dividend
disbursing agent for the Convertible Preferred Stock is The Bank of New York.
SERIES A PREFERRED STOCK
On November 10, 1988, the Board of Directors of BMG declared a dividend of
one Right (a "Right") for each outstanding share of Common Stock to stockholders
of record at the close of business on November 21, 1988. Rights are issuable in
respect of all shares of Common Stock issued after such record date but prior to
the earliest of (i) the Distribution Date (as defined below), (ii) the date on
which the Rights are redeemed as provided below and (iii) November 10, 1998.
Each Right entitles the registered holder to purchase from BMG a unit consisting
of one one-hundredth of a share (a "Unit") of Series A Preferred Stock, at a
purchase price of $60 per Unit, subject to adjustment (the "Purchase Price").
Initially, the Rights are attached to all Common Stock certificates
representing shares then outstanding, and no separate Rights Certificates have
been distributed. The Rights will separate from the Common Stock and a
"Distribution Date" will occur upon the earlier of (i) 10 days following a
public announcement that a person or group of affiliated or associated persons
(an "Acquiring Person") has acquired, or obtained the right to acquire,
beneficial ownership of 20 percent or more of the outstanding shares of Common
Stock (the date of the announcement being the "Stock Acquisition Date") or (ii)
10 business days (or such later date as may be determined by BMG's Board of
Directors before the Distribution Date occurs) following the commencement of a
tender offer or exchange offer that would result in a person or group
beneficially owning 30 percent or more of such outstanding shares of Common
Stock. The Rights are not exercisable until the Distribution
18
<PAGE> 20
Date and will expire at the close of business on November 10, 1998, unless
earlier redeemed by BMG as described below.
In the event that (i) BMG is the surviving corporation in a merger with an
Acquiring Person and the Common Stock is not changed or exchanged, (ii) a person
becomes the beneficial owner of 30 percent or more of the then outstanding
shares of Common Stock (except pursuant to a tender or exchange offer for all
outstanding shares of Common Stock at a price and on terms that a majority of
the independent directors of BMG determines to be fair to and otherwise in the
best interests of BMG and its stockholders), (iii) an Acquiring Person engages
in one or more "self-dealing" transactions as set forth in the Rights Agreement
specifying the terms of the Rights (the "Rights Agreement") or (iv) during such
time as there is an Acquiring Person, an event involving BMG or a subsidiary of
BMG occurs that results in such Acquiring Person's ownership interest being
increased by more than one percent (e.g., a reverse stock split), at any time
following the Distribution Date, each holder of a Right will thereafter have the
right to receive, upon exercise, Common Stock (or, in certain circumstances,
cash, property or other securities of BMG) having a value equal to two times the
exercise price of the Right. The exercise price is the Purchase Price multiplied
by the number of Units issuable upon exercise of the Right prior to the event
described in this paragraph (initially, one). Notwithstanding any of the
foregoing, following the occurrence of any of the events set forth in this
paragraph, all Rights that are, or (under certain circumstances specified in the
Rights Agreement) were, beneficially owned by any Acquiring Person (or by
certain related parties) will be null and void. However, Rights are not
exercisable following the occurrence of any of the events set forth above until
such time as the Rights are no longer redeemable by BMG as set forth below.
In the event that, on or after the Stock Acquisition Date, (i) BMG is
acquired in a merger or other business combination transaction (other than a
merger described in the preceding paragraph or a merger which follows an offer
described in the preceding paragraph) or (ii) 50 percent or more of BMG's assets
or earning power is sold or transferred, each holder of a Right (except Rights
which previously have been voided as set forth above) shall thereafter have the
right to receive, upon exercise, common stock of the acquiring company having a
value equal to two times the exercise price of the Right.
At any time until 10 days following the Stock Acquisition Date, BMG may
redeem the Rights in whole, but not in part, at a price of $0.01 per Right,
payable, at the option of BMG, in cash, shares of Common Stock or such other
consideration as the Board of Directors may determine. The Rights may have
certain antitakeover effects, including deterring someone from acquiring control
of the Company in a manner or on terms not approved by the Board of Directors of
BMG. The Rights should not interfere with any merger or other business
combination approved by the Board of Directors of BMG.
Any shares of Series A Preferred Stock that may be issued upon exercise of
the Rights will be nonredeemable. The holders of shares of Series A Preferred
Stock will be entitled to receive, when, as and if declared, a preferential
quarterly dividend in an amount per share effectively equal to the greater of
$2.00 per share or 100 times any cash or noncash dividend or other distribution
declared on the Common Stock (other than dividends payable in shares of Common
Stock), in like kind. In the event of liquidation, the holders of the Series A
Preferred Stock will be entitled to receive a liquidation payment per share in
an amount effectively equal to the greater of $100 per share or 100 times the
per share amount distributed to holders of Common Stock. In the event of any
merger, consolidation or other transaction in which shares of Common Stock are
exchanged, the holder of the shares of Series A Preferred Stock will be entitled
to receive per share 100 times the amount received per share of Common Stock.
Holders of Series A Preferred Stock will have 100 votes per share of Series A
Preferred Stock and, except as otherwise provided in the Restated Articles of
Incorporation of the Company or required by law, shall vote together with
holders of Common Stock as a single class. The rights of the Series A Preferred
Stock as to dividends, liquidation and voting are protected by antidilution
provisions. Whenever dividend payments on the Series A Preferred Stock are in
arrears, BMG will not (i) purchase or redeem any shares of Series A Preferred
Stock or shares ranking on a parity with respect to the Series A Preferred Stock
except in accordance with a purchase offer to all holders, (ii) declare or pay
dividends on or purchase or redeem any shares of stock ranking junior to the
Series A Preferred Stock or (iii) declare or pay dividends on or purchase or
redeem any shares of stock ranking on a parity with the Series A Preferred Stock
except dividends paid ratably on the Series A Preferred Stock and all such
parity
19
<PAGE> 21
stock and except purchases or redemptions of such parity stock in exchange for
junior stock. If dividend payments on the Series A Preferred Stock are in
arrears for six quarters, the holders of the Series A Preferred Stock
(altogether with holders of any other Preferred Stock with similar rights) will
have the right to elect two directors of BMG.
DESCRIPTION OF COMMON STOCK
Subject to the prior rights of any shares of Preferred Stock that may from
time to time be outstanding, holders of Common Stock are entitled to share
ratably in such dividends as may be lawfully declared by the Board of Directors
and paid by BMG and, in the event of liquidation, dissolution or winding up of
BMG, are entitled to share ratably in all assets remaining after payment of
liabilities.
The Common Stock is entitled to one vote per share held of record on each
matter submitted to a vote of stockholders. The holders of Common Stock have no
preemptive rights to purchase any securities of BMG or cumulative voting rights.
Preferred stock purchase rights are issuable in respect of all shares of Common
Stock issued prior to certain events. See "Description of Preferred
Stock -- Series A Preferred Stock". All outstanding shares of Common Stock are
validly issued, fully paid and nonassessable. BMG is not prohibited by its
Restated Articles of Incorporation from repurchasing shares of its Common Stock.
Any such repurchases would be subject to any limitations on the amount available
for such purpose under applicable corporate law, any applicable restrictions
under the terms of any outstanding Preferred Stock or indebtedness and, in the
case of market purchases, such restrictions on the timing, manner and amount of
such purchases as might apply in the circumstances under applicable securities
laws.
The outstanding Common Stock is listed on the New York Stock Exchange, The
Toronto Stock Exchange, the Australian Stock Exchange Limited, the Swiss Stock
Exchanges and the Frankfurt Stock Exchange under the symbol "BMG". Any Common
Stock offered will be listed, subject to notice of issuance, on such exchanges.
The transfer agent, registrar and dividend disbursing agent for the Common
Stock is The Bank of New York.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the Deposit Agreement (as defined below) and of the Depositary
Shares (as defined below) and Depositary Receipts (as defined below) does not
purport to be complete and is subject to and qualified in its entirety by
reference to the forms of Deposit Agreement and Depositary Receipts relating to
each series of Preferred Stock which have been or will be filed with the
Commission in connection with the offering of such series of Preferred Stock.
GENERAL
BMG may, at its option, elect to offer fractional interests in shares of
Preferred Stock, rather than shares of Preferred Stock. In the event such option
is exercised, BMG will provide for the issuance by a Depositary to the public of
receipts for depositary shares ("Depositary Shares"), each of which will
represent fractional interests of a particular series of Preferred Stock (which
will be set forth in the Prospectus Supplement relating to a particular series
of Preferred Stock).
The shares of any series of Preferred Stock underlying the Depositary
Shares will be deposited under a separate Deposit Agreement (the "Deposit
Agreement") between BMG and a bank or trust company selected by BMG having its
principal office in the United States and having a combined capital and surplus
of at least $50,000,000 (the "Depositary"). The Prospectus Supplement relating
to a series of Depositary Shares will set forth the name and address of the
Depositary. Subject to the terms of the Deposit Agreement, each owner of
Depositary Shares will be entitled, in proportion to the applicable fractional
interests in shares of Preferred
20
<PAGE> 22
Stock underlying such Depositary Shares, to all the rights and preferences of
the Preferred Stock underlying such Depositary Shares (including dividend,
voting, redemption, conversion and liquidation rights).
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement (the "Depositary Receipts"). Depositary
Receipts will be distributed to those persons purchasing the fractional
interests in shares of the related series of Preferred Stock in accordance with
the terms of the offering for Preferred Stock described in the related
Prospectus Supplement.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of Preferred Stock to the record holders of
Depositary Shares relating to such Preferred Stock in proportion, as nearly as
practicable, to the numbers of such Depositary Shares owned by such holders on
the relevant record date, subject to any applicable tax withholding. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any holder of Depositary Shares a fraction of one cent,
and any balance not so distributed shall be added to and treated as part of the
next sum received by the Depositary for distribution to record holders of
Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the approval of
BMG, adopt such method as it deems equitable and practicable for the purpose of
effecting such distribution, including the sale of such property and
distribution of the net proceeds from such sale to such holders, subject to any
applicable tax withholding.
Any subscription or similar rights offered by BMG to holders of Preferred
Stock will be made available to the holders of Depositary Shares in such manner
as the Depositary may determine, with the approval of BMG.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of such series of the Preferred Stock held by the Depositary. The Depositary
shall mail notice of redemption not less than 30 and not more than 60 days prior
to the date fixed for redemption to the record holders of the Depositary Shares
to be so redeemed at their respective addresses appearing in the Depositary's
books. The redemption price per Depositary Share will be equal to the applicable
fraction of the redemption price per share payable with respect to such series
of the Preferred Stock. Whenever BMG redeems shares of Preferred Stock held by
the Depositary, the Depositary will redeem as of the same redemption date the
number of Depositary Shares relating to shares of Preferred Stock so redeemed.
If less than all of the Depositary Shares are to be redeemed, the Depositary
Shares to be redeemed will be selected by lot or pro rata as may be determined
by the Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
moneys, securities or other property payable upon such redemption and any money,
securities or other property to which the holders of such Depositary Shares were
entitled, including any accrued and unpaid dividends payable in connection with
such redemption, upon such redemption upon surrender to the Depositary of the
Depositary Receipts evidencing such Depositary Shares.
VOTING OF PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the
applicable Preferred Stock are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the record holders of the
Depositary Shares relating to such Preferred Stock. Each record holder of such
Depositary Shares on the record date (which will be the same date as the record
date for the Preferred Stock) will be entitled, subject to any applicable
restrictions, to instruct the Depositary as to the exercise of the voting rights
pertaining to the
21
<PAGE> 23
number of shares of Preferred Stock underlying such holder's Depositary Shares.
The Depositary will endeavor, insofar as practicable, to vote the number of
shares of Preferred Stock underlying such Depositary Shares in accordance with
such instructions, and BMG will agree to take all action which may be deemed
necessary by the Depositary in order to enable the Depositary to do so.
AMENDMENT AND TERMINATION OF DEPOSITARY AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between BMG and the Depositary. However, any amendment which materially and
adversely alters the rights of the existing holders of Depositary Shares will
not be effective unless such amendment has been approved by the record holders
of at least a majority of the Depositary Shares then outstanding. A Deposit
Agreement may be terminated by BMG or the Depositary only if (i) all outstanding
Depositary Shares relating thereto have been redeemed or (ii) there has been a
final distribution in respect of the Preferred Stock of the relevant series in
connection with any liquidation, dissolution or winding up of BMG and such
distribution has been distributed to the holders of the related Depositary
Shares.
CHARGES OF DEPOSITARY
BMG will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. BMG will pay charges
of the Depositary in connection with the initial deposit of any Preferred Stock
and any redemption of such Preferred Stock. Holders of Depositary Shares will
pay transfer and other taxes and governmental charges and such other charges 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 BMG notice of its
election to do so, and BMG may at any time remove the Depositary, any such
resignation or removal to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment. Such successor Depositary
must be appointed within 60 days after delivery of the notice of resignation or
removal and must be a bank or trust company having its principal office in the
United States and having a combined capital and surplus of at least $50,000,000.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares all reports
and communications from BMG which are delivered to the Depositary and which BMG
is required to furnish to the holders of the applicable Preferred Stock.
Neither the Depositary nor BMG will be liable if it is prevented or delayed
by law or any circumstance beyond its control in performing its obligations
under the Deposit Agreement. The obligations of BMG and the Depositary under the
Deposit Agreement will be limited to performance in good faith of their duties
thereunder and they will not be obligated to prosecute or defend any legal
proceeding in respect of any Depositary Shares or Preferred Stock unless
satisfactory indemnity is furnished. They may rely upon written advice of
counsel or accountants, or information provided by persons presenting Preferred
Stock for deposit, holders of Depositary Shares or other persons believed to be
competent and on documents believed to be genuine.
22
<PAGE> 24
DESCRIPTION OF WARRANTS
BMG may issue Warrants to purchase Debt Securities ("Debt Warrants") and
Warrants to purchase Common Stock or Preferred Stock ("Stock Warrants").
Warrants may be issued independently of or together with any other Securities
and may be attached to or separate from such Securities. Each series of Warrants
will be issued under a separate Warrant Agreement (each a "Warrant Agreement")
to be entered into between BMG and a Warrant Agent ("Warrant Agent"). The
Warrant Agent will act solely as an agent of BMG in connection with the Warrant
of such series and will not assume any obligation or relationship of agency for
or with holders or beneficial owners of Warrants. The following sets forth
certain general terms and provisions of the Warrants offered hereby. Further
terms of the Warrants and the applicable Warrant Agreement will be set forth in
the applicable Prospectus Supplement.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of any Debt
Warrants, including the following: (i) the title of such Debt Warrants; (ii) the
offering price for such Debt Warrants, if any; (iii) the aggregate number of
such Debt Warrants; (iv) the designation and terms of such Debt Securities
purchasable upon exercise of such Debt Warrants; (v) if applicable, the
designation and terms of the Securities with which such Debt Warrants are issued
and the number of such Debt Warrants issued with each such Security; (vi) if
applicable, the date from and after which such Debt Warrants and any Securities
issued therewith will be separately transferable; (vii) the principal amount of
Debt Securities purchasable upon exercise of a Debt Warrant and the price at
which such principal amount of Debt Securities may be purchased upon exercise;
(viii) the date on which the right to exercise such Debt Warrants shall commence
and the date on which such right shall expire; (ix) if applicable, the minimum
or maximum amount of such Debt Warrants which may be exercised at any one time;
(x) whether the Debt Warrants represented by the Debt Warrant certificates or
Debt Securities that may be issued upon exercise of the Debt Warrants will be
issued in registered or bearer form; (xi) information with respect to book-entry
procedures, if any; (xii) the currency, currencies or currency unit or units in
which the offering price, if any, and the exercise price are payable; (xiii) if
applicable, a discussion of certain United States federal income tax
considerations; (xiv) the antidilution provisions of such Debt Warrants, if any;
(xv) the redemption or call provisions, if any, applicable to such Debt
Warrants; and (xvi) any additional terms of the Debt Warrants, including terms,
procedures and limitations relating to the exchange and exercise of such Debt
Warrants.
STOCK WARRANTS
The applicable Prospectus Supplement will describe the terms of any Stock
Warrants, including the following: (i) the title of such Stock Warrants; (ii)
the offering price, if any, of such Stock Warrants; (iii) the aggregate number
of such Stock Warrants; (iv) the designation and terms of the Common Stock or
Preferred Stock purchasable upon exercise of such Stock Warrants; (v) if
applicable, the designation and terms of the Securities with which such Stock
Warrants are issued and the number of such Stock Warrants issued with each such
Security; (vi) if applicable, the date from and after which such Stock Warrants
and any Securities issued therewith will be separately transferrable; (vii) the
number of shares of Common Stock or Preferred Stock purchasable upon exercise of
a Stock Warrant and the price at which such shares may be purchased upon
exercise; (viii) the date on which the right to exercise such Stock Warrants
shall commence and the date on which such right shall expire, including BMG's
right to accelerate the exercisability of Stock Warrants to purchase Common
Stock; (ix) if applicable, the minimum or maximum amount of such Stock Warrants
which may be exercised at any one time; (x) the currency, currencies or currency
unit or units in which the offering price, if, any, and the exercise price are
payable; (xi) if applicable, a discussion of certain United States federal
income tax considerations; (xii) the antidilution provisions, if any, of such
Stock Warrants; (xiii) the redemption or call provisions, if any, applicable to
such Stock Warrants; and (xiv) any additional terms of such Stock Warrants,
including terms, procedures and limitations relating to the exchange and
exercise of such Stock Warrants.
23
<PAGE> 25
PLAN OF DISTRIBUTION
BMG may sell the Securities in and/or outside the United States: (i)
through underwriters or dealers; (ii) directly to a limited number of purchasers
or to a single purchaser; or (iii) through agents. The applicable Prospectus
Supplement with respect to the Offered Securities will set forth the terms of
the offering of the Offered Securities, including the name or names of any
underwriters or agents, the purchase price of the Offered Securities and the
proceeds to BMG from such sale, any delayed delivery arrangements, any
underwriting discounts and other items constituting underwriters' compensation,
any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
If underwriters are used in the sale, the Offered Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The Securities may be offered to the public either through underwriting
syndicates represented by one or more managing underwriters or directly by one
or more firms acting as underwriters. The underwriter or underwriters with
respect to a particular underwritten offering of Securities to be named in the
Prospectus Supplement relating to such offering and, if an underwriting
syndicate is used, the managing underwriter or underwriters will be set forth on
the cover of such Prospectus Supplement. Unless otherwise set forth in the
Prospectus Supplement relating thereto, the obligations of the underwriters to
purchase the Offered Securities will be subject to conditions precedent and the
underwriters will be obligated to purchase all the Offered Securities if any are
purchased.
If dealers are utilized in the sale of Offered Securities in respect of
which this Prospectus is delivered, BMG will sell such Offered Securities to the
dealers as principals. The dealers may then resell such Offered Securities to
the public at varying prices to be determined by such dealers at the time of
resale. The names of the dealers and the terms of the transaction will be set
forth in the Prospectus Supplement relating thereto.
The Securities may be sold directly by BMG or through agents designated by
BMG from time to time. Any agent involved in the offer or sale of the Offered
Securities in respect to which this Prospectus is delivered will be named, and
any commissions payable by BMG to such agent will be set forth, in the
Prospectus Supplement relating thereto. Unless otherwise indicated in the
Prospectus Supplement, any such agent will be acting on a best efforts basis for
the period of its appointment.
The Securities may be sold directly by BMG to institutional investors or
others, who may be deemed to be underwriters within the meaning of the
Securities Act with respect to any resale thereof. The terms of any such sales,
including the terms of any bidding or auction process, will be described in the
Prospectus Supplement relating thereto.
If so indicated in the applicable Prospectus Supplement, BMG will authorize
agents, underwriters or dealers to solicit offers from certain types of
institutions to purchase Offered Securities from BMG at the public offering
price set forth in the Prospectus Supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
Such contracts will be subject only to those conditions set forth in the
applicable Prospectus Supplement, and the Prospectus Supplement will set forth
the commission payable for solicitation of such contracts.
Agents, dealers and underwriters may be entitled under agreements entered
into with BMG to indemnification by BMG against certain civil liabilities,
including liabilities under the Securities Act, or to contribution with respect
to payments which such agents, dealers or underwriters may be required to make
in respect thereof. Agents, dealers and underwriters may be customers of, engage
in transactions with, or perform services for BMG in the ordinary course of
business.
The Securities other than shares of Common Stock may or may not be listed
on a national securities exchange. No assurances can be given that there will be
an active trading market for the Common Stock or a market for any such other
Securities.
24
<PAGE> 26
LEGAL OPINIONS
Certain legal matters in connection with the Securities offered hereby will
be passed upon for BMG by Baker & Botts, L.L.P., Houston, Texas, and, unless
otherwise specified in the applicable Prospectus Supplement, for any
underwriters or agents by Andrews & Kurth L.L.P., Houston, Texas. Baker & Botts,
L.L.P. and Andrews & Kurth L.L.P. will rely as to matters of Nevada law on
Vargas & Bartlett, Reno, Nevada.
EXPERTS
The consolidated financial statements and financial statement schedules of
the Company included in BMG's Annual Report on Form 10-K for the year ended
December 31, 1992, incorporated by reference in this Prospectus have been
audited by Arthur Andersen & Co., independent public accountants, as indicated
in their report with respect thereto. In that report, that firm states that with
respect to certain subsidiaries of BMG its opinion is based on the reports of
other independent public accountants, namely Coopers & Lybrand and Moreno Munoz
y Cia. The consolidated financial statements and financial statement schedules
of the Company included in BMG's Annual Report on Form 10-K for the year ended
December 31, 1992, have been incorporated herein by reference in reliance upon
the authority of all of those firms as experts in giving said reports.
25
<PAGE> 27
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses payable by BMG in connection with the offering described in
this Registration Statement (other than underwriting discounts and commissions)
are estimated (other than the Commission's registration fee) as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............... $ 68,966
Printing expenses................................................. 30,000
Accounting fees and expenses...................................... 60,000
Legal fees and expenses........................................... 60,000
Blue Sky qualification fees and expenses.......................... 20,000
Trustee's and Warrant Agent's fees................................ 25,000
Fees of rating agencies........................................... 75,000
Miscellaneous..................................................... 1,034
--------
Total................................................... $340,000
--------
--------
</TABLE>
ITEM 15 INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article VII of the Bylaws of BMG, as amended and restated, provides for the
indemnification of officers and directors of the Company to the extent
authorized by the Nevada Revised Statutes. Pursuant to Section 78.751 of the
Nevada Revised Statutes, the Company generally has the power to indemnify its
present and former directors, officers, employees and agents against expenses,
judgments and amounts paid in settlements incurred by them in connection with
any suit to which they are, or are threatened to be made, a party by reason of
their serving in such positions so long as they acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests of
the Company and, with respect to any criminal action, they had no reasonable
cause to believe their conduct was unlawful. With respect to suits by or in the
right of a corporation, however, indemnification is not available if such person
is finally adjudged to be liable to the Company or for amounts paid in
settlement, unless and only to the extent the court determines that
indemnification is appropriate. The statute also expressly provides that the
power to indemnify authorized thereby is not exclusive of any rights granted
under any bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise.
Section 78.751 of the Nevada Revised Statutes also enables a corporation to
purchase and maintain insurance for its present and former directors, officers,
employees and agents. Accordingly, the Company has provided liability insurance
for each director and officer for certain losses arising from claims or charges
made against him while acting in his capacity as a director or officer of the
Company, including liabilities under federal securities laws.
The above discussion of BMG's Bylaws and of Section 78.751 of the Nevada
Revised Statutes is not intended to be exhaustive and is respectively qualified
in its entirety by such Bylaws and statute.
Additionally, Article Tenth of BMG's Restated Articles of Incorporation
limits the liability of BMG's directors and officers under certain
circumstances. Article Tenth states:
No director or officer of the Corporation shall be personally liable
to the Corporation or any of its stockholders for damages for breach of
fiduciary duty as a director or officer involving any act or omission of
any such director or officer occurring on or after April 28, 1987;
provided, however, that the foregoing provision shall not eliminate or
limit the liability of a director or officer (i) for acts or omissions
which involve intentional misconduct, fraud or a knowing violation of law,
or (ii) the payment of dividends in violation of Section 78.300 of the
Nevada Revised Statutes. Any repeal or modification of this Article by the
stockholders of the Corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director or
officer of the Corporation for acts or omission prior to such repeal or
modification.
II-1
<PAGE> 28
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DOCUMENT
- ---------------------------------------------------------------------------------------------
<S> <C>
4(a) -- Restated Articles of Incorporation of BMG as amended and restated
through May 11, 1988.
4(b) -- Certificate of Resolution Establishing Designation, Preferences and
Rights of $3.25 Convertible Preferred Stock.
*4(c) -- Bylaws of BMG as amended through April 27, 1988 (Exhibit 3(b) to
BMG's Quarterly Report on Form 10-Q for the quarter ended March 31,
1988; File No. 1-9666).
*4(d)(1) -- Rights Agreement, dated November 10, 1988, between BMG and NCNB Texas
National Bank, as Rights Agent (Exhibit to BMG's Form 8 filed with
the Commission on November 30, 1988 amending BMG's Report on Form 8-K
dated November 21, 1988; File No. 1-9666).
*4(d)(2) -- First Amendment to Rights Agreement, dated July 30, 1992, between the
Company and The Bank of New York, as successor Rights Agent (Exhibit
4(a)(2) to the Company's Annual Report on Form 10-K for the year
ended December 31, 1992; File No. 1-9666).
*4(e) -- Specimen Stock Certificate for the Common Stock of BMG (Exhibit 4(b)
to BMG's Annual Report on Form 10-K for the year Ended December 31,
1988; File No. 1-9666).
4(f) -- Form of Deposit Agreement.
4(g) -- Form of Depositary Receipt (included in Exhibit 4(f)).
4(h) -- Form of Indenture between BMG and The Bank of New York, Trustee, with
respect to Senior Debt Securities ("Senior Indenture").
4(i) -- Form of Indenture between BMG and The Bank of New York, Trustee, with
respect to Subordinated Debt Securities ("Subordinated Indenture").
4(j) -- Form of Debt Warrant Agreement.
4(k) -- Form of Debt Warrant Certificate (included as Exhibit A to Exhibit
4(j) hereto).
4(l) -- Form of Preferred Stock Warrant Agreement.
4(m) -- Form of Preferred Stock Warrant Certificate (included as Exhibit A to
Exhibit 4(l) hereto).
4(n) -- Form of Common Stock Warrant Agreement.
4(o) -- Form of Common Stock Warrant Certificate (included as Exhibit A to
Exhibit 4(n) hereto).
5 -- Opinion of Baker & Botts, L.L.P. (including relied upon opinion of
Vargas and Bartlett).
12 -- Computation of Ratios of Earnings to Fixed Charges and Earnings to
Combined Fixed Charges and Preferred Dividends for the years ended
December 31, 1988, 1989, 1990, 1991 and 1992 and the nine months
ended September 30, 1992 and 1993.
23(a) -- Consent of Arthur Andersen & Co.
23(b) -- Consent of Coopers & Lybrand.
23(c) -- Consent of Moreno Munoz y Cia.
23(d) -- Consent of Baker & Botts, L.L.P. (included in their opinion filed as
Exhibit 5).
</TABLE>
II-2
<PAGE> 29
<TABLE>
<CAPTION>
EXHIBIT
NO. DOCUMENT
------- --------
<S> <C>
24 -- Powers of Attorney.
25(a) -- Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The Bank of New York relating to the Senior
Indenture.
25(b) -- Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The Bank of New York relating to the
Subordinated Indenture.
</TABLE>
- ---------------
* Incorporated by reference as indicated.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(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 (i) and (ii) above do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the Exchange Act
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless, in
the opinion of its counsel, the matter has been settled
II-3
<PAGE> 30
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 Securities Act and will be governed by the final adjudication
of such issue.
The undersigned registrant hereby undertakes that:
(1) 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.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE> 31
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF HOUSTON, THE STATE OF TEXAS, ON JANUARY 14, 1994.
BATTLE MOUNTAIN GOLD COMPANY
By: KARL E. ELERS
------------------------------------
(KARL E. ELERS,
CHAIRMAN OF THE BOARD AND CHIEF
EXECUTIVE OFFICER)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- -----------------------------------------------
<C> <S> <C>
KARL E. ELERS Chairman of the Board, Chief January 14, 1994
- --------------------------------------------- Executive Officer and
(KARL E. ELERS) Director (Principal
Executive Officer)
R. DENNIS O'CONNELL Vice President -- Finance and January 14, 1994
- --------------------------------------------- Chief Financial Officer
(R. DENNIS O'CONNELL) (Principal Financial and
Accounting Officer)
DOUGLAS J. BOURNE*
DELO H. CASPARY*
CHARLES E. CHILDERS*
JACK R. CROSBY*
JAMES H. ELDER, JR.* Directors
RODNEY L. GRAY*
BAINE P. KERR*
J. HUGH LIEDTKE*
TED H. PATE*
KENNETH R. WERNEBURG*
*By: KARL E. ELERS January 14, 1994
- ---------------------------------------------
(KARL E. ELERS, ATTORNEY-IN-FACT)
</TABLE>
II-5
<PAGE> 32
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DOCUMENT
- ---------------------------------------------------------------------------------------------
<S> <C>
4(a) -- Restated Articles of Incorporation of BMG as amended and restated
through May 11, 1988.
4(b) -- Certificate of Resolution Establishing Designation, Preferences and
Rights of $3.25 Convertible Preferred Stock.
*4(c) -- Bylaws of BMG as amended through April 27, 1988 (Exhibit 3(b) to
BMG's Quarterly Report on Form 10-Q for the quarter ended March 31,
1988; File No. 1-9666).
*4(d)(1) -- Rights Agreement, dated November 10, 1988, between BMG and NCNB Texas
National Bank, as Rights Agent (Exhibit to BMG's Form 8 filed with
the Commission on November 30, 1988 amending BMG's Report on Form 8-K
dated November 21, 1988; File No. 1-9666).
*4(d)(2) -- First Amendment to Rights Agreement, dated July 30, 1992, between the
Company and The Bank of New York, as successor Rights Agent (Exhibit
4(a)(2) to the Company's Annual Report on Form 10-K for the year
ended December 31, 1992; File No. 1-9666).
*4(e) -- Specimen Stock Certificate for the Common Stock of BMG (Exhibit 4(b)
to BMG's Annual Report on Form 10-K for the year Ended December 31,
1988; File No. 1-9666).
4(f) -- Form of Deposit Agreement.
4(g) -- Form of Depositary Receipt (included in Exhibit 4(f)).
4(h) -- Form of Indenture between BMG and The Bank of New York, Trustee, with
respect to Senior Debt Securities ("Senior Indenture").
4(i) -- Form of Indenture between BMG and The Bank of New York, Trustee, with
respect to Subordinated Debt Securities ("Subordinated Indenture").
4(j) -- Form of Debt Warrant Agreement.
4(k) -- Form of Debt Warrant Certificate (included as Exhibit A to Exhibit
4(j) hereto).
4(l) -- Form of Preferred Stock Warrant Agreement.
4(m) -- Form of Preferred Stock Warrant Certificate (included as Exhibit A to
Exhibit 4(l) hereto).
4(n) -- Form of Common Stock Warrant Agreement.
4(o) -- Form of Common Stock Warrant Certificate (included as Exhibit A to
Exhibit 4(n) hereto).
5 -- Opinion of Baker & Botts, L.L.P. (including relied upon opinion of
Vargas and Bartlett).
12 -- Computation of Ratios of Earnings to Fixed Charges and Earnings to
Combined Fixed Charges and Preferred Dividends for the years ended
December 31, 1988, 1989, 1990, 1991 and 1992 and the nine months
ended September 30, 1992 and 1993.
23(a) -- Consent of Arthur Andersen & Co.
23(b) -- Consent of Coopers & Lybrand.
23(c) -- Consent of Moreno Munoz y Cia.
23(d) -- Consent of Baker & Botts, L.L.P. (included in their opinion filed as
Exhibit 5).
24 -- Powers of Attorney.
25(a) -- Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The Bank of New York relating to the Senior
Indenture.
25(b) -- Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The Bank of New York relating to the
Subordinated Indenture.
</TABLE>
- ---------------
* Incorporated by reference as indicated.
<PAGE> 1
Exhibit 4(a)
RESTATED
ARTICLES OF INCORPORATION
of
BATTLE MOUNTAIN GOLD COMPANY
BATTLE MOUNTAIN GOLD COMPANY (the "Corporation"), a
corporation organized under the laws of the State of Nevada, by its President
and Secretary, does hereby certify that:
1. Pursuant to the provisions of Sections 78.403 and
78.390 of the Nevada Revised Statutes, the Corporation hereby amends and
restates its Articles of Incorporation, as heretofore amended, and adopts the
following Restated Articles of Incorporation:
FIRST: The name of the corporation is BATTLE MOUNTAIN GOLD
COMPANY (the "Corporation").
SECOND: The principal office or place of business of the
Corporation in the State of Nevada is to be located at One East First
Street, in the City of Reno, County of Washoe.
THIRD: The Corporation may engage in any lawful activity.
FOURTH: The amount of the total authorized capital stock of
the Corporation, and the number and par value of the shares of which
it is to consist, is 220,000,000 shares, amounting in the aggregate to
Forty Million Dollars ($40,000,000), divided into classes as follows:
20,000,000 shares shall be Preferred Stock, $1.00 par
value ("Preferred Stock"); and
200,000,000 shares shall be Common Stock, $0.10 par
value ("Common Stock").
Shares of any class of stock of the Corporation may be issued for such
consideration and for such corporate proposes as the Board of
Directors may from time to time determine. The capital stock, after
the amount of the subscription price (which shall not be less than the
par value) has been paid in, shall not be subject to assessment.
The following is a description of the different classes and a
statement of the relative rights of the holders of the Preferred Stock
and Common Stock.
-1-
<PAGE> 2
SECTION I. PREFERRED STOCK
The Board of Directors of the Corporation is authorized at any
time and from time to time to provide for the issuance of shares of
Preferred Stock of the Corporation in one or more series with such
voting powers, full or limited, or without voting powers, and with
such designations, preferences and relative, participating, optional
or other special rights, and qualifications, limitations or
restrictions thereof as are stated and expressed in these Articles of
Incorporation, and, to the extent not so stated or expressed, as may
be stated and expressed in a resolution or resolutions establishing
such series and providing for the issuance thereof adopted by the
Board of Directors pursuant to the authority so to do which is hereby
expressly vested in it including, without limiting the generality of
the foregoing, the following:
(1) the designation and number of shares of each such
series;
(2) the dividend rate of each such series, the conditions
and dates upon which such dividends shall be payable,
the preference or relation of such dividends to
dividends payable on any other class or classes of
capital stock of the Corporation, and whether such
dividends shall be cumulative or noncumulative;
(3) whether the shares of each such series shall be
subject to redemption by the Corporation, and, if
made subject to such redemption, the times, prices,
rates, adjustments and other terms and conditions of
such redemption;
(4) the terms and amount of any sinking or similar fund
provided for the purchase or redemption of the shares
of each such series;
(5) whether the shares of each such series shall be
convertible into or exchangeable for shares of
capital stock or other securities of the Corporation
or of any other corporation, and, if provision be
made for conversion or exchange, the times, prices,
rates, adjustments and other terms and conditions of
such conversion or exchange;
(6) the extent, if any, to which the holders of the
shares of any series shall be entitled to vote as a
class or otherwise with respect to the election of
directors or otherwise;
(7) the restrictions and conditions, if any, upon the
issue or reissue of any additional Preferred Stock
ranking on a parity with or prior to such shares as
to dividends or upon dissolution;
-2-
<PAGE> 3
(8) the rights of the holders of the shares of such
series upon the dissolution of, or upon the
distribution of assets of, the Corporation, which
rights may be different in the case of voluntary
dissolution than the case of involuntary dissolution;
and
(9) any other relative rights, preferences or limitations
of shares of such series consistent with this Article
FOURTH and applicable law.
The powers, preferences and relative, participating, optional
and other special rights of each series of Preferred Stock of the
Corporation, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at
any time outstanding. All shares of any one series of Preferred Stock
of the Corporation shall be identical in all respects with all other
shares of such series, except that shares of any one series issued at
different times may differ as to the dates from which dividends
thereon shall be cumulative. Except as may otherwise be required by
law or these Articles of Incorporation, the terms of any series of
Preferred Stock may be amended without consent of the holders of any
other series of Preferred Stock or of any class of Common Stock of the
Corporation.
SECTION II. COMMON STOCK
1. Voting Rights.
(a) Each share of Common Stock shall entitle the
holder thereof to one vote for each share held.
(b) No holder of Common Stock shall have the
right to cumulate votes in the election of Directors of the
Corporation or for any other purpose.
2. Dividends, Combinations and Reclassifications.
Subject to the rights of holders of Preferred Stock of the
Corporation, the holders of Common Stock shall be entitled to share
ratably, on a share for share basis, in any and all dividends, payable
in cash or otherwise, as may be declared in respect of their holdings
by the Board of Directors from time to time out of assets or funds of
the Corporation legally available therefor.
SECTION III. PROVISIONS APPLICABLE TO
ALL CLASSES
1. Liquidation Rights. In the event of any dissolution,
liquidation or winding up of the affairs of the Corporation, whether
voluntary or involuntary, after payment or provision for payment of
the debts and other liabilities of the
-3-
<PAGE> 4
Corporation, the holders of each series of Preferred Stock shall be
entitled to receive, out of the net assets of the Corporation, an
amount for each share equal to the amount fixed and determined in
accordance with the respective rights and priorities established by
the Board of Directors in any resolution or resolutions providing for
the issuance of any particular series of Preferred Stock before any of
the assets of the Corporation shall be distributed or paid over to
holders of Common Stock. After payment in full of said amounts to the
holders of Preferred Stock of all series, holders of Common Stock
shall be entitled to share ratably in the remaining net assets of the
Corporation, such that an equal amount of net assets shall be
allocated to each share of Common Stock. A merger or consolidation of
the Corporation with or into any other corporation or a sale or
conveyance of all or any part of the assets of the Corporation (which
shall not in fact result in the liquidation of the Corporation and the
distribution of assets to stockholders) shall not be deemed to be a
voluntary or involuntary liquidation or dissolution or winding up of
the Corporation within the meaning of this paragraph 1.
2. Preemptive Rights. No stockholder of the Corporation
shall, by reason of his holding any shares of any class of the
Corporation, have any preemptive or preferential right to acquire or
subscribe for any treasury or unissued shares of any class of the
Corporation now or hereafter to be authorized, or any notes,
debentures, bonds, or other securities convertible into or carrying
any right, option or warrant to subscribe for or acquire shares of any
class of the Corporation now or hereafter to be authorized, whether or
not the issuance of any such shares, or such notes, debentures, bonds
or other securities, would adversely affect the dividends or voting
rights of such stockholder, and the Board of Directors of the
Corporation may issue shares of any class of this Corporation, or any
notes, debentures, bonds or other securities convertible into or
carrying rights, options or warrants to subscribe for or acquire
shares of any class of the Corporation, without offering any such
shares of any class of the Corporation, either in whole or in part, to
the existing stockholders of any class of the Corporation.
FIFTH: All corporate powers shall be exercised by the Board
of Directors, except as otherwise provided by law or by these Articles
of Incorporation.
1. Powers of the Board of Directors. In furtherance and
not in limitation of the powers conferred by statute, the Board of
Directors is expressly authorized:
(a) to fix in, or pursuant to, the Bylaws from
time to time the number of Directors of the Corporation
consistent with paragraph 2 of this Article FIFTH, none of
whom need be stockholders of the Corporation;
(b) to authorize and cause to be executed
mortgages and liens upon the real and personal property of the
Corporation and conveyances of its real estate;
-4-
<PAGE> 5
(c) to set apart out of any of the funds of the
Corporation available for dividends a reserve or reserves for
any proper purposes and/or to abolish any such reserve in the
manner in which it was created;
(d) to borrow money and to make and issue notes,
bonds, debentures, obligations and evidence of indebtedness of
all kinds, with or without the privilege of conversion into
stock of the Corporation;
(e) to determine from time to time whether and to
what extent, and at what times and places, and under what
conditions and regulations, the accounts, books and records of
the Corporation (other than the stock ledger), or any of them,
shall be open to inspection of stockholders; and no
stockholder shall have any right of inspecting any account,
book, record or document of the Corporation except as
conferred by law, unless authorized by a resolution of the
Board of Directors of the Corporation; and
(f) to designate by resolution or resolutions
passed by a majority of the whole Board of Directors one or
more committees, each committee to consist of one or more of
the Directors of the Corporation, which, to the extent
provided in said resolution or resolutions or in the Bylaws of
the Corporation, shall have and may exercise the power of the
Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers on which the
Corporation desires to place a seal. Such committee or
committees shall have such name or names as may be stated in
the Bylaws of the Corporation or as may be determined from
time to time by resolutions adopted by the Board of Directors.
The Corporation may confer powers upon the Board of Directors
of the Corporation in its Bylaws in addition to the powers conferred
upon the Board of Directors in these Articles of Incorporation and in
addition to the powers and authorities expressly conferred upon the
Board of Directors by law.
Both stockholders and the Board of Directors may hold their
meetings within or without the State of Nevada, and the Corporation
may keep the books and records of the Corporation (subject to the
provisions of applicable law) outside of the State of Nevada at such
places as may be designated from time to time by the Board of
Directors.
2. Organization of the Board of Directors. The number
of Directors that shall constitute the whole Board of Directors of the
Corporation shall be not less than three nor more than twelve as
specified from time to time in, or pursuant to, the Bylaws of the
Corporation, except in the case of any increase in the number of
Directors by reason of any provision entitling the holders of any one
or more series
-5-
<PAGE> 6
of Preferred Stock, voting as a class, to elect additional Directors
in specified circumstances. The Board of Directors is divided into
three classes, Class I, Class II and Class III. Such classes shall be
as nearly equal in number of Directors as possible. Each Director
shall serve for a term ending on the third annual meeting of
stockholders following the annual meeting of stockholders at which
such Director was elected; provided, however, that the Directors first
elected to Class I shall serve for a term ending on the annual meeting
next following the end of the calendar year 1985, the Directors first
elected to Class II shall serve for a term ending on the second annual
meeting next following the end of the calendar year 1985, and the
Directors first elected to Class III shall serve for a term ending on
the third annual meeting next following the end of the calendar year
1985. The foregoing notwithstanding, each Director shall serve until
his successor shall have been duly elected and qualified unless he
shall resign, become disqualified, disabled or shall otherwise be
removed.
At each annual election, the Directors chosen to succeed those
whose terms then expire shall be of the same class as the Directors
they succeed, unless, by reason of any intervening changes in the
authorized number of Directors, the Board of Directors shall designate
one or more directorships whose term then expire as directorships of
another class in order more nearly to achieve equality of the number
of Directors among the classes of Directors.
Notwithstanding the rule that the three classes of Directors
shall be as nearly equal in number of Directors as possible, in the
event of any change in the authorized number of Directors, each
Director then continuing to serve as such shall continue nevertheless
as a Director of the class of Directors of which he is a member until
the expiration of his current term or his prior death, resignation,
disqualification or removal. If any newly created directorship may be
allocated to one of two or more classes of Directors consistent with
the rule that the three classes of Directors shall be as nearly equal
in number of Directors as possible, the Board of Directors shall
allocate it to that of the available classes whose term of office is
due to expire at the earliest date following such allocation.
3. Removal. A Director may be removed from office
without cause only by the affirmative vote of the holders of not less
than 80% of the number of shares of Common Stock then outstanding. A
Director may be removed from office for cause only by the affirmative
vote of the holders of not less than a majority of the number of
shares of Common Stock then outstanding. Except as otherwise provided
by law or fixed by, or pursuant to, the provisions of Article FOURTH
hereof relating to the rights of holders of any class or series of
stock having a preference over the Common Stock as to dividends or
upon liquidation, this paragraph 3 shall not apply with respect to any
director elected by the holders of any such class or series having a
preference.
-6-
<PAGE> 7
4. Vacancies. Except as otherwise provided for or fixed
by, or pursuant to, the provisions of Article FOURTH hereof relating
to the rights of holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation
to elect Directors under specified circumstances, newly created
directorships resulting from any increase in the number of Directors
and any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other cause shall be filled
by the affirmative vote of a majority of the remaining Directors then
in office, even though less than a quorum of the Board of Directors.
Any Director elected in accordance with the preceding sentence shall
hold office for the remainder of the full term of the class of
Directors in which the new directorship was created or the vacancy
occurred and until such Director's successor shall have been elected
and qualified. No decrease in the number of Directors constituting
the Board of Directors shall shorten the term of any incumbent
Director.
5. Nominations. Advance notice of any nomination by a
stockholder for the election of Directors of the Corporation shall be
given in the manner provided in the Bylaws of the Corporation.
SIXTH: No action required to be taken or that may be taken at
any annual or special meeting of stockholders of the Corporation may
be taken without a meeting except by the unanimous written consent of
all stockholders entitled to vote on such action, and the power of
stockholders to consent in writing to the taking of any action by less
than unanimous consent of all such stockholders is specifically
denied. Except as otherwise required by law and subject to the rights
of holders of any class or series of stock having a preference over
the Common Stock as to dividends or upon liquidation, special meetings
of stockholders of the Corporation may be called only by the Board of
Directors of the Corporation pursuant to a resolution approved by a
majority of the entire Board of Directors or by the Chairman of the
Board or the President of the Corporation.
SEVENTH: The existence of the Corporation shall be perpetual.
EIGHTH: 1. Except as set forth in paragraph 4 of this
Article EIGHTH, the affirmative vote of the holders of 80% of the
voting power of all stock of this Corporation entitled to vote in
elections of directors (excluding stock entitled so to be voted only
upon the happening of some contingency unless such contingency shall
have occurred and is continuing), considered for the purposes of this
Article EIGHTH and Article NINTH as one class and hereinafter in this
Article EIGHTH and in Article NINTH embraced in the term "voting
stock", shall be required:
(a) for a merger or consolidation of the
Corporation with or into any other corporation;
-7-
<PAGE> 8
(b) for any sale or lease of all or any
substantial part of the assets of the Corporation to any other
corporation, person or other entity; or
(c) for any sale or lease to the Corporation or
any subsidiary thereof of any assets (except assets having an
aggregate fair market value of less than $5,000,000) in
exchange for voting stock (or securities convertible into or
exchangeable for voting stock or options, warrants or rights
to purchase voting stock or securities convertible into voting
stock) of the Corporation or any subsidiary of the Corporation
by any other corporation, person or entity,
if as of the record date for the determination of stockholders
entitled to notice thereof and to vote thereon or consent thereto, or
as of the time the Board of Directors shall have approved a memorandum
of understanding, or the Corporation shall have entered into any
agreement, with respect to any such transaction for which the vote of
the holders of no class or series of stock of the Corporation is
otherwise required by law, the Articles of Incorporation or any other
contract or agreement, such other corporation, person or entity which
is party to such a transaction is the beneficial owner, directly or
indirectly, of 5% or more of the outstanding shares of any class or
series of voting stock of the Corporation. There shall also be
required for any such transaction for which such affirmative vote
shall be required by this paragraph 1 the affirmative vote of the
holders of a majority of the voting power of the voting stock of this
Corporation, exclusive of all voting stock of this Corporation of
which such other corporation, person or entity which is party to such
transaction is, directly or indirectly, the beneficial owner. Each
such affirmative vote shall be in addition to the vote of the holders
of any class or series of stock of the Corporation otherwise required
by law or the Articles of Incorporation or the resolution or
resolutions providing for the issuance of such class or series which
have been adopted by the Board of Directors or any agreement between
the Corporation and any national securities exchange.
2. For purposes of this Article EIGHTH and Article NINTH
any corporation, person or other entity shall be deemed to be the
beneficial owner of any shares of stock of the Corporation:
(a) which it owns directly, whether or not of
record; or
(b) which it has the right to acquire pursuant to
any agreement or understanding or upon exercise of conversion
rights, exchange rights, warrants or options or otherwise;
(c) which are beneficially owned, directly or
indirectly (including shares deemed to be owned through
application of subparagraph (b) above), by any "affiliate" or
"associate" as those terms are defined in Rule 12b-2 of the
-8-
<PAGE> 9
General Rules and Regulations under the Securities Exchange
Act of 1934 as in effect on June 1, 1985; or
(d) which are beneficially owned, directly or
indirectly (including shares deemed owned through application
of subparagraph (b) above), by any other corporation, person
or entity with which it or its "affiliate" or "associate" has
any agreement or arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of stock of the
Corporation.
For the purposes of this Article EIGHTH, the outstanding shares of any
class or series of stock of the Corporation shall include shares
deemed owned through the application of subparagraphs (b), (c) and (d)
of paragraph 2, but shall not include any other shares which may be
issuable pursuant to any agreement or upon exercise of conversion
rights, warrants, options or otherwise. As used in this Article
EIGHTH, the term "subsidiary" shall mean a corporation a majority of
the voting power of the capital stock (that is, voting power entitled
to be exercised in the election of directors, but excluding voting
power entitled so to be exercised only upon the happening of some
contingency unless such contingency shall have occurred and is
continuing) of which shall be owned by the Corporation or by one or
more subsidiaries or by the Corporation and one or more subsidiaries.
3. The Board of Directors shall have the power and duty
to determine for the purposes of this Article EIGHTH and Article NINTH
on the basis of information known to this corporation whether
(a) such other corporation, person or other
entity beneficially owns 5% or more of the outstanding shares
of any class or series of voting stock of the Corporation;
(b) a corporation, person or entity is an
affiliate" or "associate" (as defined in paragraph 2 above) of
another;
(c) the assets being acquired by the Corporation,
or any subsidiary thereof, have an aggregate fair market value
of less than $5,000,000; and
(d) the memorandum of understanding referred to
in paragraph 4 below is substantially consistent with the
transaction covered thereby.
Any such determination shall be conclusive and binding for all
purposes of Article EIGHTH and Article NINTH.
-9-
<PAGE> 10
4. The provisions of paragraph 1 of this Article EIGHTH
shall not apply to:
(i) any merger or consolidation of this
Corporation with any corporation, or any sale or lease to this
Corporation or any subsidiary thereof of any assets of, or any
sale or lease by this Corporation or any subsidiary thereof of
any of its assets to, any corporation, person or entity, if
the Board of Directors of this Corporation has approved a
memorandum of understanding with such other corporation,
person or entity with respect to such transaction prior to the
time that such other corporation, person or entity shall have
become a beneficial owner of 5% or more of the outstanding
shares of any class or series of voting stock of the
Corporation; or
(ii) any merger or consolidation of this
Corporation with, or any sale or lease to this Corporation or
any subsidiary thereof of any assets of, or any sale or lease
by this Corporation or any subsidiary thereof of any of its
assets to, any corporation 50% or more of the outstanding
voting stock of which is beneficially owned, directly or
indirectly, by this Corporation.
NINTH: 1. Amendments to Articles of Incorporation.
Notwithstanding any other provision of these Articles of Incorporation
or the Bylaws (and in addition to any other vote that may be required
by law, these Articles of Incorporation or the Bylaws), there shall be
required to alter, amend, repeal or adopt any provision inconsistent
with, or in limitation of, Articles FIFTH, SIXTH, EIGHTH and this
Article NINTH the affirmative vote or consent of (a) the holders of at
least 80% of the voting power of the voting stock of the Corporation
and (b) the holders of at least a majority of the voting power of the
voting stock of the Corporation exclusive of all voting stock of the
Corporation beneficially owned, directly or indirectly, by any
corporation, person or entity which is, as of the record date for the
determination of stockholders entitled to notice of such alteration,
amendment, repeal or adoption and to vote thereon, the beneficial
owner of 5% or more of the outstanding shares of any class or series
of voting stock of the Corporation.
2. Amendments to Bylaws. The Board of Directors of the
Corporation shall have the power to make, alter, amend and repeal the
Bylaws of the Corporation (except so far as the Bylaws adopted by
stockholders shall otherwise provide). Any Bylaws made by the
Directors under the powers conferred hereby may be altered, amended or
repealed by the Directors or by the stockholders, provided that the
Bylaws shall not be altered, amended or repealed, and no provision
inconsistent therewith or in limitation thereof shall be adopted, by
the stockholders without the affirmative vote of the holders of at
least 80% of the voting power of all shares of the Corporation
entitled to vote generally in the election of Directors, voting
together as a single class.
-10-
<PAGE> 11
TENTH: No director or officer of the Corporation shall be
personally liable to the Corporation or any of its stockholders for
damages for breach of fiduciary duty as a director or officer
involving any act or omission of any such director or officer
occurring on or after April 28, 1987; provided, however, that the
foregoing provision shall not eliminate or limit the liability of a
director or officer (i) for acts or omissions which involve
intentional misconduct, fraud or a knowing violation of law, or (ii)
the payment of dividends in violation of Section 78.300 of the Nevada
Revised Statutes. Any repeal or modification of this Article by the
stockholders of the Corporation shall be prospective only, and shall
not adversely affect any limitation on the personal liability of a
director or officer of the Corporation for acts or omissions prior to
such repeal or modification.
ELEVENTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in these Articles of
Incorporation in the manner now or hereafter prescribed by these
Articles of Incorporation or by law, and all rights conferred upon
stockholders herein are granted subject to this reservation.
2. Upon the effectiveness of the above described
amendment and restatement of the Articles of Incorporation of the Corporation,
each share of Class A Common Stock, par value $1.00 per share ("Class A Common
Stock") of the Corporation, and any shares of Class B Common Stock, par value
$1.00 per share ("Class B Common Stock") of the Corporation, that shall be
issued and outstanding at the effective date of said amendment and restatement,
and all rights in respect thereof, shall be redesignated and reclassified as a
share of Common Stock.
Until surrendered for new certificates representing shares of
Common Stock, the outstanding certificates representing Class A Common Stock
and any outstanding certificates representing Class B Common Stock may be
treated by the Corporation for all corporate purposes as evidencing a like
number of shares of Common Stock.
3. The aforementioned amendment and restatement to the
Corporation's Articles of Incorporation was adopted by the Corporation's Board
of Directors at a meeting duly called and held on February 9, 1988 in
accordance with the provisions of NRS 78.315 and NRS 78.390.
4. Thereafter pursuant to resolutions of the Board of
Directors of the Corporation, the foregoing amendment and restatement was
submitted to the shareholders of the Corporation at the annual meeting of
shareholders held on April 27, 1988, and the shareholders approved and adopted
said amendment and restatement pursuant to NRS 78.390 with 44,876,234 shares
of Class A Common Stock voting for the amendment and restatement and 455,058
shares of Class A Common Stock voting against the proposed amendment and
restatement, no shares of Class B Common Stock being at the time outstanding.
-11-
<PAGE> 12
IN WITNESS WHEREOF, Battle Mountain Gold Company has caused
these Restated Articles of Incorporation to be executed in its name by its
President and its Secretary, and its corporate seal to be affixed hereto, this
9th day of May, 1988.
BATTLE MOUNTAIN GOLD COMPANY
By: /s/ Douglas J. Bourne
---------------------------------
Douglas J.Bourne
Chairman of the Board
and Chief Executive Officer
By: /s/ James A. Brooks
----------------------------------
James A. Brooks
Assistant Secretary
-12-
<PAGE> 13
STATE OF TEXAS
COUNTY OF HARRIS
Before me, a Notary Public, on this day personally appeared
Douglas J. Bourne and James A. Brooks, known by me to be the Chairman of the
Board and Chief Executive Officer and Assistant Secretary, respectively, of
Battle Mountain Gold Company and to be the persons whose names are subscribed
to the foregoing document, and, being by me first duly sworn, each declared
that the statements therein contained are true and correct, and acknowledged
that he executed the above instrument.
Given under my hand and seal of office this 9th day of May,
1988.
/s/ Deborah S. Wheeler
--------------------------------
Notary Public in
and for the State of Texas
DEBORAH S. WHEELER
Notary Public, State of Texas
Commission Expires 7-1-89
-13-
<PAGE> 1
Exhibit 4(b)
CERTIFICATE OF RESOLUTION ESTABLISHING DESIGNATION,
PREFERENCES AND RIGHTS OF
$3.25 CONVERTIBLE PREFERRED STOCK
of
BATTLE MOUNTAIN GOLD COMPANY
Pursuant to Section 78.195 of the Nevada Revised Statutes
RESOLVED, that pursuant to the authority vested in the Board
of Directors of this Corporation by the Restated Articles of Incorporation of
the Corporation, a series of Convertible Preferred Stock, par value $1.00 per
share, of the Corporation, be and hereby is created, and that the number of
shares thereof and the voting powers, designations, preferences, limitations,
restrictions, relative rights and distinguishing designation of the shares of
such series are as follows:
Section 1. Designation and Amount. The designation of
such series of Preferred Stock authorized by this resolution shall be the $3.25
Convertible Preferred Stock (herein the "Convertible Preferred Stock"). The
number of shares of Convertible Preferred Stock shall be 2,300,000.
Section 2. Rank. All shares of Convertible Preferred
Stock shall rank prior, both as to payment of dividends and as to distributions
of assets upon liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, to all of the Corporation's now or hereafter
issued Common Stock. The term "Common Stock" shall mean the Common Stock, $.10
par value per share, of the Corporation as the same exists at the date hereof
or as such stock may be constituted from time to time.
Section 3. Dividends. The holders of Convertible
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds at the time legally available therefor,
dividends at the rate of $3.25 per annum per share, and no more, which shall be
fully cumulative, shall accrue without interest from the date of first issuance
and shall be payable in cash quarterly in arrears on February 15, May 15,
August 15 and November 15 of each year commencing August 15, 1993 (except that
if any such date is a Saturday, Sunday or legal holiday, then such dividend
shall be payable on the next succeeding day that is not a Saturday, Sunday or
legal holiday) to holders of record as they appear on the stock transfer books
of the Corporation on such record dates, not more than 60 nor less than 10 days
preceding the payment dates for such dividends, as are fixed by the Board of
Directors. For purposes hereof, the term "legal holiday" shall mean any day on
which banking institutions are authorized to close in New York, New York or in
Houston,Texas. Subject to the next paragraph of this Section 3, dividends on
account of
<PAGE> 2
arrears for any past dividend period may be declared and paid at any
time, without reference to any regular dividend payment date. The amount of
dividends payable per share of Convertible Preferred Stock for each quarterly
dividend period shall be computed by dividing the annual amount by four. The
amount of dividends payable for the initial dividend period and any period
shorter than a full quarterly dividend period shall be computed on the basis of
a 360-day year of twelve 30-day months. Holders of Convertible Preferred Stock
shall not be entitled to any dividend, whether payable in cash, property or
stock, in excess of the full cumulative dividends on such shares of Cumulative
Preferred Stock.
On each dividend payment date all dividends which shall have
accrued on each share of Convertible Preferred Stock outstanding on such
dividend payment date shall accumulate and be deemed to become "due" whether or
not there shall be funds legally available for the payment thereof. Any
dividend which shall not be paid on the dividend payment date on which it shall
become due shall be deemed to be "past due" until such dividend shall be paid
or until the share of Convertible Preferred Stock with respect to which such
dividend became due shall no longer be outstanding, whichever is the earlier to
occur. No interest, sum of money in lieu of interest, or other property or
securities shall be payable in respect of any dividend payment or payments
which are past due. Dividends paid on shares of Convertible Preferred Stock in
an amount less than the total amount of such dividends at the time accumulated
and payable on such shares shall be allocated pro rata on a share-by-share
basis among all such shares at the time outstanding.
No dividends or other distributions, other than dividends
payable solely in shares of Common Stock or other capital stock of the
Corporation ranking junior as to dividends and as to liquidation rights to the
Convertible Preferred Stock which is neither convertible into, nor exchangeable
or exercisable for, any securities of the Corporation other than Common Stock
or other capital stock of the Corporation ranking junior as to dividends and as
to liquidation rights to the Convertible Preferred Stock, shall be paid, or
declared and set apart for payment, and no purchase, redemption or other
acquisition shall be made by the Corporation of, any shares of Common Stock or
other capital stock of the Corporation ranking junior as to dividends or as to
liquidation rights to the Convertible Preferred Stock (the "Junior Dividend
Stock") unless and until all accrued and unpaid dividends on the Convertible
Preferred Stock, including the full dividend for the then current dividend
period, shall have been paid or declared and set apart for payment and the
Corporation is not in default in respect of the optional redemption of any
shares of Convertible Preferred Stock.
No full dividends shall be paid or declared and set apart for
payment on any class or series of the Corporation's capital stock ranking, as
to dividends, on a parity with the Convertible Preferred Stock (the "Parity
Dividend Stock") for any period unless full cumulative dividends have been, or
contemporaneously are, paid or declared and set apart for such payment on the
Convertible Preferred Stock for all dividend payment periods terminating on or
prior to the date of payment of such full cumulative dividends. No full
-2-
<PAGE> 3
dividends shall be paid or declared and set apart for payment on the
Convertible Preferred Stock for any period unless full cumulative dividends
have been, or contemporaneously are, paid or declared and set apart for payment
on the Parity Dividend Stock for all dividend periods terminating on or prior
to the date of payment of such full cumulative dividends. When dividends are
not paid in full upon the Convertible Preferred Stock and the Parity Dividend
Stock, all dividends paid or declared and set aside for payment upon shares of
Convertible Preferred Stock and the Parity Dividend Stock shall be paid or
declared and set aside for payment pro rata so that the amount of dividends
paid or declared and set aside for payment per share on the Convertible
Preferred Stock and the Parity Dividend Stock shall in all cases bear to each
other the same ratio that accrued and unpaid dividends per share on the shares
of Convertible Preferred Stock and the Parity Dividend Stock bear to each
other.
The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under this Section 3,
purchase or otherwise acquire such shares at such time and in such manner.
Any reference to "distribution" contained in this Section 3
shall not be deemed to include any distribution made in connection with any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary.
Section 4. Liquidation Preference. In the event of any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, the holders of Convertible Preferred Stock shall be entitled to
receive out of the assets of the Corporation, whether such assets are stated
capital or surplus of any nature, an amount equal to the dividends accrued and
unpaid thereon to the date of final distribution to such holders, whether or
not declared, without interest, and a sum equal to $50.00 per share, and no
more, before any payment shall be made or any assets distributed to the holders
of Common Stock or any other class or series of the Corporation's capital stock
ranking junior as to liquidation rights to the Convertible Preferred Stock (the
"Junior Liquidation Stock"). In the event the assets of the Corporation
available for distribution to stockholders upon any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full the amounts payable with respect to the Convertible
Preferred Stock and any other class or series of the Corporation's capital
stock which may hereafter be created having parity as to liquidation rights
with the Convertible Preferred Stock (the "Parity Liquidation Stock"), the
holders of the Convertible Preferred Stock and the holders of the Parity
Liquidation Stock shall share ratably in any distribution of assets of the
Corporation in proportion to the full respective preferential amounts to which
they are entitled (but only to the extent of such preferential amounts). After
payment in full of the liquidation preferences of the shares of Convertible
Preferred Stock, the holders of such shares shall not be entitled to any
further participation in any distribution of assets by the Corporation.
Neither a consolidation, merger or other business combination of the
Corporation with or into another corporation or other entity nor a sale or
transfer of all or
- 3 -
<PAGE> 4
part of the Corporation's assets for cash, securities or other property shall
be considered a liquidation, dissolution or winding up of the Corporation for
purposes of this Section 4 (unless in connection therewith the liquidation of
the Corporation is specifically approved).
The holder of any shares of Convertible Preferred Stock shall
not be entitled to receive any payment owed for such shares under this Section
4 until such holder shall cause to be delivered to the Corporation (i) the
certificate(s) representing such shares of Convertible Preferred Stock and (ii)
transfer instrument(s) satisfactory to the Corporation and sufficient to
transfer such shares of Convertible Preferred Stock to the Corporation free of
any adverse interest. As in the case of the Redemption Price referred to
below, no interest shall accrue on any payment upon liquidation after the due
date thereof.
Section 5. Redemption at Option of the Corporation. The
Corporation may not redeem the Convertible Preferred Stock prior to May 15,
1996. The Corporation, at its option, may at any time on and after May 15,
1996 redeem for shares of Common Stock the Convertible Preferred Stock, in
whole or from time to time in part, on any date set by the Board of Directors,
at the following redemption prices if redeemed during the twelve-month period
beginning May 15 of the year specified below:
<TABLE>
<CAPTION>
Year Price Per Share
---- ---------------
<S> <C>
1996 $52.275
1997 $51.950
1998 $51.625
1999 $51.300
2000 $50.975
2001 $50.650
2002 $50.325
</TABLE>
and thereafter at $50.00 per share, plus, in each case, an amount equal to all
dividends on the Convertible Preferred Stock accrued and unpaid thereon,
whether or not declared or due, to the date fixed for redemption, such sum
being hereinafter referred to as the "Redemption Price" (subject to the right
of the holder of record of shares of Convertible Preferred Stock on a record
date for the payment of a dividend on the Convertible Preferred Stock to
receive the dividend due on such shares of Convertible Preferred Stock on the
corresponding dividend payment date). At no time shall the Convertible
Preferred Stock be redeemable for cash.
The Corporation shall issue in payment of the Redemption Price
for each share of Convertible Preferred Stock to be redeemed such number of
shares of Common Stock as equals (x) the then-current Redemption Price of the
Convertible Preferred Stock, divided by (y) the market price (the "Market
Price") of the Common Stock. The Market Price shall be equal to the lower of
(i) the average of the daily closing prices of the
- 4 -
<PAGE> 5
Common Stock for the 20 consecutive trading days immediately preceding the
first business day immediately preceding the date of the applicable redemption
notice, or (ii) the closing price of the Common Stock on the trading day
immediately preceding the first business day immediately preceding the date of
the applicable redemption notice. The "closing price" for each day shall be
the last reported sales price regular way or, in case no such reported sales
takes place on such day, the average of the closing bid and asked prices
regular way for such day, in each case on the New York Stock Exchange Composite
Tape or, if not listed on the New York Stock Exchange, on the principal
national securities exchange on which the shares of Common Stock are listed or
admitted to trading or, if not listed or admitted to trading on a national
securities exchange, the last sale price regular way for the Common Stock as
published by the National Association of Securities Dealers Automated Quotation
System ("NASDAQ"), or if such last sale price is not so published by NASDAQ or
if no such sale takes place on such day, the mean between the closing bid and
asked prices for the Common Stock as published by NASDAQ. If the shares of
Common Stock are not listed or admitted to trading on a national securities
exchange or quoted by NASDAQ, the determination of Market Price shall be
determined in good faith by the Board of Directors of the Corporation or, if
such determination cannot be made, by a nationally recognized independent
investment banking firm selected in good faith by the Board of Directors of the
Corporation. For the purposes of this Section 5, trading day shall mean a day
on which the securities exchange specified for purposes of this Section 5 shall
be open for business or, if the shares of Common Stock shall not be listed on
such exchange for such period, a day with respect to which quotations of the
character referred to in the next preceding sentence shall be reported. In
lieu of any fractional share of Common Stock which would otherwise be issued
upon any redemption of Convertible Preferred Stock, the Corporation shall pay a
cash adjustment in respect of such fractional interest in an amount in cash
(computed to the nearest cent) equal to the Market Price multiplied by the
fractional interest that otherwise would have been deliverable upon such
redemption of such Convertible Preferred Stock.
In case of the redemption of less than all of the then
outstanding Convertible Preferred Stock, the shares of Convertible Preferred
Stock to be redeemed shall be redeemed pro rata or by lot or in such other
manner as the Board of Directors may determine. Notwithstanding the foregoing,
the Corporation shall not redeem less than all of the Convertible Preferred
Stock at any time outstanding until all dividends accrued and in arrears upon
all Convertible Preferred Stock then outstanding shall have been paid for all
past dividend periods.
Not more than 60 nor less than 30 days prior to the redemption
date, notice by first class mail, postage prepaid, shall be given to each
holder of record of the Convertible Preferred Stock to be redeemed, at such
holder's address as it shall appear upon the stock transfer books of the
Corporation. Each such notice of redemption shall specify the date fixed for
redemption, the Redemption Price, the place or places of payment, that payment
will be made upon presentation and surrender of the certificate(s) evidencing
the shares of Convertible Preferred Stock to be redeemed, that on and after the
redemption date, dividends will cease to accrue on such shares, the then
effective conversion price
- 5 -
<PAGE> 6
pursuant to Section 6 and that the right of holders to convert shall terminate
at the close of business on the redemption date (unless the Corporation
defaults in the payment of the Redemption Price).
Any notice that is mailed as herein provided shall be
conclusively presumed to have been duly given, whether or not the holder of the
Convertible Preferred Stock receives such notice; and failure to give such
notice by mail, or any defect in such notice, to the holders of any shares
designated for redemption shall not affect the validity of the proceedings for
the redemption of any other shares of Convertible Preferred Stock. On or after
the date fixed for redemption as stated in such notice, each holder of the
shares called for redemption shall surrender the certificate evidencing such
shares to the Corporation at the place designated in such notice and shall
thereupon be entitled to receive payment of the Redemption Price as herein
provided. If less than all the shares represented by any such surrendered
certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares. If, on the date fixed for redemption, shares of Common
Stock and funds necessary for the redemption shall be available therefor and
shall have been irrecoverably deposited or set aside, then, notwithstanding
that the certificates evidencing any shares so called for redemption shall not
have been surrendered the dividends with respect to the shares so called shall
cease to accrue after the date fixed for redemption, the shares shall no longer
be deemed outstanding, the holders thereof shall cease to be holders of
Convertible Preferred Stock, and all rights whatsoever with respect to the
shares so called for redemption (except the right of the holders to receive
payment of the Redemption Price as herein provided without interest upon
surrender of their certificates therefor) shall terminate. At the close of
business on the redemption date, each holder of Convertible Preferred Stock so
redeemed (unless the Corporation defaults on its obligations to delivery shares
of Common Stock or cash) shall be, without any further action, deemed a holder
of the number of shares of Common Stock for which such Convertible Preferred
Stock is redeemable.
The shares of Convertible Preferred Stock shall not be subject
to the operation of any purchase, retirement, mandatory redemption or sinking
fund.
The holder of any shares of Convertible Preferred Stock
redeemed upon any exercise of the Corporation's redemption right shall not be
entitled to receive payment of the Redemption Price for such shares until such
holder shall cause to be delivered to the place specified in the notice given
with respect to such redemption (i) the certificate(s) representing such shares
of Convertible Preferred Stock redeemed and (ii) transfer instrument(s)
satisfactory to the Corporation and sufficient to transfer such shares of
Convertible Preferred Stock to the Corporation free of any adverse interest.
No interest shall accrue on the Redemption Price of any share of Convertible
Preferred Stock after its redemption date.
All shares of Common Stock which may be delivered upon
redemption of the Convertible Preferred Stock will upon delivery be duly and
validly issued and fully paid and
- 6 -
<PAGE> 7
non-assessable, free of all liens and charges and not subject to any preemptive
rights,a nd prior to giving any notice of redemption the Corporation shall take
any corporate action necessary therefor.
In the event that any shares of Convertible Preferred Stock
shall be converted into Common Stock pursuant to Section 6, then (i) the
Corporation shall not have the right to redeem such shares and (ii) shares of
Common Stock and any funds which shall have been deposited for the payment of
the Redemption Price for such shares of Convertible Preferred Stock shall be
returned to the Corporation immediately after such conversion (subject to
declared dividends payable to holders of shares of Convertible Preferred Stock
on the record date for such dividends being so payable, to the extent set forth
in Section 6 hereof, regardless of whether such shares are converted subsequent
to such record date and prior to the related dividend payment date).
Section 6. Conversion Privilege.
(a) Right of Conversion. Subject to and upon compliance
with the provisions of this Section 6, each share of Convertible Preferred
Stock shall, at the option of the holder thereof, be convertible at any time
(unless such share is called for redemption, then to and including but not
after the close of business on the date fixed for such redemption, unless the
Corporation shall default in payment due upon redemption thereof), into that
number of fully paid and non-assessable shares of Common Stock (calculated as
to each conversion to the nearest 1/100th of a share) obtained by dividing
$50.00 by the Conversion Price (as defined in Section 6(d)) in effect at such
time and by surrender of such share so to be converted in the manner provided
in Section 6(b).
(b) Manner of Exercise of Conversion Privilege. In order
to exercise the conversion privilege, the holder of one or more shares of
Convertible Preferred Stock to be converted shall surrender such shares at any
of the offices or agencies to be maintained for such purpose by the Corporation
accompanied by the funds, if any, required by the last paragraph of this
Section 6(b) and shall give written notice of conversion in the form provided
on such shares of Convertible Preferred Stock (or such other notice as is
acceptable to the Corporation) to the Corporation at such office or agency that
the holder elects to convert the shares of Convertible Preferred Stock
specified in said notice. Such notice shall also state the name or names,
together with address or addresses, in which the certificate or certificates
for shares of Common Stock which shall be issuable in such conversion shall be
issued. Each share of Convertible Preferred Stock surrendered for conversion
shall, unless the shares issuable on conversion are to be issued in the same
name as the name in which such share is registered, be accompanied by
instruments of transfer, in form satisfactory to the Corporation, duly executed
by the holder or his duly authorized attorney and an amount sufficient to pay
any transfer or similar tax. As promptly as practicable after the surrender of
such shares of Convertible Preferred Stock and the receipt of such notice,
instruments of transfer and funds, if any, as aforesaid, the Corporation shall
issue and shall deliver at such office or agency to such holder, or on his
written order, a
- 7 -
<PAGE> 8
certificate or certificates for the number of full shares of Common Stock
issuable upon the conversion of such share of Convertible Preferred Stock in
accordance with the provisions of this Section 6 and a check or cash in respect
of any fractional interest in a share of Common Stock arising upon such
conversion, as provided in Section 6(c).
Each conversion shall be deemed to have been effected
immediately prior to the close of business on the date on which such shares of
Convertible Preferred Stock shall have been surrendered and such notice (and
any applicable instruments of transfer and any required taxes) received by the
Corporation as aforesaid, and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become the holder or holders of record
of the shares represented thereby at such time on such date, and such
conversion shall be at the Conversion Price in effect at such time on such
date, unless the stock transfer books of the Corporation shall be closed on
that date, in which event such person or persons shall be deemed to have become
such holder or holders of record at the close of business on the next
succeeding day on which such stock transfer books are open, but such conversion
shall be at the Conversion Price in effect on the date upon which such shares
of Convertible Preferred Stock shall have been surrendered and such notice
received by the Corporation.
Any shares of Convertible Preferred Stock surrendered for
conversion during the period from the close of business on the record date for
any dividend payment to the opening of business on the related dividend payment
date shall (unless such shares of Convertible Preferred Stock shall have been
called for redemption on a date in such period) be accompanied by payment, in
funds acceptable to the Corporation, of an amount equal to the dividend
otherwise payable on such dividend payment date; provided, however, that no
such payment need by made if there shall exist at the time of conversion a
default in the payment of dividends on the shares of Convertible Preferred
Stocks. An amount equal to such payment shall be paid by the Corporation on
such dividend payment date to the holder of such shares of Convertible
Preferred Stock at the close of business on such record date; provided,
however, that if the Corporation shall default in the payment of dividends on
such dividend payment date, such amount shall be paid to the person who made
such required payment. Except as provided for above in this Section, no
adjustment shall be made for dividends accrued on any shares of Convertible
Preferred Stock converted or for dividends on any shares issued upon the
conversion of such shares as provided in this Section.
(c) Cash Payments in Lieu of Fractional Shares. No
fractional shares or scrip representing fractions of shares of Common Stock
shall be issued upon conversion of Convertible Preferred Stock. If more than
one share of Convertible Preferred Stock shall be surrendered for conversion at
one time by the same holder, the number of full shares of Common Stock issuable
upon conversion thereof shall be computed on the basis of the aggregate of
$50.00 for each such share so surrendered. In lieu of any fractional interest
in a share of Common Stock which would otherwise be deliverable upon the
conversion of any share of Convertible Preferred Stock, the Corporation shall
pay to the holder of such
- 8 -
<PAGE> 9
shares an amount in cash (computed to the nearest cent) equal to the closing
price (as defined in Section 5 hereof) on the business day next preceding the
day of conversion multiplied by the fractional interest that otherwise would
have been deliverable upon conversion of such share.
(d) Adjustment of Conversion Price. The Conversion Price
shall mean and be $10.50, subject to adjustment from time to time by the
Corporation as follows:
(i) In case the Corporation shall (A) pay a dividend or
make a distribution on its Common Stock in shares of Common Stock, (B)
subdivide its outstanding shares of Common Stock into a greater number
of shares, (C) combine its outstanding shares of Common Stock into a
smaller number of shares, or (D) issue by reclassification of its
Common Stock any shares of capital stock of the Corporation, then in
each such case the Conversion Price in effect immediately prior to
such action shall be adjusted so that the holder of any share of
Convertible Preferred Stock thereafter surrendered for conversion
shall be entitled to receive the number of shares of Common Stock or
other capital stock of the Corporation which he would have owned or
been entitled to receive immediately following such action had such
share been converted immediately prior to the occurrence of such
event. An adjustment made pursuant to this subsection (i) shall
become effective immediately after the record date, in the case of a
dividend or distribution, or immediately after the effective date, in
the case of a subdivision, combination or reclassification. If, as a
result of an adjustment made pursuant to this subsection (i), the
holder of any share of Convertible Preferred Stock thereafter
surrendered for conversion shall become entitled to receive shares of
two or more classes of capital stock or shares of Common Stock and
other capital stock of the Corporation, the Board of Directors (whose
determination shall be conclusive and shall be described in a
statement filed by the Corporation with the stock transfer or
conversion agent, as appropriate) shall determine the allocation of
the adjusted Conversion Price between or among shares of such classes
of capital stock or shares of Common Stock and other capital stock.
(ii) In case the Corporation shall issue rights or
warrants to all holders of its outstanding shares of Common Stock
entitling them (for a period expiring within 45 days after the record
date mentioned below) to subscribe for or purchase shares of Common
Stock at a price per share less than the current market price per
share (as determined pursuant to subsection (iv) of this Section 6(d))
of the Common Stock (other than pursuant to any stock option,
restricted stock or other incentive or benefit plan or stock ownership
or purchase plan for the benefit of employees, directors or officers
or any dividend reinvestment plan of the Corporation in effect at the
time hereof or any other similar plan adopted or implemented
hereafter), then the Conversion Price in effect immediately prior
thereto shall be adjusted so that it shall equal the price determined
by multiplying the Conversion Price in effect immediately prior to the
date of issuance of such rights or warrants by a fraction of
- 9 -
<PAGE> 10
which the numerator shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights or warrants
(immediately prior to such issuance) plus the number of shares which
the aggregate offering price of the total number of shares so offered
would purchase at such current market price, and of which the
denominator shall be the numbers of shares of Common Stock outstanding
on the date of issuance of such rights or warrants (immediately prior
to such issuance) plus the number of additional shares of Common Stock
offered for subscription or purchase. Such adjustment shall be made
successively whenever any rights or warrants are issued, and shall
become effective immediately after the record date for the
determination of stockholders entitled to receive such rights or
warrants; provided, however, in the event that all the shares of
Common Stock offered for subscription or purchase are not delivered
upon the exercise of such rights or warrants, upon the expiration of
such rights or warrants the Conversion Price shall be readjusted to
the Conversion Price which would have been in effect had the numerator
and the denominator of the foregoing fraction and the resulting
adjustment been made based upon the number of shares of Common Stock
actually delivered upon the exercise of such rights or warrants rather
than upon the number of shares of Common Stock offered for
subscription or purchase. In determining whether any rights or
warrants entitle the holders to subscribe for or purchase shares of
Common Stock at less than such current market price, and in
determining the aggregate offering price of such shares of Common
Stock, there shall be taken into account any consideration received by
the Corporation for such rights or warrants, the value of such
consideration, if other than cash, to be determined by the Board of
Directors (whose determination shall be conclusive and shall be
described in a statement filed by the Corporation with the stock
transfer or conversion agent, as appropriate). Notwithstanding the
foregoing, any adjustments to the Conversion Price with respect to the
preferred stock purchase rights (the "Rights") of the Corporation
associated with the shares of Common Stock, which Rights are governed
by a Rights Agreement dated as of November 10, 1988, as amended (the
"Rights Agreement"), or similar rights or warrants adopted or issued
subsequent to the date hereof shall be made when such Rights or
similar rights or warrants are exercised. If after the Distribution
Date (as defined in the Rights Agreement or a similar date defined in
a similar agreement), holders converting shares of Convertible
Preferred Stock are not entitled to receive the Rights or similar
rights or warrants which would otherwise be attributable (but for the
date of conversion) to the shares of Common Stock received upon such
conversion, then adjustment to the Conversion Price shall be made
under this subsection (ii) as if the Rights or similar rights or
warrants were then issued to holders of Common Stock. If such an
adjustment is made and the Rights or similar rights or warrants are
later redeemed, invalidated or terminated, then a corresponding
reversing adjustment shall be made to the Conversion Price, on an
equitable basis, to take account of such event. However, the
Corporation may elect to provide that such shares of Common Stock
issuable upon conversion of the Convertible Preferred Stock, whether
or not issued after the Distribution Date for such Rights or such
similar date for such similar rights or warrants, will be
- 10 -
<PAGE> 11
accompanied by the Rights or such similar rights or warrants which would
otherwise be attributable (but for the date of conversion) to such shares of
Common Stock, in which event the preceding two sentences shall not apply.
(iii) In case the Corporation shall, by dividend or
otherwise, distribute to all holders of its outstanding Common Stock
or capital stock (other than Common Stock), evidences of its
indebtedness or assets (including securities and cash, but excluding
any regular periodic cash dividend of the Corporation and dividends or
distributions payable in stock for which adjustment is made pursuant
to subsection (i) of this Section 6(d)) or rights or warrants to
subscribe for or purchase securities of the Corporation (excluding
those referred to in subsection (ii) of this Section 6(d)), then in
each such case the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion Price
in effect immediately prior to the record date of such distribution by
a fraction of which the numerator shall be the current market price
per share as determined pursuant to subsection (iv) of this Section
6(d) of the Common Stock less the fair market value on such record
date (as determined by the Board of Directors, whose determination
shall be conclusive and shall be described in a statement filed by the
Corporation with the stock transfer or conversion agent, as
appropriate) of the portion of the capital stock or assets or the
evidences of indebtedness or assets so distributed to the holder of
one share of Common Stock or of such subscription rights or warrants
applicable to one share of Common Stock, and of which the denominator
shall be such current market price per share of Common Stock. Such
adjustment shall become effective immediately after the record date
for the determination of stockholders entitled to receive such
distribution.
(iv) For the purpose of any computation under subsections
(ii) and (iii) of this Section 6(d), the current market price per
share of Common Stock on any date shall be deemed to be the average of
the closing price (as defined in Section 5) for the shorter of (A) 30
consecutive trading days (as defined in Section 5) ending on the last
full trading day prior to the Time of Determination or (B) the period
commencing on the date next succeeding the first public announcement
of the issuance of such rights or warrants or such distribution
through such last full trading day prior to the Time of Determination.
For purposes of the foregoing, the term "Time of Determination" shall
mean the time and date of the earlier of (I) the record date for
determining stockholders entitled to receive the rights, warrants or
distributions referred to in Section 6(d)(ii) and (iii) or (II) the
commencement of "ex-dividend" trading on the exchange or market
referred to in the definition of "closing price."
(v) In any case in which this Section 6(d) shall require
that an adjustment be made immediately following a record date or an
effective date, the Corporation may elect to defer (but only until the
filing by the Corporation with the stock transfer or conversion agent,
as the case may be, of the certificate required by subsection (vii)
- 11 -
<PAGE> 12
of this Section 6(d)) issuing to the holder of any share of
Convertible Preferred Stock converted after such record date or
effective date the shares of Common Stock issuable upon such
conversion over and above the shares of Common Stock issuable upon
such conversion on the basis of the Conversion Price prior to
adjustment, and paying to such holder any amount of cash in lieu of a
fractional share.
(vi) No adjustment in the Conversion Price shall be
required to be made unless such adjustment would require an increase
or decrease of at least 1% of such price; provided, however, that any
adjustments which by reason of this subsection (vi) are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 6(d) shall
be made to the nearest cent or to the nearest 1/1000th of a share, as
the case may be. Anything in this Section 6(d) to the contrary
notwithstanding, the Corporation shall be entitled to make such
reduction in the Conversion Price, in addition to those required by
this Section 6(d), as it in its discretion shall determine to be
advisable in order that any stock dividend, subdivision of shares,
distribution of rights to purchase stock or securities, or
distribution of securities convertible into or exchangeable for stock
hereafter made by the Corporation to its stockholders shall not be
taxable to the recipients. Except as set forth in subsections (i),
(ii) and (iii) above, the Conversion Price shall not be adjusted for
the issuance of Common Stock, or any securities convertible into or
exchangeable for Common Stock or carrying the right to purchase any of
the foregoing, in exchange for cash, property or services.
(vii) Whenever the Conversion Price is adjusted as herein
provided, (A) the Corporation shall promptly file with the stock
transfer or conversion agent, as appropriate, a certificate setting
forth the Conversion Price after such adjustment and a brief statement
of the facts requiring such adjustment and the manner of computing the
same, which certificate shall be conclusive evidence of the
correctness of such adjustment, and (B) the Corporation shall also
mail or cause to be mailed by first class mail, postage prepaid, as
soon as practicable to each holder of record of shares of Convertible
Preferred Stock a notice stating that the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price. The stock
transfer or conversion agent, as the case may be, shall not be under
any duty or responsibility with respect to the certificate required by
this subsection (vii) except to exhibit the same to any holder of
shares of Convertible Preferred Stock who requests to inspect it.
(viii) In the event that at any time, as a result of an
adjustment made pursuant to subsection (i) of this Section 6(d), the
holder of any share of Convertible Preferred Stock thereafter
surrendered for conversion shall become entitled to receive any shares
of the Corporation other than shares of Common Stock, thereafter the
Conversion Price of such other shares so receivable upon conversion of
any share of Convertible Preferred Stock shall be subject to
adjustment from time to time in
- 12 -
<PAGE> 13
a manner and on terms as nearly equivalent as practicable to the
provisions with respect to Common Stock contained in this Section.
(ix) The Corporation from time to time may decrease the
Conversion Price by any amount for any period of time if the period is
at least 20 days and if the decrease is irrevocable during the period.
Whenever the Conversion Price is so decreased, the Corporation shall
mail to holders of record of shares of Convertible Preferred Stock a
notice of the decrease at least 15 days before the date the decreased
Conversion Price takes effect, and such notice shall state the
decreased Conversion Price and the period it will be in effect.
(e) Notice to Holders Prior to Certain Corporate Actions.
In case:
(i) the Corporation shall take any action which would
require an adjustment in the Conversion Price pursuant to Section
6(d)(iii); or
(ii) the Corporation shall authorize the granting to the
holders of its Common Stock generally of rights or warrants to
subscribe for or purchase any shares of stock of any class or of any
other rights; or
(iii) there shall be any reorganization or reclassification
of the Common Stock (other than a subdivision or combination of the
outstanding Common Stock and other than a change in the par value of
the Common Stock), or any consolidation or merger to which the
Corporation is a party or any statutory exchange of securities with
another corporation and for which approval of any stockholders of the
Corporation is required, or any sale or transfer of all or
substantially all of the assets of the Corporation; or
(iv) there shall be a voluntary or involuntary
dissolution, liquidation or winding-up of the Corporation;
then in each such case the Corporation shall cause to be given to the holders
of shares of Convertible Preferred Stock and the stock transfer or conversion
agent, as appropriate, as promptly as possible, but in any event at least 20
days prior to the applicable date hereinafter specified, a notice stating (i)
the date on which a record is to be taken for the purpose of such action or
granting of rights or warrants, or, if a record is not to be taken, the date as
of which the holders of Common Stock of record to be entitled to such
distribution, rights or warrants are to be determined, or (ii) the date on
which such reorganization, reclassification, consolidation, merger, statutory
exchange, sale, transfer, dissolution, liquidation or winding-up is expected to
become effective or occur, and the date as of which it is expected that holders
of Common Stock of record shall be entitled to exchange their shares of Common
Stock for securities, cash or other property deliverable upon such
reorganization, reclassification, consolidation, merger, statutory exchange,
sale, transfer, dissolution, liquidation or winding-up. Failure to give such
notice or any defect
- 13 -
<PAGE> 14
therein shall not affect the legality or validity or the proceedings described
in subsection (i), (ii), (iii) or (iv) of this Section 6(e).
(f) Reservation of Shares of Common Stock. The
Corporation covenants that it will at all times reserve and keep available,
free from preemptive rights, out of the aggregate of its authorized but
unissued shares of Common Stock or its issued shares of Common Stock held in
its treasury, or both, for the purpose of effecting conversions of shares of
Convertible Preferred Stock, the full number of shares of Common Stock
deliverable upon the conversion of all outstanding shares of Convertible
Preferred Stock not theretofore converted and on or before (and as a condition
of) taking any action that would cause an adjustment of the Conversion Price
resulting in an increase in the number of shares of Common Stock deliverable
upon conversion above the number thereof previously reserved and available
therefor, the Corporation shall take all such action so required. For purposes
of this Section 6(f), the number of shares of Common Stock which shall be
deliverable upon the conversion of all outstanding shares of Convertible
Preferred Stock shall be computed as if at the time of computation all
outstanding shares of Convertible Preferred Stock were held by a single holder.
Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value (if any) of the shares
of Common Stock deliverable upon conversion of the shares of Convertible
Preferred Stock, the Corporation shall take any corporate action which may, in
the opinion of its counsel, be necessary in order that the Corporation may
validly and legally issue fully paid and non-assessable shares of Common Stock
at such adjusted Conversion Price.
(g) Transfer Taxes, Etc. The Corporation shall pay any
and all documentary stamp, issue or transfer taxes, and any other similar taxes
payable in respect of the issue or delivery of shares of Common Stock upon
conversions of shares of Convertible Preferred Stock pursuant hereto; provided,
however, that the Corporation shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issue or delivery of shares
of Common Stock in a name other than that of the holder of the shares of
Convertible Preferred Stock to be converted and no such issue or delivery shall
be made unless and until the person requesting such issue or delivery has paid
to the Corporation the amount of any such tax or has established, to the
satisfaction of the Corporation, that such tax has been paid.
(h) Consolidation or Merger or Sale of Assets.
Notwithstanding any other provision herein to the contrary, in case of any
consolidation or merger to which the Corporation is a party (other than a
merger or consolidation in which the Corporation is the continuing corporation
and in which the Common Stock outstanding immediately prior to the merger or
consolidation is not exchanged for cash, or the securities or other property of
another corporation), or in case of any sale or transfer to another corporation
of the property of the Corporation as an entirety or substantially as an
entirety, or in the case of any statutory exchange of securities with another
corporation (other than in connection with
- 14 -
<PAGE> 15
a merger or acquisition), then lawful provision shall be made by the
corporation formed by such consolidation or the corporation whose securities,
cash or other property will immediately after the merger or consolidation be
owned, by virtue of the merger or consolidation, by the holders of Common Stock
immediately prior to the merger or consolidation, or the corporation which
shall have acquired such assets or securities of the Corporation (collectively
the "Formed, Surviving or Acquiring Corporation"), as the case may be,
providing that the holder of each share of Convertible Preferred Stock then
outstanding shall have the right thereafter to convert such share into the kind
and amount of securities, cash or other property receivable upon such
consolidation, merger, statutory exchange, sale or transfer by a holder of the
number of shares of Common Stock into which such share of Convertible Preferred
Stock might have been converted immediately prior to such consolidation,
merger, statutory exchange, sale or transfer assuming such holder of Common
Stock did not exercise his rights of election, if any, as to the kind or amount
of securities, cash or other property receivable upon such consolidation,
merger, statutory exchange, sale or transfer (provided that, if the kind or
amount of securities, cash or other property receivable upon such
consolidation, merger, statutory exchange, sale or transfer is not the same for
each share of Common Stock in respect of which such rights of election shall
not have been exercised ("non-electing share"), then for the purposes of this
Section 6(h) the kind and amount of securities, cash or other property
receivable upon such consolidation, merger, statutory exchange, sale or
transfer for each non-electing share shall be deemed to be the kind and amount
so receivable per share by a plurality of the non-electing shares). The
Formed, Surviving or Acquiring Corporation, as the case may be, shall make
provision in its certificate or articles of incorporation or other constituent
documents to the end that the provisions set forth in this Section 6(h) shall
thereafter correspondingly be made applicable, as nearly as may reasonably be,
in relation to any shares of stock or other securities or property thereafter
deliverable on the conversion of the Convertible Preferred Stock.
The above provisions of this Section 6(h) shall similarly
apply to successive consolidations, mergers, statutory exchanges, sales or
transfers.
(i) Covenant as to Common Stock. The Corporation
covenants that all shares of Common Stock which may be delivered upon
conversions of shares of Convertible Preferred Stock will upon delivery be duly
and validly issued and fully paid and non-assessable, free of all liens and
charges and not subject to any preemptive rights.
The Corporation covenants that if any shares of Common Stock
to be provided for the purpose of conversion of shares of Convertible Preferred
Stock hereunder require registration with or approval of any governmental
authority under any Federal or State law before such shares may be validly
issued upon conversion, the Corporation will in good faith and as expeditiously
as possible endeavor to secure such registration or approval, as the case may
be.
- 15 -
<PAGE> 16
The Corporation further covenants that if at any time the
Common Stock shall be listed on the New York Stock Exchange or any other
national securities exchange, the Corporation will, if permitted by the rules
of such exchange, list and keep listed so long as the Common Stock shall be so
listed on such exchange, all Common Stock issuable upon conversion of the
shares of Convertible Preferred Stock.
Section 7. Voting Rights.
(a) General. The holders of Convertible Preferred Stock
shall not have any voting rights except as set forth below or as otherwise from
time to time required by law. In connection with any right to vote, each
holder of Convertible Preferred Stock will have one vote for each share held.
Any shares of Convertible Preferred Stock held by the Corporation or any entity
controlled by the Corporation shall not have voting rights hereunder and shall
not be counted in determining the presence of a quorum.
(b) Default Voting Rights. Whenever dividends on the
Convertible Preferred Stock shall be in arrears in an amount equal to at least
six quarterly dividends (whether or not consecutive), (i) the number of members
of the Board of Directors of the Corporation shall be increased by two,
effective as of the time of election of such directors as hereinafter provided,
and (ii) the holders of the Convertible Preferred Stock (voting separately as a
class with all other affected classes or series of the Parity Dividend Stock
upon which like voting rights have been conferred and are exercisable) will
have the exclusive right to vote for and elect such two additional directors of
the Corporation at any meeting of stockholders of the Corporation at which
directors are to be elected held during the period such dividends remain in
arrears. The right of the holders of the Convertible Preferred Stock to vote
for such two additional directors shall terminate when all accrued and unpaid
dividends on the Convertible Preferred Stock have been declared and paid or set
apart for payment. The term of office of all directors so elected shall
terminate immediately upon the termination of the right of the holders of the
Convertible Preferred Stock and such Parity Dividend Stock to vote for such two
additional directors.
The foregoing right of the holders of the Convertible
Preferred Stock with respect to the election of two directors may be exercised
at any annual meeting of stockholders or at any special meeting of stockholders
held for such purpose. If the right to elect directors shall have accrued to
the holders of the Convertible Preferred Stock more than 90 days preceding the
date established for the next annual meeting of stockholders, the President of
the Corporation shall, within 20 days after the delivery to the Corporation at
its principal office of a written request for a special meeting signed by the
holders of at least ten percent (10%) of the Convertible Preferred Stock then
outstanding, call a special meeting of the holders of the Convertible Preferred
Stock to be held within 60 days after the delivery of such request for the
purpose of electing such additional directors.
- 16 -
<PAGE> 17
The holders of the Convertible Preferred Stock and any Parity
Dividend Stock referred to above voting as a class shall have the right to
remove without cause at any time and replace any directors such holders have
elected pursuant to this Section 7.
(c) Class Voting Rights. So long as the Convertible
Preferred Stock is outstanding, the Corporation shall not, without the
affirmative vote or consent of the holders of at least 66 2/3 percent of all
outstanding Convertible Preferred Stock (unless the vote or consent of a
greater percentage is required by applicable law or the Restated Articles of
Incorporation of the Corporation), voting separately as a class, (i) amend,
alter or repeal (by merger, consolidation or otherwise) any provision of the
Restated Articles of Incorporation or the Bylaws of the Corporation, as
amended, so as to affect adversely the relative rights, preferences,
qualifications, limitations or restrictions of the Convertible Preferred Stock,
(ii) authorize or issue, or increase the authorized amount of, any additional
class or series of stock, or any security convertible into stock of such class
or series, ranking prior to the Convertible Preferred Stock in respect of the
payment of dividends or upon liquidation, dissolution or winding up of the
Corporation or (iii) effect any reclassification of the Convertible Preferred
Stock. A class vote on the part of the Convertible Preferred Stock shall,
without limitation, specifically not be deemed to be required (except as
otherwise required by law or resolution of the Corporation's Board of
Directors) in connection with: (a) the authorization, issuance or increase in
the authorized amount of any shares of any other class or series of stock that
ranks junior to, or on a parity with, the Convertible Preferred Stock in
respect of the payment of dividends and upon liquidation, dissolution or
winding up of the Corporation; or (b) the authorization, issuance or increase
in the amount of any notes, bonds, mortgages, debentures or other obligations
of the Corporation not convertible into or exchangeable, directly or
indirectly, for stock ranking prior to the Convertible Preferred Stock in
respect of the payment of dividends or upon liquidation, dissolution or winding
up of the Corporation.
Section 8. Outstanding Shares. For purposes of this
Certificate of Resolution, all shares of Convertible Preferred Stock shall be
deemed outstanding except (i) from the date fixed for redemption pursuant to
Section 5, all shares of Convertible Preferred Stock that have been so called
for redemption under Section 5 if shares of Common Stock and funds necessary
for payment of the redemption price have been irrevocably set apart; (ii) from
the date of surrender of certificates representing shares of Convertible
Preferred Stock, all shares of Convertible Preferred Stock converted into
Common Stock; and (iii) from the date of registration of transfer, all shares
of Convertible Preferred Stock held of record by the Corporation or any
subsidiary of the Corporation.
Section 9. Status of Acquired Shares. Shares of Convertible
Preferred Stock redeemed by the Corporation, received upon conversion pursuant
to Section 6, or otherwise acquired by the Corporation will be restored to the
status of authorized and unissued shares of Preferred Stock, without
designation as to series, and may thereafter be issued, but not as shares of
Convertible Preferred Stock.
- 17 -
<PAGE> 18
Section 10. Preemptive Rights. The Convertible Preferred
Stock is not entitled to any preemptive or subscription rights in respect of
any securities of the Corporation.
Section 11. Severability of Provisions. Whenever
possible, each provision hereof shall be interpreted in a manner as to be
effective and valid under applicable law, but if any provision hereof is held
to be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating or otherwise adversely affecting the remaining provisions hereof.
If a court of competent jurisdiction should determine that a provision hereof
would be valid or enforceable if a period of time were extended or shortened or
a particular percentage were increased or decreased, then such court may make
such change as shall be necessary to render the provision in question effective
and valid under applicable law.
IN WITNESS WHEREOF, Battle Mountain Gold Company has caused
this certificate to be signed on its behalf by R. Dennis O'Connell, its Vice
President - Finance, and its corporate seal to be hereunto affixed and attested
by Robert J. Quinn, its Secretary, this 18th day of May, 1993.
BATTLE MOUNTAIN GOLD COMPANY
[SEAL]
By: /s/ R. DENNIS O'CONNELL
_________________________________
R. Dennis O'Connell
Vice President - Finance
Attest:
/s/ ROBERT J. QUINN
____________________________________
Robert J. Quinn
Secretary
- 18 -
<PAGE> 19
STATE OF COLORADO
COUNTY OF ARAPAHOE
This instrument was acknowledged before me on the 18th day of
May, 1993, by R. Dennis O'Connell, of Battle Mountain Gold Company, a Nevada
corporation on behalf of said corporation.
/s/ DEBORAH S. WHEELER
-----------------------------------
Notary Public, State of Colorado
DEBORAH S. WHEELER
-----------------------------------
Printed Name of Notary:
My Commission Expires: Dec. 5, 1995
Bonded thru NOTARY PUBLIC AGENCY
-----------------------------------
DEBORAH S. WHEELER
NOTARY PUBLIC, STATE OF COLORADO
- 19 -
<PAGE> 1
EXHIBIT 4 (f)
[PROOF]
BATTLE MOUNTAIN GOLD COMPANY,
_________________________, as Depositary,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY SHARES DESCRIBED HEREIN
__________________________
DEPOSIT AGREEMENT
__________________________
Dated as of ___________
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Deposit Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Depositary Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Depositary's Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Depositary's Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Receipt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Record Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF
RECEIPTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.1 Form and Transfer of Receipts . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.2 Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.3 Redemption of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.4 Registration of Transfer of Receipts . . . . . . . . . . . . . . . . . . . 6
SECTION 2.5 Split-ups and Combinations of Receipts; Surrender of Receipts
and Withdrawal of Stock . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.6 Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts. . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.7 Lost Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.8 Cancellation and Destruction of Surrendered Receipts . . . . . . . . . . . 8
SECTION 2.9 Preferred Stock Purchase Plans . . . . . . . . . . . . . . . . . . . . . . 8
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE III CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 3.1 Filing Proofs, Certificates and Other Information . . . . . . . . . . . . 8
SECTION 3.2 Payment of Taxes or Other Governmental Charges . . . . . . . . . . . . . . 9
SECTION 3.3 Warranty as to Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV THE DEPOSITED SECURITIES; NOTICES . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 4.1 Cash Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 4.2 Distributions Other than Cash, Rights, Preferences or
Privileges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.3 Subscription Rights, Preferences or Privileges . . . . . . . . . . . . . . 10
SECTION 4.4 Notice of Dividends; Fixing of Record Date for Record
Holders of Depositary Shares. . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.5 Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.6 Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, etc. . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.7 Delivery of Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.8 List of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE V THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.1 Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.2 Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company . . . . . . . . . . . 14
SECTION 5.3 Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.5 Corporate Notices and Reports . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.6 Deposit of Stock by the Company . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.7 Indemnification by the Company . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.8 Charges and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VI AMENDMENT AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 6.1 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 6.2 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE VII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.1 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.2 Exclusive Benefit of Parties; Holders of Receipts Are
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.3 Invalidity of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.4 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 7.5 Depositary's Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.7 Inspection of Deposit Agreement . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.8 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
-iii-
<PAGE> 5
DEPOSIT AGREEMENT
dated as of ___________
among
BATTLE MOUNTAIN GOLD COMPANY,
a Nevada corporation,
______________, a _________________,
and the holders
from time to time of the Depositary Shares
described herein.
WHEREAS it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of _________ {insert designation}
Preferred Stock, par value $1.00 per share, of Battle Mountain Gold Company
with the Depositary (as hereinafter defined) for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of Receipts (as hereinafter
defined) evidencing Depositary Shares (as hereinafter defined) in respect of
the Stock (as hereinafter defined) so deposited;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE 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 resolution
establishing designation, preferences and rights of the Stock adopted by the
Board of Directors of the Company and filed with the Secretary of State of
Nevada establishing the Stock as a series of preferred stock of the Company.
"Company" shall mean Battle Mountain Gold Company, a Nevada
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time.
"Depositary" shall mean _____________________ {a bank or trust
company selected by the Company having its principal office in the United
States of America and
-1-
<PAGE> 6
having combined capital and surplus of at least $50,000,000}, a _______________
________________, and any successor as Depositary hereunder.
"Depositary Shares" shall mean the rights represented by the
Receipts issued hereunder and the interests in the Stock represented thereby.
Each Depositary Share shall represent a _____ {insert fraction} interest in a
share of Stock and the same proportionate interest in any and all other
property received by the Depositary in respect of such shares of Stock and at
the time held under this Deposit Agreement.
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 7.5.
"Depositary's Office" shall mean the office of the Depositary
at ____________________, _______________________, ________________________, at
which at any particular time its depositary receipt business shall be
administered.
"Receipt" shall mean one of the depositary receipts issued
hereunder, whether in definitive or temporary form, evidencing one or more
Depositary Shares.
"Record Holder" as applied with respect to a Depositary Share
shall mean the person in whose name a Receipt evidencing such Depositary Share
is registered on the books of the Depositary, or Registrar, if one is
appointed, maintained for such purpose.
"Redemption Date" shall mean a date fixed by the Company for
the redemption, in whole or in part, of the Stock pursuant to the terms of the
Certificate.
"Redemption Price" shall mean the price (or amount) to be paid
by the Company for the redemption, in whole or in part, of the Stock pursuant
to the terms of the Certificate.
"Registrar" shall mean any bank or trust company which shall
be appointed by the Depositary pursuant to this Deposit Agreement to register
ownership and transfers of Receipts as herein provided.
"Stock" shall mean shares of the Company's ___________________
{insert designation} Preferred Stock, par value $1.00
per share.
-2-
<PAGE> 7
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1 Form and Transfer of Receipts. Definitive
Receipts shall be engraved, printed or lithographed on steel-engraved borders
as determined by the Company and shall be substantially in the form set forth
in Exhibit A attached hereto, with appropriate insertions, 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 2.2, 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 the Depositary's Office, or such other office as
the Depositary may designate, without charge to the holder. Upon surrender for
cancellation of any one or more temporary Receipts, the Depositary shall
execute and deliver in exchange therefor definitive Receipts representing the
same number of Depositary Shares as represented by the surrendered temporary
Receipt or Receipts. Such exchange shall be made at the Company's expense and
without any charge therefor. Until so exchanged, the temporary Receipts shall
in all respects be entitled to the same benefits under this Deposit Agreement,
and with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized representative of the Depositary; provided, that
such signature may be a facsimile if a Registrar for the Receipts other than
the Depositary shall have been appointed and such Receipts are countersigned by
manual signature of a duly authorized representative of such Registrar. No
Receipt shall be entitled to any benefits under this Deposit Agreement or be
valid or obligatory for any purpose unless it shall have been executed manually
by a duly authorized representative of the Depositary or, if a Registrar for
the Receipts other than the Depositary shall have been appointed, by manual or
facsimile signature of a duly authorized representative of such Depositary and
countersigned manually by a duly authorized representative of such Registrar.
The Depositary shall record on its books each Receipt so signed and delivered
as hereinafter provided.
Receipts shall be in denominations of any number of whole
Depositary Shares.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement
-3-
<PAGE> 8
or the Certificate as may be required by the Company or the Depositary (or, at
the election of the Depositary, the Registrar) or required to comply with any
applicable law or any regulation thereunder or with the rules and regulations
of any securities exchange upon which the Stock, the Depositary Shares or the
Receipts may be listed or to conform with any usage with 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 2.4,
the Depositary may, notwithstanding any notice to the contrary, treat the
Record Holder thereof at such time as the absolute owner thereof for the
purpose of determining the person entitled to distributions of dividends or
other distributions or to any notice provided for in this Deposit Agreement and
for all other purposes.
Each holder of a Receipt is entitled, proportionately, to all
the rights, preferences and privileges of the Stock represented thereby
(including dividend, voting, redemption and liquidation rights and preferences)
and the same proportionate interest in any and all other property received by
the Depositary in respect of such Stock and at the time held under this Deposit
Agreement.
SECTION 2.2 Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this
Deposit Agreement, the Company or any holder of Stock may from time to time
deposit shares of Stock under this Deposit Agreement by delivery to the
Depositary of a certificate or certificates for the Stock to be deposited,
properly endorsed or accompanied, if required by the Depositary, by a duly
executed instrument of transfer or endorsement, in form satisfactory to the
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 of the Company directing the Depositary to
execute and deliver to, or upon the written order of, the person or persons
stated in such order a Receipt or Receipts for the number of Depositary Shares
relating to such deposited Stock.
Deposited Stock shall be held by the Depositary at the
Depositary's Office or at such other place or places as the Depositary shall
determine.
Upon receipt by the Depositary of a certificate or
certificates for Stock deposited in accordance with the provisions of this
Section, together with the other documents required as above specified, and
upon recordation of the Stock so deposited 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 named in the written order delivered to the
-4-
<PAGE> 9
Depositary referred to in the first paragraph of this Section, a Receipt or
Receipts for the number of Depositary Shares relating to the Stock so deposited
and registered in such name or names as may be requested by such person or
persons. The Depositary shall execute and deliver such Receipt or Receipts at
the Depositary's Office or such other office, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
SECTION 2.3 Redemption of Stock. Whenever the Company
shall elect to redeem shares of Stock in accordance with the provisions of the
Certificate, it shall (unless otherwise agreed in writing with the Depositary)
give written notice to the Depositary of such proposed redemption on the same
date on which the Company first publicly announces such redemption, such date
of notice being not less than 40 nor more than 70 days prior to the Redemption
Date. Such notice to the Depositary shall include the proposed Redemption
Date, the number of shares of Stock held by the Depositary to be redeemed and
the applicable redemption price (including any accrued and unpaid dividends, if
any, payable in connection with such redemption). Any such notice to the
Depositary shall be accompanied by (i) a certificate from the Company stating
that such redemption of Stock is in accordance with the provisions of the
Certificate and (ii) the form of notice of redemption (which shall contain
substantially the same information as the notice required by the Certificate
for the redemption of the Stock) to be delivered by the Depositary. Not less
than 30 nor more than 60 days prior to the Redemption Date, the Depositary
shall mail or cause to be mailed, at the Company's expense, notice (in the form
provided to the Depositary by the Company) of such redemption and the proposed
corresponding redemption of the number of Depositary Shares representing the
Stock to be redeemed, by first-class mail, postage prepaid, to the holders of
record of the Receipts evidencing the Depositary Shares to be so redeemed,
addressed to such holders at their last addresses as shown on the records of
the Depositary (or Registrar, if one is appointed). Each such notice mailed to
Record Holders of Depositary Shares shall be in the form provided to the
Depositary by the Company and shall state, at a minimum, the Redemption Date,
the number of Depositary Shares to be redeemed, and, if less than all the
Depositary Shares represented by Receipts held by such holder are to be
redeemed, the number of such Depositary Shares to be redeemed from such holder,
the applicable redemption price, the place or places where such Receipts are to
be surrendered for payment of the redemption price, and that any dividends in
respect of the Depositary Shares to be redeemed will cease on the Redemption
Date, except as otherwise provided in the Certificate. Any notice which is so
mailed shall be conclusively presumed to have been duly given whether or not
the holder receives such notice; and failure to give such notice by mail, or
any defect in such notice, to the holders of any Depositary Shares designated
for redemption shall not affect the validity of the proceedings for the
redemption of any other Depositary Shares. If less than all of the then
outstanding Depositary Shares are to be redeemed, the Depositary Shares to be
so redeemed shall be selected by lot or pro rata as may be determined by the
Depositary.
-5-
<PAGE> 10
Prior to the Redemption Date, the Company shall deliver to the
Depositary funds, securities or other property sufficient to redeem in full the
Stock called for redemption and the Depositary shall surrender to the Company a
certificate or certificates (properly endorsed or assigned for transfer, if the
Company shall so require and the notice shall so state) representing the number
of shares of Stock to be so redeemed. If the Company shall have delivered to
the Depositary funds, securities or other property necessary for the redemption
in full of the shares of Stock called for redemption, then, notwithstanding
that the Receipts evidencing Depositary Shares representing the shares of Stock
called for redemption have not been surrendered, the dividends in respect
thereof shall cease to accrue after the Redemption Date, such Depositary Shares
shall no longer be deemed outstanding and all rights whatsoever with respect to
such Depositary Shares (except the right of the holders to receive the
redemption payment therefor without interest upon surrender of the Receipts
evidencing such Depositary Shares) shall 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 the proportionate part of the
redemption price per share paid in respect of the shares of Stock plus all
funds, securities or other property, if any, paid with respect to such
Depositary Shares, including all amounts paid by the Company in respect of
dividends which on the Redemption Date have accumulated on the shares of Stock
to be so redeemed and have not theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt
are called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with the redemption
payment, a new Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption.
SECTION 2.4 Registration of Transfer of Receipts.
Subject to the terms and conditions of this Deposit Agreement, the Depositary
shall register on its books from time to time transfers of Receipts upon any
surrender thereof by the holder in person or by a duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of transfer.
Thereupon, the Depositary shall execute a new Receipt or Receipts evidencing
the same aggregate number of Depositary Shares as those evidenced by the
Receipt or Receipts surrendered and shall deliver such new Receipt or Receipts
to or upon the order of the person entitled thereto.
SECTION 2.5 Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of Stock. Upon surrender of a Receipt or
Receipts at the Depositary's Office or at such other offices as it may
designate for the purpose of effecting a split-up or combination of such
Receipt or Receipts, 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.
-6-
<PAGE> 11
Any Record Holder of at least ______ {insert number of
Depositary Shares (at least the inverse of the fraction of an interest
represented by each Depositary Share in a share of Stock) below which
withdrawal of Stock is not permitted} Depositary Shares may withdraw the number
of whole shares of Stock and all money and other property, if any, underlying
such Depositary Shares by surrendering Receipts evidencing such Depositary
Shares at the Depositary's Office or at such other offices as the Depositary
may designate for such withdrawals. Thereafter, without unreasonable delay,
the Depositary shall deliver to such holder, or to the person or persons
designated by such holder as hereinafter provided, the number of whole shares
of Stock and all money and other property, if any, underlying the Depositary
Shares so surrendered for withdrawal, but holders of such whole shares of Stock
will not thereafter be entitled to deposit such Stock hereunder or to receive
Receipts evidencing Depositary Shares therefor. If a Receipt delivered by a
holder to the Depositary in connection with such withdrawal shall evidence a
number of Depositary Shares relating to other than a number of whole shares of
Stock, the Depositary shall at the same time, in addition to such number of
whole shares of Stock and such money and other property, if any, to be so
withdrawn, deliver to such holder, or (subject to Section 3.2) upon his order,
a new Receipt evidencing such remaining number of Depositary Shares represented
by the Receipt delivered in connection with such withdrawal. Delivery of the
Stock and money and other property being withdrawn may be made by delivery of
such certificates, documents of title and other instruments as the Depositary
may deem appropriate.
If the Stock and the money and other property being withdrawn
are to be delivered to a person or persons other than the Record Holder of the
Depositary Shares evidenced by the Receipts being surrendered for withdrawal of
Stock, such holder shall execute and deliver to the Depositary a written order
so directing the Depositary, and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such shares of Stock be
properly endorsed in blank or accompanied by a properly executed instrument of
transfer.
Delivery of the Stock and money and other property, if any,
underlying the Depositary Shares surrendered for withdrawal shall be made by
the Depositary at the Depositary's Office or at such other offices as the
Depositary may designate, except that, at the request, risk and expense of the
holder surrendering such Depositary Shares and for the account of such holder,
such delivery may be made at such other place as may be designated by such
holder.
SECTION 2.6 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 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
-7-
<PAGE> 12
the holder of a Receipt pursuant to Section 5.8, may require the production of
evidence satisfactory to it as to the identity and genuineness of any signature
and may also require compliance with such regulations, if any, as the
Depositary or the Company may establish consistent with the provisions of this
Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts
against Stock may be suspended, the registration of transfer of Depositary
Shares may be refused and the registration of transfer, surrender or exchange
of outstanding Depositary Shares may be suspended (i) during any period when
the register of stockholders of the Company is closed or (ii) if any such
action is deemed necessary or advisable by the 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 2.7 Lost Receipts. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, or the authenticity thereof and
of his or her ownership thereof, and (ii) furnishing the Depositary with
reasonable indemnification satisfactory to it.
SECTION 2.8 Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's Agent
shall be cancelled by the Depositary. Except as prohibited by applicable law
or regulation, the Depositary is authorized to destroy all Receipts so
cancelled.
SECTION 2.9 Preferred Stock Purchase Plans. Upon receipt
of instructions from the Company, the Depositary shall take such action as
shall be reasonable to permit the Record Holders of the Depositary Shares to
participate in any dividend reinvestment or other stock purchase plan sponsored
by the Company that permits the participation by such holders on such terms and
conditions as the Company may determine.
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.1 Filing Proofs, Certificates and Other
Information. Any Record Holder of a Depositary Share may be 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
-8-
<PAGE> 13
deem necessary or proper. The Depositary or the Company may withhold the
delivery, or delay the registration of transfer, conversion, redemption or
exchange, of any Depositary Share or the withdrawal of any Stock underlying
Depositary Shares or the distribution of any dividend or other distribution or
the sale of any rights or of the proceeds thereof until such proof or other
information is filed or such certificates are executed or such representations
and warranties are made.
SECTION 3.2 Payment of Taxes or Other Governmental
Charges. Record Holders of Depositary Shares shall be obligated to make
payments to the Depositary of certain charges and expenses, as provided in
Section 5.8. Registration of transfer of any Depositary Share or any
withdrawal of Stock and delivery of all money or other property, if any,
underlying such Depositary Share may be refused until any such payment due is
made, and any dividends, interest payments or other distributions may be
withheld or all or any part of the Stock or other property relating to such
Depositary Shares and not theretofore sold may be sold for the account of the
holder thereof (after attempting by reasonable means to notify such holder
prior to such sale), and such dividends or other distributions or the proceeds
of any such sale may be applied to any payment of such charges or expenses, the
holder of such Depositary Share remaining liable for any deficiency.
SECTION 3.3 Warranty as to Stock. In the case of the
initial deposit of the Stock, the Company and, in the case of subsequent
deposits thereof, each person so depositing Stock under this Deposit Agreement
shall be deemed thereby to represent and warrant that such Stock and each
certificate therefor are valid and that the person making such deposit is
authorized to do so. The Company hereby further represents and warrants that
the Stock, when issued, will be duly authorized, validly issued, fully paid and
nonassessable. Such representations and warranties shall survive the deposit
of the Stock and the issuance of the Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.1 Cash Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution on the Stock, the
Depositary shall, subject to Sections 3.1 and 3.2, distribute to the Record
Holders of Depositary Shares on the record date fixed pursuant to Section 4.4
such amounts of such dividend or distribution as are, as nearly as practicable,
in proportion to the respective numbers of Depositary Shares held by such
holders; 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 in respect of the Stock an amount on account of taxes, the amount
made available for distribution or distributed in respect of Depositary Shares
shall be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount, however, as
can be distributed without attributing to any holder of Depositary
-9-
<PAGE> 14
Shares 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 Depositary Shares then outstanding.
SECTION 4.2 Distributions Other than Cash, Rights,
Preferences or Privileges. Whenever the Depositary shall receive any
distribution other than cash, rights, preferences or privileges on the Stock,
the Depositary shall, subject to Sections 3.1 and 3.2, and pursuant to written
instructions from the Company, distribute to the Record Holders of Depositary
Shares on the record date fixed pursuant to Section 4.4 such amounts of the
securities or property received by it as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares held by such holders,
in any manner that the Company may deem equitable and practicable for
accomplishing such 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 or governmental charges) 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 Sections 3.1 and 3.2, be distributed or made available for
distribution, as the case may be, by the Depositary to the Record Holders of
Depositary Shares entitled thereto as provided by Section 4.1 in the case of a
distribution received in cash. The Company shall not make any distribution of
such securities unless the Company shall have provided an opinion of counsel to
the effect that such securities have been registered under the Securities Act
of 1933, as amended, or need not be so registered.
SECTION 4.3 Subscription Rights, Preferences or
Privileges. If the Company shall at any time offer or cause to be offered to
the persons in whose names Stock is recorded on the books of the Company any
rights, preferences or privileges to subscribe for or to purchase any
securities or any rights, preferences or privileges of any other nature, such
rights, preferences or privileges shall in each such instance be made available
by the Depositary to the Record Holders of Depositary Shares in such manner as
the Depositary may determine, either by the issuance to such Record Holders of
warrants representing such rights, preferences or privileges or by such other
method as may be approved by the Depositary in its discretion with the approval
of the Company; provided, however, that (i) if, at the time of issue or offer
of any such rights, preferences or privileges, the Depositary determines that
it is not lawful or (after consultation with the Company) not feasible to make
such rights, preferences or privileges available to holders of Depositary
Shares by the issue of warrants or otherwise, or (ii) if and to the extent so
instructed by holders of Depositary Shares who do not desire to exercise such
rights, preferences or privileges, then the Depositary, in its discretion (with
the approval of the Company, in any case where the
-10-
<PAGE> 15
Depositary has determined that it is not feasible to make such rights,
preferences or privileges available), may, if applicable laws or the terms of
such rights, preferences or privileges permit such transfer, sell such rights,
preferences or privileges at public or private sale, at such place or places
and upon such terms as it may deem proper. The net proceeds of any such sale
shall, subject to Sections 3.1 and 3.2, be distributed by the Depositary to the
Record Holders of Depositary Shares entitled thereto as provided by Section 4.1
in the case of a distribution received in cash. The Company shall not make any
distribution of such rights, preferences or privileges unless the Company shall
have provided to the Depositary an opinion of counsel to the effect that such
rights, preferences or privileges have been registered under the Securities Act
of 1933, as amended, or need not be so registered.
If registration under the Securities Act of 1933 of the
securities to which any rights, preferences or privileges relate is required in
order for holders of Depositary Shares to be offered or sold the securities to
which such rights, preferences or privileges relate, the Company agrees with
the Depositary that the Company will file promptly a registration statement
pursuant to such Act with respect to such rights, preferences or privileges and
securities and use its reasonable efforts and take all reasonable steps
available to it to cause such registration statement to become effective
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Depositary Shares any right, preference or privilege to subscribe for or to
purchase any securities unless and until such a registration statement shall
have become effective or unless the offering and sale of such securities to
such holders are exempt from registration under the provisions of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to the
holders of Depositary Shares, the Company agrees with the Depositary that the
Company will use its reasonable efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.4 Notice of Dividends; Fixing of Record Date
for Record Holders of Depositary Shares. Whenever any cash dividend or other
cash distribution shall become payable or any distribution other than cash
shall be made, or if rights, preferences or privileges shall at any time be
offered, with respect to the Stock, or whenever the Depositary shall receive
notice of any meeting at which holders of Stock are entitled to vote, or of
which holders of Stock are entitled to notice, or whenever the Depositary and
the Company shall decide it is appropriate, the Company shall in each such
instance fix a record date (which shall be the same date as the record date
fixed by the Company with respect to the Stock) for the determination of the
Record Holders of Depositary Shares who shall
-11-
<PAGE> 16
be entitled to receive a distribution in respect of such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any such
meeting, or who shall be entitled to receive notice of such meeting. The
Company shall advise the Depositary of all such record dates.
SECTION 4.5 Voting Rights. Upon receipt of notice of any
meeting at which the holders of the Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail or cause to be mailed to the
Record Holders of Depositary Shares a notice, the form of which shall have been
delivered by the Company to the Depositary, which shall contain (i) such
information as is contained in such notice of meeting, (ii) a statement that
the holders of Depositary Shares at the close of business on a specified record
date fixed pursuant to Section 4.4 may, subject to any applicable provisions of
law and of the Company's Restated Articles of Incorporation (including the
Certificate), instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock represented by their respective Depositary
Shares (including an express indication that instructions may be given to the
Depositary to give a discretionary proxy to a person designated by the Company)
and (iii) a brief statement as to the manner in which such instructions may be
given. Upon the written request of the holders of Depositary Shares on the
record date established in accordance with Section 4.4, the Depositary shall
endeavor insofar as practicable to vote or cause to be voted, in accordance
with the instructions set forth in such request, the maximum number of whole
shares of Stock underlying the Depositary Shares as to which any particular
voting or consent instructions are received. The Company hereby agrees to take
all action which may be deemed necessary by the Depositary in order to enable
the Depositary to vote such Stock or cause such Stock to be voted. The
Depositary may, at its discretion, appear at any meeting with respect to the
Stock unless directed to the contrary by the holders of all the Depositary
Shares. In the absence of specific instructions from the holder of a
Depositary Share, the Depositary will abstain from voting to the extent of the
Stock underlying such Depositary Shares.
SECTION 4.6 Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or
liquidation value, split-up, combination or any other reclassification of the
Stock, or upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party, the Depositary
may, subject to the terms of the Certificate, with the approval of, or upon the
instructions of, the Company, (i) make such adjustments as are approved or
directed by the Company in (x) the fraction of an interest represented by one
Depositary Share in one share of Stock, (y) the ratio of the redemption price
per Depositary Share to the redemption price of a share of Stock and (z) the
minimum number of Depositary Shares required for the withdrawal of Stock by
holders of Depositary Shares, in each case as may be necessary fully to reflect
the effects of such changes in par or liquidation value, split-up, combination
or other reclassification of Stock, or of such recapitalization,
reorganization, merger, amalgamation or consolidation and (ii) treat any
securities which shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Stock as new
-12-
<PAGE> 17
deposited securities so received in exchange for or upon conversion of or in
respect of such Stock. In any such case, the Depositary may, in its
discretion, with the approval of the Company, execute and deliver additional
Receipts or may call for the surrender of all outstanding Receipts to be
exchanged for new Receipts specifically describing such new deposited
securities. Anything to the contrary herein notwithstanding, holders of
Receipts shall have the right from and after the effective date of any such
reclassification of the Stock or any such recapitalization, reorganization,
merger, amalgamation or consolidation to surrender such Receipts to the
Depositary with instructions to convert, exchange or surrender the Stock
represented thereby only into or for, as the case may be, the kind and amount
of shares of stock and other securities and property and cash into which the
Stock represented by such Depositary Receipts might have been converted or for
which such Stock might have been exchanged or surrendered immediately prior to
the effective date of such transaction.
SECTION 4.7 Delivery of Reports. The Depositary will
forward to Record Holders of Depositary Shares, at their respective addresses
appearing in the Depositary's books, all notices, reports and communications
received from the Company which are delivered to the Depositary and which the
Company is required to furnish to the holders of Stock or Receipts.
SECTION 4.8 List of Holders. Promptly upon request from
time to time by the Company, the Depositary shall 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 Registrar, as the case may be.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.1 Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar. Upon execution of this Deposit Agreement,
the Depositary shall maintain, at the Depositary's Offices or at any
Registrar's office at which the Depositary shall have complete access to all
books and records maintained on the Company's behalf, facilities for the
execution and delivery, surrender and exchange of Receipts and the registration
and registration of transfer of Receipts and, at the offices of the
Depositary's Agents, if any, facilities for the delivery, surrender and
exchange of Receipts and the registration of transfer of Receipts, all in
accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for
the registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the Record Holders of
Depositary Shares; provided that any such holder
-13-
<PAGE> 18
requesting to exercise such right shall certify in writing to the Depositary
that such inspection shall be for a proper purpose reasonably related to such
person's interest as an owner of Depositary Shares.
The Depositary may close such books, at any time or from time
to time, when deemed expedient by it in connection with the performance of its
duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or
the Stock underlying such Depositary Shares shall be listed on the New York
Stock Exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be removed
and a substitute registrar appointed by the Depositary upon the request or with
the approval of the Company. If the Receipts, such Depositary Shares or such
Stock are listed on one or more other stock exchanges, the Depositary will, at
the request of the Company, arrange such facilities for the delivery,
registration, registration of transfer, surrender and exchange of such
Receipts, such Depositary Shares or such Stock as may be required by law or
applicable stock exchange regulation.
SECTION 5.2 Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Company. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor the Company shall
incur any liability to any holder of a Depositary Share if, by reason of any
provision of any present or future law, or regulation thereunder, of the United
States of America or of any other governmental authority or, in the case of the
Depositary, any Depositary's Agent or any Registrar, by reason of any
provision, present or future, of the Company's Restated Articles 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, any 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 Record Holder of a Depositary Share (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 except, in case of any such
exercise or failure to exercise discretion not caused as aforesaid, if caused
by the negligence, bad faith or willful misconduct of the party charged with
such exercise or failure to exercise.
SECTION 5.3 Obligations of the Depositary, the
Depositary's Agents, the Registrar and the Company. Neither the Depositary nor
any Depositary's Agent nor any Registrar nor the Company assumes any obligation
or shall be subject to any liability under
-14-
<PAGE> 19
this Deposit Agreement to Record Holders of Depositary Shares other than for
its negligence, bad faith or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding in respect of the Stock, the
Depositary Shares or the Receipts which, in its opinion, may involve it in
expense or liability unless indemnity satisfactory to it against all expense
and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be liable for any action or any failure to act
by it in reliance upon the written advice of legal counsel or accountants or
information from any person presenting Stock for deposit, any holder of a
Depositary Share or any other person believed by it in good faith to be
competent to give such 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 believed
by it to be genuine and to have been signed or presented by the proper party or
parties.
Neither the Depositary nor any Depositary's Agent shall be
responsible for any failure to carry out any instruction to vote any of the
shares of Stock or for the manner or effect of any such vote, as long as any
such action or non-action is in good faith. The Depositary undertakes, and any
Registrar shall be required to undertake, to perform such duties and only such
duties as are specifically set forth in this Deposit Agreement, and no implied
covenants or obligations shall be read into this Deposit Agreement against the
Depositary or any Registrar. The Depositary will indemnify the Company against
any liability which may arise out of acts performed or omitted by the
Depositary or its agents due to its or their negligence or bad faith. The
Depositary, the Depositary's Agents, any Registrar and the Company may own and
deal in any class of securities of the Company and its affiliates and in
Depositary Shares. The Depositary may also act as transfer agent or registrar
of any of the securities of the Company and its affiliates.
SECTION 5.4 Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by notice of its election to do so delivered to the
Company, such resignation to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to take effect
upon the appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided.
In case the Depositary acting hereunder shall at any time
resign or be removed, the Company shall, within 60 days after the delivery of
the notice of resignation
-15-
<PAGE> 20
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. If
no successor Depositary shall have been so appointed within 60 days after
delivery of such notice, the resigning or removed Depositary may petition any
court of competent jurisdiction for the appointment of a successor Depositary.
Every successor Depositary shall execute and deliver to its predecessor and to
the Company an instrument in writing accepting its appointment hereunder, and,
thereupon, such successor Depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under this Deposit
Agreement, and such 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 Depositary Shares. Any successor Depositary shall promptly
mail notice of its appointment to the Record Holders of Depositary Shares.
Thereafter, any predecessor Depositary shall deliver any correspondence
received from any holders of Depositary Shares to the successor Depositary.
Any corporation into which the Depositary may be merged, or
with which it may be consolidated or converted, shall be the successor of such
Depositary without the execution or filing of any document or any further act.
Such successor Depositary may authenticate the Receipts in the name of the
predecessor Depositary or in the name of the successor Depositary.
SECTION 5.5 Corporate Notices and Reports. The Company
agrees that it will transmit to the Depositary and to the Record Holders of
Depositary Shares, at the addresses provided to it pursuant to Section 4.8, all
notices, reports and communications (including without limitation financial
statements) required by law, the rules of any national securities exchange upon
which the Stock, the Depositary Shares or the Receipts are listed or by the
Company's Articles of Incorporation (including the Certificate) to be furnished
by the Company to holders of the Stock. Such transmission will be at the
Company's expense.
SECTION 5.6 Deposit of Stock by the Company. The Company
agrees with the Depositary that neither the Company nor any company controlled
by the Company will at any time deposit any Stock if such Stock is required to
be registered under the provisions of the Securities Act of 1933, as amended,
and no registration statement is at such time in effect as to such Stock.
SECTION 5.7 Indemnification by the Company. The Company
shall indemnify the Depositary, any Depositary's Agent and any Registrar
against, and hold each of them harmless from, any loss, liability or expense
(including the costs and expenses of defending itself) which may arise out of
(i) acts performed or omitted in connection with
-16-
<PAGE> 21
this Deposit Agreement, the Depositary Shares and the Receipts (a) by the
Depositary, any Registrar or any of their respective agents (including any
Depositary's Agent), except for any liability arising out of negligence, bad
faith or wilfull misconduct on the respective parts of any such person or
persons or (b) by the Company or any of its agents or (ii) the offer, sale or
registration of the Depositary Shares or the Stock pursuant to the provisions
hereof. The obligations of the Company set forth in this Section 5.7 shall
survive any succession of any Depositary, Registrar or Depositary's Agent.
SECTION 5.8 Charges and Expenses. The Company shall pay
all transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company shall pay all reasonable
charges of the Depositary in connection with the initial deposit of the Stock
and the initial issuance of the Receipts, any redemption of the Stock at the
option of the Company and any withdrawals of Stock by holders of Depositary
Shares. All other transfer and other taxes and governmental charges shall be
at the expense of Record Holders of Depositary Shares. If, at the request of a
Record Holder of a Depositary Share, the Depositary incurs charges or expenses
for which it is not otherwise liable hereunder, such holder will be liable for
such charges and expenses. All other charges and expenses of the Depositary,
any Depositary's Agent hereunder and any Registrar (including, in each case,
fees and expenses of counsel) 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.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect
which they may deem necessary or desirable; provided, however, that no such
amendment (other than any change in the fees of any Depositary, Registrar or
Transfer Agent) which shall materially and adversely alter the rights of the
existing Record Holders of Depositary Shares shall be effective unless such
amendment shall have been approved by the Record Holders of at least a majority
of the Depositary Shares then outstanding. Every holder of an outstanding
Depositary Share at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Depositary Share, to consent and agree to
such amendment and to be bound by this Deposit Agreement as amended thereby.
SECTION 6.2 Termination. This Deposit Agreement may be
terminated by the Company or the Depositary only after (i) all outstanding
Depositary Shares shall have
-17-
<PAGE> 22
been redeemed pursuant to Section 2.3 or (ii) there shall have been made a
final distribution in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Receipts pursuant to Section 4.1 or 4.2, as
applicable.
Upon the termination of this Deposit Agreement, the Company
shall be discharged from all obligations under this Deposit Agreement except
for its obligations to the Depositary, any Depositary's Agents and any
Registrar under Sections 5.7 and 5.8.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Counterparts. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts taken
together shall constitute one and the same instrument.
SECTION 7.2 Exclusive Benefit of Parties; Holders of
Receipts Are Parties. This Deposit Agreement is for the exclusive benefit of
the parties hereto, and their respective successors hereunder, and shall not be
deemed to give any legal or equitable right, remedy or claim to any other
person whatsoever. Notwithstanding that Record Holders of Depositary Shares
have not executed and delivered this Deposit Agreement or any counterpart
thereof, the holders of Depositary Shares from time to time shall be parties to
this Deposit Agreement and shall be bound by all of the terms and conditions
hereof and of the Receipts evidencing such Depositary Shares by acceptance of
delivery thereof.
SECTION 7.3 Invalidity of Provisions. In case any one
or more of the provisions contained in this Deposit Agreement or in the
Receipts should be or 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 7.4 Notice. Any notices required or permitted to
be given hereunder shall be in writing (including telegraphic, telex or
facsimile transmission) and shall be duly given if (i) personally delivered or
sent by telegraph, telex or facsimile and (ii) mailed by certified or
registered mail, postage prepaid, return receipt requested, addressed as
follows:
-18-
<PAGE> 23
If to the Company:
Battle Mountain Gold Company
333 Clay Street, 42nd Floor
Houston, Texas 77002
Attention: Chief Financial Officer
If to the Depositary:
___________________________________________
___________________________________________
___________________________________________
If to the Record Holder of a Depositary Share:
At the address as it appears on the books of
the Depositary, or if such Record Holder
shall have filed with the Depositary a
written request that notices intended for
such Record Holder be mailed to some other
address, at the address designated in such
request.
All such notices shall be effective: (i) if mailed or
personally delivered, when received, or (ii) if sent by telegraph, telex or
facsimile, when sent with evidence of transmission. The address to which
notices hereunder should be sent may be changed by any party by giving notice
of such change to the others in the manner provided in this Deposit Agreement.
SECTION 7.5 Depositary's Agents. The Depositary may
from time to time, with the prior approval of the Company, appoint Depositary's
Agents to act in any respect for the Depositary for the purposes of this Deposit
Agreement and may at any time appoint additional Depositary's Agents and vary
or terminate the appointment of such Depositary's Agents. The Depositary will
notify the Company of any such action.
SECTION 7.6 Governing Law. THIS DEPOSIT AGREEMENT AND
THE RECEIPTS AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND
THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK WITHOUT REFERENCE TO CHOICE OR CONFLICT OF LAW PRINCIPLES.
-19-
<PAGE> 24
SECTION 7.7 Inspection of Deposit Agreement. Copies of
this Deposit Agreement shall be filed with the Depositary and the Depositary's
Agents and shall be open to inspection during business hours at the
Depositary's Office and the respective offices of the Depositary's Agents, if
any, by any Record Holder of a Depositary Share.
SECTION 7.8 Headings. The headings of articles and
sections in this Deposit Agreement and in the form of Receipt set forth in
Exhibit A hereto have been inserted for convenience only and are not to be
regarded as part of this Deposit Agreement or the Receipts or to have any
bearing upon the meaning or interpretation of any provision contained herein
or in the Receipts.
-20-
<PAGE> 25
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Deposit Agreement as of the day and year first above set forth,
and all Record Holders of Depositary Shares shall become parties hereto by and
upon acceptance by them of delivery of Receipts evidencing such Depositary
Shares and issued in accordance with the terms hereof.
ATTEST: BATTLE MOUNTAIN GOLD COMPANY
By_____________________
By___________________________________
Its__________________________________
ATTEST: {DEPOSITARY}
By_____________________
By___________________________________
Its__________________________________
-21-
<PAGE> 26
EXHIBIT A
FORM OF DEPOSITARY RECEIPT
FOR DEPOSITARY SHARES
{GENERAL FORM OF FACE OF RECEIPT}
_____________ DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING _______________________ PREFERRED STOCK
BATTLE MOUNTAIN GOLD COMPANY
Incorporated under the laws of the State of Nevada
This Depositary Receipt is transferable
in the City of _______________________
___________________________, as Depositary (the "Depositary"), hereby certifies
that _______________________________________ is the registered owner of
______________________ Depositary Shares ("Depositary Shares"), each Depositary
Share representing ___________ (_____) of one share of _______________
Preferred Stock, par value $1.00 per share (the "Stock"), of Battle Mountain
Gold Company, a Nevada corporation (the "Company"), on deposit with the
Depositary, subject to the terms and entitled to the benefits of the Deposit
Agreement dated as of ________________________________ (the "Deposit
Agreement"), among the Company, the Depositary and all holders from time to
time of Depositary Receipts. By accepting this Depositary Receipt, the holder
hereof becomes a party to and agrees to be bound by all the terms and
conditions of the Deposit Agreement. This Depositary Receipt shall not be
valid or obligatory for any purpose or entitled to any benefits under the
Deposit Agreement unless it shall have been executed by the Depositary by the
manual signature of a duly authorized officer thereof or, if executed in
facsimile by the Depositary, countersigned by a Registrar in respect of the
Depositary Receipts by the manual signature of a duly authorized officer
thereof.
Dated: {Depositary}
By:____________________________________
Authorized Officer
{Registrar}
By:___________________________________
Authorized Officer
A-1
<PAGE> 27
{GENERAL FORM OF REVERSE OF RECEIPT}
BATTLE MOUNTAIN GOLD COMPANY
Battle Mountain Gold Company will furnish without charge to
each receiptholder who so requests a copy of the Deposit Agreement and a
statement or summary of the voting powers, designations, preferences,
limitations, restrictions and relative rights of each class of stock or series
thereof which Battle Mountain Gold Company is authorized to issue. Any such
request is to be addressed to the Secretary of Battle Mountain Gold Company.
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT - _____________ Custodian _____________
(Cust) (Minor)
under the Uniform Gifts to Minors Act _________
(State)
Additional abbreviations may also be used though not in the
above list.
For value received, ________________________________________
hereby sell(s), assign(s) and transfer(s) unto
______________________________________________________
(Please print or type name, address, including postal zip code, and social
security or other identifying number of Assignee)
_______________________ Depositary Shares represented by the within receipt and
all rights thereunder and does hereby irrevocably constitute and appoint
__________________________
A-2
<PAGE> 28
attorney to transfer said Depositary Shares on the books of the within-named
Depositary with full power of substitution in the premises.
Dated: ____________________________________
_____________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
this instrument in every particular, without
alteration or enlargement or any change whatsoever.
A-3
<PAGE> 1
Exhibit 4(h)
[PROOF]
==============================================================================
BATTLE MOUNTAIN GOLD COMPANY
AND
THE BANK OF NEW YORK,
TRUSTEE
_______________
INDENTURE
DATED AS OF _______________
________________
SENIOR DEBT SECURITIES
==============================================================================
<PAGE> 2
BATTLE MOUNTAIN GOLD COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF _______________
________________
<TABLE>
<CAPTION>
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
----------- ---------
<S> <C> <S>
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608, 610
Section 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(c)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(d)
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704, 1007
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Section 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602, 703(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(a)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316 (a)(10(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . 101
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
</TABLE>
_____________
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 1
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate; control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Book-Entry Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CEDEL; CEDEL S.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Certification Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request; Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Conversion Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollar; $ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Euroclear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
</TABLE>
_____________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-i-
<PAGE> 4
<TABLE>
<S> <C>
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Required Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Security Register; Security Registrar . . . . . . . . . . . . . . . . . . . 7
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States Alien . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . 8
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Wholly Owned Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 102. Incorporation by Reference of Trust Indenture Act. . . . . . . . . . . . . . 9
SECTION 103. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . 9
SECTION 104. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . 10
SECTION 105. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 106. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . 12
SECTION 107. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 108. Conflict With Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 109. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . 14
SECTION 110. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 111. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 112. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 113. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
</TABLE>
-ii-
<PAGE> 5
<TABLE>
<S> <C>
SECTION 114. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 115. Corporate Obligation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 202. Form of Trustee's Certificate of Authentification . . . . . . . . . . . . . . . . . . . . 16
SECTION 203. Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 204. Book-Entry Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . 22
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 305. Registration, Registration of Transfer and Exchange. . . . . . . . . . . . . . . . . . . 26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . 29
SECTION 307. Payment of Interest; Interest Rights Preserved. . . . . . . . . . . . . . . . . . . . . . 30
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 311. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 403. Discharge of Liability on Securities of Any Series . . . . . . . . . . . . . . . . . . . 36
SECTION 404. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . 39
</TABLE>
-iii-
<PAGE> 6
<TABLE>
<S> <C>
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . 41
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons . . . . . . . . . . 42
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest . . . . . . . . . 44
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . 49
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . 52
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 612. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . 54
SECTION 613. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . 55
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . 57
</TABLE>
-iv-
<PAGE> 7
<TABLE>
<S> <C>
SECTION 702. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . 57
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms . . . . . . . . . . . . . . . . . 59
SECTION 802. Successor Person Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . 60
SECTION 902. Supplemental Indentures With Consent of Holders . . . . . . . . . . . . . . . . . . . . 61
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 905. Conformity With Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 906. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . 63
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1003. Money for Securities Payments to be Held in Trust . . . . . . . . . . . . . . . . . . 65
SECTION 1004. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1005. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1006. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1007. Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1008. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1009. Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1103. Selection by Trustee of Securities to be Redeemed . . . . . . . . . . . . . . . . . . 69
</TABLE>
-v-
<PAGE> 8
<TABLE>
<S> <C>
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1108. Purchase of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . . . . 73
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May Be Called . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1302. Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1303. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1304. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of Meetings . . . . . . . . . . . 76
SECTION 1306. Counting Votes and Recording Action of Meetings . . . . . . . . . . . . . . . . . . . . . 76
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SIGNATURE AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
</TABLE>
-vi-
<PAGE> 9
INDENTURE, dated as of _______________, between BATTLE
MOUNTAIN GOLD COMPANY, a corporation duly organized and existing under the laws
of the State of Nevada (herein called the "Company"), having its principal
office at 333 Clay Street, 42nd Floor, Houston, Texas 77002, and THE BANK OF
NEW YORK, a New York state banking corporation, as Trustee (herein called the
"Trustee"), the office of the Trustee at which at the date hereof its corporate
trust business is principally administered being 101 Barclay Street, New York,
New York 10286.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
This Indenture is subject to the provisions of the Trust
Indenture Act and the rules and regulations of the Commission promulgated
thereunder that are required to be part of this Indenture and, to the extent
applicable, shall be governed by such provisions.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
-1-
<PAGE> 10
(2) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles in the United States, and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are
generally accepted in the United States at the date of such
computation; and
(3) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in
Section 102.
"Act", when used with respect to any Holder, has the meaning
specified in Section 105.
"Additional Amounts" means any additional amounts that are
required by a Security or by or pursuant to a Board Resolution, under
circumstances specified therein or pursuant thereto, to be paid by the Company
with respect to certain taxes, assessments or other governmental charges
imposed on certain Holders and that are owing to such Holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person, which may include the
Company, authorized by the Trustee to act on behalf of the Trustee pursuant to
Section 614 to authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in the place in connection with which
the term is used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
city meeting the foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form established
pursuant to Section 201 which is payable to bearer, including, without
limitation, unless the context otherwise indicates, a Security in temporary or
permanent global bearer form.
-2-
<PAGE> 11
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Book-Entry Security" has the meaning specified in Section 204.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment are authorized
or obligated by law or executive order to close.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs
Mobilieres S.A., or, if any time after the execution of this instrument,
Centrale de Livraison de Valeurs Mobilieres S.A. is not existing and performing
the duties now being performed by it, then the successor Person performing such
duties.
"Certification Date" means with respect to Securities of any
series (i) if Bearer Securities of such series are not to be initially
represented by a temporary global Security, the date of delivery of the
definitive Bearer Security and (ii), if Bearer Securities of such series are
initially represented by a temporary global Security, the earlier of (A) the
Exchange Date with respect to Securities of such series and (B), if the first
Interest Payment Date with respect to Securities of such series is prior to
such Exchange Date, such Interest Payment Date.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this instrument
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by its Chairman of
the Board, its
-3-
<PAGE> 12
President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Controller, an Assistant Controller, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Conversion Event" has the meaning specified in Section 501.
"Corporate Trust Office" means the principal office of the
Trustee in The Borough of Manhattan, The City of New York at which at any
particular time its corporate trust business shall be principally administered,
which office at the date hereof is that indicated in the introductory paragraph
of this Indenture.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of a global Security, the Person
designated as Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is
more than one such person, "Depositary" as used with respect to the Securities
of any series shall mean the Depositary with respect to the Securities of that
series.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debts.
"Euroclear" means the operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate" has the meaning specified in Section 501.
"Holder", when used with respect to any Security, means in the
case of a Registered Security the Person in whose name the Security is
registered in the Security Register and in the case of a Bearer Security the
bearer thereof and, when used with respect to any coupon, means the bearer
thereof.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301 and the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument.
-4-
<PAGE> 13
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Judgment Currency" has the meaning specified in Section 506.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
the Controller, the Secretary or an Assistant Treasurer, Assistant Controller
or Assistant Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for or an employee of the Company, rendered, if applicable, in
accordance with Section 314(c) of the Trust Indenture Act.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made; and
(iii) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there
-5-
<PAGE> 14
shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether a
quorum is present at a meeting of Holders of Securities, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the principal amount thereof that would
be due and payable as of the date of such determination upon acceleration of
the Maturity thereof pursuant to Section 502, (b) the principal amount of a
Security denominated in a foreign currency shall be the U.S. dollar equivalent,
determined by the Company on the date of original issuance of such Security, of
the principal amount (or, in the case of an Original Issue Discount Security,
the U.S. dollar equivalent, determined on the date of original issuance of such
Security, of the amount determined as provided in (a) above), of such Security
and (c) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person, which may include the
Company, authorized by the Company to pay the principal of (and premium, if
any) or interest on any one or more series of Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of (and premium,
if any) and interest on the Securities of that series are payable as specified
in accordance with Section 301 subject to the provisions of Section 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a
Security to which a mutilated, destroyed, lost or stolen coupon appertains,
shall be deemed
-6-
<PAGE> 15
to evidence the same debt as the mutilated, destroyed, lost or stolen Security
or the Security to which a mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security in the form
established pursuant to Section 201 which is registered in the Security
Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of any series means the date
specified for that purpose as contemplated by Section 301, or, if not so
specified, the last day of the calendar month preceding such Interest Payment
Date if such Interest Payment Date is the fifteenth day of the calendar month
or the fifteenth day of the calendar month preceding such Interest Payment Date
if such Interest Payment Date is the first day of a calendar month, whether or
not such day shall be a Business Day.
"Required Currency" has the meaning specified in Section 506.
"Responsible Officer", when used with respect to the Trustee,
means the Chairman or any Vice Chairman of the Board of Directors, the Chairman
or any Vice Chairman of the Executive Committee of the Board of Directors, the
Chairman of the Trust Committee, the President, any Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, the
Cashier, any Assistant Cashier, any Trust Officer or Assistant Trust Officer,
the Controller or any Assistant Controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of any series means a date fixed by the
Trustee pursuant to Section 307.
-7-
<PAGE> 16
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or coupon representing such installment of interest
as the fixed date on which the principal of such Security or such installment
of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed, except as
provided in Section 905.
"United States" means the United States of America (including
the States and the District of Columbia) and its "possessions", which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"United States Alien" means any Person who, for United States
federal income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien or foreign fiduciary of an estate or trust, or
a foreign partnership.
"U.S. Government Obligations" has the meaning specified in
Section 401.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Wholly Owned Subsidiary" means a corporation all the
outstanding voting stock (other than any directors' qualifying shares) of which
is owned, directly or indirectly, by the Company or by one or more other Wholly
Owned Subsidiaries, or by the Company and one or more other Wholly Owned
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
-8-
<PAGE> 17
"Yield to Maturity", when used with respect to any Original
Issue Discount Security, means the yield to maturity, if any, set forth on the
face thereof.
SECTION 102. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust
Indenture Act, the provision is incorporated by reference in and made a part of
this Indenture. The following Trust Indenture Act terms used in this Indenture
have the following meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the
United States Code.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All the other Trust Indenture Act terms used in this Indenture
that are defined by the Trust Indenture Act, defined by Trust Indenture Act
reference to another statute or defined by Commission rule under the Trust
Indenture Act and not otherwise defined herein have the meanings assigned to
them therein.
SECTION 103. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
an Officers' Certificate stating that all conditions precedent, if any
(including any covenants the compliance with which constitutes a condition
precedent), provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any (including any covenants the
compliance with which constitutes a condition precedent), have been complied
with, except that in the case of any such application or request as to which
the furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
-9-
<PAGE> 18
(1) a statement that each Person signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such Person,
such Person has made such examination or investigation as is necessary
to enable such Person to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each
such Person, such condition or covenant has been complied with.
SECTION 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 105. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders
-10-
<PAGE> 19
in person or by an agent duly appointed in writing. If Securities of a series
are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given by Holders of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at a meeting
of Holders of Securities of such series duly called and held in accordance with
the provisions of Article Thirteen, or a combination of such instruments and
any such records. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments or record or both
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments and so voting at
any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or the holding of any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1306.
The Company may set in advance a record date for purposes of
determining the identity of Holders of Registered Securities entitled to vote
or consent to any action by vote or consent authorized or permitted under this
Indenture, which record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders
furnished to the Trustee prior to such solicitation. If a record date is
fixed, those persons who were Holders of Outstanding Registered Securities at
such record date (or their duly designated proxies), and only those persons,
shall be entitled with respect to such Securities to take such action by vote
or consent or to revoke any vote or consent previously given, whether or not
such persons continue to be Holders after such record date. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice thereof to be given to the Trustee in writing in the manner
provided in Section 106 and to the relevant Holders as set forth in Section
107.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall be
proved by the Security Register.
-11-
<PAGE> 20
(d) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate of the Person holding
such Bearer Securities, if such certificate or affidavit is deemed by the
Trustee to be satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another certificate
bearing a later date issued in respect of the same Bearer Security is produced,
(2) such Bearer Security is produced to the Trustee by some other Person, (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security. Any Holder or subsequent Holder may revoke the request,
demand, authorization, direction, notice, consent or other Act as to his
Security or portion of his Security; provided, however, that such revocation
shall be effective only if the Trustee receives the notice of revocation before
the date the Act becomes effective.
SECTION 106. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it (a) in the case of Registered
Securities, at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company, Attention:
Corporate Secretary; and (b) in the case of Bearer Securities, at the
address of an office or agency located outside the United States
maintained by the Company in accordance with Section 1002.
-12-
<PAGE> 21
SECTION 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of
Securities of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) (i) to Holders of Registered Securities if
in writing and mailed, first-class postage prepaid, to each Holder affected by
such event, at the address of such Holder as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice and (ii) to Holders of Bearer
Securities if published in an Authorized Newspaper in the City of New York and
London or other capital city in Western Europe and in such other city or cities
as may be specified in such Bearer Securities on a Business Day at least twice,
the first such publication to be not earlier than the earliest date, and not
later than the latest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service,
or by reason of any other cause it shall be impracticable to give such notice
to Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. In any case in which notice to
Holders of Registered Securities is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
of a Registered Security, shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided herein.
In case by reason of the suspension of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be made
with the approval of the Trustee for such Securities shall constitute
sufficient notice to such Holders for every purpose hereunder. Neither the
failure to give notice by publication to Holders of Bearer Securities as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of any notice to Holders of Registered Securities given as provided
herein.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 108. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
any provision of the Trust Indenture Act or another provision hereof which is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision of the Trust Indenture Act shall control. If any
provision of this Indenture modifies or excludes any
-13-
<PAGE> 22
provision of the Trust Indenture Act which may be so modified or excluded, the
former provision shall be deemed to apply to this Indenture as so modified or
to be excluded.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or in the Securities
(or any coupon appertaining thereto) shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities (or any coupon
appertaining thereto), express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, any Authenticating Agent,
Paying Agent and Security Registrar, and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 113. Governing Law.
THIS INDENTURE AND THE SECURITIES (OR ANY COUPON APPERTAINING
THERETO) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities or coupons appertaining thereto) payment of principal and interest
(and premium and Additional Amounts, if any) need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated
-14-
<PAGE> 23
Maturity, provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be.
SECTION 115. Corporate Obligation.
No recourse may be taken, directly or indirectly, against any
incorporator, subscriber to the capital stock, stockholder, officer, director
or employee of the Company or the Trustee or of any predecessor or successor of
the Company or the Trustee with respect to the Company's obligations on the
Securities or any coupons appertaining thereto or the obligations of the
Company or the Trustee under this Indenture or any certificate or other writing
delivered in connection herewith.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the
Bearer Securities, if any, of each series and related coupons appertaining
thereto shall be in substantially such form or forms (including temporary or
permanent global form) as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have such letters, numbers
or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or as may, consistently herewith, be determined by the officers executing such
Securities or coupons appertaining thereto, as evidenced by their execution of
the Securities or coupons appertaining thereto. If temporary Securities of any
series are issued in global form as permitted by Section 304, the form thereof
shall be established as provided in the preceding sentence. A copy of the
Board Resolution establishing the form or forms of Securities or coupons
appertaining thereto of any series (or any such temporary global Security)
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities (or any such temporary global Security) or coupons appertaining
thereto.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons appertaining thereto attached.
The definitive Securities and coupons appertaining thereto, if
any, shall be printed, lithographed or engraved on steel engraved borders or may
be produced in any other manner, all as determined by the officers executing
such Securities or coupons appertaining thereto, as evidenced by their
execution thereof.
-15-
<PAGE> 24
SECTION 202. Form of Trustee's Certificate of Authentification.
The Trustee's certificate of authentification shall be in
substantially the following form:
"This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
The Bank of New York,
as Trustee
By_____________________________________
Authorized Signatory".
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, as
contemplated by Section 301, then, notwithstanding clause (10) of Section 301
and the provisions of Section 302, any such Security shall represent such of
the Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified in such
Security or in a Company Order to be delivered to the Trustee pursuant to
Section 303 or Section 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Security
in permanent global form in the manner and upon instructions given by the
Person or Persons specified in such Security or in the applicable Company
Order. If a Company Order pursuant to Section 303 or 304 has been, or
simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 103 and need not be accompanied by an
Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply
to any Security in global form if such Security was never issued and sold by
the Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 103 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of
(and premium, if any) and
-16-
<PAGE> 25
interest on any Security in permanent global form shall be made to the Person
or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company or of the Trustee shall treat a Person as the Holder of such
principal amount of Outstanding Securities represented by a global Security as
shall be specified in a written statement, if any, of the Holder of such global
Security or, in the case of a global Bearer Security, of Euroclear or CEDEL
S.A., which is produced to the Security Registrar by such Holder, Euroclear or
CEDEL S.A., as the case may be.
Global Securities may be issued in either registered or bearer
form and in either temporary or permanent form. Permanent global Securities
will be issued in definitive form.
SECTION 204. Book-Entry Securities.
Notwithstanding any provision of this Indenture to the
contrary:
(a) At the discretion of the Company, any Registered Security may
be issued from time to time, in whole or in part, in permanent global form
registered in the name of a Depositary, or its nominee. Each such Registered
Security in permanent global form is hereafter referred to as a "Book-Entry
Security". Upon such election, the Company shall execute, and the Trustee or
an Authenticating Agent shall authenticate and deliver, one or more Book-Entry
Securities that (i) are denominated in an amount equal to the aggregate
principal amount of the Outstanding Securities of such series, (ii) are
registered in the name of the Depositary or its nominee, (iii) are delivered by
the Trustee or an Authenticating Agent to the Depositary or pursuant to the
Depositary's instructions and (iv) bear a legend in substantially the following
form (or such other form as the Depositary and the Company may agree upon):
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF [THE DEPOSITARY], TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [NOMINEE
OF THE DEPOSITARY] OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF [THE DEPOSITARY] (AND ANY PAYMENT
IS MADE TO [NOMINEE OF THE DEPOSITARY] OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [THE
DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER
-17-
<PAGE> 26
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, [NOMINEE OF THE DEPOSITARY],
HAS AN INTEREST HEREIN.
(b) Any Book-Entry Security shall be initially executed and
delivered as provided in Section 303. Notwithstanding any other provision of
this Indenture, unless and until it is exchanged in whole or in part for
Registered Securities not issued in global form, a Book-Entry Security may not
be transferred except as a whole by the Depositary to a nominee of such
Depositary, by a nominee of such Depositary to such Depositary or another
nominee of such Depositary, or by such Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(c) If at any time the Depositary notifies the Company or the
Trustee that it is unwilling or unable to continue as Depositary for any
Book-Entry Securities, the Company shall appoint a successor Depositary,
whereupon the retiring Depositary shall surrender or cause the surrender of its
Book-Entry Security or Securities to the Trustee. The Trustee shall promptly
notify the Company upon receipt of such notice. If a successor Depositary has
not been so appointed by the effective date of the resignation of the
Depositary, the Book-Entry Securities will be issued as Registered Securities
not issued in global form, in an aggregate principal amount equal to the
principal amount of the Book-Entry Security or Securities theretofore held by
the Depositary.
The Company may at any time and in its sole discretion
determine that the Securities shall no longer be Book-Entry Securities
represented by a global certificate or certificates, and will so notify the
Depositary. Upon receipt of such notice, the Depositary shall promptly
surrender or cause the surrender of its Book-Entry Security or Securities to
the Trustee. Concurrently therewith, Registered Securities not issued in
global form will be issued in an aggregate principal amount equal to the
principal amount of the Book-Entry Security or Securities theretofore held by
the Depositary.
Upon any exchange of Book-Entry Securities for Registered
Securities not issued in global form as set forth in this Section 204(c), such
Book-Entry Securities shall be cancelled by the Trustee, and Securities issued
in exchange for such Book-Entry Securities pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Book-Entry Securities, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee or
any Authenticating Agent shall deliver such Securities to the persons in whose
names such Securities are so registered.
(d) The Company and the Trustee shall be entitled to treat the
Person in whose name any Book-Entry Security is registered as the Holder
thereof for all purposes of the Indenture and any applicable laws,
notwithstanding any notice to the contrary received by the Trustee or the
Company; and the Trustee and the Company shall have no responsibility
-18-
<PAGE> 27
for transmitting payments to, communication with, notifying, or otherwise
dealing with any beneficial owners of any Book-Entry Security. Neither the
Company nor the Trustee shall have any responsibility or obligations, legal or
otherwise, to the beneficial owners or to any other party including the
Depositary, except for the Holder of any Book-Entry Security, provided however,
notwithstanding anything herein to the contrary, (i) for the purposes of
determining whether the requisite principal amount of Outstanding Securities
have given, made or taken any request, demand, authorization, direction,
notice, consent, waiver, instruction or other action hereunder as of any date,
the Trustee shall treat any Person specified in a written statement of the
Depositary with respect to any Book-Entry Securities as the Holder of the
principal amount of such Securities set forth therein and (ii) nothing herein
shall prevent the Company, the Trustee, or any agent of the Company or Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by a Depositary with respect to any Book-Entry Securities, or impair,
as between a Depositary and holders of beneficial interests in such Securities,
the operation of customary practices governing the exercise of the rights of
the Depositary as Holder of such Securities.
(e) So long as any Book-Entry Security is registered in the name
of a Depositary or its nominee, all payments of the principal of (and premium,
if any) and interest on such Book-Entry Security and redemption thereof and all
notices with respect to such Book Entry Security shall be made and given,
respectively, in the manner provided in the arrangements of the Company with
such Depositary.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all other
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange
-19-
<PAGE> 28
for, or in lieu of, other Securities of the series pursuant to Section
304, 305, 306, 906 or 1107);
(3) whether Securities of the series are to be issuable
as Registered Securities, Bearer Securities or both, whether any
Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be
issuable in permanent global form, as Book-Entry Securities or
otherwise, with or without coupons appertaining thereto and, if so,
whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and
of like tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other than
in the manner provided in Section 305, and the Depositary for any
global Security or Securities;
(4) the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature and the extent to which,
or the manner in which, any interest payable on a temporary global
Security on any Interest Payment Date will be paid if other than in
the manner provided in Section 304;
(5) the date or dates on which the principal of (and
premium, if any, on) the Securities of the series is payable or the
method of determination thereof;
(6) the rate or rates, or the method of determination
thereof, at which the Securities of the series shall bear interest, if
any, whether and under what circumstances Additional Amounts with
respect to such Securities shall be payable, the date or dates from
which such interest shall accrue, the Interest Payment Dates on which
such interest shall be payable and, if other than as set forth in
Section 101, the Regular Record Date for the interest payable on any
Registered Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions
of Section 1002, the principal of (and premium, if any), any interest
on and any Additional Amounts with respect to the Securities of the
series shall be payable;
(8) the period or periods within which, the price or
prices (whether denominated in cash, securities or otherwise) at which
and the terms and conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option of the Company, if the
Company is to have that option, and the manner in which the Company
must exercise any such option;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option
-20-
<PAGE> 29
of a Holder thereof and the period or periods within which, the price
or prices (whether denominated in cash, securities or otherwise) at
which and the terms and conditions upon which, Securities of the
series shall be redeemed or purchased in whole or in part pursuant to
such obligation;
(10) the denomination in which any Registered Securities
of that series shall be issuable, if other than denominations of
$1,000 and any integral multiple thereof, and the denomination in
which any Bearer Securities of that series shall be issuable, if other
than the denomination of $5,000;
(11) the currency or currencies (including composite
currencies) in which payment of the principal of (and premium, if
any), any interest on and any Additional Amounts with respect to the
Securities of the series shall be payable if other than the currency
of the United States of America;
(12) if the principal of (and premium,if any) or interest on
the Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies (including
composite currencies) other than that in which the Securities are
stated to be payable, the currency or currencies (including composite
currencies) in which payment of the principal of (and premium, if any)
and interest on, and any Additional Amounts with respect to,
Securities of such series as to which such election is made shall be
payable, and the periods within which and the terms and conditions
upon which such election is to be made;
(13) if the amount of payments of principal of (and premium,
if any), any interest on and any Additional Amounts with respect to
the Securities of the series may be determined with reference to any
commodities, currencies or indices, or values, rates or prices, the
manner in which such amounts shall be determined;
(14) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(15) any additional means of satisfaction and discharge of
this Indenture with respect to Securities of the series pursuant to
Section 401, any additional conditions to discharge pursuant to
Section 401 or 403 and the application, if any, of Section 403;
(16) any deletions or modifications of or additions to the
Events of Default set forth in Section 501 or covenants of the Company
set forth in Article Ten pertaining to the Securities of the series;
and
(17) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
-21-
<PAGE> 30
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to the Board Resolution referred to
above and (subject to Section 303) set forth, or determined in the manner
provided, in the Officers' Certificate referred to above or in any such
indenture supplemental hereto.
At the option of the Company, interest on the Registered
Securities of any series that bears interest may be paid by mailing a check to
the address of any Holder as such address shall appear in the Security Register.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action together with such Board Resolution shall be certified by the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate setting forth the terms of
the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 301. In the
absence of any such provisions with respect to the Securities of any series,
the Registered Securities of such series denominated in Dollars shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of such series denominated in Dollars shall be issuable in
the denominations of $5,000 and any integral multiple thereof. Unless
otherwise provided as contemplated by Section 301 with respect to any series of
Securities, any Securities of a series denominated in a currency other than
Dollars shall be issuable in denominations that are the equivalent, as
determined by the Company by reference to the noon buying rate in The City of
New York for cable transfers for such currency, as such rate is reported or
otherwise made available by the Federal Reserve Bank of New York, on the
applicable issue date for such Securities, of $1,000 and any integral multiple
thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its President, its Treasurer or one of its Vice
Presidents, under its corporate seal reproduced thereon or affixed thereto
attested by its Secretary or one of its Assistant Secretaries. The signature
of any of these officers on the Securities may be manual or facsimile. Coupons
shall bear the facsimile signature of the Chairman of the Board, President,
Treasurer or any Vice President of the Company.
Securities and coupons appertaining thereto bearing the manual
or facsimile signatures of individuals who were at any time the proper officers
of the Company shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such
-22-
<PAGE> 31
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
together with any coupons appertaining thereto, executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise; provided, however, that, in
connection with its sale, during the "restricted period" (as defined in Section
1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations), no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States; and provided, further, that a Bearer Security may (other than a
temporary global security in bearer form delivered as provided in Section 304)
be delivered outside the United States in connection with its original issuance
and only if the Person entitled to receive such Bearer Security shall have
furnished a certificate in the form set forth in Exhibit A to this Indenture,
or in such other form of certificate as shall contain information then required
by federal income tax laws and, if applicable, federal securities laws, dated
no earlier than the Certification Date. If any Security shall be represented
by a permanent global Bearer Security, then, for purposes of this Section and
Section 304, the notation of a beneficial owner's interest therein upon
original issuance of such Security or upon exchange of a portion of a temporary
global Security shall be deemed to be delivery in connection with sale, during
the "restricted period" (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the
United States Treasury Regulations) of such beneficial owner's interest in such
permanent global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and cancelled.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established
by or pursuant to Board Resolution as permitted by Section 201, that
such form has been established in conformity with the provisions of
this Indenture;
(b) if the terms of such Securities have been established
by or pursuant to Board Resolution as permitted by Section 301, that
such terms have been established in conformity with the provisions of
this Indenture; and
(c) that such Securities, together with any coupons
appertaining thereto, when authenticated and delivered by the Trustee
and issued by the Company in the
-23-
<PAGE> 32
manner and subject to any conditions specified in such Opinion of
Counsel, will constitute legal, valid and binding obligations of the
Company, enforceable in accordance with their terms, except as such
enforcement is subject to the effect of (i) bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors'
rights and (ii) general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its
authentication; and each Bearer Security shall be dated as of the date of
issuance of the first Bearer Security of such series to be issued.
No Security or coupon or coupons appertaining thereto shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security, or the Security to which such
coupon appertains, a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309 together with a written statement (which need not
comply with Section 103 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu
of which they are issued, in registered form or, if authorized, in bearer form
with one or more coupons appertaining thereto or without coupons, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities. In the case of any series issuable as Bearer
Securities, such temporary Securities may be in global form. A temporary
Bearer Security shall be delivered only in compliance with the conditions set
forth in Section 303.
-24-
<PAGE> 33
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series (accompanied by any unmatured
coupons appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series; provided, however that no Bearer Security shall be issued in
exchange for a temporary Registered Security; and provided, further, that a
definitive Bearer Security (including interests in a permanent Global Security)
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303.
Any temporary global Bearer Security and any permanent global
Bearer Security shall, unless otherwise provided therein, be delivered to the
London office of a depositary or common depositary (the "Common Depositary")
for the benefit of Euroclear and CEDEL S.A. for credit to the respective
accounts of the beneficial owners of such Securities (or to such other accounts
as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Bearer Security of a series (the "Exchange Date"), the Company shall
deliver to the Trustee definitive Securities of that series in aggregate
principal amount equal to the principal amount of such temporary global Bearer
Security, executed by the Company. On or after the Exchange Date such
temporary global Bearer Security shall be surrendered by the Common Depositary
to the Trustee, as the Company's agent for such purpose, to be exchanged, in
whole or from time to time in part, for definitive Securities of that series
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Bearer Security, a like aggregate
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such temporary global Bearer
Security to be exchanged; provided however, that unless otherwise specified in
such temporary global Bearer Security, no such definitive Securities shall be
delivered unless, upon such presentation by the Common Depositary, such
temporary global Bearer Security is accompanied by a certificate dated the
Exchange Date or a subsequent date and signed by Euroclear as to the portion of
such temporary global Bearer Security held for its account then to be exchanged
and a certificate dated the Exchange Date or a subsequent date and signed by
CEDEL S.A. as to the portion of such temporary global Bearer Security held for
its account then to be exchanged, each in the form set forth in Exhibit B to
this Indenture. The definitive Securities to be delivered in exchange for any
such temporary global Bearer
-25-
<PAGE> 34
Security shall be in bearer form, registered form, permanent global bearer form
or permanent global registered form, or any combination thereof, as specified
as contemplated by Section 301, and if any combination thereof is so specified,
as requested by the beneficial owner thereof.
Unless otherwise specified in the temporary global Bearer
Security, the interest of a beneficial owner of Securities of a series in a
temporary global Bearer Security shall be exchanged on or after the Exchange
Date for definitive Securities (and where the form of the definitive Securities
is not specified by the Holder for an interest in a permanent global Security)
of the same series and of like tenor upon delivery by such beneficial owner to
Euroclear or CEDEL S.A., as the case may be, of a certificate in the form set
forth in Exhibit A to this Indenture dated no earlier than the Certification
Date, copies of which certificate shall be available from the offices of
Euroclear and CEDEL S.A., the Trustee, any Authenticating Agent appointed for
such series of Securities and each Paying Agent. Unless otherwise specified in
such temporary global Bearer Security, any exchange shall be made free of
charge to the beneficial owners of such temporary global Bearer Security,
except that a Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like in the event that such Person
does not take delivery of such definitive Securities in person at the offices
of Euroclear or CEDEL S.A. Definitive Securities in bearer form to be
delivered in exchange for any portion of a temporary global Bearer Security
shall be delivered only outside the United States.
All Outstanding temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as
definitive Securities of the same series and of like tenor authenticated and
delivered hereunder, except that, unless otherwise specified as contemplated by
Section 301, interest payable on a temporary global Bearer Security on an
Interest Payment Date for Securities of such series shall be payable to
Euroclear and CEDEL S.A. on such Interest Payment Date upon delivery by
Euroclear and CEDEL S.A. to the Trustee of a certificate or certificates in the
form set forth in Exhibit B to this Indenture, for credit without further
interest on or after such Interest Payment Date to the respective accounts of
the Persons who are the beneficial owners of such temporary global Bearer
Security on such Interest Payment Date and who have each delivered to Euroclear
or CEDEL S.A., as the case may be, a certificate in the form set forth in
Exhibit A to this Indenture. Any interest so received by Euroclear or CEDEL
S.A. and not paid as herein provided shall be returned to the Trustee
immediately prior to the expiration of two years after such Interest Payment
Date in order to be repaid to the Company in accordance with Section 1003.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept for each series of
Securities at one of the offices or agencies maintained pursuant to Section
1002 a register (the register maintained in such office and in any other office
or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
-26-
<PAGE> 35
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers of Registered Securities
of such series. The Trustee is hereby initially appointed "Security Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series and of like tenor, of any
authorized denominations and of a like aggregate principal amount.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series and
of like tenor, of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive. A
Holder of Registered Securities cannot have Bearer Securities issued in
exchange for such Registered Securities.
At the option of the Holder of Bearer Securities of any
series, such Bearer Securities may be exchanged for Registered Securities of
the same series of any authorized denominations and of a like aggregate
principal amount and tenor, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company in an
amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and
the Trustee if there is furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such
missing coupon in respect of which such a payment shall have been made, such
Holder shall be entitled to receive from the Company the amount of such
payment; provided, however, that, except as otherwise provided in Section 1002,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series and like tenor after the close of business at such
office or agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
-27-
<PAGE> 36
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent global Security are entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301,
then without unnecessary delay but in any event not later than the earliest
date on which such interests may be so exchanged, the Company shall deliver to
the Trustee definitive Securities of that series in an aggregate principal
amount equal to the principal amount of such permanent global Security,
executed by the Company. On or after the earliest date on which such interests
may be so exchanged, such permanent global Security shall be surrendered from
time to time in accordance with instructions given to the Trustee and the
Common Depositary (which instructions shall be in writing but need not comply
with Section 103 or be accompanied by an Opinion of Counsel) by the Common
Depositary or such other depositary or Common Depositary as shall be specified
in the Company Order with respect thereto to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or in part, for definitive
Securities of the same series without charge and the Trustee shall authenticate
and deliver, in exchange for each portion of such permanent global Security, a
like aggregate principal amount of other definitive Securities of the same
series of authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which, unless the Securities of the
series are not issuable both as Bearer Securities and as Registered Securities,
as specified as contemplated by Section 301, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15
days before any selection of Securities of that series is to be redeemed and
ending on the relevant Redemption Date; and provided, further, that no Bearer
Security delivered in exchange for a portion of a permanent global Security
shall be mailed or otherwise delivered to any location in the United States.
Promptly following any such exchange in part, such permanent global Security
shall be returned by the Trustee to the Common Depositary or such other
depositary or Common Depositary referred to above in accordance with the
instructions of the Company referred to above. If a Registered Security is
issued in exchange for any portion of a permanent global Security after the
close of business at the office or agency where such exchange occurs on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related
-28-
<PAGE> 37
proposed date for payment of Defaulted Interest, interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with
the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchange pursuant to Section 304, 906 or 1107 not
involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of such series selected for redemption and ending at
the close of business on (A) if Securities of the series are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if Securities of the series are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption, except that if Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part or (iii) to exchange
any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated
coupon appertaining to it is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like
-29-
<PAGE> 38
tenor and principal amount and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to
the surrendered Security.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon appertaining thereto and (ii) such security or indemnity as
may be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that
such Security or coupon has been acquired by a bona fide purchaser, the Company
shall execute and upon its request the Trustee shall authenticate and deliver,
in lieu of any such destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not destroyed, lost or stolen), a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security
or coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security; provided,
however, that the principal of and any premium and interest on Bearer
Securities shall, except as otherwise provided in Section 1002, be payable only
at an office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fee and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen
Security and its coupons, if any, or the destroyed, lost or stolen coupons
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities
or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of
-30-
<PAGE> 39
business on the Regular Record Date for such interest. Interest on any Bearer
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the bearer of the applicable coupon
appertaining to such Bearer Security. Unless otherwise provided with respect
to the Securities of any series, payment of interest may be made at the option
of the Company (i) in the case of Registered Securities, by check mailed or
delivered to the address of any Person entitled thereto as such address shall
appear in the Security Register, or (ii) in the case of Bearer Securities,
except as otherwise provided in Section 1002, upon presentation and surrender
of the appropriate coupon appertaining thereto at an office or agency of the
Company in a Place of Payment located outside the United States or by transfer
to an account maintained by the payee with a bank located outside the United
States.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to
each Holder of Registered Securities of such series at his address as
it appears in the Security Register, not less than 10 days prior to
such Special Record Date. The Trustee may, in its discretion, in the
name and at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper, but such
publication shall not be a condition precedent to the establishment of
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the
-31-
<PAGE> 40
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Registered Securities of any series in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture, upon registration of transfer of, in
exchange for or in lieu of, any other Security, shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to
Sections 305 and 307) interest on such Registered Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment,
redemption, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee. All Registered Securities and matured
coupons so delivered shall be promptly cancelled by the Trustee. All Bearer
Securities and unmatured coupons so delivered shall be held by the Trustee and,
upon
-32-
<PAGE> 41
instruction by a Company Order, shall be cancelled or held for reissuance.
Bearer Securities and unmatured coupons held for reissuance may be reissued
only in replacement of mutilated, lost, stolen or destroyed Bearer Securities
of the same series and like tenor or the related coupons pursuant to Section
306. All Bearer Securities and unmatured coupons held by the Trustee pending
such cancellation or reissuance shall be deemed to be delivered to the Trustee
for all purposes of this Indenture and the Securities. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or
in exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of as directed by a Company Order; provided that the
Trustee shall not be required to destroy such Securities.
In the case of any temporary global Bearer Security, which
shall be disposed of if the entire aggregate principal amount of the Securities
represented thereby has been exchanged, the certificate of disposition shall
state that all certificates required pursuant to Section 304 hereof,
substantially in the form of Exhibit B hereto, to be given by Euroclear or
CEDEL S.A., have been duly presented to the Trustee for such Securities by
Euroclear or CEDEL S.A., as the case may be. Permanent global Securities shall
not be disposed of until exchanged in full for definitive Securities or until
payment thereon is made in full.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a year of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers
in notices of redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
-33-
<PAGE> 42
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect with respect to Securities of a series, and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to Securities of such
series, when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 305,
(ii) Securities and coupons which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 306, (iii) coupons appertaining to Bearer Securities
called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided
in Section 1106, and (iv) Securities and coupons for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(B) with respect to all Outstanding Securities of
such series and any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation, the
Company has deposited or caused to be deposited with the
Trustee as trust funds, under the terms of an irrevocable
trust agreement in form and substance satisfactory to the
Trustee, for the purpose money or U.S. Government Obligations
maturing as to principal and interest in such amounts and at
such times as will, together with the income to accrue
thereon, without consideration of any reinvestment thereof, be
sufficient to pay and discharge the yentire indebtedness on
all Outstanding Securities of such series and coupons
appertaining thereto not theretofore delivered to the Trustee
for cancellation for principal (and premium and Additional
Amounts, if any) and interest to the Stated Maturity or any
Redemption Date contemplated by the penultimate paragraph of
this Section, as the case may be; or
(C) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as
contemplated by Section 301, to be applicable to the
Securities of such series;
-34-
<PAGE> 43
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company with respect to the Outstanding
Securities of such series;
(3) the Company has complied with any other conditions
specified pursuant to Section 301 to be applicable to the discharge of
Securities of such series pursuant to this Section 401;
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture with respect to the Outstanding
Securities of such series have been complied with;
(5) if the conditions set forth in Section 401(1)(A) have
not been satisfied, and unless otherwise specified pursuant to Section
301 for the Securities of such series, the Company has delivered to
the Trustee an Opinion of Counsel to the effect that the Holders of
Securities of such series will not recognize income, gain or loss for
United States federal income tax purposes as a result of such deposit,
satisfaction and discharge and will be subject to United States
federal income tax on the same amount and in the same manner and at
the same time as would have been the case if such deposit,
satisfaction and discharge had not occurred; and
(6) no Default or Event of Default with respect to the
Securities of such issue shall have occurred and be continuing on the
date of such deposit or, in so far as clauses (5) or (6) of Section
501 is concerned, at any time in the period ending on the 91st day
after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
For the purposes of this Indenture, "U.S. Government
Obligations" means direct non-callable obligations of, or non-callable
obligations the payment of principal of and interest on which is guaranteed by,
the United States of America, or to the payment of which obligations or
guarantees the full faith and credit of the United States of America is
pledged, or beneficial interests in a trust the corpus of which consists
exclusively of money or such obligations or a combination thereof.
If any Outstanding Securities of such series are to be
redeemed prior to their Stated Maturity, whether pursuant to any optional
redemption provisions or in accordance with any mandatory sinking fund
requirement, the trust agreement referred to in subclause (B) of clause (1) of
this Section shall provide therefor and the Company shall make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
Notwithstanding the satisfaction and discharge of this
Indenture with respect to the Outstanding Securities of such series pursuant to
this Section 401, the obligations of the Company to the Trustee under Section
607, the obligations of the Trustee to any
-35-
<PAGE> 44
Authenticating Agent under Section 614 and, except for a discharge pursuant to
subclause (A) of clause (1) of this Section, the obligations of the Company
under Sections 305, 306, 404, 610(e), 701, 1001 and 1002 and the obligations of
the Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities, the coupons and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium, if any) and interest and Additional Amounts for the payment of
which such money has been deposited with the Trustee.
SECTION 403. Discharge of Liability on Securities of Any Series.
If this Section is specified, as contemplated by Section 301,
to be applicable to Securities of any series, the Company shall be deemed to
have paid and discharged the entire indebtedness on all the Outstanding
Securities of such series, the obligation of the Company under this Indenture
and the Securities of such series to pay the principal of (and premium, if any)
and interest on Securities of such series, and any coupon appertaining thereto,
shall cease, terminate and be completely discharged and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging such
satisfaction and discharge, when
(1) the Company has complied with the provisions of
Section 401 of this Indenture (other than any additional conditions
specified pursuant to Sections 301 and 401(3) and except that the
opinion referred to in Section 401(5) shall state that it is based on
a ruling by the Internal Revenue Service or other change since the
date hereof under applicable Federal income tax law) with respect to
all Outstanding Securities of such series,
(2) the Company has delivered to the Trustee a Company
Request requesting such satisfaction and discharge,
(3) the Company has complied with any other conditions
specified pursuant to Section 301 to be applicable to the discharge of
Securities of such series pursuant to this Section 403, and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the discharge of
the indebtedness on the Outstanding Securities of such series have
been complied with.
-36-
<PAGE> 45
Upon the satisfaction of the conditions set forth in this
Section with respect to all the Outstanding Securities of any series, the terms
and conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that, the Company shall not be discharged
from any payment obligations in respect of Securities of such series which are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law or pursuant to Section 305 or 306.
SECTION 404. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations deposited with respect to Securities of any series
in accordance with Section 401 by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture with respect to the Securities of such series
and the Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 401 until such time as the Trustee or
Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 401; provided, however, that if the
Company has made any payment of principal of (or premium, if any), or interest
on and any Additional Amounts with respect to any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money or
U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in or pursuant to
the supplemental indenture or Board Resolution establishing such series of
Securities or in the form of Security for such series:
(1) default in the payment of any interest or any
Additional Amounts upon any Security of that series when such interest
or Additional Amounts become due and payable, and continuance of such
default for a period of 30 days; or
-37-
<PAGE> 46
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series; or
(4) default in the performance or breach of any covenant
or warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more
series of Securities other than that series), and continuance of such
default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of all Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Company a bankrupt or insolvent,
or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(6) the commencement by the Company of a voluntary case
or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect
of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it, of a
petition or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action; or
-38-
<PAGE> 47
(7) any other Event of Default provided with respect to
Securities of that series (including, without limitation, any Event of
Default arising out of a default which results in the acceleration of
certain indebtedness or a default in the payment of any amounts due on
certain indebtedness).
Notwithstanding the foregoing provisions of this Section 501,
if the principal of (and premium, if any) or any interest on, or Additional
Amounts with respect to, any Security is payable in a currency or currencies
(including a composite currency) other than Dollars and such currency (or
currencies) is (or are) not available to the Company for making payment thereof
due to the imposition of exchange controls or other circumstances beyond the
control of the Company (a "Conversion Event"), the Company will be entitled to
satisfy its obligations to Holders of the Securities by making such payment in
Dollars in an amount equal to the Dollar equivalent of the amount payable in
such other currency, as determined by the Company by reference to the noon
buying rate in The City of New York for cable transfers for such currency
("Exchange Rate"), as such Exchange Rate is certified for customs purposes by
the Federal Reserve Bank of New York on the date of such payment, or, if such
rate is not then available, on the basis of the most recently available
Exchange Rate. Notwithstanding the foregoing provisions of this Section 501,
any payment made under such circumstances in Dollars where the required payment
is in a currency other than Dollars will not constitute an Event of Default
under this Indenture.
Promptly after the occurrence of a Conversion Event, the
Company shall give written notice thereof to the Trustee; and the Trustee,
promptly after receipt of such notice, shall give notice thereof in the manner
provided in Section 106 to the Holders. Promptly after the making of any
payment in Dollars as a result of a Conversion Event, the Company shall give
notice in the manner provided in Section 106 to the Holders, setting forth the
applicable Exchange Rate and describing the calculation of such payments.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any Securities of any
series at the time Outstanding occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of (i) the series affected by such default (in the case
of an Event of Default described in clause (1), (2), (3) or (7) of Section 501)
or (ii) all series of Securities (subject to the immediately following
sentence, in the case of other Events of Default) may declare the principal
amount (or, if any such Securities are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that
series) of all of the Securities of the series affected by such default or all
series, as the case may be, to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default described in clause (5) or
(6) of Section 501 shall occur, the principal amount of the Outstanding
Securities of all series ipso
-39-
<PAGE> 48
facto shall become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with
respect to Securities of any series (or of all series, as the case may be) has
been made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in principal amount of the Outstanding Securities of that series (or
of all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue interest on, and any Additional
Amounts with respect to, all Securities of that series (or of
all series, as the case may be) and any coupons appertaining
thereto,
(B) the principal of (and premium, if any, on)
any Securities of that series (or of all series, as the case
may be) which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
or rates prescribed therefor in such Securities (in the case
of Original Issue Discount Securities, the Securities' Yield
to Maturity),
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest and any Additional
Amounts at the rate or rates prescribed therefor in such
Securities (in the case of Original Issue Discount Securities,
the Securities' Yield to Maturity), and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of
that series (or of all series, as the case may be), other than the
non-payment of the principal of Securities of that series (or of all
series, as the case may be) which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
-40-
<PAGE> 49
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on, or any Additional Amounts with respect to, any Security
of any series and any coupons appertaining thereto when such interest
or Additional Amounts shall have become due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, the whole amount then due and payable
on such Securities and coupons for principal (and premium, if any) and interest
and Additional Amounts and, to the extent that payment of such interest shall
be legally enforceable, interest on any overdue principal (and premium, if any)
and on any overdue interest and Additional Amounts, at the rate or rates
prescribed therefor in such Securities (or in the case of Original Issue
Discount Securities, the Securities' Yield to Maturity), and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series and any related coupons by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of
-41-
<PAGE> 50
whether the principal (or lesser amount in the case of Original Issue Discount
Securities) of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal (premium, if any), interest or Additional Amounts) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (or lesser amount in the case of Original Issue Discount
Securities) (and premium, if any) and interest and any Additional
Amounts owing and unpaid in respect of the Securities or any coupons
appertaining thereto and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceedings;
provided, however, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claim under this Indenture or the
Securities or coupons may be prosecuted and enforced by the Trustee without
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
-42-
<PAGE> 51
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any), interest or any Additional Amounts, upon presentation of
the Securities or coupons, or both as the case may be, and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest and any Additional
Amounts on the Securities and coupons in respect of which or for the
benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities and coupons for principal (and premium, if
any), interest and Additional Amounts, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
To the fullest extent allowed under applicable law, if for the
purpose of obtaining judgment against the Company in any court it is necessary
to convert the sum due in respect of the principal of (or premium, if any) or
interest on the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Business Day next
preceding that on which final judgment is given. Neither the Company nor the
Trustee shall be liable for any shortfall nor shall it benefit from any
windfall in payments to Holders of Securities under this Section caused by a
change in exchange rates between the time the amount of a judgment against it
is calculated as above and the time the Trustee converts the Judgment Currency
into the Required Currency to make payments under this Section to Holders of
Securities, but payment of such judgment shall discharge all amounts owed by
the Company on the claim or claims underlying such judgment.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) an Event of Default with respect to Securities of
such series shall have occurred and be continuing and such Holder has
previously given written notice to the Trustee of such continuing
Event of Default;
-43-
<PAGE> 52
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest on and any Additional Amounts with respect to
such Security or payment of such coupon on the Stated Maturity or Maturities
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding has been instituted.
-44-
<PAGE> 53
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities or coupons to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.
SECTION 512. Control by Holders.
With respect to Securities of any series, the Holders of a
majority in principal amount of the Outstanding Securities of such series shall
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, relating to or arising under an Event of
Default described in clause (1), (2), (3) or (7) of Section 501, and with
respect to all Securities the Holders of a majority in principal amount of all
Outstanding Securities shall have the right to direct the time, method and
place of conducting any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee, not relating to or arising under such
an Event of Default, provided that in each such case
(1) such direction shall not be in conflict with any rule
of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, and the Holders of a majority in principal amount
of all Outstanding Securities may on behalf of the Holders of
-45-
<PAGE> 54
all Securities waive any other past default hereunder and its consequences,
except in each case a default
(1) in the payment of the principal of (or premium, if
any) or interest on, or any Additional Amounts with respect to, any
Security, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security or coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest on, or any Additional Amounts
with respect to, any Security or the payment of any coupon on or after the
Stated Maturity or Maturities expressed in such Security or coupon (or, in the
case of redemption, on or after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
-46-
<PAGE> 55
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default
with respect to the Securities of any series,
(1) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing with respect to the Securities of any series, the Trustee
shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except
that
(1) this Subsection shall not be construed to
limit the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of a majority
in principal amount of the Outstanding Securities of any
series or of all series, determined as provided in Section
512, relating to the time, method and place of conducting any
proceeding for any remedy
-47-
<PAGE> 56
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect
to the Securities of such series; and
(4) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to the Securities of any series, the Trustee shall give notice of
such default hereunder known to the Trustee to all Holders of Securities of
such series in the manner provided in Section 106, unless such default shall
have been cured or waived; provided, however, that, except in the case of a
default in the payment of the principal of (or premium, if any) or interest on,
or any Additional Amounts with respect to, any Security of such series or in
the payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
-48-
<PAGE> 57
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon, other
evidence of indebtedness or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
-49-
<PAGE> 58
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and coupons and,
subject to Sections 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the reasonable expenses and disbursements
of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of, premium, if
any, or interest, if any, on, or any Additional Amounts with respect to,
particular Securities.
-50-
<PAGE> 59
Any expenses and compensation for any services rendered by the
Trustee after the occurrence of an Event of Default specified in clause (5) or
(6) of Section 501 shall constitute expenses and compensation for services of
administration under all applicable federal or state bankruptcy, insolvency,
reorganization or other similar laws.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest,
as defined in this Section, with respect to the Securities of any series, it
shall, within 90 days after ascertaining that it has such conflicting interest,
either eliminate such conflicting interest or resign with respect to the
Securities of that series in the manner and with the effect hereinafter
specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the Securities of
any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit by mail to all Holders of Securities of that series, as
their names and addresses appear in the Security Register, notice of such
failure.
(c) For the purposes of this Section, the term "conflicting
interest" shall have the meaning specified in Section 310(b) of the Trust
Indenture Act and the Trustee shall comply with Section 310(b) of the Trust
Indenture Act; provided, that there shall be excluded from the operation of
Section 310(b)(1) of the Trust Indenture Act with respect to the Securities of
any series the Indenture dated as of _______________ between the Company and
the Trustee relating to the Company's subordinated debt securities, this
Indenture with respect to the Securities of any series other than that series
and any other indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding, if the requirements for such exclusion set forth in Section
310(b)(1) of the Trust Indenture Act are met. For purposes of the preceding
sentence, the optional provision permitted by the second sentence of Section
310(b)(9) of the Trust Indenture Act shall be applicable.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
Federal or State authority. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and
-51-
<PAGE> 60
surplus as set forth in its most recent report of condition so published. If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the resigning Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a)
after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request therefor by the
Company or by any such Holder of Securities, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities
-52-
<PAGE> 61
of one or more series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the Securities of that
or those series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and such successor Trustee or Trustees
shall comply with the applicable requirements of Section 611. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 611, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid,
to all Holders of Securities of such series as their names and addresses appear
in the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and
-53-
<PAGE> 62
each successor Trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to,
and to vest in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such
supplemental indenture, the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the
-54-
<PAGE> 63
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. A Trustee who has resigned or been removed shall
be subject to Section 311(a) of the Trust Indenture Act to the extent indicated
therein.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents
which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issue and upon exchange, registration of
transfer or partial redemption or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia, or in
the case of an Authenticating Agent with respect to Securities issuable as
Bearer Securities, under the laws of any country in which such Bearer
Securities may be offered, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 or
equivalent amount expressed in a foreign currency and subject to supervision or
examination by Federal or State authority or authority of such country. If
such Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating
Agent.
-55-
<PAGE> 64
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to
the provisions of Section 607.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternate certificate of authentication in the following
form:
"This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
The Bank of New York,
as Trustee
By ____________________________________,
as Authenticating Agent
By ____________________________________
Authorized Signatory".
Notwithstanding any provision of this Section 614 to the
contrary, if at any time any Authenticating Agent appointed hereunder with
respect to any series of Securities shall not also be acting as the Security
Registrar hereunder with respect to any series of Securities, then, in addition
to all other duties of an Authenticating Agent hereunder, such Authenticating
Agent shall also be obligated: (i) to furnish to the Security Registrar
-56-
<PAGE> 65
promptly all information necessary to enable the Security Registrar to maintain
at all times an accurate and current Security Register; and (ii) prior to
authenticating any Security denominated in a foreign currency, to ascertain
from the Company the units of such foreign currency that are required to be
determined by the Company pursuant to Section 302.
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will
furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular
Record Date relating to that series (or, if there is no Regular Record Date
relating to that series, on January 1 and July 1), a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
that series as of such dates, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content, such list to be dated as of a date not more than 15
days prior to the time such list is furnished;
provided, that so long as the Trustee is the Security Registrar, the Company
shall not be required to furnish or cause to be furnished such a list to the
Trustee.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of each series
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of each series received by
the Trustee in its capacity as Security Registrar. The Trustee may destroy any
list furnished to it as provided in Section 701 upon receipt of a new list so
furnished.
(b) Holders of Securities may communicate pursuant to the Trust
Indenture Act with other Holders with respect to their rights under this
Indenture or under the Securities.
(c) Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with Section 702(b), regardless of
the source from which such information was derived, and that the
-57-
<PAGE> 66
Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the
year 1994, the Trustee shall transmit by mail to Holders a brief report dated
as of such May 15 that complies with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313 (b) of the Trust
Indenture Act.
(c) Reports pursuant to this Section shall be transmitted by mail:
(1) to all Holders of Registered Securities, as the names
and addresses of such Holders appear in the Security Register;
(2) to such Holders of Securities as have, within the two
years preceding such transmissions, filed their names and addresses
with the Trustee for that purpose; and
(3) except in the case of reports pursuant to Subsection
(b) of this Section, to each Holder of a Security whose name and
address is preserved at the time by the Trustee, as provided in
Section 702(a).
(d) A copy of each report pursuant to Subsection (a) or (b) of
this Section 703 shall, at the time of its transmission to Holders, be filed by
the Trustee with each stock exchange upon which any Securities are listed, with
the Commission and with the Company. The Company will notify the Trustee when
any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee, within 15 days after
the Company is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended, and shall otherwise comply with
Section 314(a) of the Trust Indenture Act.
-58-
<PAGE> 67
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, unless:
(1) the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or
trust, shall be organized and existing under the laws of the United
States and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of (and
premium, if any) and interest (including all Additional Amounts, if
any) on all the Securities and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction,
no Event of Default, and no event which, after notice or lapse of time
or both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except
in the case of such lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities and coupons.
-59-
<PAGE> 68
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities and any
coupons appertaining thereto (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series), to convey, transfer, assign, mortgage or pledge any property
to or with the Trustee or otherwise secure any series of the
Securities or to surrender any right or power herein conferred upon
the Company; or
(3) to add any additional Events of Default with respect
to all or any series of the Securities (and, if such Event of Default
is applicable to less than all series of Securities, specifying the
series to which such Event of Default is applicable); or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form, provided
that any such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any
material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
adversely affected by such change in or elimination of such provision;
or
-60-
<PAGE> 69
(6) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(7) to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Section 401; provided, however, that any such action shall not
adversely affect the interest of the Holders of Securities of such
series or any other series of Securities in any material respect; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided such other
provisions as may be made shall not adversely affect the interests of
the Holders of Securities of any series or any related coupons in any
material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of a majority in principal
amount of the Outstanding Securities of all series affected by such
supplemental indenture (acting as one class), by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
and any related coupons under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest thereon,
any Additional Amounts with respect thereto or any premium payable
upon the redemption thereof, or change any obligation of the Company
to pay Additional Amounts (except as contemplated by Section 801(1)
and permitted by Section 901(1)), or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the
coin or currency or currencies (including composite currencies) in
which, any Security or any premium or any interest thereon or
-61-
<PAGE> 70
Additional Amounts with respect thereto is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or
(2) reduce the percentage in principal amount of
Outstanding Securities, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section
513 or Section 1008, except to increase any such percentage or to
provide with respect to any particular series the right to condition
the effectiveness of any supplemental indenture as to that series on
the consent of the Holders of a specified percentage of the aggregate
principal amount of Outstanding Securities of such series (which
provision may be made pursuant to Section 301 without the consent of
any Holder) or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby, provided,
however, that this clause shall not be deemed to require the consent
of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1008, or
the deletion of this proviso, in accordance with the requirements of
Sections 611 (b) and 901(7).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or liabilities under this
Indenture or otherwise.
-62-
<PAGE> 71
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series and any coupons appertaining
thereto so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series and any coupons appertaining thereto.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of (and
premium, if any), interest on and any Additional Amounts with respect to the
Securities of that series in accordance with the terms of the Securities, any
coupons appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to any series of Securities, any
interest due on and Additional Amounts payable with respect to Bearer
Securities on or before Maturity shall be payable only upon presentation and
surrender of the several coupons for such interest installments, as are
evidenced thereby as they severally mature.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where
-63-
<PAGE> 72
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. If Securities of a
series are issuable as Bearer Securities, the Company will maintain (A) in The
Borough of Manhattan, The City of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered
for exchange for Registered Securities, where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served and where Bearer Securities of that series and related coupons may be
presented or surrendered for payment in the circumstances described in the
following paragraph (and not otherwise), (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Bearer Securities of that
series and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts with respect to Bearer Securities
of that series); provided, however, that if the Securities of that series are
listed on the International Stock Exchange of the United Kingdom and the
Republic of Ireland Limited, the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of that series are
listed on such exchange, and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located outside the United
States an office or agency where any Registered Securities of that series may
be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of that series and the
related coupons may be presented and surrendered for payment (including payment
of any Additional Amounts with respect to Bearer Securities of that series) at
the office of any Paying Agent for such series located outside the United
States, and the Company hereby appoints the Trustee as its office or agency to
receive such presentations, surrenders, notices and demands.
No payment of principal, premium or interest on, or Additional
Amounts with respect to, Bearer Securities shall be made at any office or
agency of the Company in the United States or by check mailed to any address in
the United States or by transfer to an account maintained with a bank located
in the United States, nor shall any payments be made in respect of Bearer
Securities or coupons appertaining thereto pursuant to the presentation to the
Company or its designated Paying Agents within the United States; provided,
however, that, if the Securities of a series are denominated and payable in
Dollars,
-64-
<PAGE> 73
payment of principal of and any premium and interest on any Bearer Security
(including any Additional Amounts payable on Securities of such series) shall
be made at the office of the Company's Paying Agent in The Borough of
Manhattan, The City of New York, if (but only if) payment in Dollars of the
full amount of such principal, premium, interest or Additional Amounts, as the
case may be, at all offices or agencies outside the United States maintained
for the purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
SECTION 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities and any coupons appertaining thereto,
it will, on or before each due date of the principal of (and premium, if any)
or interest on or any Additional Amounts with respect to any of the Securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons appertaining thereto, the
Company will, on or before each due date of the principal of (and premium, if
any) or interest on any Securities of that series, deposit with a Paying Agent
a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any), interest on or any Additional
Amounts with respect to Securities
-65-
<PAGE> 74
of that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in the
making of any payment of principal (and premium, if any), interest on
or any Additional Amounts with respect to the Securities of that
series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which sums were held by the Company
or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Security of any series and remaining
unclaimed for three years after such principal (and premium, if any) or
interest has become due and payable shall, unless otherwise required by
mandatory provisions of applicable escheat, or abandoned or unclaimed property
law, be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
and coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in an Authorized Newspaper in The Borough of Manhattan, The City of New
York, notice that such money remains unclaimed and that, after a date specified
herein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will, unless otherwise
required by mandatory provisions of applicable escheat, or abandoned or
unclaimed property law, be repaid to the Company.
-66-
<PAGE> 75
SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
Subsidiary or upon the income, profits or property of the Company or any
Subsidiary, and (2) all material lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Company or any Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1007. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof so long
as any Security is outstanding hereunder, an Officers' Certificate, stating
that a review of the activities of the Company during such year and of
performance under this Indenture has been made under the supervision of the
signers thereof and whether or not to the best of their knowledge, based upon
such review, the Company is in default in the performance, observance or
fulfillment of any of its covenants and other obligations under this Indenture,
and if the Company shall be in default, specifying each such default known to
them and the nature and status thereof. One of the officers signing the
Officers' Certificate delivered pursuant to this Section 1007 shall be the
principal executive, financial or accounting officer of the Company.
-67-
<PAGE> 76
For purposes of this Section, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Sections 1004 to 1006, inclusive, or any
covenant added for the benefit of any series of Securities as contemplated by
Section 301 (unless otherwise specified pursuant to Section 301) if before or
after the time for such compliance the Holders of a majority in principal
amount of the Outstanding Securities of all series affected by such omission
(acting as one class) shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in full force
and effect.
SECTION 1009. Additional Amounts.
If the Securities of a series provide for the payment of
Additional Amounts, the Company will pay to the Holder of any Security of such
series or any coupon appertaining thereto Additional Amounts as provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of or any premium or interest on, or in respect of,
any Security of any series or payment of any related coupon or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of Additional Amounts
provided for in this Section to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof pursuant to the
provisions of this Section and express mention of the payment of Additional
Amounts (if applicable) in any provisions hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where such express
mention is not made.
If the Securities of a series provide for the payment of
Additional Amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Securities (or if the Securities of that series
will not bear interest prior to Maturity, the first day on which a payment of
principal and any premium is made), and at least 10 days prior to each date of
payment of principal and any premium or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company shall furnish the Trustee and the Company's principal
Paying Agent or Paying Agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
or any related coupons who are United States Aliens without withholding for or
on account of any tax, assessment or other governmental charge described in the
Securities of
-68-
<PAGE> 77
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities or coupons and the
Company will pay to such Paying Agent the Additional Amounts required by this
Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out
of or in connection with actions taken or omitted by any of them in reliance on
any Officers' Certificate furnished pursuant to this Section.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series
to be redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series or of the
principal amount of global Securities of such series.
-69-
<PAGE> 78
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 107 to each Holder of Securities to be redeemed not less than 30 nor
more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be redeemed
and, if applicable, that interest thereon will cease to accrue on and
after said date,
(5) the place or places where such Securities, together
in the case of Bearer Securities with all coupons appertaining
thereto, are to be surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is
the case,
(7) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for redemption
must be accompanied by all coupons appertaining thereto maturing
subsequent to the date fixed for redemption or the amount of any such
missing coupon or coupons will be deducted from the Redemption Price
or security or indemnity satisfactory to the Company, the Trustee and
any Paying Agent is furnished,
(8) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be redeemed,
and if such Bearer
-70-
<PAGE> 79
Securities may be exchanged for Registered Securities not subject to
redemption on such Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made, and
(9) the "CUSIP" number, if applicable.
A notice of redemption as contemplated by Section 107 need not
identify particular Registered Securities to be redeemed. Notice of redemption
of Securities to be redeemed at the election of the Company shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or before any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, and any
Additional Amounts with respect to, all the Securities which are to be redeemed
on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be redeemed. Upon surrender of any such Security
for redemption in accordance with said notice, together with all coupons
appertaining thereto, if any, appertaining thereto maturing after the
Redemption Date, such Security shall be paid by the Company at the Redemption
Price, together with accrued interest (and any Additional Amounts) to the
Redemption Date; provided, however, that all payments on Bearer Securities
shall be made only in the manner provided in Section 1002 for payments on
Bearer Securities; and provided further, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons appertaining thereto maturing after the
Redemption Date, such Security may be paid after deducting from the Redemption
Price an amount equal to the face amount of all such missing coupons
appertaining thereto, or the surrender of such missing coupon or coupons
appertaining thereto may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save
-71-
<PAGE> 80
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest (and any Additional Amounts with respect
thereto) represented by coupons appertaining thereto shall be payable only at
an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons appertaining
thereto.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security or, in the case of Original Issue Discount
Securities, the Securities' Yield to Maturity.
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part
shall be surrendered at a Place of Payment therefor (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Registered Security or Securities
of the same series and Stated Maturity, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
SECTION 1108. Purchase of Securities.
Unless otherwise specified as contemplated by Section 301, the
Company and any Affiliate of the Company may at any time purchase or otherwise
acquire Securities or coupons appertaining thereto in the open market or by
private agreement; provided that purchases or other acquisitions of Bearer
Securities or coupons appertaining thereto by the Company or any Affiliate of
the Company may be made only outside the United States, and payments therefor
may be made only upon surrender of such Bearer Securities or coupons
appertaining thereto at a location outside the United States and only in the
manner provided for payments on Bearer Securities in Section 1002. Such
acquisition shall not operate as or be deemed for any purpose to be a
redemption of the indebtedness represented by such Securities or coupons
appertaining thereto. Any Securities or coupons appertaining thereto purchased
or acquired by the Company may be delivered to the Trustee and, upon such
delivery, the indebtedness represented thereby shall be deemed to be satisfied.
Section 309 shall apply to all Securities and coupons so delivered.
-72-
<PAGE> 81
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to as
an "optional sinking fund payment". Unless otherwise provided by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the Securities
of such series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided that such Securities have
not been previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such sinking payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivery of or by crediting
Securities of that series pursuant to Section 1202 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the
-73-
<PAGE> 82
manner specified in Section 1103 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner
provided in Section 1104. Such notice having been duly given, the redemption
of such Securities shall be made upon the terms and in the manner stated in
Sections 1106 and 1107.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all series may be
called at any time and from time to time pursuant to this Article to make, give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders
of Securities of any series for any purpose specified in Section 1301, to be
held at such time and at such place in Houston, Texas, in The Borough of
Manhattan, The City of New York, in London or in any other location, as the
Trustee shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 107, not less than 20 nor more than 180 days prior
to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in aggregate principal amount of the
Outstanding Securities of any series, shall have requested the Trustee for any
such series to call a meeting of the Holders of Securities of such series for
any purpose specified in Section 1301, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have made the first publication of the notice of such meeting
within 30 days after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company or the
Holders of Securities of such series in the amount above specified, as the case
may be, may determine the time and the place in Houston, Texas, in The Borough
of Manhattan, The City of New York, or in London, for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
Subsection (a) of this Section.
-74-
<PAGE> 83
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities
of any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Outstanding Securities
of such series by such Holder or Holders. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders of Securities of
any series shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of a series shall constitute a quorum for
a meeting of Holders of Securities of such series. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders of Securities of such series, be
dissolved. In any other case, the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Subject to Section 1305(d), notice of
the reconvening of any adjourned meeting shall be given as provided in Section
1302(a), except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly that
Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series shall constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series; provided, however, that, except as limited by the
proviso to Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent or waiver which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage that is less than a majority in aggregate principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in aggregate
principal amount of the Outstanding Securities of that series.
Except as limited by the proviso to Section 902, any
resolution passed or decision taken at any meeting of Holders of Securities of
any series duly held in accordance
-75-
<PAGE> 84
with this Section shall be binding on all the Holders of Securities of such
series and the coupons appertaining thereto, whether or not present or
represented at the meeting.
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) The holding of Securities shall be proved in the
manner specified in Section 105 and the appointment of any proxy shall be
proved in the manner specified in Section 105 or by having the signature of the
person executing the proxy witnessed or guaranteed by any trust company, bank
or banker authorized by Section 105 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 105 or other proof.
(b) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
1302(b), in which case the Company or the Holders of Securities of the series
calling the meeting, as the case may be, shall appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such
series and each proxy shall be entitled to one vote for each $1,000 principal
amount of the Outstanding Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have
no right to vote, except as a Holder of a Security of such series or as a
proxy.
(d) Any meeting of Holders of Securities of any series
duly called pursuant to Section 1302 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of such series represented at
the meeting; and the meeting may be held as so adjourned without further
notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the
-76-
<PAGE> 85
proceedings of each meeting of Holders of Securities of any series shall be
prepared by the secretary of the meeting and there shall be attached to such
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that such
notice was given as provided in Section 1302 and, if applicable, Section 1304.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company, and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record
so signed and verified shall be conclusive evidence of the matters therein
stated.
* * *
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
-77-
<PAGE> 86
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
BATTLE MOUNTAIN GOLD COMPANY
[CORPORATE SEAL] By ___________________________
Name:
Title:
THE BANK OF NEW YORK
[CORPORATE SEAL] By __________________________
Name:
Title:
-78-
<PAGE> 87
STATE OF _________
ss.
COUNTY OF ________
On the ____ day of _____________, _____, before me personally
came _____________, to me known, who, being by me duly sworn, did depose and
say that he is ________________ of BATTLE MOUNTAIN GOLD COMPANY, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
_______________________________________
Notary Public
[NOTARIAL SEAL]
STATE OF ___________
ss:
COUNTY OF __________
On the ___ day of _______, ____, before me personally came
_________, to me known, who, being by me duly sworn, did depose and say that he
is ______________ of THE BANK OF NEW YORK, one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
_______________________________________
Notary Public
[NOTARIAL SEAL]
-79-
<PAGE> 88
EXHIBIT A
FORM OF CERTIFICATE TO BE
GIVEN BY OWNER OF SECURITY OR BENEFICIAL OWNER OF
INTEREST IN A GLOBAL SECURITY
BATTLE MOUNTAIN GOLD COMPANY
[TITLE OF SECURITIES]
(THE "SECURITIES")
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Securities that are held by the
undersigned or held by you for the account of the undersigned (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States persons"), (ii) are owned by United States person(s) that (A)
are foreign branches of United States financial institutions (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (B) acquired Securities
through foreign branches of United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (A) or (B), each such United States financial
institution hereby certifies, on its own behalf or through its agent, that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) are owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in U.S. Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)) and in addition if the owner of the
Securities is a United States or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i) or (ii)) this
is to further certify that such financial institution has not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify that, except as set forth below, (i) in
the case of debt securities, the Securities are beneficially owned by (a)
non-U.S. person(s) or (b) U.S. person(s) who purchased the Securities in
transactions which did not require registration under the Act; or (ii) in the
case of equity securities, the Securities are owned by (x) non-U.S. person(s)
(and such person(s) are not acquiring the Securities for the account or benefit
of U.S. person(s)) or (y) U.S. person(s) who purchased the Securities in a
transaction which did not require registration under the Act. If this
certification is being delivered in connection with the exercise of warrants
pursuant to Section 230.902(m) of Regulation S under the Act, then this is
further to certify that, except as set forth below, the Securities are being
exercised by and on behalf
A-1
<PAGE> 89
of non-U.S. person(s). As used in this paragraph the term "U.S. person" has
the meaning given to it by Regulation S under the Act.
As used herein, "United States" means the United States of
America (including the States and District of Columbia); and its "possessions"
including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to
$______________ of such interest in the above Securities in respect of which we
are not able to certify and as to which we understand exchange and delivery of
definitive Securities (or, if relevant, exercise of any rights or collection of
any interest) cannot be made until we do so certify.
We understand that this certification is required in
connection with certain tax laws and, if applicable, certain securities laws of
the United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
*Dated: __________________, _____
NAME OF PERSON MAKING CERTIFICATION
By:_______________________________
As, or as Agent for, the
beneficial owner(s) of the
Securities to which this
Certificate relates
By:_______________________________
As, or as Agent for, the
financial institution (if any)
through which a United States
Person acquired the Securities
to which this Certificate relates
- ---------------
*To be dated no earlier than the Certification Date.
A-2
<PAGE> 90
EXHIBIT B
FORM OF CERTIFICATION TO BE GIVEN
BY EUROCLEAR OR CEDEL S.A.
BATTLE MOUNTAIN GOLD COMPANY
[TITLE OF SECURITIES]
(THE "SECURITIES")
This is to certify that, based solely on certifications we
have received in writing, by tested telex or by electronic transmission from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in the Indenture, dated as of
_______________, between Battle Mountain Gold Company and The Bank of New York,
as of the date hereof, [ ] principal amount of the above captioned
Securities (i) is owned by persons that are not citizens or residents of the
United States, domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source ("United States persons"), (ii) is owned by United
States persons that (A) are foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (B) acquired the Securities through foreign branches of
United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case (A)
or (B), each such United States financial institution has certified, on its own
behalf or through its agent, that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States or
foreign financial institutions for purposes of resale during the restricted
period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and to the further effect that the United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its
possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify with respect to the principal amount of
Securities set forth above that, except as set forth below, we have received in
writing, by tested telex or by electronic transmission, from our Member
Organizations entitled to a portion of such principal amount, certifications
with respect to such portion, substantially to the effect set forth in the
Indenture.
We further certify (i) that we are not making available
herewith for exchange (or, if relevant, exercise of any rights or collection of
any interest) any portion of the temporary global Security excepted in such
certifications and (ii) that as of the date hereof
B-1
<PAGE> 91
we have not received any notification from any of our Member Organizations to
the effect that the statements made by such Member Organizations with respect
to any portion of the part submitted herewith for exchange (or, if relevant,
exercise of any rights or collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax laws and, if applicable, certain securities laws of
the United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification or a copy hereof to any interested party in such
proceedings.
Dated:______________, _____
(dated the Exchange Date or the
Interest Payment Date)
__________________________________________
as operator of the Euroclear System
[Morgan Guaranty Trust Company of New York,
Brussels Office]
or
[CEDEL S.A.]
By ____________________________________
B-2
<PAGE> 1
Exhibit 4(i)
[PROOF]
============================================================================
BATTLE MOUNTAIN GOLD COMPANY
AND
THE BANK OF NEW YORK,
TRUSTEE
_______________
INDENTURE
DATED AS OF _______________
________________
SUBORDINATED DEBT SECURITIES
=============================================================================
<PAGE> 2
BATTLE MOUNTAIN GOLD COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF _______________
________________
<TABLE>
<CAPTION>
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
----------- ---------
<S> <C> <C>
Section 310 (a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608, 610
Section 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(c)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(d)
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704, 1007
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Section 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602, 703(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(a)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316 (a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . 101
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
</TABLE>
_____________
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate; control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Book-Entry Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CEDEL; CEDEL S.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Certification Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request; Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Conversion Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollar; $ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Euroclear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
</TABLE>
_____
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-i-
<PAGE> 4
<TABLE>
<S> <C>
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Predecessor Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Required Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Security Register; Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States Alien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Vice President. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Wholly Owned Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 102. Incorporation by Reference of Trust Indenture Act. . . . . . . . . . . . . . . . . . . . 9
SECTION 103. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 104. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 105. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 106. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 107. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 108. Conflict With Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 109. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 110. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 111. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
</TABLE>
-ii-
<PAGE> 5
<TABLE>
<S> <C>
SECTION 112. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 113. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 114. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 115. Corporate Obligation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 202. Form of Trustee's Certificate of Authentification . . . . . . . . . . . . . . . . . . . 16
SECTION 203. Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 204. Book-Entry Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . 23
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 305. Registration, Registration of Transfer and Exchange. . . . . . . . . . . . . . . . . . 27
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . 30
SECTION 307. Payment of Interest; Interest Rights Preserved. . . . . . . . . . . . . . . . . . . . . 31
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 311. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 403. Discharge of Liability on Securities of Any Series . . . . . . . . . . . . . . . . . . 37
SECTION 404. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
</TABLE>
-iii-
<PAGE> 6
ARTICLE FIVE
REMEDIES
<TABLE>
<S> <C>
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . 40
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . 42
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons . . . . . . . . . 43
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest . . . . . . . . 45
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . 50
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . 53
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 612. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . 55
SECTION 613. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . 56
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
</TABLE>
-iv-
<PAGE> 7
<TABLE>
<S> <C>
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . 58
SECTION 702. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . . 58
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms . . . . . . . . . . . . . . . . . . 60
SECTION 802. Successor Person Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . 61
SECTION 902. Supplemental Indentures With Consent of Holders . . . . . . . . . . . . . . . . . . . . . 62
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 905. Conformity With Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 906. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . 64
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1003. Money for Securities Payments to be Held in Trust . . . . . . . . . . . . . . . . . . . 66
SECTION 1004. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1005. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1006. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1007. Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1008. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1009. Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
</TABLE>
-v-
<PAGE> 8
<TABLE>
<S> <C>
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 1103. Selection by Trustee of Securities to be Redeemed . . . . . . . . . . . . . . . . . . . 70
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1108. Purchase of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . . . . 74
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. Securities Subordinate to Senior Indebtedness. . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1302. Circumstances Requiring Prior Payment of Senior Indebtedness . . . . . . . . . . . . . . 75
SECTION 1303. Subrogation to Rights of Holders of Senior Indebtedness . . . . . . . . . . . . . . . . 76
SECTION 1304. Provisions Solely to Define Relative Rights . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1305. Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1306. No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1307. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 1308. Reliance on Certificate of Liquidating Agent . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 1309. Trustee Not Fiduciary for Holders of Senior Indebtedness . . . . . . . . . . . . . . . . 79
SECTION 1310. Rights of Trustee as Holder of Senior Indebtedness . . . . . . . . . . . . . . . . . . . 79
SECTION 1311. Article Applicable to Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
</TABLE>
-vi-
<PAGE> 9
<TABLE>
<S> <C>
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1402. Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1403. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1404. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of Meetings. . . . . . . . 81
SECTION 1406. Counting Votes and Recording Action of Meetings . . . . . . . . . . . . . . . . . . 82
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SIGNATURE AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
</TABLE>
-vii-
<PAGE> 10
INDENTURE, dated as of _______________, between BATTLE
MOUNTAIN GOLD COMPANY, a corporation duly organized and existing under the laws
of the State of Nevada (herein called the "Company"), having its principal
office at 333 Clay Street, 42nd Floor, Houston, Texas 77002, and THE BANK OF
NEW YORK, a New York state banking corporation, as Trustee (herein called the
"Trustee"), the office of the Trustee at which at the date hereof its corporate
trust business is principally administered being 101 Barclay Street, New York,
New York 10286.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
This Indenture is subject to the provisions of the Trust
Indenture Act and the rules and regulations of the Commission promulgated
thereunder that are required to be part of this Indenture and, to the extent
applicable, shall be governed by such provisions.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
-1-
<PAGE> 11
(2) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles in the United States, and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are
generally accepted in the United States at the date of such
computation; and
(3) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in
Section 102.
"Act", when used with respect to any Holder, has the meaning
specified in Section 105.
"Additional Amounts" means any additional amounts that are
required by a Security or by or pursuant to a Board Resolution, under
circumstances specified therein or pursuant thereto, to be paid by the Company
with respect to certain taxes, assessments or other governmental charges
imposed on certain Holders and that are owing to such Holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person, which may include the
Company, authorized by the Trustee to act on behalf of the Trustee pursuant to
Section 614 to authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in the place in connection with which
the term is used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
city meeting the foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form established
pursuant to Section 201 which is payable to bearer, including, without
limitation, unless the context otherwise indicates, a Security in temporary or
permanent global bearer form.
-2-
<PAGE> 12
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Book-Entry Security" has the meaning specified in Section 204.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment are authorized
or obligated by law or executive order to close.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs
Mobilieres S.A., or, if any time after the execution of this instrument,
Centrale de Livraison de Valeurs Mobilieres S.A. is not existing and performing
the duties now being performed by it, then the successor Person performing such
duties.
"Certification Date" means with respect to Securities of any
series (i) if Bearer Securities of such series are not to be initially
represented by a temporary global Security, the date of delivery of the
definitive Bearer Security and (ii), if Bearer Securities of such series are
initially represented by a temporary global Security, the earlier of (A) the
Exchange Date with respect to Securities of such series and (B), if the first
Interest Payment Date with respect to Securities of such series is prior to
such Exchange Date, such Interest Payment Date.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this instrument
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by its Chairman of
the Board, its
-3-
<PAGE> 13
President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Controller, an Assistant Controller, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Conversion Event" has the meaning specified in Section 501.
"Corporate Trust Office" means the principal office of the
Trustee in The Borough of Manhattan, The City of New York at which at any
particular time its corporate trust business shall be principally administered,
which office at the date hereof is that indicated in the introductory paragraph
of this Indenture.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of a global Security, the Person
designated as Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is
more than one such person, "Depositary" as used with respect to the Securities
of any series shall mean the Depositary with respect to the Securities of that
series.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debts.
"Euroclear" means the operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate" has the meaning specified in Section 501.
"Holder", when used with respect to any Security, means in the
case of a Registered Security the Person in whose name the Security is
registered in the Security Register and in the case of a Bearer Security the
bearer thereof and, when used with respect to any coupon, means the bearer
thereof.
"Indebtedness", as applied to any Person, means all
indebtedness, whether or not represented by bonds, debentures, notes or other
securities, created or assumed by such Person for the repayment of money
borrowed, and obligations, computed in accordance with generally accepted
accounting principles, as lessee under leases that should be, in accordance
with generally accepted accounting principles, recorded as capital leases. All
-4-
<PAGE> 14
Indebtedness of others guaranteed as to payment of principal by such Person or
in effect guaranteed by such Person through a contingent agreement to purchase
such Indebtedness shall for all purposes hereof be deemed to be Indebtedness of
such Person.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301 and the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Judgment Currency" has the meaning specified in Section 506.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
the Controller, the Secretary or an Assistant Treasurer, Assistant Controller
or Assistant Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for or an employee of the Company, rendered, if applicable, in
accordance with Section 314(c) of the Trust Indenture Act.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
-5-
<PAGE> 15
(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made; and
(iii) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether a
quorum is present at a meeting of Holders of Securities, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the principal amount thereof that would
be due and payable as of the date of such determination upon acceleration of
the Maturity thereof pursuant to Section 502, (b) the principal amount of a
Security denominated in a foreign currency shall be the U.S. dollar equivalent,
determined by the Company on the date of original issuance of such Security, of
the principal amount (or, in the case of an Original Issue Discount Security,
the U.S. dollar equivalent, determined on the date of original issuance of such
Security, of the amount determined as provided in (a) above), of such Security
and (c) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person, which may include the
Company, authorized by the Company to pay the principal of (and premium, if
any) or interest on any one or more series of Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
-6-
<PAGE> 16
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of (and premium,
if any) and interest on the Securities of that series are payable as specified
in accordance with Section 301 subject to the provisions of Section 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a
Security to which a mutilated, destroyed, lost or stolen coupon appertains,
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security or the Security to which a mutilated, destroyed, lost or stolen
coupon appertains, as the case may be.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security in the form
established pursuant to Section 201 which is registered in the Security
Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of any series means the date
specified for that purpose as contemplated by Section 301, or, if not so
specified, the last day of the calendar month preceding such Interest Payment
Date if such Interest Payment Date is the fifteenth day of the calendar month
or the fifteenth day of the calendar month preceding such Interest Payment Date
if such Interest Payment Date is the first day of a calendar month, whether or
not such day shall be a Business Day.
"Required Currency" has the meaning specified in Section 506.
"Responsible Officer", when used with respect to the Trustee,
means the Chairman or any Vice Chairman of the Board of Directors, the Chairman
or any Vice Chairman of the Executive Committee of the Board of Directors, the
Chairman of the Trust Committee, the President, any Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, the
Cashier, any Assistant Cashier, any Trust Officer or Assistant Trust Officer,
the Controller or any Assistant Controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
-7-
<PAGE> 17
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means Indebtedness of the Company,
whether currently outstanding or hereafter issued, which is not subordinated by
its terms in right of payment to any other unsecured Indebtedness of the
Company or ranks pari passu with subordinated Indebtedness of any series of the
Company; provided that "Senior Indebtedness" shall not include (i) Indebtedness
of the Company to any Subsidiary for money borrowed or advanced from such
Subsidiary or (ii) amounts owed (except to banks and other financial
institutions) for goods, materials or services purchased in the ordinary course
of business.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of any series means a date fixed by the
Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or coupon representing such installment of interest
as the fixed date on which the principal of such Security or such installment
of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed, except as
provided in Section 905.
"United States" means the United States of America (including
the States and the District of Columbia) and its "possessions", which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
-8-
<PAGE> 18
"United States Alien" means any Person who, for United States
federal income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien or foreign fiduciary of an estate or trust, or
a foreign partnership.
"U.S. Government Obligations" has the meaning specified in
Section 401.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Wholly Owned Subsidiary" means a corporation all the
outstanding voting stock (other than any directors' qualifying shares) of which
is owned, directly or indirectly, by the Company or by one or more other Wholly
Owned Subsidiaries, or by the Company and one or more other Wholly Owned
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Yield to Maturity", when used with respect to any Original
Issue Discount Security, means the yield to maturity, if any, set forth on the
face thereof.
SECTION 102. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust
Indenture Act, the provision is incorporated by reference in and made a part of
this Indenture. The following Trust Indenture Act terms used in this Indenture
have the following meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the
United States Code.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All the other Trust Indenture Act terms used in this Indenture
that are defined by the Trust Indenture Act, defined by Trust Indenture Act
reference to another
-9-
<PAGE> 19
statute or defined by Commission rule under the Trust Indenture Act and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 103. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
an Officers' Certificate stating that all conditions precedent, if any
(including any covenants the compliance with which constitutes a condition
precedent), provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any (including any covenants the
compliance with which constitutes a condition precedent), have been complied
with, except that in the case of any such application or request as to which
the furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each Person signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such Person,
such Person has made such examination or investigation as is necessary
to enable such Person to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each
such Person, such condition or covenant has been complied with.
SECTION 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
-10-
<PAGE> 20
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 105. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given by Holders of
such series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof, either in person
or by proxies duly appointed in writing, at a meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of
Article Fourteen, or a combination of such instruments and any such records.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered
to the Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or the holding of any Person of a Security, shall be sufficient
for any purpose of this Indenture and (subject to Section 601) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 1406.
The Company may set in advance a record date for purposes of
determining the identity of Holders of Registered Securities entitled to vote
or consent to any action by vote or consent authorized or permitted under this
Indenture, which record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders
furnished to the Trustee prior to such solicitation. If a record date is
fixed, those persons who were Holders of Outstanding Registered Securities at
such
-11-
<PAGE> 21
record date (or their duly designated proxies), and only those persons, shall
be entitled with respect to such Securities to take such action by vote or
consent or to revoke any vote or consent previously given, whether or not such
persons continue to be Holders after such record date. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice thereof to be given to the Trustee in writing in the manner
provided in Section 106 and to the relevant Holders as set forth in Section
107.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate of the Person holding
such Bearer Securities, if such certificate or affidavit is deemed by the
Trustee to be satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another certificate
bearing a later date issued in respect of the same Bearer Security is produced,
(2) such Bearer Security is produced to the Trustee by some other Person, (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security. Any Holder or subsequent Holder may revoke the request,
demand, authorization, direction, notice, consent or other Act as to his
Security or
-12-
<PAGE> 22
portion of his Security; provided, however, that such revocation shall be
effective only if the Trustee receives the notice of revocation before the date
the Act becomes effective.
SECTION 106. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it (a) in the case of Registered
Securities, at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company, Attention:
Corporate Secretary; and (b) in the case of Bearer Securities, at the
address of an office or agency located outside the United States
maintained by the Company in accordance with Section 1002.
SECTION 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of
Securities of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) (i) to Holders of Registered Securities if
in writing and mailed, first-class postage prepaid, to each Holder affected by
such event, at the address of such Holder as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice and (ii) to Holders of Bearer
Securities if published in an Authorized Newspaper in the City of New York and
London or other capital city in Western Europe and in such other city or cities
as may be specified in such Bearer Securities on a Business Day at least twice,
the first such publication to be not earlier than the earliest date, and not
later than the latest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service,
or by reason of any other cause it shall be impracticable to give such notice
to Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. In any case in which notice to
Holders of Registered Securities is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
of a Registered Security, shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided herein.
-13-
<PAGE> 23
In case by reason of the suspension of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be made
with the approval of the Trustee for such Securities shall constitute
sufficient notice to such Holders for every purpose hereunder. Neither the
failure to give notice by publication to Holders of Bearer Securities as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of any notice to Holders of Registered Securities given as provided
herein.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 108. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
any provision of the Trust Indenture Act or another provision hereof which is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision of the Trust Indenture Act shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, the former provision shall
be deemed to apply to this Indenture as so modified or to be excluded.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or in the Securities
(or any coupon appertaining thereto) shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
-14-
<PAGE> 24
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities (or any coupon
appertaining thereto), express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, any Authenticating Agent,
Paying Agent and Security Registrar, and the Holders and holders of any Senior
Indebtedness, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 113. Governing Law.
THIS INDENTURE AND THE SECURITIES (OR ANY COUPON APPERTAINING
THERETO) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities or coupons appertaining thereto) payment of principal and interest
(and premium and Additional Amounts, if any) need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, provided that no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.
SECTION 115. Corporate Obligation.
No recourse may be taken, directly or indirectly, against any
incorporator, subscriber to the capital stock, stockholder, officer, director
or employee of the Company or the Trustee or of any predecessor or successor of
the Company or the Trustee with respect to the Company's obligations on the
Securities or any coupons appertaining thereto or the obligations of the
Company or the Trustee under this Indenture or any certificate or other writing
delivered in connection herewith.
-15-
<PAGE> 25
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the
Bearer Securities, if any, of each series and related coupons appertaining
thereto shall be in substantially such form or forms (including temporary or
permanent global form) as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have such letters, numbers
or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or as may, consistently herewith, be determined by the officers executing such
Securities or coupons appertaining thereto, as evidenced by their execution of
the Securities or coupons appertaining thereto. If temporary Securities of any
series are issued in global form as permitted by Section 304, the form thereof
shall be established as provided in the preceding sentence. A copy of the
Board Resolution establishing the form or forms of Securities or coupons
appertaining thereto of any series (or any such temporary global Security)
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities (or any such temporary global Security) or coupons appertaining
thereto.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons appertaining thereto attached.
The definitive Securities and coupons appertaining thereto, if
any, shall be printed, lithographed or engraved on steel engraved borders or may
be produced in any other manner, all as determined by the officers executing
such Securities or coupons appertaining thereto, as evidenced by their
execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentification.
The Trustee's certificate of authentification shall be in
substantially the following form:
-16-
<PAGE> 26
"This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
The Bank of New York,
as Trustee
By ____________________________________
Authorized Signatory".
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, as
contemplated by Section 301, then, notwithstanding clause (10) of Section 301
and the provisions of Section 302, any such Security shall represent such of
the Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified in such
Security or in a Company Order to be delivered to the Trustee pursuant to
Section 303 or Section 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Security
in permanent global form in the manner and upon instructions given by the
Person or Persons specified in such Security or in the applicable Company
Order. If a Company Order pursuant to Section 303 or 304 has been, or
simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 103 and need not be accompanied by an
Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply
to any Security in global form if such Security was never issued and sold by
the Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 103 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of
(and premium, if any) and interest on any Security in permanent global form
shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company or of the
-17-
<PAGE> 27
Trustee shall treat a Person as the Holder of such principal amount of
Outstanding Securities represented by a global Security as shall be specified
in a written statement, if any, of the Holder of such global Security or, in
the case of a global Bearer Security, of Euroclear or CEDEL S.A., which is
produced to the Security Registrar by such Holder, Euroclear or CEDEL S.A., as
the case may be.
Global Securities may be issued in either registered or bearer
form and in either temporary or permanent form. Permanent global Securities
will be issued in definitive form.
SECTION 204. Book-Entry Securities.
Notwithstanding any provision of this Indenture to the
contrary:
(a) At the discretion of the Company, any Registered Security may
be issued from time to time, in whole or in part, in permanent global form
registered in the name of a Depositary, or its nominee. Each such Registered
Security in permanent global form is hereafter referred to as a "Book-Entry
Security". Upon such election, the Company shall execute, and the Trustee or
an Authenticating Agent shall authenticate and deliver, one or more Book-Entry
Securities that (i) are denominated in an amount equal to the aggregate
principal amount of the Outstanding Securities of such series, (ii) are
registered in the name of the Depositary or its nominee, (iii) are delivered by
the Trustee or an Authenticating Agent to the Depositary or pursuant to the
Depositary's instructions and (iv) bear a legend in substantially the following
form (or such other form as the Depositary and the Company may agree upon):
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF [THE DEPOSITARY], TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [NOMINEE
OF THE DEPOSITARY] OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF [THE DEPOSITARY] (AND ANY PAYMENT
IS MADE TO [NOMINEE OF THE DEPOSITARY] OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [THE
DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, [NOMINEE OF THE DEPOSITARY], HAS
AN INTEREST HEREIN.
-18-
<PAGE> 28
(b) Any Book-Entry Security shall be initially executed and
delivered as provided in Section 303. Notwithstanding any other provision of
this Indenture, unless and until it is exchanged in whole or in part for
Registered Securities not issued in global form, a Book-Entry Security may not
be transferred except as a whole by the Depositary to a nominee of such
Depositary, by a nominee of such Depositary to such Depositary or another
nominee of such Depositary, or by such Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(c) If at any time the Depositary notifies the Company or the
Trustee that it is unwilling or unable to continue as Depositary for any
Book-Entry Securities, the Company shall appoint a successor Depositary,
whereupon the retiring Depositary shall surrender or cause the surrender of its
Book-Entry Security or Securities to the Trustee. The Trustee shall promptly
notify the Company upon receipt of such notice. If a successor Depositary has
not been so appointed by the effective date of the resignation of the
Depositary, the Book-Entry Securities will be issued as Registered Securities
not issued in global form, in an aggregate principal amount equal to the
principal amount of the Book-Entry Security or Securities theretofore held by
the Depositary.
The Company may at any time and in its sole discretion
determine that the Securities shall no longer be Book-Entry Securities
represented by a global certificate or certificates, and will so notify the
Depositary. Upon receipt of such notice, the Depositary shall promptly
surrender or cause the surrender of its Book-Entry Security or Securities to
the Trustee. Concurrently therewith, Registered Securities not issued in
global form will be issued in an aggregate principal amount equal to the
principal amount of the Book-Entry Security or Securities theretofore held by
the Depositary.
Upon any exchange of Book-Entry Securities for Registered
Securities not issued in global form as set forth in this Section 204(c), such
Book-Entry Securities shall be cancelled by the Trustee, and Securities issued
in exchange for such Book-Entry Securities pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Book-Entry Securities, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee or
any Authenticating Agent shall deliver such Securities to the persons in whose
names such Securities are so registered.
(d) The Company and the Trustee shall be entitled to treat the
Person in whose name any Book-Entry Security is registered as the Holder
thereof for all purposes of the Indenture and any applicable laws,
notwithstanding any notice to the contrary received by the Trustee or the
Company; and the Trustee and the Company shall have no responsibility for
transmitting payments to, communication with, notifying, or otherwise dealing
with any beneficial owners of any Book-Entry Security. Neither the Company nor
the Trustee shall have any responsibility or obligations, legal or otherwise,
to the beneficial owners or to any other party including the Depositary, except
for the Holder of any Book-Entry Security, provided however, notwithstanding
anything herein to the contrary, (i) for the purposes of
-19-
<PAGE> 29
determining whether the requisite principal amount of Outstanding Securities
have given, made or taken any request, demand, authorization, direction,
notice, consent, waiver, instruction or other action hereunder as of any date,
the Trustee shall treat any Person specified in a written statement of the
Depositary with respect to any Book-Entry Securities as the Holder of the
principal amount of such Securities set forth therein and (ii) nothing herein
shall prevent the Company, the Trustee, or any agent of the Company or Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by a Depositary with respect to any Book-Entry Securities, or impair,
as between a Depositary and holders of beneficial interests in such Securities,
the operation of customary practices governing the exercise of the rights of
the Depositary as Holder of such Securities.
(e) So long as any Book-Entry Security is registered in the name
of a Depositary or its nominee, all payments of the principal of (and premium,
if any) and interest on such Book-Entry Security and redemption thereof and all
notices with respect to such Book Entry Security shall be made and given,
respectively, in the manner provided in the arrangements of the Company with
such Depositary.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all other
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 304, 305,
306, 906 or 1107);
(3) whether Securities of the series are to be issuable
as Registered Securities, Bearer Securities or both, whether any
Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series
-20-
<PAGE> 30
are to be issuable in permanent global form, as Book-Entry Securities
or otherwise, with or without coupons appertaining thereto and, if so,
whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and
of like tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other than
in the manner provided in Section 305, and the Depositary for any
global Security or Securities;
(4) the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature and the extent to which,
or the manner in which, any interest payable on a temporary global
Security on any Interest Payment Date will be paid if other than in
the manner provided in Section 304;
(5) the date or dates on which the principal of (and
premium, if any, on) the Securities of the series is payable or the
method of determination thereof;
(6) the rate or rates, or the method of determination
thereof, at which the Securities of the series shall bear interest, if
any, whether and under what circumstances Additional Amounts with
respect to such Securities shall be payable, the date or dates from
which such interest shall accrue, the Interest Payment Dates on which
such interest shall be payable and, if other than as set forth in
Section 101, the Regular Record Date for the interest payable on any
Registered Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions
of Section 1002, the principal of (and premium, if any), any interest
on and any Additional Amounts with respect to the Securities of the
series shall be payable;
(8) the period or periods within which, the price or
prices (whether denominated in cash, securities or otherwise) at which
and the terms and conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option of the Company, if the
Company is to have that option, and the manner in which the Company
must exercise any such option;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and the terms
and conditions upon which, Securities of the series shall be redeemed
or purchased in whole or in part pursuant to such obligation;
-21-
<PAGE> 31
(10) the denomination in which any Registered Securities
of that series shall be issuable, if other than denominations of
$1,000 and any integral multiple thereof, and the denomination in
which any Bearer Securities of that series shall be issuable, if other
than the denomination of $5,000;
(11) the currency or currencies (including composite
currencies) in which payment of the principal of (and premium, if
any), any interest on and any Additional Amounts with respect to the
Securities of the series shall be payable if other than the currency
of the United States of America;
(12) if the principal of (and premium,if any) or interest
on the Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in a currency or currencies (including
composite currencies) other than that in which the Securities are
stated to be payable, the currency or currencies (including composite
currencies) in which payment of the principal of (and premium, if any)
and interest on, and any Additional Amounts with respect to,
Securities of such series as to which such election is made shall be
payable, and the periods within which and the terms and conditions
upon which such election is to be made;
(13) if the amount of payments of principal of (and
premium if any), any interest on and any Additional Amounts with
respect to the Securities of the series may be determined with
reference to any commodities, currencies or indices, or values, rates
or prices, the manner in which such amounts shall be determined;
(14) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(15) any additional means of satisfaction and discharge of
this Indenture with respect to Securities of the series pursuant to
Section 401, any additional conditions to discharge pursuant to
Section 401 or 403 and the application, if any, of Section 403;
(16) any deletions or modifications of or additions to the
Events of Default set forth in Section 501 or covenants of the Company
set forth in Article Ten pertaining to the Securities of the series;
and
(17) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to the Board Resolution referred to
above and (subject to Section 303) set forth, or determined
-22-
<PAGE> 32
in the manner provided, in the Officers' Certificate referred to above or in
any such indenture supplemental hereto.
At the option of the Company, interest on the Registered
Securities of any series that bears interest may be paid by mailing a check
to the address of any Holder as such address shall appear in the Security
Register.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action together with such Board Resolution shall be certified by the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate setting forth the terms of
the series.
The Securities shall be subordinated in right of payment to
Senior Indebtedness as provided in Article Thirteen.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 301. In the
absence of any such provisions with respect to the Securities of any series,
the Registered Securities of such series denominated in Dollars shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of such series denominated in Dollars shall be issuable in
the denominations of $5,000 and any integral multiple thereof. Unless
otherwise provided as contemplated by Section 301 with respect to any series of
Securities, any Securities of a series denominated in a currency other than
Dollars shall be issuable in denominations that are the equivalent, as
determined by the Company by reference to the noon buying rate in The City of
New York for cable transfers for such currency, as such rate is reported or
otherwise made available by the Federal Reserve Bank of New York, on the
applicable issue date for such Securities, of $1,000 and any integral multiple
thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its President, its Treasurer or one of its Vice
Presidents, under its corporate seal reproduced thereon or affixed thereto
attested by its Secretary or one of its Assistant Secretaries. The signature
of any of these officers on the Securities may be manual or facsimile. Coupons
shall bear the facsimile signature of the Chairman of the Board, President,
Treasurer or any Vice President of the Company.
Securities and coupons appertaining thereto bearing the manual
or facsimile signatures of individuals who were at any time the proper officers
of the Company shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such
-23-
<PAGE> 33
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
together with any coupons appertaining thereto, executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise; provided, however, that, in
connection with its sale, during the "restricted period" (as defined in Section
1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations), no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States; and provided, further, that a Bearer Security may (other than a
temporary global security in bearer form delivered as provided in Section 304)
be delivered outside the United States in connection with its original issuance
and only if the Person entitled to receive such Bearer Security shall have
furnished a certificate in the form set forth in Exhibit A to this Indenture,
or in such other form of certificate as shall contain information then required
by federal income tax laws and, if applicable, federal securities laws, dated
no earlier than the Certification Date. If any Security shall be represented
by a permanent global Bearer Security, then, for purposes of this Section and
Section 304, the notation of a beneficial owner's interest therein upon
original issuance of such Security or upon exchange of a portion of a temporary
global Security shall be deemed to be delivery in connection with sale, during
the "restricted period" (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the
United States Treasury Regulations) of such beneficial owner's interest in such
permanent global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and cancelled.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established
by or pursuant to Board Resolution as permitted by Section 201, that
such form has been established in conformity with the provisions of
this Indenture;
(b) if the terms of such Securities have been established
by or pursuant to Board Resolution as permitted by Section 301, that
such terms have been established in conformity with the provisions of
this Indenture; and
(c) that such Securities, together with any coupons
appertaining thereto, when authenticated and delivered by the Trustee
and issued by the Company in the
-24-
<PAGE> 34
manner and subject to any conditions specified in such Opinion of
Counsel, will constitute legal, valid and binding obligations of the
Company, enforceable in accordance with their terms, except as such
enforcement is subject to the effect of (i) bankruptcy, insolvency,
reorganization or other laws relating to or affecting creditors'
rights and (ii) general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its
authentication; and each Bearer Security shall be dated as of the date of
issuance of the first Bearer Security of such series to be issued.
No Security or coupon or coupons appertaining thereto shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security, or the Security to which such
coupon appertains, a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309 together with a written statement (which need not
comply with Section 103 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu
of which they are issued, in registered form or, if authorized, in bearer form
with one or more coupons appertaining thereto or without coupons, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities. In the case of any series issuable as Bearer
Securities, such temporary Securities may be in global form. A temporary
Bearer Security shall be delivered only in compliance with the conditions set
forth in Section 303.
-25-
<PAGE> 35
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series (accompanied by any unmatured
coupons appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series; provided, however that no Bearer Security shall be issued in
exchange for a temporary Registered Security; and provided, further, that a
definitive Bearer Security (including interests in a permanent Global Security)
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303.
Any temporary global Bearer Security and any permanent global
Bearer Security shall, unless otherwise provided therein, be delivered to the
London office of a depositary or common depositary (the "Common Depositary")
for the benefit of Euroclear and CEDEL S.A. for credit to the respective
accounts of the beneficial owners of such Securities (or to such other accounts
as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Bearer Security of a series (the "Exchange Date"), the Company shall
deliver to the Trustee definitive Securities of that series in aggregate
principal amount equal to the principal amount of such temporary global Bearer
Security, executed by the Company. On or after the Exchange Date such
temporary global Bearer Security shall be surrendered by the Common Depositary
to the Trustee, as the Company's agent for such purpose, to be exchanged, in
whole or from time to time in part, for definitive Securities of that series
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Bearer Security, a like aggregate
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such temporary global Bearer
Security to be exchanged; provided however, that unless otherwise specified in
such temporary global Bearer Security, no such definitive Securities shall be
delivered unless, upon such presentation by the Common Depositary, such
temporary global Bearer Security is accompanied by a certificate dated the
Exchange Date or a subsequent date and signed by Euroclear as to the portion of
such temporary global Bearer Security held for its account then to be exchanged
and a certificate dated the Exchange Date or a subsequent date and signed by
CEDEL S.A. as to the portion of such temporary global Bearer Security held for
its account then to be exchanged, each in the form set forth in Exhibit B to
this Indenture. The definitive Securities to be delivered in exchange for any
such temporary global Bearer
-26-
<PAGE> 36
Security shall be in bearer form, registered form, permanent global bearer form
or permanent global registered form, or any combination thereof, as specified
as contemplated by Section 301, and if any combination thereof is so specified,
as requested by the beneficial owner thereof.
Unless otherwise specified in the temporary global Bearer
Security, the interest of a beneficial owner of Securities of a series in a
temporary global Bearer Security shall be exchanged on or after the Exchange
Date for definitive Securities (and where the form of the definitive Securities
is not specified by the Holder for an interest in a permanent global Security)
of the same series and of like tenor upon delivery by such beneficial owner to
Euroclear or CEDEL S.A., as the case may be, of a certificate in the form set
forth in Exhibit A to this Indenture dated no earlier than the Certification
Date, copies of which certificate shall be available from the offices of
Euroclear and CEDEL S.A., the Trustee, any Authenticating Agent appointed for
such series of Securities and each Paying Agent. Unless otherwise specified in
such temporary global Bearer Security, any exchange shall be made free of
charge to the beneficial owners of such temporary global Bearer Security,
except that a Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like in the event that such Person
does not take delivery of such definitive Securities in person at the offices
of Euroclear or CEDEL S.A. Definitive Securities in bearer form to be
delivered in exchange for any portion of a temporary global Bearer Security
shall be delivered only outside the United States.
All Outstanding temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as
definitive Securities of the same series and of like tenor authenticated and
delivered hereunder, except that, unless otherwise specified as contemplated by
Section 301, interest payable on a temporary global Bearer Security on an
Interest Payment Date for Securities of such series shall be payable to
Euroclear and CEDEL S.A. on such Interest Payment Date upon delivery by
Euroclear and CEDEL S.A. to the Trustee of a certificate or certificates in the
form set forth in Exhibit B to this Indenture, for credit without further
interest on or after such Interest Payment Date to the respective accounts of
the Persons who are the beneficial owners of such temporary global Bearer
Security on such Interest Payment Date and who have each delivered to Euroclear
or CEDEL S.A., as the case may be, a certificate in the form set forth in
Exhibit A to this Indenture. Any interest so received by Euroclear or CEDEL
S.A. and not paid as herein provided shall be returned to the Trustee
immediately prior to the expiration of two years after such Interest Payment
Date in order to be repaid to the Company in accordance with Section 1003.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept for each series of
Securities at one of the offices or agencies maintained pursuant to Section
1002 a register (the register maintained in such office and in any other office
or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
-27-
<PAGE> 37
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers of Registered Securities
of such series. The Trustee is hereby initially appointed "Security Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series and of like tenor, of any
authorized denominations and of a like aggregate principal amount.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series and
of like tenor, of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive. A
Holder of Registered Securities cannot have Bearer Securities issued in
exchange for such Registered Securities.
At the option of the Holder of Bearer Securities of any
series, such Bearer Securities may be exchanged for Registered Securities of
the same series of any authorized denominations and of a like aggregate
principal amount and tenor, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company in an
amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and
the Trustee if there is furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such
missing coupon in respect of which such a payment shall have been made, such
Holder shall be entitled to receive from the Company the amount of such
payment; provided, however, that, except as otherwise provided in Section 1002,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series and like tenor after the close of business at such
office or agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
-28-
<PAGE> 38
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent global Security are entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301,
then without unnecessary delay but in any event not later than the earliest
date on which such interests may be so exchanged, the Company shall deliver to
the Trustee definitive Securities of that series in an aggregate principal
amount equal to the principal amount of such permanent global Security,
executed by the Company. On or after the earliest date on which such interests
may be so exchanged, such permanent global Security shall be surrendered from
time to time in accordance with instructions given to the Trustee and the
Common Depositary (which instructions shall be in writing but need not comply
with Section 103 or be accompanied by an Opinion of Counsel) by the Common
Depositary or such other depositary or Common Depositary as shall be specified
in the Company Order with respect thereto to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or in part, for definitive
Securities of the same series without charge and the Trustee shall authenticate
and deliver, in exchange for each portion of such permanent global Security, a
like aggregate principal amount of other definitive Securities of the same
series of authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which, unless the Securities of the
series are not issuable both as Bearer Securities and as Registered Securities,
as specified as contemplated by Section 301, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15
days before any selection of Securities of that series is to be redeemed and
ending on the relevant Redemption Date; and provided, further, that no Bearer
Security delivered in exchange for a portion of a permanent global Security
shall be mailed or otherwise delivered to any location in the United States.
Promptly following any such exchange in part, such permanent global Security
shall be returned by the Trustee to the Common Depositary or such other
depositary or Common Depositary referred to above in accordance with the
instructions of the Company referred to above. If a Registered Security is
issued in exchange for any portion of a permanent global Security after the
close of business at the office or agency where such exchange occurs on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related
-29-
<PAGE> 39
proposed date for payment of Defaulted Interest, interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with
the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchange pursuant to Section 304, 906 or 1107 not
involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of such series selected for redemption and ending at
the close of business on (A) if Securities of the series are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if Securities of the series are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption, except that if Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part or (iii) to exchange
any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated
coupon appertaining to it is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like
-30-
<PAGE> 40
tenor and principal amount and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to
the surrendered Security.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon appertaining thereto and (ii) such security or indemnity as
may be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that
such Security or coupon has been acquired by a bona fide purchaser, the Company
shall execute and upon its request the Trustee shall authenticate and deliver,
in lieu of any such destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not destroyed, lost or stolen), a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security
or coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security; provided,
however, that the principal of and any premium and interest on Bearer
Securities shall, except as otherwise provided in Section 1002, be payable only
at an office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fee and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen
Security and its coupons, if any, or the destroyed, lost or stolen coupons
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities
or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of
-31-
<PAGE> 41
business on the Regular Record Date for such interest. Interest on any Bearer
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the bearer of the applicable coupon
appertaining to such Bearer Security. Unless otherwise provided with respect
to the Securities of any series, payment of interest may be made at the option
of the Company (i) in the case of Registered Securities, by check mailed or
delivered to the address of any Person entitled thereto as such address shall
appear in the Security Register, or (ii) in the case of Bearer Securities,
except as otherwise provided in Section 1002, upon presentation and surrender
of the appropriate coupon appertaining thereto at an office or agency of the
Company in a Place of Payment located outside the United States or by transfer
to an account maintained by the payee with a bank located outside the United
States.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to
each Holder of Registered Securities of such series at his address as
it appears in the Security Register, not less than 10 days prior to
such Special Record Date. The Trustee may, in its discretion, in the
name and at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper, but such
publication shall not be a condition precedent to the establishment of
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the
-32-
<PAGE> 42
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Registered Securities of any series in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture, upon registration of transfer of, in
exchange for or in lieu of, any other Security, shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to
Sections 305 and 307) interest on such Registered Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment,
redemption, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee. All Registered Securities and matured
coupons so delivered shall be promptly cancelled by the Trustee. All Bearer
Securities and unmatured coupons so delivered shall be held by the Trustee and,
upon
-33-
<PAGE> 43
instruction by a Company Order, shall be cancelled or held for reissuance.
Bearer Securities and unmatured coupons held for reissuance may be reissued
only in replacement of mutilated, lost, stolen or destroyed Bearer Securities
of the same series and like tenor or the related coupons pursuant to Section
306. All Bearer Securities and unmatured coupons held by the Trustee pending
such cancellation or reissuance shall be deemed to be delivered to the Trustee
for all purposes of this Indenture and the Securities. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or
in exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of as directed by a Company Order; provided that the
Trustee shall not be required to destroy such Securities.
In the case of any temporary global Bearer Security, which
shall be disposed of if the entire aggregate principal amount of the Securities
represented thereby has been exchanged, the certificate of disposition shall
state that all certificates required pursuant to Section 304 hereof,
substantially in the form of Exhibit B hereto, to be given by Euroclear or
CEDEL S.A., have been duly presented to the Trustee for such Securities by
Euroclear or CEDEL S.A., as the case may be. Permanent global Securities shall
not be disposed of until exchanged in full for definitive Securities or until
payment thereon is made in full.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a year of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers
in notices of redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect with respect to Securities of a series, and the Trustee, at the
expense of the Company, shall
-34-
<PAGE> 44
execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to Securities of such series, when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 305,
(ii) Securities and coupons which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 306, (iii) coupons appertaining to Bearer Securities
called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided
in Section 1106, and (iv) Securities and coupons for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(B) with respect to all Outstanding Securities of
such series and any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation, the
Company has deposited or caused to be deposited with the
Trustee as trust funds, under the terms of an irrevocable
trust agreement in form and substance satisfactory to the
Trustee, for the purpose money or U.S. Government Obligations
maturing as to principal and interest in such amounts and at
such times as will, together with the income to accrue
thereon, without consideration of any reinvestment thereof, be
sufficient to pay and discharge the entire indebtedness on all
Outstanding Securities of such series and coupons appertaining
thereto not theretofore delivered to the Trustee for
cancellation for principal (and premium and Additional
Amounts, if any) and interest to the Stated Maturity or any
Redemption Date contemplated by the penultimate paragraph of
this Section, as the case may be; or
(C) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as
contemplated by Section 301, to be applicable to the
Securities of such series;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company with respect to the Outstanding
Securities of such series;
(3) the Company has complied with any other conditions
specified pursuant to Section 301 to be applicable to the discharge of
Securities of such series pursuant to this Section 401;
-35-
<PAGE> 45
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture with respect to the Outstanding
Securities of such series have been complied with;
(5) if the conditions set forth in Section 401(1)(A) have
not been satisfied, and unless otherwise specified pursuant to Section
301 for the Securities of such series, the Company has delivered to
the Trustee an Opinion of Counsel to the effect that the Holders of
Securities of such series will not recognize income, gain or loss for
United States federal income tax purposes as a result of such deposit,
satisfaction and discharge and will be subject to United States
federal income tax on the same amount and in the same manner and at
the same time as would have been the case if such deposit,
satisfaction and discharge had not occurred; and
(6) no Default or Event of Default with respect to the
Securities of such issue shall have occurred and be continuing on the
date of such deposit or, in so far as clauses (5) or (6) of Section
501 is concerned, at any time in the period ending on the 91st day
after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
For the purposes of this Indenture, "U.S. Government
Obligations" means direct non-callable obligations of, or non-callable
obligations the payment of principal of and interest on which is guaranteed by,
the United States of America, or to the payment of which obligations or
guarantees the full faith and credit of the United States of America is
pledged, or beneficial interests in a trust the corpus of which consists
exclusively of money or such obligations or a combination thereof.
If any Outstanding Securities of such series are to be
redeemed prior to their Stated Maturity, whether pursuant to any optional
redemption provisions or in accordance with any mandatory sinking fund
requirement, the trust agreement referred to in subclause (B) of clause (1) of
this Section shall provide therefor and the Company shall make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
Notwithstanding the satisfaction and discharge of this
Indenture with respect to the Outstanding Securities of such series pursuant to
this Section 401, the obligations of the Company to the Trustee under Section
607, the obligations of the Trustee to any Authenticating Agent under Section
614 and, except for a discharge pursuant to subclause (A) of clause (1) of this
Section, the obligations of the Company under Sections 305, 306, 404, 610(e),
701, 1001 and 1002 and the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003 shall survive.
-36-
<PAGE> 46
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities, the coupons and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium, if any) and interest and Additional Amounts for the payment of
which such money has been deposited with the Trustee.
SECTION 403. Discharge of Liability on Securities of Any Series.
If this Section is specified, as contemplated by Section 301,
to be applicable to Securities of any series, the Company shall be deemed to
have paid and discharged the entire indebtedness on all the Outstanding
Securities of such series, the obligation of the Company under this Indenture
and the Securities of such series to pay the principal of (and premium, if any)
and interest on Securities of such series, and any coupon appertaining thereto,
shall cease, terminate and be completely discharged and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging such
satisfaction and discharge, when
(1) the Company has complied with the provisions of
Section 401 of this Indenture (other than any additional conditions
specified pursuant to Sections 301 and 401(3) and except that the
opinion referred to in Section 401(5) shall state that it is based on
a ruling by the Internal Revenue Service or other change since the
date hereof under applicable Federal income tax law) with respect to
all Outstanding Securities of such series,
(2) the Company has delivered to the Trustee a Company
Request requesting such satisfaction and discharge,
(3) the Company has complied with any other conditions
specified pursuant to Section 301 to be applicable to the discharge of
Securities of such series pursuant to this Section 403, and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the discharge of
the indebtedness on the Outstanding Securities of such series have
been complied with.
Upon the satisfaction of the conditions set forth in this
Section with respect to all the Outstanding Securities of any series, the terms
and conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that, the Company shall
-37-
<PAGE> 47
not be discharged from any payment obligations in respect of Securities of such
series which are deemed not to be Outstanding under clause (iii) of the
definition thereof if such obligations continue to be valid obligations of the
Company under applicable law or pursuant to Section 305 or 306.
SECTION 404. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations deposited with respect to Securities of any series
in accordance with Section 401 by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture with respect to the Securities of such series
and the Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 401 until such time as the Trustee or
Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 401; provided, however, that if the
Company has made any payment of principal of (or premium, if any), or interest
on and any Additional Amounts with respect to any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money or
U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in or pursuant to
the supplemental indenture or Board Resolution establishing such series of
Securities or in the form of Security for such series:
(1) default in the payment of any interest or any
Additional Amounts upon any Security of that series when such interest
or Additional Amounts become due and payable, and continuance of such
default for a period of 30 days (whether or not such payment shall be
prohibited by the provisions of Article Thirteen); or
-38-
<PAGE> 48
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its Maturity
(whether or not such payment shall be prohibited by the provisions of
Article Thirteen); or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series (whether or
not such payment shall be prohibited by the provisions of Article
Thirteen); or
(4) default in the performance or breach of any covenant
or warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more
series of Securities other than that series), and continuance of such
default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of all Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Company a bankrupt or insolvent,
or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(6) the commencement by the Company of a voluntary case
or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect
of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it, of a
petition or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay
its debts generally as they
-39-
<PAGE> 49
become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(7) any other Event of Default provided with respect to
Securities of that series (including, without limitation, any Event of
Default arising out of a default which results in the acceleration of
certain indebtedness or a default in the payment of any amounts due on
certain indebtedness).
Notwithstanding the foregoing provisions of this Section 501,
if the principal of (and premium, if any) or any interest on, or Additional
Amounts with respect to, any Security is payable in a currency or currencies
(including a composite currency) other than Dollars and such currency (or
currencies) is (or are) not available to the Company for making payment thereof
due to the imposition of exchange controls or other circumstances beyond the
control of the Company (a "Conversion Event"), the Company will be entitled to
satisfy its obligations to Holders of the Securities by making such payment in
Dollars in an amount equal to the Dollar equivalent of the amount payable in
such other currency, as determined by the Company by reference to the noon
buying rate in The City of New York for cable transfers for such currency
("Exchange Rate"), as such Exchange Rate is certified for customs purposes by
the Federal Reserve Bank of New York on the date of such payment, or, if such
rate is not then available, on the basis of the most recently available
Exchange Rate. Notwithstanding the foregoing provisions of this Section 501,
any payment made under such circumstances in Dollars where the required payment
is in a currency other than Dollars will not constitute an Event of Default
under this Indenture.
Promptly after the occurrence of a Conversion Event, the
Company shall give written notice thereof to the Trustee; and the Trustee,
promptly after receipt of such notice, shall give notice thereof in the manner
provided in Section 106 to the Holders. Promptly after the making of any
payment in Dollars as a result of a Conversion Event, the Company shall give
notice in the manner provided in Section 106 to the Holders, setting forth the
applicable Exchange Rate and describing the calculation of such payments.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any Securities of any
series at the time Outstanding occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of (i) the series affected by such default (in the case
of an Event of Default described in clause (1), (2), (3) or (7) of Section 501)
or (ii) all series of Securities (subject to the immediately following
sentence, in the case of other Events of Default) may declare the principal
amount (or, if any such Securities are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that
series) of all of the Securities of the series affected by such default or all
series, as the case may be, to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
-40-
<PAGE> 50
immediately due and payable. If an Event of Default described in clause (5) or
(6) of Section 501 shall occur, the principal amount of the Outstanding
Securities of all series ipso facto shall become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder.
At any time after such a declaration of acceleration with
respect to Securities of any series (or of all series, as the case may be) has
been made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in principal amount of the Outstanding Securities of that series (or
of all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue interest on, and any Additional
Amounts with respect to, all Securities of that series (or of
all series, as the case may be) and any coupons appertaining
thereto,
(B) the principal of (and premium, if any, on)
any Securities of that series (or of all series, as the case
may be) which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
or rates prescribed therefor in such Securities (in the case
of Original Issue Discount Securities, the Securities' Yield
to Maturity),
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest and any Additional
Amounts at the rate or rates prescribed therefor in such
Securities (in the case of Original Issue Discount Securities,
the Securities' Yield to Maturity), and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of
that series (or of all series, as the case may be), other than the
non-payment of the principal of Securities of that series (or of all
series, as the case may be) which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
-41-
<PAGE> 51
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on, or any Additional Amounts with respect to, any Security
of any series and any coupons appertaining thereto when such interest
or Additional Amounts shall have become due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, the whole amount then due and payable
on such Securities and coupons for principal (and premium, if any) and interest
and Additional Amounts and, to the extent that payment of such interest shall
be legally enforceable, interest on any overdue principal (and premium, if any)
and on any overdue interest and Additional Amounts, at the rate or rates
prescribed therefor in such Securities (or in the case of Original Issue
Discount Securities, the Securities' Yield to Maturity), and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series and any related coupons by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of
-42-
<PAGE> 52
whether the principal (or lesser amount in the case of Original Issue Discount
Securities) of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal (premium, if any), interest or Additional Amounts) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (or lesser amount in the case of Original Issue Discount
Securities) (and premium, if any) and interest and any Additional
Amounts owing and unpaid in respect of the Securities or any coupons
appertaining thereto and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceedings;
provided, however, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claim under this Indenture or the
Securities or coupons may be prosecuted and enforced by the Trustee without
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
-43-
<PAGE> 53
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any), interest or any Additional Amounts, upon presentation of
the Securities or coupons, or both as the case may be, and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest and any Additional
Amounts on the Securities and coupons in respect of which or for the
benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities and coupons for principal (and premium, if
any), interest and Additional Amounts, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
To the fullest extent allowed under applicable law, if for the
purpose of obtaining judgment against the Company in any court it is necessary
to convert the sum due in respect of the principal of (or premium, if any) or
interest on the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Business Day next
preceding that on which final judgment is given. Neither the Company nor the
Trustee shall be liable for any shortfall nor shall it benefit from any
windfall in payments to Holders of Securities under this Section caused by a
change in exchange rates between the time the amount of a judgment against it
is calculated as above and the time the Trustee converts the Judgment Currency
into the Required Currency to make payments under this Section to Holders of
Securities, but payment of such judgment shall discharge all amounts owed by
the Company on the claim or claims underlying such judgment.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) an Event of Default with respect to Securities of
such series shall have occurred and be continuing and such Holder has
previously given written notice to the Trustee of such continuing
Event of Default;
-44-
<PAGE> 54
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest on and any Additional Amounts with respect to
such Security or payment of such coupon on the Stated Maturity or Maturities
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding has been instituted.
-45-
<PAGE> 55
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities or coupons to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.
SECTION 512. Control by Holders.
With respect to Securities of any series, the Holders of a
majority in principal amount of the Outstanding Securities of such series shall
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, relating to or arising under an Event of
Default described in clause (1), (2), (3) or (7) of Section 501, and with
respect to all Securities the Holders of a majority in principal amount of all
Outstanding Securities shall have the right to direct the time, method and
place of conducting any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee, not relating to or arising under such
an Event of Default, provided that in each such case
(1) such direction shall not be in conflict with any rule
of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, and the Holders of a majority in principal amount
of all Outstanding Securities may on behalf of the Holders of
-46-
<PAGE> 56
all Securities waive any other past default hereunder and its consequences,
except in each case a default
(1) in the payment of the principal of (or premium, if
any) or interest on, or any Additional Amounts with respect to, any
Security, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security or coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest on, or any Additional Amounts
with respect to, any Security or the payment of any coupon on or after the
Stated Maturity or Maturities expressed in such Security or coupon (or, in the
case of redemption, on or after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
-47-
<PAGE> 57
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default
with respect to the Securities of any series,
(1) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing with respect to the Securities of any series, the Trustee
shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except
that
(1) this Subsection shall not be construed to
limit the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of a majority
in principal amount of the Outstanding Securities of any
series or of all series, determined as provided in Section
512, relating to the time, method and place of conducting any
proceeding for any remedy
-48-
<PAGE> 58
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect
to the Securities of such series; and
(4) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to the Securities of any series, the Trustee shall give notice of
such default hereunder known to the Trustee to all Holders of Securities of
such series in the manner provided in Section 106, unless such default shall
have been cured or waived; provided, however, that, except in the case of a
default in the payment of the principal of (or premium, if any) or interest on,
or any Additional Amounts with respect to, any Security of such series or in
the payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
-49-
<PAGE> 59
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon, other
evidence of indebtedness or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
-50-
<PAGE> 60
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and coupons and,
subject to Sections 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the reasonable expenses and disbursements
of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of, premium, if
any, or interest, if any, on, or any Additional Amounts with respect to,
particular Securities.
-51-
<PAGE> 61
Any expenses and compensation for any services rendered by the
Trustee after the occurrence of an Event of Default specified in clause (5) or
(6) of Section 501 shall constitute expenses and compensation for services of
administration under all applicable federal or state bankruptcy, insolvency,
reorganization or other similar laws.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest,
as defined in this Section, with respect to the Securities of any series, it
shall, within 90 days after ascertaining that it has such conflicting interest,
either eliminate such conflicting interest or resign with respect to the
Securities of that series in the manner and with the effect hereinafter
specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the Securities of
any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit by mail to all Holders of Securities of that series, as
their names and addresses appear in the Security Register, notice of such
failure.
(c) For the purposes of this Section, the term "conflicting
interest" shall have the meaning specified in Section 310(b) of the Trust
Indenture Act and the Trustee shall comply with Section 310(b) of the Trust
Indenture Act; provided, that there shall be excluded from the operation of
Section 310(b)(1) of the Trust Indenture Act with respect to the Securities of
any series the Indenture dated as of _______________ between the Company and
the Trustee relating to the Company's senior debt securities, this Indenture
with respect to the Securities of any series other than that series and any
other indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Company are outstanding,
if the requirements for such exclusion set forth in Section 310(b)(1) of the
Trust Indenture Act are met. For purposes of the preceding sentence, the
optional provision permitted by the second sentence of Section 310(b)(9) of the
Trust Indenture Act shall be applicable.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
Federal or State authority. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and
-52-
<PAGE> 62
surplus as set forth in its most recent report of condition so published. If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the resigning Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a)
after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request therefor by the
Company or by any such Holder of Securities, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities
-53-
<PAGE> 63
of one or more series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the Securities of that
or those series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and such successor Trustee or Trustees
shall comply with the applicable requirements of Section 611. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 611, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid,
to all Holders of Securities of such series as their names and addresses appear
in the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and
-54-
<PAGE> 64
each successor Trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to,
and to vest in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such
supplemental indenture, the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the
-55-
<PAGE> 65
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. A Trustee who has resigned or been removed shall
be subject to Section 311(a) of the Trust Indenture Act to the extent indicated
therein.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents
which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issue and upon exchange, registration of
transfer or partial redemption or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia, or in
the case of an Authenticating Agent with respect to Securities issuable as
Bearer Securities, under the laws of any country in which such Bearer
Securities may be offered, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 or
equivalent amount expressed in a foreign currency and subject to supervision or
examination by Federal or State authority or authority of such country. If
such Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating
Agent.
-56-
<PAGE> 66
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to
the provisions of Section 607.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternate certificate of authentication in the following
form:
"This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
The Bank of New York,
as Trustee
By ___________________________,
as Authenticating Agent
By ___________________________
Authorized Signatory".
Notwithstanding any provision of this Section 614 to the
contrary, if at any time any Authenticating Agent appointed hereunder with
respect to any series of Securities shall not also be acting as the Security
Registrar hereunder with respect to any series of Securities, then, in addition
to all other duties of an Authenticating Agent hereunder, such Authenticating
Agent shall also be obligated: (i) to furnish to the Security Registrar
-57-
<PAGE> 67
promptly all information necessary to enable the Security Registrar to maintain
at all times an accurate and current Security Register; and (ii) prior to
authenticating any Security denominated in a foreign currency, to ascertain
from the Company the units of such foreign currency that are required to be
determined by the Company pursuant to Section 302.
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will
furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular
Record Date relating to that series (or, if there is no Regular Record Date
relating to that series, on January 1 and July 1), a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
that series as of such dates, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content, such list to be dated as of a date not more than 15
days prior to the time such list is furnished;
provided, that so long as the Trustee is the Security Registrar, the Company
shall not be required to furnish or cause to be furnished such a list to the
Trustee.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of each series
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of each series received by
the Trustee in its capacity as Security Registrar. The Trustee may destroy any
list furnished to it as provided in Section 701 upon receipt of a new list so
furnished.
(b) Holders of Securities may communicate pursuant to the Trust
Indenture Act with other Holders with respect to their rights under this
Indenture or under the Securities.
(c) Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with Section 702(b), regardless of
the source from which such information was derived, and that the
-58-
<PAGE> 68
Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the
year 1994, the Trustee shall transmit by mail to Holders a brief report dated
as of such May 15 that complies with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313 (b) of the Trust
Indenture Act.
(c) Reports pursuant to this Section shall be transmitted by mail:
(1) to all Holders of Registered Securities, as the names
and addresses of such Holders appear in the Security Register;
(2) to such Holders of Securities as have, within the two
years preceding such transmissions, filed their names and addresses
with the Trustee for that purpose; and
(3) except in the case of reports pursuant to Subsection
(b) of this Section, to each Holder of a Security whose name and
address is preserved at the time by the Trustee, as provided in
Section 702(a).
(d) A copy of each report pursuant to Subsection (a) or (b) of
this Section 703 shall, at the time of its transmission to Holders, be filed by
the Trustee with each stock exchange upon which any Securities are listed, with
the Commission and with the Company. The Company will notify the Trustee when
any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee, within 15 days after
the Company is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended, and shall otherwise comply with
Section 314(a) of the Trust Indenture Act.
-59-
<PAGE> 69
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, unless:
(1) the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or
trust, shall be organized and existing under the laws of the United
States and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of (and
premium, if any) and interest (including all Additional Amounts, if
any) on all the Securities and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction,
no Event of Default, and no event which, after notice or lapse of time
or both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except
in the case of such lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities and coupons.
-60-
<PAGE> 70
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities and any
coupons appertaining thereto (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series), to convey, transfer, assign, mortgage or pledge any property
to or with the Trustee or otherwise secure any series of the
Securities or to surrender any right or power herein conferred upon
the Company; or
(3) to add any additional Events of Default with respect
to all or any series of the Securities (and, if such Event of Default
is applicable to less than all series of Securities, specifying the
series to which such Event of Default is applicable); or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form, provided
that any such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any
material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
adversely affected by such change in or elimination of such provision;
or
-61-
<PAGE> 71
(6) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(7) to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Section 401; provided, however, that any such action shall not
adversely affect the interest of the Holders of Securities of such
series or any other series of Securities in any material respect; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided such other
provisions as may be made shall not adversely affect the interests of
the Holders of Securities of any series or any related coupons in any
material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of a majority in principal
amount of the Outstanding Securities of all series affected by such
supplemental indenture (acting as one class), by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
and any related coupons under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest thereon,
any Additional Amounts with respect thereto or any premium payable
upon the redemption thereof, or change any obligation of the Company
to pay Additional Amounts (except as contemplated by Section 801(1)
and permitted by Section 901(1)), or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the
coin or currency or currencies (including composite currencies) in
which, any Security or any premium or any interest thereon or
-62-
<PAGE> 72
Additional Amounts with respect thereto is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or
(2) reduce the percentage in principal amount of
Outstanding Securities, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section
513 or Section 1008, except to increase any such percentage or to
provide with respect to any particular series the right to condition
the effectiveness of any supplemental indenture as to that series on
the consent of the Holders of a specified percentage of the aggregate
principal amount of Outstanding Securities of such series (which
provision may be made pursuant to Section 301 without the consent of
any Holder) or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby, provided,
however, that this clause shall not be deemed to require the consent
of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1008, or
the deletion of this proviso, in accordance with the requirements of
Sections 611 (b) and 901(7).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or liabilities under this
Indenture or otherwise.
-63-
<PAGE> 73
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series and any coupons appertaining
thereto so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series and any coupons appertaining thereto.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of (and
premium, if any), interest on and any Additional Amounts with respect to the
Securities of that series in accordance with the terms of the Securities, any
coupons appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to any series of Securities, any
interest due on and Additional Amounts payable with respect to Bearer
Securities on or before Maturity shall be payable only upon presentation and
surrender of the several coupons for such interest installments, as are
evidenced thereby as they severally mature.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where
-64-
<PAGE> 74
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. If Securities of a
series are issuable as Bearer Securities, the Company will maintain (A) in The
Borough of Manhattan, The City of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered
for exchange for Registered Securities, where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served and where Bearer Securities of that series and related coupons may be
presented or surrendered for payment in the circumstances described in the
following paragraph (and not otherwise), (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Bearer Securities of that
series and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts with respect to Bearer Securities
of that series); provided, however, that if the Securities of that series are
listed on the International Stock Exchange of the United Kingdom and the
Republic of Ireland Limited, the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of that series are
listed on such exchange, and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located outside the United
States an office or agency where any Registered Securities of that series may
be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of that series and the
related coupons may be presented and surrendered for payment (including payment
of any Additional Amounts with respect to Bearer Securities of that series) at
the office of any Paying Agent for such series located outside the United
States, and the Company hereby appoints the Trustee as its office or agency to
receive such presentations, surrenders, notices and demands.
No payment of principal, premium or interest on, or Additional
Amounts with respect to, Bearer Securities shall be made at any office or
agency of the Company in the United States or by check mailed to any address in
the United States or by transfer to an account maintained with a bank located
in the United States, nor shall any payments be made in respect of Bearer
Securities or coupons appertaining thereto pursuant to the presentation to the
Company or its designated Paying Agents within the United States; provided,
however, that, if the Securities of a series are denominated and payable in
Dollars,
-65-
<PAGE> 75
payment of principal of and any premium and interest on any Bearer Security
(including any Additional Amounts payable on Securities of such series) shall
be made at the office of the Company's Paying Agent in The Borough of
Manhattan, The City of New York, if (but only if) payment in Dollars of the
full amount of such principal, premium, interest or Additional Amounts, as the
case may be, at all offices or agencies outside the United States maintained
for the purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
SECTION 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities and any coupons appertaining thereto,
it will, on or before each due date of the principal of (and premium, if any)
or interest on or any Additional Amounts with respect to any of the Securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons appertaining thereto, the
Company will, on or before each due date of the principal of (and premium, if
any) or interest on any Securities of that series, deposit with a Paying Agent
a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any), interest on or any Additional
Amounts with respect to Securities
-66-
<PAGE> 76
of that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in the
making of any payment of principal (and premium, if any), interest on
or any Additional Amounts with respect to the Securities of that
series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which sums were held by the Company
or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Security of any series and remaining
unclaimed for three years after such principal (and premium, if any) or
interest has become due and payable shall, unless otherwise required by
mandatory provisions of applicable escheat, or abandoned or unclaimed property
law, be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
and coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in an Authorized Newspaper in The Borough of Manhattan, The City of New
York, notice that such money remains unclaimed and that, after a date specified
herein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will, unless otherwise
required by mandatory provisions of applicable escheat, or abandoned or
unclaimed property law, be repaid to the Company.
-67-
<PAGE> 77
SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
Subsidiary or upon the income, profits or property of the Company or any
Subsidiary, and (2) all material lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Company or any Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1007. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof so long
as any Security is outstanding hereunder, an Officers' Certificate, stating
that a review of the activities of the Company during such year and of
performance under this Indenture has been made under the supervision of the
signers thereof and whether or not to the best of their knowledge, based upon
such review, the Company is in default in the performance, observance or
fulfillment of any of its covenants and other obligations under this Indenture,
and if the Company shall be in default, specifying each such default known to
them and the nature and status thereof. One of the officers signing the
Officers' Certificate delivered pursuant to this Section 1007 shall be the
principal executive, financial or accounting officer of the Company.
-68-
<PAGE> 78
For purposes of this Section, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Sections 1004 to 1006, inclusive, or any
covenant added for the benefit of any series of Securities as contemplated by
Section 301 (unless otherwise specified pursuant to Section 301) if before or
after the time for such compliance the Holders of a majority in principal
amount of the Outstanding Securities of all series affected by such omission
(acting as one class) shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in full force
and effect.
SECTION 1009. Additional Amounts.
If the Securities of a series provide for the payment of
Additional Amounts, the Company will pay to the Holder of any Security of such
series or any coupon appertaining thereto Additional Amounts as provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of or any premium or interest on, or in respect of,
any Security of any series or payment of any related coupon or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of Additional Amounts
provided for in this Section to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof pursuant to the
provisions of this Section and express mention of the payment of Additional
Amounts (if applicable) in any provisions hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where such express
mention is not made.
If the Securities of a series provide for the payment of
Additional Amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Securities (or if the Securities of that series
will not bear interest prior to Maturity, the first day on which a payment of
principal and any premium is made), and at least 10 days prior to each date of
payment of principal and any premium or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company shall furnish the Trustee and the Company's principal
Paying Agent or Paying Agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
or any related coupons who are United States Aliens without withholding for or
on account of any tax, assessment or other governmental charge described in the
Securities of
-69-
<PAGE> 79
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities or coupons and the
Company will pay to such Paying Agent the Additional Amounts required by this
Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out
of or in connection with actions taken or omitted by any of them in reliance on
any Officers' Certificate furnished pursuant to this Section.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series
to be redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series or of the
principal amount of global Securities of such series.
-70-
<PAGE> 80
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 107 to each Holder of Securities to be redeemed not less than 30 nor
more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be redeemed
and, if applicable, that interest thereon will cease to accrue on and
after said date,
(5) the place or places where such Securities, together
in the case of Bearer Securities with all coupons appertaining
thereto, are to be surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is
the case,
(7) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for redemption
must be accompanied by all coupons appertaining thereto maturing
subsequent to the date fixed for redemption or the amount of any such
missing coupon or coupons will be deducted from the Redemption Price
or security or indemnity satisfactory to the Company, the Trustee and
any Paying Agent is furnished,
(8) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be redeemed,
and if such Bearer
-71-
<PAGE> 81
Securities may be exchanged for Registered Securities not subject to
redemption on such Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made, and
(9) the "CUSIP" number, if applicable.
A notice of redemption as contemplated by Section 107 need not
identify particular Registered Securities to be redeemed. Notice of redemption
of Securities to be redeemed at the election of the Company shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or before any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, and any
Additional Amounts with respect to, all the Securities which are to be redeemed
on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be redeemed. Upon surrender of any such Security
for redemption in accordance with said notice, together with all coupons
appertaining thereto, if any, appertaining thereto maturing after the
Redemption Date, such Security shall be paid by the Company at the Redemption
Price, together with accrued interest (and any Additional Amounts) to the
Redemption Date; provided, however, that all payments on Bearer Securities
shall be made only in the manner provided in Section 1002 for payments on
Bearer Securities; and provided further, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons appertaining thereto maturing after the
Redemption Date, such Security may be paid after deducting from the Redemption
Price an amount equal to the face amount of all such missing coupons
appertaining thereto, or the surrender of such missing coupon or coupons
appertaining thereto may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save
-72-
<PAGE> 82
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest (and any Additional Amounts with respect
thereto) represented by coupons appertaining thereto shall be payable only at
an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons appertaining
thereto.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security or, in the case of Original Issue Discount
Securities, the Securities' Yield to Maturity.
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part
shall be surrendered at a Place of Payment therefor (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Registered Security or Securities
of the same series and Stated Maturity, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
SECTION 1108. Purchase of Securities.
Unless otherwise specified as contemplated by Section 301, the
Company and any Affiliate of the Company may at any time purchase or otherwise
acquire Securities or coupons appertaining thereto in the open market or by
private agreement; provided that purchases or other acquisitions of Bearer
Securities or coupons appertaining thereto by the Company or any Affiliate of
the Company may be made only outside the United States, and payments therefor
may be made only upon surrender of such Bearer Securities or coupons
appertaining thereto at a location outside the United States and only in the
manner provided for payments on Bearer Securities in Section 1002. Such
acquisition shall not operate as or be deemed for any purpose to be a
redemption of the indebtedness represented by such Securities or coupons
appertaining thereto. Any Securities or coupons appertaining thereto purchased
or acquired by the Company may be delivered to the Trustee and, upon such
delivery, the indebtedness represented thereby shall be deemed to be satisfied.
Section 309 shall apply to all Securities and coupons so delivered.
-73-
<PAGE> 83
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to as
an "optional sinking fund payment". Unless otherwise provided by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the Securities
of such series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided that such Securities have
not been previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such sinking payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivery of or by crediting
Securities of that series pursuant to Section 1202 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the
-74-
<PAGE> 84
manner specified in Section 1103 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner
provided in Section 1104. Such notice having been duly given, the redemption
of such Securities shall be made upon the terms and in the manner stated in
Sections 1106 and 1107.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a
Security or coupon, by his acceptance thereof, whether upon original issue or
upon transfer or assignment, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth, the payment of the principal of (and
premium, if any) and interest on each and all of the Securities and the payment
of any coupon is hereby expressly made subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 607.
SECTION 1302. Circumstances Requiring Prior Payment of Senior Indebtedness.
In the event of any dissolution or winding up or total or
partial liquidation or reorganization of the Company, whether in bankruptcy,
reorganization, insolvency, receivership or similar proceeding, then the
holders of Senior Indebtedness shall be entitled to receive payment in full of
all amounts due or to become due on or in respect of all Senior Indebtedness
before the Holders of the Securities or coupons appertaining thereto are
entitled to receive any payment on account of principal of (or premium, if any)
or interest on the Securities or the payment of the coupons appertaining
thereto.
Unless otherwise provided in Section 301, no payment in
respect of Securities shall be made if, at the time of such payment, there
exists a default in payment of all or any portion of any Senior Indebtedness,
and such default shall not have been cured or waived in writing or the benefits
of this sentence waived in writing by or on behalf of the holders of such
Senior Indebtedness. In addition, unless otherwise provided in Section 301,
during the continuance of any event of default (other than a default referred
to in the immediately preceding sentence) with respect to any Senior
Indebtedness permitting the holders to accelerate the maturity thereof and upon
written notice thereof given to the Trustee, with a copy to the Company (the
delivery of which shall not affect the validity of the notice to the Trustee),
by any holder of such Senior Indebtedness or its representative, then, unless
and until such an event of default shall have been cured or waived or shall
have ceased to exist, no payment shall be made by the Company with respect to
the principal of or interest
-75-
<PAGE> 85
on the Securities or to acquire any of the Securities or on account of the
redemption provisions for the Securities; provided, however, that if the
holders of the Senior Indebtedness to which the default relates have not
declared such Senior Indebtedness to be immediately due and payable and within
180 days after the occurrence of such default (or have declared such Senior
Indebtedness to be immediately due and payable and within such period have
rescinded such declaration of acceleration), then the Company shall resume
making any and all required payments in respect of the Securities (including
any missed payments). Only one payment blockage period under the immediately
preceding sentence may be commenced within any consecutive 365-day period with
respect to the Securities. No event of default which existed or was continuing
on the date of the commencement of any 180-day payment blockage period with
respect to the Senior Indebtedness initiating such payment blockage period
shall be, or be made, the basis for the commencement of a second payment
blockage period by a Holder or representative of such Senior Indebtedness
whether or not within a period of 365 consecutive days unless such event of
default shall have been cured or waived for a period of not less than 90
consecutive days (and, in the case of any such waiver, no payment shall be made
by the Company to the holders of Senior Indebtedness in connection with such
waiver other than amounts due pursuant to the terms of the Senior Indebtedness
as in effect at the time of such default).
In the event that, notwithstanding the foregoing, the Trustee
or the Holder of any Security shall have received any payment or distribution
of any kind or character, whether in cash, property or securities, before all
Senior Indebtedness is paid in full or payment thereof provided for, and if
such fact shall then have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment or distribution shall be
paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, agent or other Person making payment or
distribution of assets or securities of the Company for application to the
payment of all Senior Indebtedness remaining unpaid, to the extent necessary to
pay all Senior Indebtedness in full, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Indebtedness.
In addition, nothing in this Section shall prevent the Company
from making or the Trustee from receiving or applying any payment in connection
with the redemption of Securities if the first publication of notice of such
redemption (whether by mail or otherwise in accordance with this Indenture) has
been made, and the Trustee has received such payment from the Company, prior to
the occurrence of any of the contingencies specified in the first two
paragraphs of this Section.
SECTION 1303. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities or coupons appertaining thereto shall be subrogated
(to the extent of the payments or distributions made to the holders of such
Senior Indebtedness pursuant to the provisions of this Article) to the rights
of the holders of such Senior Indebtedness to receive
-76-
<PAGE> 86
payments or distributions from the Company applicable to the Senior
Indebtedness until the principal of (and premium, if any) and interest on the
Securities, or the coupons appertaining thereto, shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of
the Senior Indebtedness to which the Holders of the Securities or coupons
appertaining thereto or the Trustee would be entitled except for the provisions
of this Article, and no payments pursuant to the provisions of this Article to
the holders of Senior Indebtedness by Holders of the Securities or coupons
appertaining thereto or the Trustee, shall, as between the Company, its
creditors other than holders of Senior Indebtedness, and the Holders of the
Securities or coupons appertaining thereto, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION 1304. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the Securities or
coupons appertaining thereto, on the one hand, and the holders of Senior
Indebtedness, on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities or coupons appertaining
thereto is intended to or shall impair, as between the Company and the Holders
of the Securities or coupons appertaining thereto, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of the
Securities or coupons appertaining thereto the principal of (and premium, if
any) and interest on the Securities or coupons appertaining thereto as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights against the Company of the
Holders of the Securities or coupons appertaining thereto and creditors of the
Company other than the holders of Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or the Holder of any Security or coupon
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness to receive cash, property or securities of the
Company otherwise payable or deliverable to the Trustee or such Holder.
SECTION 1305. Trustee to Effectuate Subordination.
Each Holder of a Security or coupon by his acceptance thereof,
whether upon original issue or upon transfer or assignment, authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1306. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by
-77-
<PAGE> 87
any act or failure to act on the part of the Company or by any act or failure
to act, in good faith, by any such holder, or by any noncompliance by the
Company with the terms, provisions and covenants of this Indenture, regardless
of any knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Holders of the Securities,
without incurring responsibility to the Holders of the Securities or coupons
appertaining thereto and without impairing or releasing the subordination
provided in this Article or the obligations of the Holders of the Securities or
coupons appertaining thereto to the holders of Senior Indebtedness, do any one
or more of the following: (i) change the manner, place or terms of payment of,
or renew or alter, Senior Indebtedness, or otherwise amend or supplement in any
manner Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (iii) release any Person liable in any manner for
the collection of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 1307. Notice to Trustee.
The Company shall give prompt written notice to the Trustee in
the form of an Officers' Certificate of any fact known to the Company which
would prohibit the making of any payment of money to or by the Trustee in
respect of the Securities or coupons appertaining thereto pursuant to the
provisions of this Article. Notwithstanding the provisions of this Article or
any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities or coupons
appertaining thereto pursuant to the provisions of this Article, unless and
until the Trustee shall have received at its Corporate Trust Office written
notice thereof from the Company or a holder or holders of Senior Indebtedness
or from any trustee therefor at least two Business Days prior to such payment
date; and, prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Section 601, shall be entitled in all respects to
assume that no such facts exist.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a holder
of Senior Indebtedness or a trustee on behalf of any such holder. In the event
that the Trustee determines in good faith that further evidence is required
with respect to the right of any Person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by
such Person, the extent to which such Person is entitled to participate
-78-
<PAGE> 88
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 1308. Reliance on Certificate of Liquidating Agent.
Upon any payment or distribution referred to in this Article,
the Trustee, subject to the provisions of Section 601, and the Holders of the
Securities or coupons appertaining thereto shall be entitled to rely upon any
order or decree entered by any court of competent jurisdiction in which a
dissolution, winding up or total or partial liquidation or reorganization of
the Company is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, custodian, receiver, assignee for the benefit of
creditors, agent or other Person making such payment or distribution, delivered
to the Trustee or to the Holders of the Securities or coupons appertaining
thereto, for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article.
SECTION 1309. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness and shall not be liable to any such holders
if it shall in good faith mistakenly pay over or distribute to Holders of the
Securities or coupons appertaining thereto or to the Company or to any other
Person cash, property or securities to which any holders of Senior Indebtedness
shall be entitled by virtue of this Article or otherwise.
SECTION 1310. Rights of Trustee as Holder of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
SECTION 1311. Article Applicable to Paying Agent.
In case at any time any Payment Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context shall
otherwise require) be construed as extending to and including such Payment
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that this Section shall not apply to the Company or
any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
-79-
<PAGE> 89
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all series may be
called at any time and from time to time pursuant to this Article to make, give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
SECTION 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders
of Securities of any series for any purpose specified in Section 1401, to be
held at such time and at such place in Houston, Texas, in The Borough of
Manhattan, The City of New York, in London or in any other location, as the
Trustee shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 107, not less than 20 nor more than 180 days prior
to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in aggregate principal amount of the
Outstanding Securities of any series, shall have requested the Trustee for any
such series to call a meeting of the Holders of Securities of such series for
any purpose specified in Section 1401, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have made the first publication of the notice of such meeting
within 30 days after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company or the
Holders of Securities of such series in the amount above specified, as the case
may be, may determine the time and the place in Houston, Texas, in The Borough
of Manhattan, The City of New York, or in London, for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
Subsection (a) of this Section.
SECTION 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities
of any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Outstanding Securities
of such series by such Holder or Holders. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders of Securities of
any series shall be the Persons entitled to vote at such meeting and their
counsel, any
-80-
<PAGE> 90
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1404. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of a series shall constitute a quorum for
a meeting of Holders of Securities of such series. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders of Securities of such series, be
dissolved. In any other case, the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Subject to Section 1405(d), notice of
the reconvening of any adjourned meeting shall be given as provided in Section
1402(a), except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly that
Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series shall constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series; provided, however, that, except as limited by the
proviso to Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent or waiver which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage that is less than a majority in aggregate principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in aggregate
principal amount of the Outstanding Securities of that series.
Except as limited by the proviso to Section 902, any
resolution passed or decision taken at any meeting of Holders of Securities of
any series duly held in accordance with this Section shall be binding on all
the Holders of Securities of such series and the coupons appertaining thereto,
whether or not present or represented at the meeting.
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) The holding of Securities shall be proved in the
manner specified in Section 105 and the appointment of any proxy shall be
proved in the manner specified in Section 105 or by having the signature of the
person executing the proxy witnessed or guaranteed by any trust company, bank
or banker authorized by Section 105 to certify to the
-81-
<PAGE> 91
holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid
and genuine without the proof specified in Section 105 or other proof.
(b) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
1402(b), in which case the Company or the Holders of Securities of the series
calling the meeting, as the case may be, shall appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such
series and each proxy shall be entitled to one vote for each $1,000 principal
amount of the Outstanding Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have
no right to vote, except as a Holder of a Security of such series or as a
proxy.
(d) Any meeting of Holders of Securities of any series
duly called pursuant to Section 1402 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of such series represented at
the meeting; and the meeting may be held as so adjourned without further
notice.
SECTION 1406. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to such record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that such notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto
-82-
<PAGE> 92
the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
* * *
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
-83-
<PAGE> 93
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
BATTLE MOUNTAIN GOLD COMPANY
[CORPORATE SEAL] By
____________________________________
Name:
Title:
THE BANK OF NEW YORK
[CORPORATE SEAL] By
____________________________________
Name:
Title:
-84-
<PAGE> 94
STATE OF _________
ss.
COUNTY OF ________
On the ____ day of _________, ____, before me personally came
_____________, to me known, who, being by me duly sworn, did depose and say
that he is ________________ of BATTLE MOUNTAIN GOLD COMPANY, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
_______________________________________
Notary Public
[NOTARIAL SEAL]
STATE OF ___________
ss:
COUNTY OF __________
On the ___ day of _________, ____, before me personally came
_________, to me known, who, being by me duly sworn, did depose and say that he
is ______________ of THE BANK OF NEW YORK, one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
_______________________________________
Notary Public
[NOTARIAL SEAL]
-85-
<PAGE> 95
EXHIBIT A
FORM OF CERTIFICATE TO BE
GIVEN BY OWNER OF SECURITY OR BENEFICIAL OWNER OF
INTEREST IN A GLOBAL SECURITY
BATTLE MOUNTAIN GOLD COMPANY
[TITLE OF SECURITIES]
(THE "SECURITIES")
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Securities that are held by the
undersigned or held by you for the account of the undersigned (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States persons"), (ii) are owned by United States person(s) that (A)
are foreign branches of United States financial institutions (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (B) acquired Securities
through foreign branches of United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (A) or (B), each such United States financial
institution hereby certifies, on its own behalf or through its agent, that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) are owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in U.S. Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)) and in addition if the owner of the
Securities is a United States or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i) or (ii)) this
is to further certify that such financial institution has not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify that, except as set forth below, (i) in
the case of debt securities, the Securities are beneficially owned by (a)
non-U.S. person(s) or (b) U.S. person(s) who purchased the Securities in
transactions which did not require registration under the Act; or (ii) in the
case of equity securities, the Securities are owned by (x) non-U.S. person(s)
(and such person(s) are not acquiring the Securities for the account or benefit
of U.S. person(s)) or (y) U.S. person(s) who purchased the Securities in a
transaction which did not require registration under the Act. If this
certification is being delivered in connection with the exercise of warrants
pursuant to Section 230.902(m) of Regulation S under the Act, then this is
further to certify that, except as set forth below, the Securities are being
exercised by and on behalf
A-1
<PAGE> 96
of non-U.S. person(s). As used in this paragraph the term "U.S. person" has
the meaning given to it by Regulation S under the Act.
As used herein, "United States" means the United States of
America (including the States and District of Columbia); and its "possessions"
including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to
$______________ of such interest in the above Securities in respect of which we
are not able to certify and as to which we understand exchange and delivery of
definitive Securities (or, if relevant, exercise of any rights or collection of
any interest) cannot be made until we do so certify.
We understand that this certification is required in
connection with certain tax laws and, if applicable, certain securities laws of
the United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
*Dated: __________________, _____
NAME OF PERSON MAKING CERTIFICATION
By:_______________________________
As, or as Agent for, the
beneficial owner(s) of the
Securities to which this
Certificate relates
By:_______________________________
As, or as Agent for, the
financial institution (if any)
through which a United States
Person acquired the Securities
to which this Certificate relates
- ----------------------------------
*To be dated no earlier than the Certification Date.
A-2
<PAGE> 97
EXHIBIT B
FORM OF CERTIFICATION TO BE GIVEN
BY EUROCLEAR OR CEDEL S.A.
BATTLE MOUNTAIN GOLD COMPANY
[TITLE OF SECURITIES]
(THE "SECURITIES")
This is to certify that, based solely on certifications we
have received in writing, by tested telex or by electronic transmission from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in the Indenture, dated as of
_______________, between Battle Mountain Gold Company and The Bank of New York,
as of the date hereof, [ ] principal amount of the above captioned
Securities (i) is owned by persons that are not citizens or residents of the
United States, domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source ("United States persons"), (ii) is owned by United
States persons that (A) are foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (B) acquired the Securities through foreign branches of
United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case (A)
or (B), each such United States financial institution has certified, on its own
behalf or through its agent, that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States or
foreign financial institutions for purposes of resale during the restricted
period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and to the further effect that the United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its
possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify with respect to the principal amount of
Securities set forth above that, except as set forth below, we have received in
writing, by tested telex or by electronic transmission, from our Member
Organizations entitled to a portion of such principal amount, certifications
with respect to such portion, substantially to the effect set forth in the
Indenture.
We further certify (i) that we are not making available
herewith for exchange (or, if relevant, exercise of any rights or collection of
any interest) any portion of the temporary global Security excepted in such
certifications and (ii) that as of the date hereof
B-1
<PAGE> 98
we have not received any notification from any of our Member Organizations to
the effect that the statements made by such Member Organizations with respect
to any portion of the part submitted herewith for exchange (or, if relevant,
exercise of any rights or collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax laws and, if applicable, certain securities laws of
the United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification or a copy hereof to any interested party in such
proceedings.
Dated:______________, _____
(dated the Exchange Date or the
Interest Payment Date)
_______________________________________
as operator of the Euroclear System
[Morgan Guaranty Trust Company of New York,
Brussels Office]
or
[CEDEL S.A.]
By ____________________________________
B-2
<PAGE> 1
Exhibit 4(j)
[PROOF]
DEBT WARRANT AGREEMENT
between
BATTLE MOUNTAIN GOLD COMPANY
and
____________________, as Warrant Agent
Dated _____________
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I. ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.01 Issuance of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.02 Execution and Delivery of Warrant Certificates . . . . . . . . . . . . . . . . . . 2
SECTION 1.03 Issuance of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.04 Temporary Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE II. WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.01 Warrant Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.02 Duration of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.03 Exercise of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III. OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.01 No Rights as Warrant Securityholder Conferred by Warrants or Warrant Certificates . 6
SECTION 3.02 Lost, Stolen, Mutilated or Destroyed Warrant Certificates . . . . . . . . . . . . . 6
SECTION 3.03 Holder of Warrant Certificate May Enforce Rights . . . . . . . . . . . . . . . . . 7
SECTION 3.04 Consolidation, Merger, Conveyance, Transfer or Lease . . . . . . . . . . . . . . . 7
ARTICLE IV. EXCHANGE AND TRANSFERS
OF WARRANT CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 4.01 Exchange and Transfers of Warrant Certificates . . . . . . . . . . . . . . . . . . 8
SECTION 4.02 Treatment of Holders of Warrant Certificates . . . . . . . . . . . . . . . . . . . 9
SECTION 4.03 Cancellation of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE V. CONCERNING THE WARRANT AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 5.01 Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 5.02 Conditions of Warrant Agent's Obligations . . . . . . . . . . . . . . . . . . . . . 10
SECTION 5.03 Resignation, Removal and Appointment of Successor . . . . . . . . . . . . . . . . . 11
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE VI. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.01 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.02 Notices and Demands to the Company and
Warrant Agent . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6.03 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6.04 Saturdays, Sundays, Holidays, etc. . . . . . . . . . . . . . . . 14
SECTION 6.05 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6.06 Obtaining of Governmental Approvals . . . . . . . . . . . . . . . 15
SECTION 6.07 Delivery of Prospectus . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.08 Persons Having Rights Under Warrant
Agreement . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.09 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.11 Inspection of Agreement . . . . . . . . . . . . . . . . . . . . . 16
SECTION 6.12 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . 16
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SIGNATURE AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
EXHIBIT A - Form of Warrant Certificate
EXHIBIT B - Form of Certificate Regarding Bearer Warrant Securities
</TABLE>
-ii-
<PAGE> 4
BATTLE MOUNTAIN GOLD COMPANY
Debt Warrant Agreement*
THIS WARRANT AGREEMENT, dated as of ________________, is
between BATTLE MOUNTAIN GOLD COMPANY, a Nevada corporation (hereinafter called
the "Company," which term includes any successor corporation under the
Indenture hereinafter referred to), and ______________________________, as
Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company has entered into an indenture (the
"[Senior] [Subordinated] Indenture") dated as of January __, 1994 between the
Company and The Bank of New York, providing for the issuance from time to time
of its unsecured [senior] [subordinated] debentures, notes or other evidences
of indebtedness (the "[Senior] [Subordinated] Debt Securities"), to be issued
in one or more series as provided in the [Senior] [Subordinated] Indenture; [if
Warrant Securities are not under same Indenture as Debt Securities to which
they are attached -- and an Indenture (the "[Senior] [Subordinated] Indenture,"
the Senior and Subordinated Indentures being referred to collectively as the
"Indentures") dated as of January __, 1994 between the Company and The Bank of
New York, as trustee (the "[Senior] [Subordinated] Trustee," (the Senior and
Subordinated Trustees being referred to collectively, as the "Trustees"),
providing for the issuance from time to time of its [senior] [subordinated]
debentures, notes or other evidences of indebtedness (the "[Senior]
[Subordinated] Debt Securities", the [Senior] and [Subordinated] Debt
Securities being referred to collectively as the "Debt Securities"), to be
issued in one or more series as provided in the [Senior] [Subordinated]
Indenture]; and
WHEREAS, the Company proposes to sell [if Warrants are sold
with other securities -- [title of such other securities being offered] (the
"Offered Securities") with] warrant certificates evidencing one or more
warrants (the "Warrants" or individually a "Warrant") representing the right to
purchase [title of Debt Securities purchasable through exercise of Warrants]
(the "Warrant Securities"), such warrant certificates and other warrant
certificates issued pursuant to this Agreement being herein called the "Warrant
Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing so to act, in
connection with the issuance, exchange, exercise and replacement of the Warrant
Certificates, and in this Agreement wishes to set forth, among other things,
the form and provisions of the Warrant Certificates __________________________
* Complete or modify the provisions of this Warrant Agreement as
appropriate to reflect the terms of the Warrants, Warrant Securities and
Offered Securities. Monetary amounts may be in U.S. dollars or in foreign
currency or in currency units.
<PAGE> 5
and the terms and conditions on which they may be issued, exchanged, exercised
and replaced;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01 Issuance of Warrants. [If Warrants alone --
Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[If Offered Securities and Warrants -- Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after ____________ (the "Detachable Date")] [and shall not
be separately transferable], and each Warrant Certificate shall evidence one or
more Warrants.] Each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase a Warrant
Security in the principal amount of $__________. [If Offered Securities and
Warrants -- Warrant Certificates shall be initially issued in units with the
Offered Securities, and each Warrant Certificate included in such a unit shall
evidence Warrants for each $[__________] in principal amount of Offered
Securities included in such unit.]
SECTION 1.02 Execution and Delivery of Warrant
Certificates. Each Warrant Certificate, whenever issued, shall be in
[registered] [bearer] form substantially in the form set forth in Exhibit A
hereto, shall be dated ____________ and may have such letters, numbers or other
marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the officers of the Company
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Warrants may be listed, or to conform to usage. The
Warrant Certificates shall be signed on behalf of the Company by its Chairman
of the Board, its Chief Executive Officer, its President or one of its Vice
Presidents and by its Secretary or one of its Assistant Secretaries under its
corporate seal reproduced thereon. Such signatures may be manual or facsimile
signatures of such authorized officers and may be imprinted or otherwise
reproduced on the Warrant Certificates. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the
-2-
<PAGE> 6
Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.
In case any officer of the Company who shall have signed any
of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall have
been countersigned and delivered by the Warrant Agent, such Warrant
Certificates may be countersigned and delivered notwithstanding that the person
who signed such Warrant Certificates ceased to be such officer of the Company;
and any Warrant Certificate may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Warrant Certificate,
shall be the proper officers of the Company, although at the date of the
execution of this Agreement any such person was not such an officer.
The term "holder" or "holder of a Warrant Certificate" as used
herein shall mean [If registered Warrants - any person in whose name at the
time any Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose] [If bearer Warrants - the
bearer of any Warrant Certificate] [If registered Offered Securities and
Warrants are not immediately detachable -- or upon the register of the Offered
Securities prior to the Detachable Date. Prior to the Detachable Date, the
Company will, or will cause the registrar of the Offered Securities to, make
available at all times to the Warrant Agent such information as to holders of
the Offered Securities with Warrants as may be necessary to keep the Warrant
Agent's records up to date] [If bearer Offered Securities and Warrants are not
immediately detachable - or the bearer of any Offered Security prior to the
Detachable Date].
[If Warrants are issuable as a Global Warrant -- "Global
Warrant" means a Warrant that evidences all or part of the Warrants and is
authenticated and delivered to[, and registered in the name of,] the Depositary
for such Warrants or a nominee thereof. "Depositary" means, with respect to
Warrants issuable in whole or in part in the form of one or more Global
Warrants, a clearing agency that the Company designates to act as Depositary.]
SECTION 1.03 Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate not exceeding
$_________ aggregate principal amount of Warrant Securities (except as provided
in Sections 1.04, 2.03(c), 3.02 and 4.01) may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Agreement or from
time to time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, countersign Warrant
Certificates evidencing Warrants representing the right to purchase up to
$__________ aggregate principal amount of Warrant Securities and shall deliver
such Warrant Certificates to or upon the order of the Company. Subsequent to
such original issuance of the Warrant Certificates, the Warrant Agent shall
countersign a Warrant Certificate only if the Warrant Certificate is issued in
exchange or substitution for one or more previously countersigned Warrant
Certificates [or in connection with their transfer], as hereinafter provided.
-3-
<PAGE> 7
SECTION 1.04 Temporary Warrant Certificates. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company, the Warrant Agent shall authenticate and
deliver, temporary Warrant Certificates which are printed, lithographed,
typewritten, mimeographed or otherwise produced substantially of the tenor of
the definitive Warrant Certificates in lieu of which they are issued and with
such insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificate may determine are appropriate, as evidenced
by their execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable
delay. After the preparation of definitive Warrant Certificates, the temporary
Warrant Certificates shall be exchangeable for definitive Warrant Certificates
upon surrender of the temporary Warrant Certificates at the corporate trust
office of the Warrant Agent [or______________], without charge to the holder.
Upon surrender for cancellation of any one or more temporary Warrant
Certificates the Company shall execute and the Warrant Agent shall authenticate
and deliver in exchange therefor definitive Warrant Certificates representing
the same aggregate number of Warrants. Until so exchanged, the temporary
Warrant Certificates shall in all respects be entitled to the same benefits
under this Agreement as definitive Warrant Certificates.
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.01 Warrant Price. During the period from
____________, through and including ____________, each Warrant shall entitle
the holder thereof, subject to the provisions of this Agreement, to purchase
from the Company the principal amount of Warrant Securities stated in the
Warrant Certificate at the exercise price of $__________, plus [accrued
amortization of the original issue discount] [accrued interest], if any, from
the most recent date from which interest shall have been paid on the Warrant
Securities or, if no interest shall have been paid on the Warrant Securities,
from ____________. [In each case, the original issue discount will be
amortized at a ____ percent annual rate, computed on an annual basis using the
"interest" method and using a 360-day year consisting of twelve 30-day months].
Such purchase price of Warrant Securities is referred to in this Agreement as
the "Warrant Price." [The original issue discount for each $__________
principal amount of Warrant Securities is $____________.]
SECTION 2.02 Duration of Warrants. Each Warrant may be
exercised in whole at any time, as specified herein, on or after [the date
thereof] [__________] and at or before 5 P.M., New York City time, on
____________ [or such later date as the Company may designate, by notice to the
Warrant Agent and the holders of Warrant Certificates [If registered Warrants -
mailed to their addresses as set forth in the record
-4-
<PAGE> 8
books of the Warrant Agent] [If bearer Warrants - published in a newspaper of
general circulation in the City of New York and London]] (the "Expiration
Date"). Each Warrant not exercised at or before 5 P.M., New York City time, on
the Expiration Date shall become void, and all rights of the holder of the
Warrant Certificate evidencing such Warrant under this Agreement shall cease.
SECTION 2.03 Exercise of Warrants.
(a) During the period specified in Section 2.02, any
whole number of Warrants may be exercised by providing certain information as
set forth on the reverse side of the Warrant Certificate and by paying in full,
in [lawful money of the United States of America] [applicable currency] [in
cash or by certified check or official bank check or by bank wire transfer, in
each case,] [by bank wire transfer] in [immediately available] [next-day] funds
the Warrant Price for each Warrant exercised, to the Warrant Agent at its
corporate trust office [or at __________], provided that such exercise is
subject to receipt within five business days of such [payment] [wire transfer]
by the Warrant Agent of the Warrant Certificate with the form of election to
purchase Warrant Securities set forth on the reverse side of the Warrant
Certificate properly completed and duly executed. The date on which payment in
full of the Warrant Price is received by the Warrant Agent shall, subject to
receipt of the Warrant Certificate as aforesaid, be deemed to be the date on
which the Warrant is exercised. The Warrant Agent shall deposit all funds
received by it in payment of the Warrant Price in an account of the Company
maintained with it [if non-dollar denominated funds -- or in such other account
designated by the Company] and shall advise the Company by telephone at the end
of each day on which a [payment] [wire transfer] for the exercise of Warrants
is received of the amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as
promptly as reasonably practicable, advise the Company and the [Trustee under
the Indenture relating to the Warrant Securities] of (i) the number of Warrants
exercised, (ii) the instructions of each holder of the Warrant Certificates
evidencing such Warrants with respect to delivery of the Warrant Securities to
which such holder is entitled upon such exercise, (iii) delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants remaining after
such exercise, and (iv) such other information as the Company or such Trustee
shall reasonably require.
(c) As soon as reasonably practicable after the exercise
of any Warrant, the Company shall issue, pursuant to the Indenture, in
authorized denominations to or upon the order of the holder of the Warrant
Certificate evidencing such Warrant, the Warrant Securities to which such
holder is entitled [If registered Warrant Securities - , in fully registered
form, registered in such name or names as may be directed by such holder]. If
fewer than all of the Warrants evidenced by such Warrant Certificate are
exercised, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually
-5-
<PAGE> 9
countersign and deliver a new Warrant Certificate evidencing the number of such
Warrants remaining unexercised.
(d) Issuance of certificates for the Warrant Securities
upon the exercise of the Warrants shall be made without charge to the
Warrantholder for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificates, all of which taxes and expenses
shall be paid by the Company, and [If bearer Warrant Securities - , upon
delivery of the applicable certification in the form of Exhibit B hereto with
respect to Warrant Securities in bearer form,] such certificates shall be
issued in the name of the Warrantholder or in such name or names as may be
directed by the Warrantholder; [If registered Warrants - provided, however,
that in the event certificates for the Warrant Securities are to be issued in a
name other than the name of the Warrantholder, the Warrant Certificate when
surrendered for exercise shall be accompanied by the Assignment Form attached
to the Warrant Certificate duly executed by the Warrantholder;] [If bearer
Warrant Securities - provided, however, that unless otherwise designated by
the Company, Warrant Securities in bearer form shall be delivered to or upon
the order of such Warrantholder only outside the United States and its
possessions;] and provided further, that upon any transfer involved in the
issuance or delivery of any certificates for the Warrant Securities, the
Company may require, as a condition thereto, the payment of a sum sufficient to
reimburse it for any transfer tax incidental thereto.
The Company shall not be required to pay any stamp or other
tax or other governmental charge required to be paid in connection with any
transfer of the Warrant Securities, and shall not be required to issue or
deliver any Warrant Security until such tax or other charge shall have been
paid or it has been established to the Company's satisfaction that no such tax
or other charge is due.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01 No Rights as Warrant Securityholder Conferred
by Warrants or Warrant Certificates. No Warrant Certificates or Warrant
evidenced thereby shall entitle the holder thereof to any of the rights of a
holder of Warrant Securities, including, without limitation, the right to
receive the payment of principal of, premium, if any, or interest on Warrant
Securities or to enforce any of the covenants in the [Indenture relating to the
Warrant Securities].
SECTION 3.02 Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity
reasonably satisfactory to the Warrant Agent and the Company and, in the case
of mutilation, upon surrender thereof to the Warrant Agent for cancellation,
-6-
<PAGE> 10
then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company
shall execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section in lieu of
any lost, stolen or destroyed Warrant Certificate shall be entitled to the
benefits of this Agreement equally and proportionately with any and all other
Warrant Certificates duly executed and delivered hereunder. The provisions of
this Section are exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement of mutilated, lost, stolen
or destroyed Warrant Certificates.
SECTION 3.03 Holder of Warrant Certificate May Enforce
Rights. Notwithstanding any of the provisions of this Agreement, any holder of
a Warrant Certificate, without the consent of the Warrant Agent, the Trustee,
the holder of any Warrant Securities or the holder of any other Warrant
Certificate, may, in such holder's own behalf and for such holder's own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company suitable to enforce, or otherwise in respect of, such
holder's right to exercise the Warrants evidenced by such holder's Warrant
Certificate in the manner provided in such holder's Warrant Certificate and in
this Agreement.
SECTION 3.04 Consolidation, Merger, Conveyance, Transfer
or Lease. If at any time there shall be a merger, consolidation, conveyance,
transfer or lease of assets subject to Article Eight of the [Indenture relating
to the Warrant Securities], then in any such event the successor or assuming
corporation referred to therein shall succeed to and be substituted for the
Company, with the same effect, subject to such Indenture, as if it had been
named herein and in the Warrant as the Company; the Company shall thereupon be
relieved of any further obligation hereunder or under the Warrants, and the
Company as the predecessor corporation may thereupon or any time thereafter be
dissolved, wound up or liquidated. Such successor or assuming corporation
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the Warrants issuable hereunder that
theretofore shall not have been signed by the Company, and may execute and
deliver Warrant Securities in its own name pursuant to such Indenture, in
fulfillment of its obligations to deliver Warrant Securities upon exercise of
the Warrants. All the Warrants so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Warrants theretofore or
thereafter issued in accordance with the terms of this Agreement as though all
of such Warrants had been issued at the date of the execution hereof. In any
case of any such consolidation, merger, conveyance, transfer or lease, such
changes in phraseology and form (but not in substance) may be made in the
Warrants thereafter to be issued as may be appropriate.
-7-
<PAGE> 11
The Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such consolidation, merger, conveyance,
transfer or lease complies with the provisions of this Section 3.04 and such
Indenture.
ARTICLE IV.
EXCHANGE AND TRANSFERS
OF WARRANT CERTIFICATES
SECTION 4.01 Exchange and Transfers of Warrant
Certificates. [If Offered Securities with Warrants that are immediately
detachable -- Upon] [If Offered Securities with Warrants that are not
immediately detachable -- Prior to the Detachable Date, a Warrant Certificate
may be exchanged or transferred only together with the Offered Security to
which the Warrant Certificate was initially attached, and only for the purpose
of effecting or in conjunction with an exchange or transfer of such Offered
Security. Prior to any Detachable Date, each transfer of the Offered Security
[on the register of the Offered Securities] shall operate also to transfer the
related Warrant Certificates. After the Detachable Date, upon] [If registered
Warrants - surrender at the corporate trust office of the Warrant Agent [or
_____________], Warrant Certificates evidencing Warrants may be exchanged for
Warrant Certificates in other denominations evidencing such Warrants or the
transfer thereof may be registered in whole or in part; provided that such
other Warrant Certificates evidence the same aggregate number of Warrants as
the Warrant Certificates so surrendered. The Warrant Agent shall keep, at its
corporate trust office [and at __________], books in which, subject to such
reasonable regulations as it may prescribe, it shall register Warrant
Certificates and exchanges and transfers of outstanding Warrant Certificates,
upon surrender of the Warrant Certificates to the Warrant Agent at its
corporate trust office [or __________] for exchange or registration of
transfer, properly endorsed or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent. No service charge shall be
made for any exchange or registration of transfer of Warrant Certificates, but
the Company may require payment of a sum sufficient to cover any stamp or other
tax or other governmental charge that may be imposed in connection with any
such exchange or registration of transfer. Whenever any Warrant Certificates
are so surrendered for exchange or registration of transfer, an authorized
officer of the Warrant Agent shall manually countersign and deliver to the
person or persons entitled thereto a Warrant Certificate or Warrant
Certificates duly authorized and executed by the Company, as so requested. The
Warrant Agent shall not be required to effect any exchange or registration of
transfer that will result in the issuance of a Warrant Certificate evidencing a
fraction of a Warrant or a number of full Warrants and a fraction of a Warrant.
All Warrant Certificates issued upon any exchange or registration of transfer
of Warrant Certificates shall be the valid obligation of the Company,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Warrant Certificate surrendered for such exchange or
registration of transfer] [If bearer Warrants - delivery of Warrant
Certificates, title to such Warrant Certificates shall pass].
-8-
<PAGE> 12
[If Warrants are issuable as a registered Global Warrant -
Notwithstanding any other provision in this Agreement, no Global Warrant may be
transferred to, or registered or exchanged for Warrants registered in the name
of, any person other than the Depositary for such Global Warrant or any nominee
thereof, and no such transfer may be registered, unless (1) such Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for such Global Warrant, (2) the Company executes and delivers to the Warrant
Agent and the [Senior] [Subordinated] Trustee[s] a written order executed by
the Company that such Global Warrant shall be so transferable, registerable and
exchangeable, and such transfers shall be registrable, or (3) there shall have
occurred and be continuing an event of default with respect to the Warrants
evidenced by such Global Warrant. Notwithstanding any other provision in this
Agreement, a Global Warrant to which the restriction set forth in the preceding
sentence shall have ceased to apply may be transferred only to, and may be
registered and exchanged for Warrants registered only in the name or names of,
such person or persons as the Depositary for such Global Warrant shall have
directed and no transfer thereof other than such a transfer may be registered.]
SECTION 4.02 Treatment of Holders of Warrant Certificates.
[If Offered Securities and Warrants are not immediately detachable -- Prior to
the Detachable Date, the Company, the Warrant Agent and all other persons may
treat the owner of any Offered Securities as the owner of the Warrant
Certificates initially attached thereto for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced by such
Warrant Certificates, any notice to the contrary notwithstanding. After the
Detachable Date,] [if registered Warrants -- [and] [p][P]rior to the due
presentment of a Warrant Certificate for registration of transfer,] [t][T]he
Company and the Warrant Agent and all other persons may treat the [registered
holder] [bearer] of a Warrant Certificate as the absolute owner thereof for any
purpose and as the person entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary notwithstanding.
SECTION 4.03 Cancellation of Warrant Certificates. Any
Warrant Certificate surrendered for exchange[, registration of transfer] or
exercise of the Warrants evidenced thereby shall, if surrendered to the
Company, be delivered to the Warrant Agent and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly canceled by
the Warrant Agent and shall not be reissued and, except as expressly permitted
by this Agreement, no Warrant Certificate shall be issued hereunder in exchange
or in lieu thereof. The Warrant Agent shall deliver to the Company from time
to time or otherwise dispose of canceled Warrant Certificates in a manner
satisfactory to the Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT
SECTION 5.01 Warrant Agent. The Company hereby appoints
______________ as the Warrant Agent of the Company in respect of the Warrants
and the Warrant Certificates upon the terms and subject to the conditions
herein set forth, and
-9-
<PAGE> 13
__________________ hereby accepts such appointment. The Warrant Agent shall
have the powers and authority granted to and conferred upon it in the Warrant
Certificates and hereby and such further powers and authority to act on behalf
of the Company as the Company may hereafter grant to or confer upon it. All of
the terms and provisions with respect to such powers and authority contained in
the Warrant Certificates are subject to and governed by the terms and
provisions hereof.
SECTION 5.02 Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees and to all
of which the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly
to pay the Warrant Agent the compensation agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including counsel fees) reasonably incurred
without negligence or bad faith by the Warrant Agent in connection with the
services rendered hereunder by the Warrant Agent. The Company also agrees to
indemnify the Warrant Agent for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on the part of
the Warrant Agent, arising out of or in connection with its acting as Warrant
Agent hereunder, as well as the reasonable costs and expenses of defending
against any claim of such liability.
(b) Agent for the Company. In acting under this Agreement and in
connection with the Warrant Certificates, the Warrant Agent is acting solely as
agent of the Company and does not assume any obligations or relationship of
agency or trust for or with any of the holders of Warrant Certificates or
beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it, and the written advice of such counsel shall be full and
complete authorization and protection in respect of any action reasonably
taken, suffered or omitted by it hereunder in good faith and in accordance with
the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or thing suffered by
it in reliance upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the proper
parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, it or
they may engage or be interested in any financial or other transaction with the
Company and may act on, or as depositary, trustee
-10-
<PAGE> 14
or agent for, any committee or body of holders of Warrant Securities or other
obligations of the Company as freely as if it were not the Warrant Agent
hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant
Agent from acting as trustee under any indentures.
(f) No Liability for Interest. Unless otherwise agreed with the
Company, the Warrant Agent shall have no liability for interest on any monies
at any time received by it pursuant to any of the provisions of this Agreement
or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon).
(h) No Responsibility for Representations. The Warrant Agent shall
not be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated
to perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates.
The Warrant Agent shall have no duty or responsibility in case of any default
by the Company in the performance of its covenants or agreements contained
herein or in the Warrant Certificates or in the case of a receipt of any
written demand from a holder of a Warrant Certificate with respect to such
default, including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.02 hereof, to make any demand
upon the Company.
SECTION 5.03 Resignation, Removal and Appointment of Successor.
(a) The Company agrees, for the benefit of the holders from time
to time of the Warrant Certificates, that there shall at all times be a Warrant
Agent hereunder until all the Warrants have been exercised or are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided that
such date shall be not less than three months after the date on which such
notice is given unless the Company otherwise
-11-
<PAGE> 15
agrees. The Warrant Agent hereunder may be removed at any time by the filing
with it of an instrument in writing signed by or on behalf of the Company and
specifying such removal and the intended date when it shall become effective.
Such resignation or removal shall take effect upon the appointment by the
Company, as hereinafter provided, of a successor Warrant Agent (which shall be
a bank or trust company authorized under the laws of the jurisdiction of its
organization to exercise corporate trust powers) and the acceptance of such
appointment by such successor Warrant Agent. The obligation of the Company
under Section 5.02(a) shall continue to the extent set forth therein,
notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign,
or shall be removed, or shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or under any other applicable
Federal or state bankruptcy, insolvency or similar law or shall consent to the
appointment of or taking possession by a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Warrant
Agent or its property or affairs, or shall make an assignment for the benefit
of creditors, or shall admit in writing its inability to pay its debts
generally as they become due, or shall take corporate action in furtherance of
any such action, or a decree or order for relief by a court having jurisdiction
in the premises shall have been entered in respect of the Warrant Agent in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or state bankruptcy, insolvency or
similar law, or a decree or order by a court having jurisdiction in the
premises shall have been entered for the appointment of a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or similar official) of the
Warrant Agent or of its property or affairs, or any public officer shall take
charge or control of the Warrant Agent or of its property or affairs for the
purpose of rehabilitation, conservation, winding up or liquidation, a successor
Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor Warrant Agent and acceptance by the
successor Warrant Agent of such appointment, the Warrant Agent shall cease to
be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor, upon payment of its charges and disbursements then
unpaid, shall thereupon become obligated to transfer, deliver and pay over, and
such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
-12-
<PAGE> 16
(e) Any corporation into which the Warrant Agent
hereunder may be merged or converted or any corporation with which the Warrant
Agent may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a party, or any
corporation to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.01 Notice. Any notices required or permitted to
be given hereunder [to the Company or the Warrant Agent] shall be in writing
(including telegraphic, telex or facsimile transmission) and shall be duly
given if (i) personally delivered or sent by telegraph, telex or facsimile, and
(ii) mailed by certified or registered mail, postage prepaid, return receipt
requested, addressed as follows:
If to the Company:
Battle Mountain Gold Company
333 Clay Street, 42nd Floor
Houston, Texas 77002
Attention: Vice President and General Counsel
Facsimile No. (713) 650-3636
If to the Warrant Agent:
--------------------------------------
--------------------------------------
--------------------------------------
Facsimile No. ________________________
[If registered Warrants - If to the Warrantholder:
At the address as it appears on the books of
the Warrant Agent [or on the register of the
Offered Securities prior to the Detachable
Date], or if such Warrantholder shall have
filed with the Warrant Agent a written
request that notices intended for such
Warrantholder
-13-
<PAGE> 17
be mailed to some other address, at the
address designated in such request.]
All such notices shall be effective: (i) if mailed or
personally delivered, when received, or (ii) if sent by telegraph, telex or
facsimile, when sent with evidence of transmission. The address to which
notices hereunder should be sent may be changed by any party by giving notice
of such change to the others in the manner provided in this Agreement.
[If bearer Warrants - Any notices required or permitted to be
given hereunder to the Warrantholder shall be duly given if published in a
newspaper of general circulation in the City of New York and London and in such
other cities where securities exchanges are located on which the Warrants
and/or Warrant Securities are listed, if any, and shall be effective when so
published.]
SECTION 6.02 Notices and Demands to the Company and
Warrant Agent. If the Warrant Agent shall receive any notice or demand
addressed to the Company by the holder of a Warrant Certificate pursuant to the
provisions of the Warrant Certificates, the Warrant Agent shall promptly
forward such notice or demand to the Company.
SECTION 6.03 Amendment. This Agreement may be amended by
the parties hereto, without the consent of the holder of any Warrant
Certificate, for the purpose of curing any ambiguity, or of curing, correcting
or supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; provided,
however, that such action shall not affect adversely the interests of the
holders of the Warrant Certificates. The Company and the Warrant Agent may
also supplement or amend the Warrant Agreement in any other respect with the
approval of the holders of a majority in number of the Warrants then
outstanding; however, no such supplement or amendment may (i) shorten the
expiration date of the Warrants, (ii) increase the Warrant Price or decrease
the principal amount of Warrant Securities to be received upon exercise of a
Warrant, or (iii) change the percentage of the holders of Warrant Certificates
who must consent to such amendment or supplement, without the consent of each
holder affected thereby.
SECTION 6.04 Saturdays, Sundays, Holidays, etc. If the
last or appointed day for the taking of any action or the expiration of any
right required or granted pursuant to this Agreement or the Warrant
Certificates shall be a Saturday, Sunday or legal holiday in the United States,
then such action may be taken or such right may be exercised on the next
succeeding business day that is not a legal holiday.
SECTION 6.05 Applicable Law. The validity, interpretation
and performance of this Agreement and each Warrant Certificate issued hereunder
and of the
-14-
<PAGE> 18
respective terms and provisions thereof shall be governed by, and construed in
accordance with, the laws of the State of _______________.
SECTION 6.06 Obtaining of Governmental Approvals. The
Company from time to time will take all reasonable actions necessary to obtain
and keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under Federal and state
laws (including, without limitation, a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933, as amended
(the "Securities Act")), which may be or become requisite in connection with
the issuance, sale, transfer and delivery of the Warrant Securities issued upon
exercise of the Warrant Certificates, the exercise of the Warrants, the
issuance, sale, transfer and delivery of the Warrants or upon the expiration of
the period during which the Warrants are exercisable.
If there is no effective registration statement in respect of
the Warrants and Warrant Securities under the Securities Act, no Warrantholder
may sell or transfer any or all of such Warrants or Warrant Securities, as the
case may be, without first providing the Company with an opinion of counsel
(which may be counsel for the Company) to the effect that such sale or transfer
will be exempt from the registration and prospectus delivery requirements of
the Securities Act.
SECTION 6.07 Delivery of Prospectus. If the issuance and
sale of the Warrant Securities are registered under the Securities Act, the
Company will furnish to the Warrant Agent sufficient copies of a prospectus
relating to the Warrant Securities deliverable upon exercise of the Warrants
(the "Prospectus"), and the Warrant Agent agrees that upon the exercise of any
Warrant, the Warrant Agent will deliver a Prospectus to the holder of the
Warrant Certificate evidencing such warrant prior to or concurrently with the
delivery of the Warrant Securities issued upon such exercise. The Warrant
Agent shall not, by reason of any such delivery, assume any responsibility for
the accuracy or adequacy of such Prospectus.
SECTION 6.08 Persons Having Rights Under Warrant
Agreement. Nothing in this Agreement shall give to any person other than the
Company, the Warrant Agent and the holders of the Warrant Certificates any
right, remedy or claim under or by reason of this Agreement.
SECTION 6.09 Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.10 Counterparts. This Agreement may be executed
in any number of counterparts, each of which as so executed shall be deemed to
be an original, but such counterparts shall together constitute but one and the
same instrument.
-15-
<PAGE> 19
SECTION 6.11 Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
SECTION 6.12 Successors and Assigns. All the covenants
and provisions of this Agreement by or for the benefit of the Company or the
Warrant Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
-16-
<PAGE> 20
IN WITNESS WHEREOF, Battle Mountain Gold Company and
________________ have caused this Agreement to be signed by their respective
duly authorized officers, and their respective corporate seals to be affixed
hereunto, and the same to be attested by their respective Secretaries or one of
their respective Assistant Secretaries, all as of the day and year first above
written.
BATTLE MOUNTAIN GOLD COMPANY
By _________________________________
Name:
Title:
Attest:
By __________________________________
Name:
Title:
[Warrant Agent]
By _________________________________
Name:
Title:
Attest:
By __________________________________
Name:
Title:
-17-
<PAGE> 21
Exhibit A
FORM OF WARRANT CERTIFICATE*
[Face of Warrant Certificate]
<TABLE>
<S> <C>
[Form of Legend if Offered Securities Prior to _______________, this Warrant Certificate
with Warrants that are not immediately cannot be transferred or exchanged unless attached
detachable. to a [Title of Offered Securities].]
[Form of Legend if Warrants are not Prior to _______________, Warrants evidenced by
immediately exercisable. this Warrant Certificate cannot be exercised.]
</TABLE>
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
BATTLE MOUNTAIN GOLD COMPANY
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M., NEW YORK CITY TIME, ON _______________.
No. ______________ ______ Warrants
This certifies that [__________________ or registered assigns
is the registered] [the bearer hereof is the] owner of the above indicated
number of Warrants, each Warrant entitling such owner [if Offered Securities
with Warrants that are not immediately detachable --, subject to the [bearer]
[registered owner] qualifying as a "holder" of this Warrant Certificate, as
hereinafter defined] to purchase, at any time [after 5 P.M., New York City
time, on _____________ and] on or before 5 P.M., New York City time, on
_____________, $__________ principal amount of [Title of Warrant Securities]
(the "Warrant Securities"), of Battle Mountain Gold Company (the "Company"),
issued and to be issued under the Indenture (as hereinafter defined), on the
following basis: [during the period from _______________, through and including
___________,] each Warrant shall entitle the holder thereof, subject to the
provisions of the Warrant Agreement under which these Warrants are issued, to
purchase from the Company the principal amount of Warrant Securities stated
above in this Warrant Certificate at the exercise price of $_______ plus
[accrued amortization of the original issue discount] [accrued interest] from
_______________; [during the period from __________, through and including
* For Debt Securities.
A-1
<PAGE> 22
______________, the exercise price of each Warrant will be ______________ plus
[accrued amortization, if any, of the original issue discount] [accrued
interest], if any, from the most recent date from which interest shall have
been paid on the Warrant Securities or, if no interest shall have been paid on
the Warrant Securities, from ____________;] [in each case, the original issue
discount will be amortized at a ____ percent annual rate, computed on an annual
basis using the "interest" method and using a 360-day year consisting of twelve
30-day months] (the "Warrant Price"). [The original issue discount for each
__________ principal amount of Warrant Securities is __________.] The holder
may exercise the Warrants evidenced hereby by providing certain information set
forth on the back hereof and by paying in full [in lawful money of the United
States of America] [applicable currency] [in cash or by certified check or
official bank check or by bank wire transfer, in each case,] [by bank wire
transfer] in [immediately available] [next-day] funds, the Warrant Price for
each Warrant exercised to the Warrant Agent (as hereinafter defined) and by
surrendering this Warrant Certificate, with the purchase form on the back
hereof duly executed, at the corporate trust office of [name of Warrant Agent],
or its successor as warrant agent (the "Warrant Agent"), [or __________], which
is, on the date hereof, at the address specified on the reverse hereof, and
upon compliance with and subject to the conditions set forth herein and in the
Warrant Agreement (as hereinafter defined).
The term "holder" as used herein shall mean [if Offered
Securities with Warrants that are not immediately detachable --, prior to
___________ (the "Detachable Date"), the [bearer] [registered owner] of the
Company's [title of Offered Securities] to which this Warrant Certificate is
initially attached, and after such Detachable Date,] [the bearer of this
Warrant Certificate] [the person in whose name at the time of this Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4.01 of the Warrant Agreement].
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities in [registered]
[bearer] form in denominations of ___________ and any integral multiples
thereof. Upon any exercise of fewer than all of the Warrants evidenced by this
Warrant Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of ______________ (the "Warrant Agreement")
by and between the Company and the Warrant Agent and is subject to the terms
and provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at _____________].
[If Offered Securities with Warrants that are not immediately
detachable -- Prior to ____________, this Warrant Certificate may be exchanged
or transferred only together with the [Title of Offered Securities] (the
"Offered Securities") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting, or in
A-2
<PAGE> 23
conjunction with, an exchange or transfer of such Offered Security. After such
date, transfer] [if Offered Securities with Warrants that are immediately
detachable -- Transfer] [If registered Warrants - of this Warrant Certificate
may be registered when this Warrant Certificate is surrendered at the corporate
trust office of the Warrant Agent [or ___________] by the registered owner or
such owner's assigns, in person or by an attorney duly authorized in writing,
in the manner and subject to the limitations provided in the Warrant
Agreement.] [If bearer Warrants - of this Warrant Certificate shall be
effected by delivery and the Company and the Warrant Agent may treat the bearer
hereof as the owner for all purposes.]
[If Offered Securities with Warrants that are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable or
Warrant alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or ____________]
for Warrant Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof
to any of the rights of a holder of the Warrant Securities, including, without
limitation, the right to receive payments of principal of, premium, if any, or
interest, if any, on the Warrant Securities or to enforce any of the covenants
of the Indenture.
A-3
<PAGE> 24
This Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of _______________________.
BATTLE MOUNTAIN GOLD COMPANY
By __________________________________
Attest:
By _________________________________
Countersigned:
____________________________________
As Warrant Agent
By __________________________________
Authorized Signature
A-4
<PAGE> 25
[REVERSE OF WARRANT CERTIFICATE]
INSTRUCTIONS FOR EXERCISE OF WARRANT
To exercise the Warrants evidenced hereby, the holder of this
Warrant Certificate must pay in [United States dollars] [applicable currency]
[in cash or by certified check or official bank check or by bank wire transfer]
[by bank wire transfer] in [immediately available] [next-day] funds the Warrant
Price in full for each of the Warrants exercised to [insert name of Warrant
Agent] [Corporate Trust Department] [insert address of Warrant Agent], Attn.
__________________ [or ________________], which [payment] [wire transfer] must
specify the name of the holder and the number of Warrants exercised by such
holder. In addition, such holder must complete the information required below,
[including the applicable certification with respect to Warrant Securities in
bearer form], and present this Warrant Certificate in person or by mail
(certified or registered mail is recommended) to the Warrant Agent at the
appropriate address set forth below. This Warrant Certificate, completed and
duly executed, must be received by the Warrant Agent within five business days
of the [payment] [wire transfer].
TO BE EXECUTED UPON EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise _______
Warrants, evidenced by this Warrant Certificate, to purchase _________
principal amount of the [Title of Warrant Securities] (the "Warrant
Securities") of Battle Mountain Gold Company and represents that the
undersigned has tendered payment for such Warrant Securities in [Dollars]
[applicable currency] [in cash or by certified check or official bank check or
by bank wire transfer, in each case] [by bank wire transfer] in [immediately
available] [next-day] funds to the order of Battle Mountain Gold Company, c/o
[insert name and address of Warrant Agent], in the amount of _____________ in
accordance with the terms hereof. The undersigned requests that said principal
amount of Warrant Securities be in [bearer] [fully registered] form in the
authorized denominations, registered in such names and delivered all as
specified in accordance with the instructions set forth below. [However,
unless otherwise designated by the Company, Warrant Securities in bearer form
shall be delivered to or upon the order of the holder of such Warrant
Certificate only outside the United States and its possessions.]
If the number of Warrants exercised is less than all of the
Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the remaining Warrants evidenced hereby be issued and
delivered to the undersigned unless otherwise specified in the instruction
below.
A-5
<PAGE> 26
Dated: _____________________________ Name _____________________________
____________________________________ Address __________________________
(Insert Social Security or ____________________________________
Other Identifying Number of Holder)
(Signature must conform in all respects
to name of holder as specified on the
Signature Guaranteed face of this Warrant Certificate and
must bear a signature guarantee by a
- ----------------------------------- bank, trust company or member broker of
the New York Stock Exchange)
The Warrants evidenced hereby may be exercised at the following addresses:
By hand at ---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
By mail at ---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing
unexercised Warrants -- complete as appropriate.]
A-6
<PAGE> 27
[If registered Warrants - ASSIGNMENT
[FORM OF ASSIGNMENT TO BE EXECUTED IF HOLDER
DESIRES TO TRANSFER WARRANTS EVIDENCED HEREBY]
FOR VALUE RECEIVED _______________________________ hereby
sells, assigns and transfers unto
- ------------------------------ ----------------------------------
(Please print name) (Please insert social security or
other identifying number)
- ------------------------------
(Address)
- ------------------------------
(City, including zip code)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint ____________ as Attorney to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated:
-----------------------------------
Signature
(Signature must conform in all respects
to name of holder as specified on the face
of this Warrant Certificate and must
bear a signature guarantee by a bank,
trust company or member broker of the New
York Stock Exchange)
Signature Guaranteed
- -----------------------------]
A-7
<PAGE> 28
Exhibit B
CERTIFICATION AS TO NON-U.S. OWNERSHIP
[Form of certificate to be given by person requesting
delivery of bearer Warrant Security upon
exercise of Warrant]
CERTIFICATE
BATTLE MOUNTAIN GOLD COMPANY
[Title of Warrant Securities] Issuable Upon Exercise of
Warrants ("Warrant Securities")
To: Battle Mountain Gold Company
[Name of Warrant Agent], or
Warrant Agent
This certificate is submitted in connection with the exercise
of the Warrant Certificate relating to the Warrant Securities, by delivery to
you of the election to purchase dated as of _______________________.
The undersigned hereby certifies that, as of the date hereof,
the Warrant Securities which are to be delivered to the undersigned in bearer
form upon the exercise by the undersigned of such Warrant Certificate (i) are
owned by persons that are not United States Persons, as defined below; (ii) are
owned by United States Persons that are (a) foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) United States Persons who acquired the obligations
through foreign branches of United States financial institutions and who hold
the obligations through such financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution provides
a certificate in the form that follows this certificate); or (iii) are owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in the U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), which United States or foreign institutions described
in clause (iii) above (whether or not also described in clause (i) or (ii))
certify that they have not acquired the obligations for purposes of resale
directly or indirectly to a United States Person or to a person within the
United States or its possessions. The undersigned undertakes to advise you by
tested telex followed by written confirmation if the statement in the
immediately preceding sentence is not correct on the date of delivery of the
above-captioned Warrant Securities in bearer form.
B-1
<PAGE> 29
The undersigned understands that this certificate is required
in connection with United States tax laws. The undersigned irrevocably
authorizes you to produce this certificate or a copy hereof to any interested
party in any administrative or legal proceedings with respect to the matters
covered by this certificate. "United States Person" shall mean a citizen or
resident of the United States of America (including the District of Columbia),
a corporation, partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof or an estate or
trust that is subject to United States Federal income taxation regardless of
the source of its income.
Date: __________________________
[Name of Person Entitled to Receive Warrant
Security Described Herein]
-------------------------------------------
(Authorized Signatory)
Name:______________________________________
Title:_____________________________________
______________
Subject to change in accordance with changes in applicable tax laws and
regulations.
B-2
<PAGE> 30
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
CERTIFICATE
BATTLE MOUNTAIN GOLD COMPANY
[Title of Warrant Securities] Issuable Upon Exercise of Warrants ("Warrant
Securities")
To: Battle Mountain Gold Company
[Name of Warrant Agent], or
Warrant Agent
This certificate is submitted in connection with the exercise
of the Warrant Certificate relating to the Warrant Securities, by delivery to
you of the election to purchase dated as of ___________________.
The undersigned represents that it is a branch located outside
the United States of a United States securities clearing organization, bank or
other financial institution (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) that hold customers' securities in the ordinary course of
its trade or business and agrees that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder and is not purchasing for resale
directly or indirectly to a United States Person or to a person within the
United States or its possessions. We undertake to advise you by tested telex
followed by written confirmation if the statement in the immediately preceding
sentence is not correct on the date of delivery of the above-captioned Warrant
Securities in bearer form.
The undersigned understands that this certificate is required
in connection with the United States tax laws. The undersigned irrevocably
authorizes you to produce this certificate or a copy hereof to any interested
party in any administrative or legal proceedings with respect to the matters
covered by this certificate.
Date: ____________________.
[Name of Person Entitled to Delivery of
Warrant Security Described Herein]
-----------------------------------
(Authorized Signatory)
Name: _______________________________
Title:_______________________________
________
Subject to change in accordance with changes in applicable tax laws and
regulations.
B-3
<PAGE> 1
Exhibit 4(l)
[PROOF]
PREFERRED STOCK WARRANT AGREEMENT
between
BATTLE MOUNTAIN GOLD COMPANY
and
______________________________________, as Warrant Agent
Dated _______________
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I. ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01 Issuance of Warrants . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02 Execution and Delivery of Warrant Certificates . . . . . . . . . . . 2
SECTION 1.03 Issuance of Warrant Certificates . . . . . . . . . . . . . . . . . . 3
SECTION 1.04 Temporary Warrant Certificates . . . . . . . . . . . . . . . . . . . 3
ARTICLE II. WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.01 Warrant Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.02 Duration of Warrants . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.03 Exercise of Warrants . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III. OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.01 No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates . . . . . . . . . . . . . . . . . . 6
SECTION 3.02 Lost, Stolen, Mutilated or Destroyed Warrant
Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.03 Holder of Warrant Certificate May Enforce Rights . . . . . . . . . . 6
SECTION 3.04 Reclassification, Consolidation, Merger, Sale,
Conveyance or Lease . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE IV. EXCHANGE AND TRANSFERS
OF WARRANT CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 4.01 Exchange and Transfers of Warrant Certificates . . . . . . . . . . . 8
SECTION 4.02 Treatment of Holders of Warrant Certificates . . . . . . . . . . . . 9
SECTION 4.03 Cancellation of Warrant Certificates . . . . . . . . . . . . . . . . 9
ARTICLE V. CONCERNING THE WARRANT AGENT . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 5.01 Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 5.02 Conditions of Warrant Agent's Obligations . . . . . . . . . . . . . . 10
SECTION 5.03 Resignation, Removal and Appointment of Successor . . . . . . . . . . 11
ARTICLE VI. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 6.01 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.02 Notices and Demands to the Company and Warrant
Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6.03 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6.04 Saturdays, Sundays, Holidays, etc. . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6.05 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6.06 Obtaining of Governmental Approvals . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6.07 Delivery of Prospectus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.08 Persons Having Rights Under Warrant Agreement . . . . . . . . . . . . . . . . . . . 15
SECTION 6.09 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.11 Inspection of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.12 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SIGNATURE AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
EXHIBIT A - Form of Warrant Certificate
</TABLE>
-ii-
<PAGE> 4
BATTLE MOUNTAIN GOLD COMPANY
Preferred Stock Warrant Agreement*
THIS WARRANT AGREEMENT, dated as of ______________________, is
between BATTLE MOUNTAIN GOLD COMPANY, a Nevada corporation (hereinafter called
the "Company"), and _____________________________________, as Warrant Agent
(herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell {if Warrants are sold
with other securities -- {title of such other securities being offered} (the
"Offered Securities") with} warrant certificates evidencing one or more
warrants (the "Warrants" or individually a "Warrant") representing the right to
purchase {title of Preferred Stock or Depositary Shares purchasable through
exercise of Warrants} (the "Warrant Securities"), such warrant certificates and
other warrant certificates issued pursuant to this Agreement being herein
called the "Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing so to act, in
connection with the issuance, exchange, exercise and replacement of the Warrant
Certificates, and in this Agreement wishes to set forth, among other things,
the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01 Issuance of Warrants. {If Warrants alone --
Upon issuance, each Warrant Certificate shall evidence one or more Warrants.}
{If Offered Securities and Warrants -- Warrants shall be {initially} issued in
connection with the issuance of the Offered Securities {but shall be separately
transferable on and after _________ (the "Detachable Date")} {and shall not be
separately transferable}, and each Warrant Certificate shall evidence one or
more Warrants.} Each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase one Warrant
__________________________________
* Complete or modify the provisions of this Warrant Agreement as
appropriate to reflect the terms of the Warrants, Warrant Securities and
Offered Securities.
-1-
<PAGE> 5
Security, (If Offered Securities and Warrants -- Warrant Certificates shall be
initially issued in units with the Offered Securities, and each Warrant
Certificate included in such a unit shall evidence __________ Warrants for
each {$_______________ in principal amount} {______ shares} of Offered
Securities included in such unit.}
SECTION 1.02 Execution and Delivery of Warrant
Certificates. Each Warrant Certificate, whenever issued, shall be in
registered form substantially in the form set forth in Exhibit A hereto, shall
be dated _______________________ and may have such letters, numbers or other
marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the officers of the Company
executing the same may approve (execution thereof to be conclusive evidence of
such approval), and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Warrants may be listed, or to conform to usage. The
Warrant Certificates shall be signed on behalf of the Company by its Chairman
of the Board, its Chief Executive Officer, its President or one of its Vice
Presidents and by its Secretary or one of its Assistant Secretaries under its
corporate seal reproduced thereon. Such signatures may be manual or facsimile
signatures of such authorized officers and may be imprinted or otherwise
reproduced on the Warrant Certificates. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any
of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall have
been countersigned and delivered by the Warrant Agent, such Warrant
Certificates may be countersigned and delivered notwithstanding that the person
who signed such Warrant Certificates ceased to be such officer of the Company;
and any Warrant Certificate may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Warrant Certificate,
shall be the proper officers of the Company, although at the date of the
execution of this Agreement any such person was not such an officer.
The term "holder" or "holder of a Warrant Certificate" as used
herein shall mean any person in whose name at the time any Warrant Certificate
shall be registered upon the books to be maintained by the Warrant Agent for
that purpose {If Offered Securities and Warrants are not immediately detachable
- -- or upon the register of the Offered Securities prior to the Detachable Date.
Prior to the Detachable Date, the Company will, or will cause the registrar of
the Offered Securities to, make available at all
-2-
<PAGE> 6
times to the Warrant Agent such information as to holders of the Offered
Securities with Warrants as may be necessary to keep the Warrant Agent's
records up to date}.
{If Warrants are issuable as a Global Warrant -- "Global
Warrant" means a Warrant that evidences all or part of the Warrants and is
authenticated and delivered to, and registered in the name of, the Depositary
for such Warrants or a nominee thereof. "Depositary" means, with respect to
Warrants issuable in whole or in part in the form of one or more Global
Warrants, a clearing agency that the Company designates to act as Depositary.}
SECTION 1.03 Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate not exceeding ______
Warrant Securities (except as provided in Sections 1.04, 2.03(c), 3.02 and
4.01) may be executed by the Company and delivered to the Warrant Agent upon
the execution of this Agreement or from time to time thereafter. The Warrant
Agent shall, upon receipt of Warrant Certificates duly executed on behalf of
the Company, countersign Warrant Certificates evidencing Warrants representing
the right to purchase up to _______ Warrant Securities and shall deliver such
Warrant Certificates to or upon the order of the Company. Subsequent to such
original issuance of the Warrant Certificates, the Warrant Agent shall
countersign a Warrant Certificate only if the Warrant Certificate is issued in
exchange or substitution for one or more previously countersigned Warrant
Certificates or in connection with their transfer, as hereinafter provided.
SECTION 1.04 Temporary Warrant Certificates. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company, the Warrant Agent shall authenticate and
deliver, temporary Warrant Certificates which are printed, lithographed,
typewritten, mimeographed or otherwise produced substantially of the tenor of
the definitive Warrant Certificates in lieu of which they are issued and with
such insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificate may determine are appropriate, as evidenced
by their execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable
delay. After the preparation of definitive Warrant Certificates, the temporary
Warrant Certificates shall be exchangeable for definitive Warrant Certificates
upon surrender of the temporary Warrant Certificates at the corporate trust
office of the Warrant Agent {or ___________________}, without charge to the
holder. Upon surrender for cancellation of any one or more temporary Warrant
Certificates the Company shall execute and the Warrant Agent shall authenticate
and deliver in exchange therefor definitive Warrant Certificates representing
the same aggregate number of Warrants. Until so exchanged, the temporary
Warrant Certificates shall in all respects be entitled to the same benefits
under this Agreement as definitive Warrant Certificates.
-3-
<PAGE> 7
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.01 Warrant Price. During the period from
______________, through and including ___________________, each Warrant shall
entitle the holder thereof, subject to the provisions of this Agreement, to
purchase from the Company the number of Warrant Securities stated in the
Warrant Certificate at the exercise price of $__________. Such purchase price
of Warrant Securities is referred to in this Agreement as the "Warrant Price."
No adjustment shall be made for any dividends on any Warrant Securities
issuable upon exercise of any Warrant.
SECTION 2.02 Duration of Warrants. Each Warrant may be
exercised in whole at any time, as specified herein, on or after {the date
thereof} {___________} and at or before 5 P.M., New York City time, on
_________________ or such later date as the Company may designate, by notice to
the Warrant Agent and the holders of Warrant Certificates mailed to their
addresses as set forth in the record books of the Warrant Agent (the
"Expiration Date"). Each Warrant not exercised at or before 5 P.M., New York
City time, on the Expiration Date shall become void, and all rights of the
holder of the Warrant Certificate evidencing such Warrant under this Agreement
shall cease.
SECTION 2.03 Exercise of Warrants.
(a) During the period specified in Section 2.02, any
whole number of Warrants may be exercised by providing certain information as
set forth on the reverse side of the Warrant Certificate and by paying in full,
in {lawful money of the United States of America} {applicable currency} {in
cash or by certified check or official bank check or by bank wire transfer, in
each case,} {by bank wire transfer} in {immediately available} {next-day} funds
the Warrant Price for each Warrant exercised, to the Warrant Agent at its
corporate trust office {or at ___________________}, provided that such exercise
is subject to receipt within five business days of such {payment} {wire
transfer} by the Warrant Agent of the Warrant Certificate with the form of
election to purchase Warrant Securities set forth on the reverse side of the
Warrant Certificate properly completed and duly executed. The date on which
payment in full of the Warrant Price is received by the Warrant Agent shall,
subject to receipt of the Warrant Certificate as aforesaid, be deemed to be the
date on which the Warrant is exercised. The Warrant Agent shall deposit all
funds received by it in payment of the Warrant Price in an account of the
Company maintained with it {if non-dollar denominated funds - or in such other
account designated by the Company} and shall advise the Company by telephone at
the end of each day on which a {payment} {wire transfer} for the exercise of
Warrants is received of the amount so deposited to its account. The Warrant
Agent shall promptly confirm such telephone advice to the Company in writing.
-4-
<PAGE> 8
(b) The Warrant Agent shall, from time to time, as
promptly as reasonably practicable, advise the Company of (i) the number of
Warrants exercised, (ii) the instructions of each holder of the Warrant
Certificates evidencing such Warrants with respect to delivery of the Warrant
Securities to which such holder is entitled upon such exercise, (iii) delivery
of Warrant Certificates evidencing the balance, if any, of the Warrants
remaining after such exercise, and (iv) such other information as the Company
shall reasonably require.
(c) As soon as reasonably practicable after the exercise
of any Warrant, the Company shall issue to or upon the order of the holder of
the Warrant Certificate evidencing such Warrant, the Warrant Securities to
which such holder is entitled, in fully registered form, registered in such
name or names as may be directed by such holder. If fewer than all of the
Warrants evidenced by such Warrant Certificate are exercised, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver a new Warrant Certificate evidencing the number of such
Warrants remaining unexercised.
(d) Issuance of certificates for the Warrant Securities
upon the exercise of the Warrants shall be made without charge to the
Warrantholder for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificates, all of which taxes and expenses
shall be paid by the Company, and such certificates shall be issued in the name
of the Warrantholder or in such name or names as may be directed by the
Warrantholder; provided, however, that in the event certificates for the
Warrant Securities are to be issued in a name other than the name of the
Warrantholder, the Warrant Certificate when surrendered for exercise shall be
accompanied by the Assignment Form attached to the Warrant Certificate duly
executed by the Warrantholder; and provided further, that upon any transfer
involved in the issuance or delivery of any certificates for the Warrant
Securities, the Company may require, as a condition thereto, the payment of a
sum sufficient to reimburse it for any transfer tax incidental thereto.
The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer of the Warrant Securities, and shall not be required to issue or
deliver any Warrant Security until such tax or other charge shall have been
paid or it has been established to the Company's satisfaction that no such tax
or other charge is due.
(e) Prior to the issuance of any Warrants there shall
have been reserved, and the Company shall at all times keep reserved, out of
its authorized but unissued Warrant Securities, a number of shares sufficient
to provide for the exercise of the Warrant Certificates. The issuance of a
Warrant Certificate shall constitute full authority to the Company's officers
who are charged with the duty of executing stock certificates and to any
Transfer Agent for the Company to execute and issue the necessary certificates
for the Warrant Securities upon the exercise of the purchase rights under the
Warrant Certificate.
-5-
<PAGE> 9
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01 No Rights as Warrant Securityholder Conferred
by Warrants or Warrant Certificates. No Warrant Certificates or Warrant
evidenced thereby shall entitle the holder thereof to any of the rights of a
holder of Warrant Securities, including, without limitation, the right to
receive the payment of dividends or distributions, if any, on the Warrant
Securities or to exercise any voting rights.
SECTION 3.02 Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity
reasonably satisfactory to the Warrant Agent and the Company and, in the case
of mutilation, upon surrender thereof to the Warrant Agent for cancellation,
then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company
shall execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section in lieu of
any lost, stolen or destroyed Warrant Certificate shall be entitled to the
benefits of this Agreement equally and proportionately with any and all other
Warrant Certificates duly executed and delivered hereunder. The provisions of
this Section are exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement of mutilated, lost, stolen
or destroyed Warrant Certificates.
SECTION 3.03 Holder of Warrant Certificate May Enforce
Rights. Notwithstanding any of the provisions of this Agreement, any holder of
a Warrant Certificate, without the consent of the Warrant Agent, the holder of
any Warrant Securities or the holder of any other Warrant Certificate, may, in
such holder's own behalf and for such holder's own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, such holder's right to
exercise the Warrants evidenced by such holder's Warrant Certificate in the
manner provided in such holder's Warrant Certificate and in this Agreement.
SECTION 3.04 Reclassification, Consolidation, Merger,
Sale, Conveyance or Lease. Notwithstanding any other provision herein to the
contrary, in case of (i) any consolidation or merger to which the Company is
a party (other than a merger or consolidation in which the Company is the
continuing corporation and in which the Warrant
-6-
<PAGE> 10
Securities outstanding immediately prior to the merger or consolidation are
not exchanged for cash, or for the securities or other property of another
corporation), (ii) any sale or transfer to another corporation of the property
of the Company as an entirety or substantially as an entirety, (iii) any
statutory exchange of securities with another corporation (other than in
connection with a merger or acquisition) or (iv) any reclassification, capital
reorganization or change of the outstanding shares of Warrant Securities
(other than solely a change in par value or from par value to no par value),
then lawful provision shall be made by the corporation formed by such
consolidation or the corporation whose securities, cash or other property will
immediately after the merger or consolidation be owned, by virtue of the
merger or consolidation, by the holders of Warrant Securities immediately
prior to the merger or consolidation, or the corporation which shall have
acquired such assets or securities of the Company, or the Company, as the case
may be, providing that the holder of each Warrant shall have the right
thereafter, during such period as the Warrant is exercisable, upon payment of
the Warrant Price in effect immediately prior to such consolidation, merger,
statutory exchange, sale, transfer, reclassification, capital reorganization
or change to purchase upon exercise of the Warrant the kind and amount of
securities, cash or other property receivable upon such consolidation, merger,
statutory exchange, sale, transfer, reclassification, capital reorganization
or change by a holder of the number of shares of Warrant Securities into which
such Warrant might have been exercised immediately prior to such
consolidation, merger, statutory exchange, sale, transfer, reclassification,
capital reorganization or change assuming such holder of Warrant Securities did
not exercise his rights of election, if any, as to the kind or amount of
securities, cash or other property receivable upon such consolidation, merger,
statutory exchange, sale, transfer, reclassification, capital reorganization
or change (provided that, if the kind or amount of securities, cash or other
property receivable upon such consolidation, merger, statutory exchange,
sale or transfer is not the same for each share of Warrant Securities in
respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purposes of this Section 3.04 the kind
and amount of securities, cash or other property receivable upon such
consolidation, merger, statutory exchange, sale or transfer for each
non-electing share shall be deemed to be the kind and amount so receivable
per share by a plurality of the non-electing shares).
The above provisions of this Section 3.04 shall similarly
apply to successive consolidations, mergers, statutory exchanges, sales or
transfers. If necessary, appropriate adjustment shall be made in the
application of the provisions set forth herein with respect to the rights and
interests thereafter of the holders of the Warrants, to the end that the
provisions set forth herein shall thereafter correspondingly be made
applicable, as nearly as may reasonably be, in relation to any shares of stock
or other securities or property thereafter deliverable on the exercise of the
Warrants. The Company shall not effect any such consolidation, merger, sale or
transfer, unless prior to or simultaneously with the consummation thereof, the
successor company or entity (if other than the Company) resulting from such
consolidation, merger, sale or transfer shall assume, by written instrument,
the obligation to deliver to the holder of each Warrant such shares of stock,
securities or assets as, in accordance with the foregoing provisions, such
holder may be entitled to receive under this Section 3.04.
-7-
<PAGE> 11
ARTICLE IV.
EXCHANGE AND TRANSFERS
OF WARRANT CERTIFICATES
SECTION 4.01 Exchange and Transfers of Warrant
Certificates. {If Offered Securities with Warrants that are immediately
detachable -- Upon} {If Offered Securities with Warrants that are not
immediately detachable -- Prior to the Detachable Date a Warrant Certificate
may be exchanged or transferred only together with the Offered Security to
which the Warrant Certificate was initially attached, and only for the purpose
of effecting or in conjunction with an exchange or transfer of such Offered
Security. Prior to any Detachable Date, each transfer of the Offered Security
{on the register of the Offered Securities} shall operate also to transfer the
related Warrant Certificates. After the Detachable Date, upon} surrender at
the corporate trust office of the Warrant Agent {or __________}, Warrant
Certificates evidencing Warrants may be exchanged for Warrant Certificates in
other denominations evidencing such Warrants or the transfer thereof may be
registered in whole or in part; provided that such other Warrant Certificates
evidence the same aggregate number of Warrants as the Warrant Certificates so
surrendered. The Warrant Agent shall keep, at its corporate trust office {and
at _________}, books in which, subject to such reasonable regulations as it may
prescribe, it shall register Warrant Certificates and exchanges and transfers
of outstanding Warrant Certificates, upon surrender of the Warrant Certificates
to the Warrant Agent at its corporate trust office {or __________} for exchange
or registration of transfer, properly endorsed or accompanied by appropriate
instruments of registration of transfer and written instructions for transfer,
all in form satisfactory to the Company and the Warrant Agent. No service
charge shall be made for any exchange or registration of transfer of Warrant
Certificates, but the Company may require payment of a sum sufficient to cover
any stamp or other tax or other governmental charge that may be imposed in
connection with any such exchange or registration of transfer. Whenever any
Warrant Certificates are so surrendered for exchange or registration of
transfer, an authorized officer of the Warrant Agent shall manually countersign
and deliver to the person or persons entitled thereto a Warrant Certificate or
Warrant Certificates duly authorized and executed by the Company, as so
requested. The Warrant Agent shall not be required to effect any exchange or
registration of transfer that will result in the issuance of a Warrant
Certificate evidencing a fraction of a Warrant or a number of full Warrants and
a fraction of a Warrant. All Warrant Certificates issued upon any exchange or
registration of transfer of Warrant Certificates shall be the valid obligation
of the Company, evidencing the same obligations, and entitled to the same
benefits under this Agreement, as the Warrant Certificate surrendered for such
exchange or registration of transfer.
{If Warrants are issuable as a Global Warrant -
Notwithstanding any other provision in this Agreement, no Global Warrant may be
transferred to, or registered or exchanged for Warrants registered in the name
of, any person other than the Depositary for such Global Warrant or any nominee
thereof, and no such transfer may be registered, unless
-8-
<PAGE> 12
(1) such Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Warrant, (2) the Company executes and
delivers to the Warrant Agent a written order executed by the Company that such
Global Warrant shall be so transferable, registerable and exchangeable, and
such transfers shall be registrable, or (3) there shall have occurred and be
continuing an event of default with respect to the Warrants evidenced by such
Global Warrant. Notwithstanding any other provision in this Agreement, a
Global Warrant to which the restriction set forth in the preceding sentence
shall have ceased to apply may be transferred only to, and may be registered
and exchanged for Warrants registered only in the name or names of, such person
or persons as the Depositary for such Global Warrant shall have directed and no
transfer thereof other than such a transfer may be registered.}
SECTION 4.02 Treatment of Holders of Warrant Certificates.
{If Offered Securities and Warrants are not immediately detachable -- Prior to
the Detachable Date, the Company, the Warrant Agent and all other persons may
treat the owner of any Offered Securities as the owner of the Warrant
Certificates initially attached thereto for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced by such
Warrant Certificates, any notice to the contrary notwithstanding. After the
Detachable Date and prior to the due presentment of a Warrant Certificate for
registration of transfer,} {t}{T}he Company and the Warrant Agent and all other
persons may treat the registered holder of a Warrant Certificate as the
absolute owner thereof for any purpose and as the person entitled to exercise
the rights represented by the Warrants evidenced thereby, any notice to the
contrary notwithstanding.
SECTION 4.03 Cancellation of Warrant Certificates. Any
Warrant Certificate surrendered for exchange, registration of transfer or
exercise of the Warrants evidenced thereby shall, if surrendered to the
Company, be delivered to the Warrant Agent and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly canceled by
the Warrant Agent and shall not be reissued and, except as expressly permitted
by this Agreement, no Warrant Certificate shall be issued hereunder in exchange
or in lieu thereof. The Warrant Agent shall deliver to the Company from time
to time or otherwise dispose of canceled Warrant Certificates in a manner
satisfactory to the Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT
SECTION 5.01 Warrant Agent. The Company hereby appoints
_______________ as the Warrant Agent of the Company in respect of the Warrants
and the Warrant Certificates upon the terms and subject to the conditions
herein set forth, and _______________________ hereby accepts such appointment.
The Warrant Agent shall have the powers and authority granted to and conferred
upon it in the Warrant Certificates and hereby and such further powers and
authority to act on behalf of the Company as the Company may hereafter grant to
or confer upon it. All of the terms and provisions with
-9-
<PAGE> 13
respect to such powers and authority contained in the Warrant Certificates are
subject to and governed by the terms and provisions hereof.
SECTION 5.02 Conditions of Warrant Agent's Obligations.
The Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of
the Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the Warrant
Agent for reasonable out-of-pocket expenses (including counsel fees) reasonably
incurred without negligence or bad faith by the Warrant Agent in connection
with the services rendered hereunder by the Warrant Agent. The Company also
agrees to indemnify the Warrant Agent for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on the part
of the Warrant Agent, arising out of or in connection with its acting as
Warrant Agent hereunder, as well as the reasonable costs and expenses of
defending against any claim of such liability.
(b) Agent for the Company. In acting under this
Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligations or
relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it, and the written advice of such counsel shall be full and
complete authorization and protection in respect of any action reasonably
taken, suffered or omitted by it hereunder in good faith and in accordance with
the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken or thing
suffered by it in reliance upon any Warrant Certificate, notice, direction,
consent, certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented or signed by
the proper parties.
(e) Certain Transactions. The Warrant Agent, and its
officers, directors and employees, may become the owner of, or acquire any
interest in, Warrants, with the same rights that it or they would have if it
were not the Warrant Agent hereunder, and, to the extent permitted by
applicable law, it or they may engage or be interested in any financial or
other transaction with the Company and may act on, or as depositary, trustee or
agent for, any committee or body of holders of Warrant Securities or other
obligations of the Company as freely as if it were not the Warrant Agent
hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant
Agent from acting as trustee under any indentures.
-10-
<PAGE> 14
(f) No Liability for Interest. Unless otherwise agreed
with the Company, the Warrant Agent shall have no liability for interest on any
monies at any time received by it pursuant to any of the provisions of this
Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall
have no liability with respect to any invalidity of this Agreement or any of
the Warrant Certificates (except as to the Warrant Agent's countersignature
thereon).
(h) No Responsibility for Representations. The Warrant
Agent shall not be responsible for any of the recitals or representations
herein or in the Warrant Certificates (except as to the Warrant Agent's
countersignature thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations shall
be read into this Agreement or the Warrant Certificates against the Warrant
Agent. The Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Company of any of the Warrant Certificates
authenticated by the Warrant Agent and delivered by it to the Company pursuant
to this Agreement or for the application by the Company of the proceeds of the
Warrant Certificates. The Warrant Agent shall have no duty or responsibility
in case of any default by the Company in the performance of its covenants or
agreements contained herein or in the Warrant Certificates or in the case of a
receipt of any written demand from a holder of a Warrant Certificate with
respect to such default, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided in Section 6.02 hereof,
to make any demand upon the Company.
SECTION 5.03 Resignation, Removal and Appointment of
Successor.
(a) The Company agrees, for the benefit of the holders
from time to time of the Warrant Certificates, that there shall at all times be
a Warrant Agent hereunder until all the Warrants have been exercised or are no
longer exercisable.
(b) The Warrant Agent may at any time resign as such
agent by giving written notice to the Company of such intention on its part,
specifying the date on which its desired resignation shall become effective;
provided that such date shall be not less than three months after the date on
which such notice is given unless the Company otherwise agrees. The Warrant
Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed by or on behalf of the Company and specifying such
removal and the intended date when it shall become effective. Such resignation
or removal shall take effect upon the appointment by the Company, as
hereinafter provided, of a successor Warrant Agent (which shall be a bank or
trust company authorized under the laws of the jurisdiction of its organization
to exercise corporate trust powers) and the acceptance of such
-11-
<PAGE> 15
appointment by such successor Warrant Agent. The obligation of the Company
under Section 5.02(a) shall continue to the extent set forth therein,
notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign,
or shall be removed, or shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or under any other applicable
Federal or state bankruptcy, insolvency or similar law or shall consent to the
appointment of or taking possession by a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Warrant
Agent or its property or affairs, or shall make an assignment for the benefit
of creditors, or shall admit in writing its inability to pay its debts
generally as they become due, or shall take corporate action in furtherance of
any such action, or a decree or order for relief by a court having jurisdiction
in the premises shall have been entered in respect of the Warrant Agent in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or state bankruptcy, insolvency or
similar law, or a decree or order by a court having jurisdiction in the
premises shall have been entered for the appointment of a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or similar official) of the
Warrant Agent or of its property or affairs, or any public officer shall take
charge or control of the Warrant Agent or of its property or affairs for the
purpose of rehabilitation, conservation, winding up or liquidation, a successor
Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor Warrant Agent and acceptance by the
successor Warrant Agent of such appointment, the Warrant Agent shall cease to
be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor, upon payment of its charges and disbursements then
unpaid, shall thereupon become obligated to transfer, deliver and pay over, and
such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent
hereunder may be merged or converted or any corporation with which the Warrant
Agent may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a party, or any
corporation to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
-12-
<PAGE> 16
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.01 Notice. Any notices required or permitted to
be given hereunder shall be in writing (including telegraphic, telex or
facsimile transmission) and shall be duly given if (i) personally delivered or
sent by telegraph, telex or facsimile, and (ii) mailed by certified or
registered mail, postage prepaid, return receipt requested, addressed as
follows:
If to the Company:
Battle Mountain Gold Company
333 Clay Street, 42nd Floor
Houston, Texas 77002
Attention: Vice President and General Counsel
Facsimile No. (713) 650-3636
If to the Warrant Agent:
__________________________________
__________________________________
__________________________________
Facsimile No. ____________________
If to the Warrantholder:
At the address as it appears on the books of
the Warrant Agent {or on the register of the
Offered Securities prior to the Detachable
Date}, or if such Warrantholder shall have
filed with the Warrant Agent a written
request that notices intended for such
Warrantholder be mailed to some other
address, at the address designated in such
request.
All such notices shall be effective: (i) if mailed or
personally delivered, when received, or (ii) if sent by telegraph, telex or
facsimile, when sent with evidence of
-13-
<PAGE> 17
transmission. The address to which notices hereunder should be sent may be
changed by any party by giving notice of such change to the others in the
manner provided in this Agreement.
SECTION 6.02 Notices and Demands to the Company and
Warrant Agent. If the Warrant Agent shall receive any notice or demand
addressed to the Company by the holder of a Warrant Certificate pursuant to the
provisions of the Warrant Certificates, the Warrant Agent shall promptly
forward such notice or demand to the Company.
SECTION 6.03 Amendment. This Agreement may be amended by
the parties hereto, without the consent of the holder of any Warrant
Certificate, for the purpose of curing any ambiguity, or of curing, correcting
or supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; provided,
however, that such action shall not affect adversely the interests of the
holders of the Warrant Certificates. The Company and the Warrant Agent may
also supplement or amend the Warrant Agreement in any other respect with the
approval of the holders of a majority in number of the Warrants then
outstanding; however, no such supplement or amendment may (i) shorten the
expiration date of the Warrants, (ii) increase the Warrant Price or reduce the
number of shares to be received upon exercise of a Warrant, or (iii) change the
percentage of the holders of Warrant Certificates who must consent to such
amendment or supplement, without the consent of each holder affected thereby.
SECTION 6.04 Saturdays, Sundays, Holidays, etc. If the
last or appointed day for the taking of any action or the expiration of any
right required or granted pursuant to this Agreement or the Warrant
Certificates shall be a Saturday, Sunday or legal holiday in the United States,
then such action may be taken or such right may be exercised on the next
succeeding business day that is not a legal holiday.
SECTION 6.05 Applicable Law. The validity, interpretation
and performance of this Agreement and each Warrant Certificate issued hereunder
and of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of __________________.
SECTION 6.06 Obtaining of Governmental Approvals. The
Company will from time to time take all reasonable actions necessary to obtain
and keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under Federal and state
laws (including, without limitation, a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933, as amended
(the "Securities Act")), which may be or become requisite in connection with
the issuance, sale, transfer and delivery of the Warrant Securities issued upon
exercise of the Warrant Certificates, the exercise of the Warrants, the
-14-
<PAGE> 18
issuance, sale, transfer and delivery of the Warrants or upon the expiration of
the period during which the Warrants are exercisable.
If there is no effective registration statement in respect of
the Warrants and Warrant Securities under the Securities Act, no Warrantholder
may sell or transfer any or all of such Warrants or Warrant Securities, as the
case may be, without first providing the Company with an opinion of counsel
(which may be counsel for the Company) to the effect that such sale or transfer
will be exempt from the registration and prospectus delivery requirements of
the Securities Act.
SECTION 6.07 Delivery of Prospectus. If the issuance and
sale of the Warrant Securities are registered under the Securities Act, the
Company will furnish to the Warrant Agent sufficient copies of a prospectus
relating to the Warrant Securities deliverable upon exercise of the Warrants
(the "Prospectus"), and the Warrant Agent agrees that upon the exercise of any
Warrant, the Warrant Agent will deliver a Prospectus to the holder of the
Warrant Certificate evidencing such warrant prior to or concurrently with the
delivery of the Warrant Securities issued upon such exercise. The Warrant
Agent shall not, by reason of any such delivery, assume any responsibility for
the accuracy or adequacy of such Prospectus.
SECTION 6.08 Persons Having Rights Under Warrant
Agreement. Nothing in this Agreement shall give to any person other than the
Company, the Warrant Agent and the holders of the Warrant Certificates any
right, remedy or claim under or by reason of this Agreement.
SECTION 6.09 Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.10 Counterparts. This Agreement may be executed
in any number of counterparts, each of which as so executed shall be deemed to
be an original, but such counterparts shall together constitute but one and the
same instrument.
SECTION 6.11 Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
SECTION 6.12 Successors and Assigns. All the covenants
and provisions of this Agreement by or for the benefit of the Company or the
Warrant Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
-15-
<PAGE> 19
IN WITNESS WHEREOF, Battle Mountain Gold Company and
___________ have caused this Agreement to be signed by their respective duly
authorized officers, and their respective corporate seals to be affixed
hereunto, and the same to be attested by their respective Secretaries or one of
their respective Assistant Secretaries, all as of the day and year first above
written.
BATTLE MOUNTAIN GOLD COMPANY
By______________________________________
Name:
Title:
Attest:
By________________________________
Name:
Title:
{Warrant Agent}
By______________________________________
Name:
Title:
Attest:
By________________________________
Name:
Title:
-16-
<PAGE> 20
EXHIBIT A
FORM OF WARRANT CERTIFICATE*
{Face of Warrant Certificate}
{Form of Legend if Offered Prior to _______, this Warrant
Securities with Warrants that Certificate cannot be transferred
are not immediately detachable. or exchanged unless attached to
a {Title of Offered Securities}.}
{Form of Legend if Warrants Prior to ________, Warrants
are not immediately exercisable. evidenced by this Warrant
Certificate cannot be exercised.}
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
BATTLE MOUNTAIN GOLD COMPANY
WARRANTS TO PURCHASE
{Title of Warrant Securities}
VOID AFTER 5 P.M., NEW YORK CITY TIME, ON __________________
No. ______________________ _________________ Warrants
This certifies that _________________ or registered assigns is
the registered owner of the above indicated number of Warrants, each Warrant
entitling such owner {if Offered Securities with Warrants that are not
immediately detachable --, subject to the registered owner qualifying as a
"holder" of this Warrant Certificate, as hereinafter defined} to purchase, at
any time {after 5 P.M., New York City time, on __________________ and} on or
before 5 P.M., New York City time, on _________________, ___________ shares of
{Title of Warrant Securities} (the "Warrant Securities"), of Battle Mountain
Gold Company (the "Company") on the following basis: {during the period from
____________, through and including _____________, each Warrant shall entitle
the holder thereof, subject to the provisions of the Warrant Agreement under
which these Warrants are issued, to purchase from the Company the number of
Warrant Securities stated above in this Warrant Certificate at the exercise
price of $___________, during the period from __________, through and including
_________________,} the exercise price of each Warrant will be ____________
(the "Warrant Price"). No adjustment shall be made for any dividends on any
Warrant Securities issuable upon exercise of any Warrant. The holder may
exercise the
__________________________________
* For Preferred Stock.
A-1
<PAGE> 21
Warrants evidenced hereby by providing certain information set forth on the
back hereof and by paying in full {in lawful money of the United States of
America} {in cash or by certified check or official bank check or by bank wire
transfer, in each case,} {by bank wire transfer} in {immediately available}
{next-day} funds, the Warrant Price for each Warrant exercised to the Warrant
Agent (as hereinafter defined) and by surrendering this Warrant Certificate,
with the purchase form on the back hereof duly executed, at the corporate trust
office of {name of Warrant Agent}, or its successor as warrant agent (the
"Warrant Agent"), {or _________________}, which is, on the date hereof, at the
address specified on the reverse hereof, and upon compliance with and subject
to the conditions set forth herein and in the Warrant Agreement (as hereinafter
defined).
The term "holder" as used herein shall mean {if Offered
Securities with Warrants that are not immediately detachable -, prior to
_______________ (the "Detachable Date"), the registered owner of the Company's
{title of Offered Securities} to which this Warrant Certificate is initially
attached, and after such Detachable Date,} the person in whose name at the time
of this Warrant Certificate shall be registered upon the books to be maintained
by the Warrant Agent for that purpose pursuant to Section 4.01 of the Warrant
Agreement.
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities in registered form.
Upon any exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of _______________ (the "Warrant
Agreement") by and between the Company and the Warrant Agent and is subject to
the terms and provisions contained in the Warrant Agreement, to all of which
terms and provisions the holder of this Warrant Certificate consents by
acceptance hereof. Copies of the Warrant Agreement are on file at the
above-mentioned office of the Warrant Agent {and at _________________}.
{If Offered Securities with Warrants that are not immediately
detachable - Prior to _______________, this Warrant Certificate may be
exchanged or transferred only together with the {Title of Offered Securities}
(the "Offered Securities") to which this Warrant Certificate was initially
attached, and only for the purpose of effecting, or in conjunction with, an
exchange or transfer of such Offered Security. After such date, transfer} {if
Offered Securities with Warrants that are immediately detachable - Transfer} of
this Warrant Certificate may be registered when this Warrant Certificate is
surrendered at the corporate trust office of the Warrant Agent {or
_________________} by the registered owner or such owner's assigns, in person
or by an attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement.}
A-2
<PAGE> 22
{If Offered Securities with Warrants that are not immediately
detachable - Except as provided in the immediately preceding paragraph, after}
{If Offered Securities with Warrants which are immediately detachable or
Warrant alone - After} countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent {or
________________} for Warrant Certificates representing the same aggregate
number of Warrants.
This Warrant Certificate shall not entitle the holder hereof
to any of the rights of a holder of the Warrant Securities, including, without
limitation, the right to receive payments of dividends or distributions, if
any, on the Warrant Securities or to exercise any voting rights.
This Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of ________________________.
BATTLE MOUNTAIN GOLD COMPANY
By__________________________
Attest:
By ________________________________________
Countersigned:
___________________________________________
As Warrant Agent
By_________________________________________
Authorized Signature
A-3
<PAGE> 23
{REVERSE OF WARRANT CERTIFICATE}
INSTRUCTIONS FOR EXERCISE OF WARRANT
To exercise the Warrants evidenced hereby, the holder of this
Warrant Certificate must pay in United States dollars {in cash or by certified
check or official bank check or by bank wire transfer} {by bank wire transfer}
in {immediately available} {next-day} funds the Warrant Price in full for each
of the Warrants exercised to {insert name of Warrant Agent} {Corporate Trust
Department} {insert address of Warrant Agent}, Attn. ____________ {or
________________}, which {payment} {wire transfer} must specify the name of the
holder and the number of Warrants exercised by such holder. In addition, such
holder must complete the information required below and present this Warrant
Certificate in person or by mail (certified or registered mail is recommended)
to the Warrant Agent at the appropriate address set forth below. This Warrant
Certificate, completed and duly executed, must be received by the Warrant Agent
within five business days of the {payment} {wire transfer}.
TO BE EXECUTED UPON EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise ______
Warrants, evidenced by this Warrant Certificate, to purchase ______ shares of
{Title of Warrant Securities} (the "Warrant Securities") of Battle Mountain
Gold Company and represents that the undersigned has tendered payment for such
Warrant Securities in Dollars {in cash or by certified check or official bank
check or by bank wire transfer, in each case} {by bank wire transfer} in
{immediately available} {next-day} funds to the order of Battle Mountain Gold
Company, c/o {insert name and address of Warrant Agent}, in the amount of
_______ in accordance with the terms hereof. The undersigned requests that
said amount of Warrant Securities be in fully registered form in the authorized
denominations, registered in such names and delivered all as specified in
accordance with the instructions set forth below.
If the number of Warrants exercised is less than all of the
Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the remaining Warrants evidenced hereby be issued and
delivered to the undersigned unless otherwise specified in the instruction
below.
A-4
<PAGE> 24
Dated:___________________________ Name_____________________________________
_________________________________ Address__________________________________
(Insert Social Security or Other
Identifying Number of Holder) _________________________________________
Signature Guaranteed (Signature must conform in all respects
to name of holder as specified on the
_________________________________ face of this Warrant Certificate and
must bear a signature guarantee by a
bank, trust company or member broker of
the New York Stock Exchange)
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at ____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
By mail at ____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
{Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing
unexercised Warrants -- complete as appropriate.}
A-5
<PAGE> 25
ASSIGNMENT
{FORM OF ASSIGNMENT TO BE EXECUTED IF HOLDER
DESIRES TO TRANSFER WARRANTS EVIDENCED HEREBY}
FOR VALUE RECEIVED _____________________________ hereby sells, assigns
and transfers unto
__________________________ _________________________________
(Please print name) (Please insert social security
or other identifying number)
__________________________
(Address)
__________________________
(City, including zip code)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint ________________ as Attorney to transfer
said Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated:
_________________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate and must bear
a signature guarantee by a bank,
trust company or member broker of
the New York Stock Exchange)
Signature Guaranteed
__________________________
A-6
<PAGE> 1
Exhibit 4(n)
[PROOF]
COMMON STOCK WARRANT AGREEMENT
between
BATTLE MOUNTAIN GOLD COMPANY
and
______________________________________, as Warrant Agent
Dated _______________
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I. ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01 Issuance of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02 Execution and Delivery of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.03 Issuance of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.04 Temporary Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II. WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.01 Warrant Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.02 Adjustments in Warrant Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.03 Duration of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.04 Exercise of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE III. OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES . . . . . . . . . . . . 12
SECTION 3.01 No Rights as Warrant Securityholder Conferred by Warrants or Warrant Certificates . . . . . . 12
SECTION 3.02 Lost, Stolen, Mutilated or Destroyed Warrant Certificates . . . . . . . . . . . . . . . . . . 12
SECTION 3.03 Holder of Warrant Certificate May Enforce Rights . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE IV. EXCHANGE AND TRANSFERS OF WARRANT CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.01 Exchange and Transfers of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.02 Treatment of Holders of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.03 Cancellation of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE V. CONCERNING THE WARRANT AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.01 Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.02 Conditions of Warrant Agent's Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.03 Resignation, Removal and Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VI. ACCELERATION OF WARRANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6.01 Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 6.02 Acceleration of Portion of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6.03 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6.04 Time of Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VII. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.01 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.02 Notices and Demands to the Company and Warrant Agent . . . . . . . . . . . . . . . . . . 20
SECTION 7.03 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.04 Saturdays, Sundays, Holidays, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.05 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.06 Obtaining of Governmental Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.07 Delivery of Prospectus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.08 Persons Having Rights Under Warrant Agreement . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.09 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 7.11 Inspection of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 7.12 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SIGNATURE AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
EXHIBIT A - Form of Warrant Certificate
</TABLE>
-ii-
<PAGE> 4
BATTLE MOUNTAIN GOLD COMPANY
Common Stock Warrant Agreement*
THIS WARRANT AGREEMENT, dated as of ______________________, is
between BATTLE MOUNTAIN GOLD COMPANY, a Nevada corporation (hereinafter called
the "Company"), and _____________________________________, as Warrant Agent
(herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell [if Warrants are sold
with other securities -- [title of such other securities being offered] (the
"Offered Securities") with] warrant certificates evidencing one or more
warrants (the "Warrants" or individually a "Warrant") representing the right to
purchase Common Stock, par value $0.10 per share, of the Company (the "Warrant
Securities"), such warrant certificates and other warrant certificates issued
pursuant to this Agreement being herein called the "Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing so to act, in
connection with the issuance, exchange, exercise and replacement of the Warrant
Certificates, and in this Agreement wishes to set forth, among other things,
the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01 Issuance of Warrants. [If Warrants alone --
Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[If Offered Securities and Warrants -- Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after _________ (the "Detachable Date")] [and shall not be
separately transferable], and each Warrant Certificate shall evidence one or
more Warrants.] Each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase one Warrant
- ---------------
* Complete or modify the provisions of this Warrant Agreement as
appropriate to reflect the terms of the Warrants, Warrant Securities and
Offered Securities.
-1-
<PAGE> 5
Security. [If Offered Securities and Warrants -- Warrant Certificates shall be
initially issued in units with the Offered Securities, and each Warrant
Certificate included in such a unit shall evidence __________ Warrants for each
[$_______________ in principal amount] [______ shares] of Offered Securities
included in such unit.]
SECTION 1.02 Execution and Delivery of Warrant
Certificates. Each Warrant Certificate, whenever issued, shall be in
registered form substantially in the form set forth in Exhibit A hereto, shall
be dated _______________________ and may have such letters, numbers or other
marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the officers of the Company
executing the same may approve (execution thereof to be conclusive evidence of
such approval), and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Warrants may be listed, or to conform to usage. The
Warrant Certificates shall be signed on behalf of the Company by its Chairman
of the Board, its Chief Executive Officer, its President or one of its Vice
Presidents and by its Secretary or one of its Assistant Secretaries under its
corporate seal reproduced thereon. Such signatures may be manual or facsimile
signatures of such authorized officers and may be imprinted or otherwise
reproduced on the Warrant Certificates. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any
of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall have
been countersigned and delivered by the Warrant Agent, such Warrant
Certificates may be countersigned and delivered notwithstanding that the person
who signed such Warrant Certificates ceased to be such officer of the Company;
and any Warrant Certificate may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Warrant Certificate,
shall be the proper officers of the Company, although at the date of the
execution of this Agreement any such person was not such an officer.
The term "holder" or "holder of a Warrant Certificate" as used
herein shall mean any person in whose name at the time any Warrant Certificate
shall be registered upon the books to be maintained by the Warrant Agent for
that purpose [If Offered Securities and Warrants are not immediately detachable
- -- or upon the register of the Offered Securities prior to the Detachable Date.
Prior to the Detachable Date, the Company will, or will cause the registrar of
the Offered Securities to, make available at all
-2-
<PAGE> 6
times to the Warrant Agent such information as to holders of the Offered
Securities with Warrants as may be necessary to keep the Warrant Agent's
records up to date].
[If Warrants are issuable as a Global Warrant -- "Global
Warrant" means a Warrant that evidences all or part of the Warrants and is
authenticated and delivered to, and registered in the name of, the Depositary
for such Warrants or a nominee thereof. "Depositary" means, with respect to
Warrants issuable in whole or in part in the form of one or more Global
Warrants, a clearing agency that the Company designates to act as Depositary.]
SECTION 1.03 Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate not exceeding
________ Warrant Securities (except as provided in Sections 1.04, 2.04(c), 3.02
and 4.01) may be executed by the Company and delivered to the Warrant Agent
upon the execution of this Agreement or from time to time thereafter. The
Warrant Agent shall, upon receipt of Warrant Certificates duly executed on
behalf of the Company, countersign Warrant Certificates evidencing Warrants
representing the right to purchase up to _______ Warrant Securities and shall
deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Warrant Certificates, the Warrant
Agent shall countersign a Warrant Certificate only if the Warrant Certificate
is issued in exchange or substitution for one or more previously countersigned
Warrant Certificates or in connection with their transfer, as hereinafter
provided.
SECTION 1.04 Temporary Warrant Certificates. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company, the Warrant Agent shall authenticate and
deliver, temporary Warrant Certificates which are printed, lithographed,
typewritten, mimeographed or otherwise produced substantially of the tenor of
the definitive Warrant Certificates in lieu of which they are issued and with
such insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificate may determine are appropriate, as evidenced
by their execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable
delay. After the preparation of definitive Warrant Certificates, the temporary
Warrant Certificates shall be exchangeable for definitive Warrant Certificates
upon surrender of the temporary Warrant Certificates at the corporate trust
office of the Warrant Agent [or ___________________], without charge to the
holder. Upon surrender for cancellation of any one or more temporary Warrant
Certificates the Company shall execute and the Warrant Agent shall authenticate
and deliver in exchange therefor definitive Warrant Certificates representing
the same aggregate number of Warrants. Until so exchanged, the temporary
Warrant Certificates shall in all respects be entitled to the same benefits
under this Agreement as definitive Warrant Certificates.
-3-
<PAGE> 7
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.01 Warrant Price. During the period from
______________, through and including ___________________, each Warrant shall
entitle the holder thereof, subject to the provisions of this Agreement, to
purchase from the Company the number of Warrant Securities stated in the
Warrant Certificate at the exercise price of $__________ [at least $0.10, the
par value of the Common Stock], subject to adjustment as provided in Section
2.02. Such purchase price of Warrant Securities is referred to in this
Agreement as the "Warrant Price." Other than as provided in Section 2.02
herein, no adjustment shall be made for any dividends on any Warrant Securities
issuable upon exercise of any Warrant.
SECTION 2.02 Adjustments in Warrant Price. The Warrant
Price, the number of shares purchasable upon exercise of the Warrants and the
number of Warrants outstanding shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend or make
a distribution on its Common Stock in shares of Common Stock, (ii) subdivide
its outstanding shares of Common Stock into a greater number of shares, (iii)
combine its outstanding shares of Common Stock into a smaller number of shares,
or (iv) issue by reclassification of its Common Stock any shares of capital
stock of the Company (including any such reclassification in connection with a
consolidation or merger in which the Company is the surviving company), then in
each such case the Warrant Price in effect immediately prior to such action
shall be adjusted so that the holder of any Warrant thereafter exercised shall
be entitled to receive the number of shares of Common Stock or other capital
stock of the Company which he would have owned or been entitled to receive
immediately following such action had such Warrant been exercised immediately
prior to the occurrence of such event. An adjustment made pursuant to this
subsection (a) shall become effective immediately after the record date for
such action, in the case of a dividend or distribution, or immediately after
the effective date, in the case of a subdivision, combination or
reclassification. If, as a result of an adjustment made pursuant to this
subsection (a), the holder of any Warrant thereafter exercised shall become
entitled to receive shares of two or more classes of capital stock or shares of
Common Stock and other capital stock of the Company, the Board of Directors
(whose determination shall be conclusive and shall be described in a statement
certified by a corporate officer and filed by the Company with the Warrant
Agent) shall determine the allocation of the adjusted Warrant Price between or
among shares of such classes of capital stock or shares of Common Stock and
other capital stock.
(b) In case the Company shall issue rights or warrants to
all holders of its outstanding shares of Common Stock (which rights or warrants
are not available on an equivalent basis to holders of Warrants) entitling them
(for a period expiring within 45 days
-4-
<PAGE> 8
after the record date mentioned below) to subscribe for or purchase shares of
Common Stock at a price per share less than the current market price per share
(as determined pursuant to subsection (d) of this Section) of the Common Stock,
then the Warrant Price in effect immediately prior thereto shall be adjusted
(subject to the limitations contained in subsection (f) of this Section) so
that it shall equal the price determined by multiplying the Warrant Price in
effect immediately prior to the record date for the determination of
stockholders entitled to receive such rights or warrants by a fraction of which
the numerator shall be the number of shares of Common Stock outstanding on the
date of issuance of such rights or warrants (immediately prior to such
issuance) plus the number of shares which the aggregate offering price of the
total number of shares so offered would purchase at such current market price,
and of which the denominator shall be the numbers of shares of Common Stock
outstanding on the date of issuance of such rights or warrants (immediately
prior to such issuance) plus the number of additional shares of Common Stock
offered for subscription or purchase; provided, however, that no adjustment
shall be made if the Company issues or distributes to the holders of the
Warrants the rights or warrants which such holders would have been entitled to
receive had the Warrants been exercised prior to the record date mentioned
below. Such adjustment shall be made successively whenever any rights or
warrants are issued, and shall become effective immediately after the close of
business on the record date for the determination of stockholders entitled to
receive such rights or warrants; provided, however, in the event that all the
shares of Common Stock offered for subscription or purchase are not delivered
upon the exercise of such rights or warrants, upon the expiration of such
rights or warrants the Warrant Price shall be readjusted to the Warrant Price
which would have been in effect had the numerator and the denominator of the
foregoing fraction and the resulting adjustment been made based upon the number
of shares of Common Stock actually delivered upon the exercise of such rights
or warrants rather than upon the number of shares of Common Stock offered for
subscription or purchase.
In determining whether any rights or warrants entitle the
holders to subscribe for or purchase shares of Common Stock at less than such
current market price, and in determining the aggregate offering price of such
shares of Common Stock, there shall be taken into account any consideration
received by the Company for such rights or warrants, the value of such
consideration, if other than cash, to be determined by the Board of Directors
(whose determination shall be conclusive and shall be described in a statement
filed by the Company with the Warrant Agent). Notwithstanding the foregoing,
any adjustments to the Warrant Price with respect to the preferred stock
purchase rights (the "Rights") of the Company associated with the shares of
Common Stock, which Rights are governed by a Rights Agreement dated as of
November 10, 1988, as amended (the "Rights Agreement"), or similar rights or
warrants adopted or issued subsequent to the date hereof shall be made when
such Rights or similar rights or warrants are exercised. If after the
Distribution Date (as defined in the Rights Agreement or a similar date defined
in a similar agreement), holders exercising Warrants are not entitled to
receive the Rights or similar rights or warrants which would otherwise be
attributable (but for the date of exercise) to the shares of Common Stock
received upon such exercise, then adjustment to the Warrant
-5-
<PAGE> 9
Price shall be made under this subsection as if the Rights or similar rights or
warrants were then issued to holders of Common Stock. If such an adjustment is
made and the Rights or similar rights or warrants are later redeemed,
invalidated or terminated, then a corresponding reversing adjustment shall be
made to the Warrant Price, on an equitable basis, to take account of such
event. However, the Company may elect to provide that such shares of Common
Stock issuable upon exercise of the Warrants, whether or not issued after the
Distribution Date for such Rights or such similar date for such similar rights
or warrants, will be accompanied by the Rights or such similar rights or
warrants which would otherwise be attributable (but for the date of exercise)
to such shares of Common Stock, in which event the preceding two sentences
shall not apply.
(c) In case the Company shall, by dividend or otherwise,
distribute to all holders of its outstanding Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the surviving company), evidences of its indebtedness or assets
(including securities and cash, but excluding any regular periodic cash
dividend of the Company and dividends or distributions payable in stock for
which adjustment is made pursuant to subsection (a) of this Section) or rights
or warrants to subscribe for or purchase securities of the Company (excluding
those referred to in subsection (b) of this Section), then in each such case
the Warrant Price shall be adjusted (subject to the limitations contained in
subsection (f) of this Section) so that the same shall equal the price
determined by multiplying the Warrant Price in effect immediately prior to the
record date of such distribution by a fraction of which the numerator shall be
the current market price per share (as determined pursuant to subsection (d) of
this Section) of the Common Stock less the fair market value on such record
date (as determined by the Board of Directors, whose determination shall be
conclusive and shall be described in a statement filed by the Company with the
Warrant Agent) of the portion of the capital stock or assets or the evidences
of indebtedness or assets so distributed to the holder of one share of Common
Stock or of such subscription rights or warrants applicable to one share of
Common Stock, and of which the denominator shall be such current market price
per share of Common Stock. Such adjustment shall become effective immediately
after the close of business on the record date for the determination of
stockholders entitled to receive such distribution.
(d) For the purpose of any computation under subsections
(b) and (c) of this Section, the current market price per share of Common Stock
on any date shall be deemed to be the average of the market price ("Market
Price") for the shorter of (i) 30 consecutive trading days ending on the last
full trading day prior to the Time of Determination or (ii) the period
commencing on the date next succeeding the first public announcement of the
issuance of such rights or warrants or such distribution through such last full
trading day prior to the Time of Determination. For purposes of the foregoing,
the term "Time of Determination" shall mean the time and date of the earlier of
(A) the record date for determining stockholders entitled to receive the
rights, warrants or distributions referred to in subsections (b) and (c) of
this Section or (B) the commencement of "ex-dividend" trading on the exchange
or market referred to below. The Market Price for each
-6-
<PAGE> 10
day shall be the last reported sales price regular way or, in case no such
reported sales takes place on such day, the average of the closing bid and
asked prices regular way for such day, in each case on the New York Stock
Exchange Composite Tape or, if not listed on the New York Stock Exchange, on
the principal national securities exchange on which the shares of Common Stock
are listed or admitted to trading or, if not listed or admitted to trading on a
national securities exchange, the last sale price regular way for the Common
Stock as published by the National Association of Securities Dealers Automated
Quotation System ("NASDAQ") or if such last sale price is not so published by
NASDAQ or if no such sale takes place on such day, the mean between the closing
bid and asked prices for the Common Stock as published by NASDAQ. If the
shares of Common Stock are not listed or admitted to trading on a national
securities exchange or quoted by NASDAQ, the determination of Market Price
shall be determined in good faith by the Board of Directors of the Company or,
if such determination cannot be made, by a nationally recognized independent
investment banking firm selected in good faith by the Board of Directors of the
Company. For the purposes of this subsection, trading day shall mean a day on
which the securities exchange specified for purposes of this subsection shall
be open for business or, if the shares of Common Stock shall not be listed on
such exchange for such period, a day with respect to which quotations of the
character referred to in the next preceding sentence shall be reported.
(e) In any case in which this Section shall require that
an adjustment be made immediately following a record date or an effective date,
the Company may elect to defer until the actual occurrence of such event
issuing to the holder of any Warrant exercised after such record date or
effective date the shares of Common Stock issuable upon such exercise over and
above the shares of Common Stock issuable upon such exercise on the basis of
the Warrant Price prior to adjustment, and paying to such holder any amount of
cash in lieu of a fractional share.
(f) No adjustment in the Warrant Price shall be made for
the issuance of shares of capital stock pursuant to any stock option,
restricted stock or other incentive or benefit plan or stock ownership or
purchase plan for the benefit of employees, directors or officers or any
dividend reinvestment plan of the Company in effect at the time hereof or any
other similar plan adopted or implemented hereafter. No adjustment in the
Warrant Price shall be required to be made unless such adjustment would require
an increase or decrease of at least one percent of such price; provided,
however, that any adjustments which by reason of this subsection (f) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section shall be made to
the nearest cent or to the nearest 1/1000th of a share, as the case may be.
Anything in this Section to the contrary notwithstanding, the Company shall be
entitled to make such reduction in the Warrant Price, in addition to those
required by this Section, as it in its discretion shall determine to be
advisable in order that any stock dividend, subdivision of shares, distribution
of rights to purchase stock or securities, or distribution of securities
convertible into or exchangeable for stock hereafter made by the Company to its
stockholders shall not be taxable to the recipients. Except as set forth in
subsections (a),
-7-
<PAGE> 11
(b) and (c) above, the Warrant Price shall not be adjusted for the issuance of
Common Stock, or any securities convertible into or exchangeable for Common
Stock or carrying the right to purchase any of the foregoing, in exchange for
cash, property or services.
(g) Whenever the Warrant Price is adjusted as herein
provided, (i) the Company shall promptly file with the Warrant Agent a
certificate setting forth the Warrant Price after such adjustment and a brief
statement of the facts requiring such adjustment and the manner of computing
the same, which certificate shall be conclusive evidence of the correctness of
such adjustment, and (ii) the Company shall also mail or cause to be mailed by
first class mail, postage prepaid, as soon as practicable to each holder of
Warrants a notice stating that the Warrant Price has been adjusted and setting
forth the adjusted Warrant Price. The Warrant Agent shall not be under any
duty or responsibility with respect to the certificate required by this
subsection (g) except to exhibit the same to any holder of Warrants who
requests to inspect it.
(h) In the event that at any time, as a result of an
adjustment made pursuant to subsection (a) of this Section, the holder of any
Warrant thereafter exercised shall become entitled to receive any shares of the
Company other than shares of Common Stock, thereafter the Warrant Price of such
other shares so receivable upon exercise of any Warrant shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to Common Stock contained in this
Section.
(i) The Company from time to time may decrease the
Warrant Price by any amount for any period of time if the period is at least 20
days and if the decrease is irrevocable during the period. Whenever the
Warrant Price is so decreased, the Company shall mail to the holders of the
Warrants a notice of the decrease at least 15 days before the date the
decreased Warrant Price takes effect, and such notice shall state the decreased
Warrant Price and the period it will be in effect, and the Company shall cause
to be published similar notice at least once in a newspaper of general
circulation in the City of New York, New York, and such other cities where
securities exchanges are located on which the Warrants and/or Warrant
Securities are listed, at least 15 days before the date the decreased Warrant
Price takes effect.
(j) In case:
(1) the Company shall take any action which would require
an adjustment in the Warrant Price pursuant to subsection (c) of this Section;
or
(2) the Company shall authorize the granting to the
holders of its Common Stock of rights or warrants to subscribe for or purchase
any shares of stock of any class or of any other rights; or
-8-
<PAGE> 12
(3) there shall be any reorganization or reclassification
of the Common Stock (other than a subdivision or combination of the outstanding
Common Stock and other than a change in the par value of the Common Stock), or
any consolidation or merger to which the Company is a party or any statutory
exchange of securities with another corporation and for which approval of any
stockholders of the Company is required, or any sale or transfer of all or
substantially all of the assets of the Company; or
(4) there shall be a voluntary or involuntary
dissolution, liquidation or winding-up of the Company;
then in each such case the Company shall cause to be given to the holders of
the Warrants and the Warrant Agent, as promptly as possible, but in any event
at least 20 days prior to the applicable date hereinafter specified, a notice
stating (i) the date on which a record is to be taken for the purpose of such
action or granting of rights or warrants, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such distribution, rights or warrants are to be determined, or (ii) the date on
which such reorganization, reclassification, consolidation, merger, statutory
exchange, sale, transfer, dissolution, liquidation or winding-up is expected to
become effective or occur, and the date as of which it is expected that holders
of Common Stock of record shall be entitled to exchange their shares of Common
Stock for securities, cash or other property deliverable upon such
reorganization, reclassification, consolidation, merger, statutory exchange,
sale, transfer, dissolution, liquidation or winding-up. Failure to give such
notice or any defect therein shall not affect the legality or validity of the
proceedings described in clauses (1), (2), (3) or (4) of this subsection (j).
(k) Notwithstanding any other provision herein to the
contrary, in case of any consolidation or merger to which the Company is a
party (other than a merger or consolidation in which the Company is the
continuing corporation and in which the Common Stock outstanding immediately
prior to the merger or consolidation is not exchanged for cash, or for the
securities or other property of another corporation), or in case of any sale or
transfer to another corporation of the property of the Company as an entirety
or substantially as an entirety, or in the case of any statutory exchange of
securities with another corporation (other than in connection with a merger or
acquisition), then lawful provision shall be made by the corporation formed by
such consolidation or the corporation whose securities, cash or other property
will immediately after the merger or consolidation be owned, by virtue of the
merger or consolidation, by the holders of Common Stock immediately prior to
the merger or consolidation, or the corporation which shall have acquired such
assets or securities of the Company (collectively the "Formed, Surviving or
Acquiring Corporation"), as the case may be, providing that the holder of each
Warrant shall have the right thereafter, during such period as the Warrant is
exercisable, upon payment of the Warrant Price in effect immediately prior to
such consolidation, merger, statutory exchange, sale or transfer, to purchase
upon exercise of the Warrant the kind and amount of securities, cash or other
property receivable upon such consolidation, merger, statutory exchange, sale
or transfer by a holder of the number of shares of Common Stock into which
-9-
<PAGE> 13
such Warrant might have been exercised immediately prior to such consolidation,
merger, statutory exchange, sale or transfer assuming such holder of Common
Stock did not exercise his rights of election, if any, as to the kind or amount
of securities, cash or other property receivable upon such consolidation,
merger, statutory exchange, sale or transfer (provided that, if the kind or
amount of securities, cash or other property receivable upon such
consolidation, merger, statutory exchange, sale or transfer is not the same for
each share of Common Stock in respect of which such rights of election shall
not have been exercised ("non-electing share"), then for the purposes of this
subsection (k) the kind and amount of securities, cash or other property
receivable upon such consolidation, merger, statutory exchange, sale or
transfer for each non-electing share shall be deemed to be the kind and amount
so receivable per share by a plurality of the non-electing shares).
The above provisions of this subsection (k) shall similarly
apply to successive consolidations, mergers, statutory exchanges, sales or
transfers. If necessary, appropriate adjustment shall be made in the
application of the provisions set forth herein with respect to the rights and
interests thereafter of the holders of the Warrants, to the end that the
provisions set forth herein shall thereafter correspondingly be made
applicable, as nearly as may reasonably be, in relation to any shares of stock
or other securities or property thereafter deliverable on the exercise of the
Warrants. The Company shall not effect any such consolidation, merger, sale or
transfer, unless prior to or simultaneously with the consummation thereof, the
successor company or entity (if other than the Company) resulting from such
consolidation, merger, sale or transfer shall assume, by written instrument,
the obligation to deliver to the holder of each Warrant such shares of stock,
securities or assets as, in accordance with the foregoing provisions, such
holder may be entitled to receive under this Section 2.02.
(l) No fractional shares or scrip representing fractional
shares of Common Stock shall be issued upon the exercise of the Warrants. If
more than one Warrant shall be surrendered for exercise at one time by the same
holder, the number of full shares issuable upon exercise thereof shall be
computed on the basis of the aggregate number of shares purchased pursuant to
the Warrants so exercised. In lieu of any fractional interest in a share of
Common Stock which would otherwise be deliverable upon the exercise of any
Warrant, the Company shall pay to the holder of such Warrant an amount in cash
(computed to the nearest cent) equal to the Market Price (as defined in
subsection (d) of this Section) on the business day next preceding the day of
exercise multiplied by the fractional interest that otherwise would have been
deliverable upon exercise of such Warrant.
SECTION 2.03 Duration of Warrants. Each Warrant may be
exercised in whole at any time, as specified herein, on or after [the date
thereof] [___________] and at or before 5 P.M., New York City time, on
_________________ or such later date as the Company may designate, by notice to
the Warrant Agent and the holders of Warrant Certificates mailed to their
addresses as set forth in the record books of the Warrant Agent (the
"Expiration Date"). Each Warrant not exercised at or before 5 P.M., New York
City
-10-
<PAGE> 14
time, on the Expiration Date shall become void, and all rights of the holder of
the Warrant Certificate evidencing such Warrant under this Agreement shall
cease.
SECTION 2.04 Exercise of Warrants.
(a) During the period specified in Section 2.03, any
whole number of Warrants may be exercised by providing certain information as
set forth on the reverse side of the Warrant Certificate and by paying in full,
in [lawful money of the United States of America] [applicable currency] [in
cash or by certified check or official bank check or by bank wire transfer, in
each case,] [by bank wire transfer] in [immediately available] [next-day] funds
the Warrant Price for each Warrant exercised, to the Warrant Agent at its
corporate trust office [or at ___________________], provided that such exercise
is subject to receipt within five business days of such [payment] [wire
transfer] by the Warrant Agent of the Warrant Certificate with the form of
election to purchase Warrant Securities set forth on the reverse side of the
Warrant Certificate properly completed and duly executed. The date on which
payment in full of the Warrant Price is received by the Warrant Agent shall,
subject to receipt of the Warrant Certificate as aforesaid, be deemed to be the
date on which the Warrant is exercised. The Warrant Agent shall deposit all
funds received by it in payment of the Warrant Price in an account of the
Company maintained with it [if non-dollar denominated funds - or in such other
account designated by the Company] and shall advise the Company by telephone at
the end of each day on which a [payment] [wire transfer] for the exercise of
Warrants is received of the amount so deposited to its account. The Warrant
Agent shall promptly confirm such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as
promptly as reasonably practicable, advise the Company of (i) the number of
Warrants exercised, (ii) the instructions of each holder of the Warrant
Certificates evidencing such Warrants with respect to delivery of the Warrant
Securities to which such holder is entitled upon such exercise, (iii) delivery
of Warrant Certificates evidencing the balance, if any, of the Warrants
remaining after such exercise, and (iv) such other information as the Company
shall reasonably require.
(c) As soon as reasonably practicable after the exercise
of any Warrant, the Company shall issue to or upon the order of the holder of
the Warrant Certificate evidencing such Warrant, the Warrant Securities to
which such holder is entitled, in fully registered form, registered in such
name or names as may be directed by such holder. If fewer than all of the
Warrants evidenced by such Warrant Certificate are exercised, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver a new Warrant Certificate evidencing the number of such
Warrants remaining unexercised.
(d) Issuance of certificates for the Warrant Securities
upon the exercise of the Warrants shall be made without charge to the
Warrantholder for any issue or transfer
-11-
<PAGE> 15
tax or other incidental expense in respect of the issuance of such
certificates, all of which taxes and expenses shall be paid by the Company, and
such certificates shall be issued in the name of the Warrantholder or in such
name or names as may be directed by the Warrantholder; provided, however, that
in the event certificates for the Warrant Securities are to be issued in a name
other than the name of the Warrantholder, the Warrant Certificate when
surrendered for exercise shall be accompanied by the Assignment Form attached
to the Warrant Certificate duly executed by the Warrantholder; and provided
further, that upon any transfer involved in the issuance or delivery of any
certificates for the Warrant Securities, the Company may require, as a
condition thereto, the payment of a sum sufficient to reimburse it for any
transfer tax incidental thereto.
The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer of the Warrant Securities, and shall not be required to issue or
deliver any Warrant Security until such tax or other charge shall have been
paid or it has been established to the Company's satisfaction that no such tax
or other charge is due.
(e) Prior to the issuance of any Warrants there shall
have been reserved, and the Company shall at all times keep reserved, out of
its authorized but unissued Warrant Securities, a number of shares sufficient
to provide for the exercise of the Warrant Certificates. The issuance of a
Warrant Certificate shall constitute full authority to the Company's officers
who are charged with the duty of executing stock certificates and to any
Transfer Agent for the Company to execute and issue the necessary certificates
for the Warrant Securities upon the exercise of the purchase rights under the
Warrant Certificate.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01 No Rights as Warrant Securityholder Conferred
by Warrants or Warrant Certificates. No Warrant Certificates or Warrant
evidenced thereby shall entitle the holder thereof to any of the rights of a
holder of Warrant Securities, including, without limitation, the right to
receive the payment of dividends or distributions, if any, on the Warrant
Securities or to exercise any voting rights.
SECTION 3.02 Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity
reasonably satisfactory to the Warrant Agent and the Company and, in the case
of mutilation, upon surrender thereof to the Warrant Agent for cancellation,
then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company
shall execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange
-12-
<PAGE> 16
for or in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate,
a new Warrant Certificate of the same tenor and evidencing a like number of
Warrants. Upon the issuance of any new Warrant Certificate under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and delivered
pursuant to this Section in lieu of any lost, stolen or destroyed Warrant
Certificate shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder. The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 3.03 Holder of Warrant Certificate May Enforce
Rights. Notwithstanding any of the provisions of this Agreement, any holder of
a Warrant Certificate, without the consent of the Warrant Agent, the holder of
any Warrant Securities or the holder of any other Warrant Certificate, may, in
such holder's own behalf and for such holder's own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, such holder's right to
exercise the Warrants evidenced by such holder's Warrant Certificate in the
manner provided in such holder's Warrant Certificate and in this Agreement.
ARTICLE IV.
EXCHANGE AND TRANSFERS
OF WARRANT CERTIFICATES
SECTION 4.01 Exchange and Transfers of Warrant
Certificates. [If Offered Securities with Warrants that are immediately
detachable -- Upon] [If Offered Securities with Warrants that are not
immediately detachable -- Prior to the Detachable Date a Warrant Certificate
may be exchanged or transferred only together with the Offered Security to
which the Warrant Certificate was initially attached, and only for the purpose
of effecting or in conjunction with an exchange or transfer of such Offered
Security. Prior to any Detachable Date, each transfer of the Offered Security
[on the register of the Offered Securities] shall operate also to transfer the
related Warrant Certificates. After the Detachable Date, upon] surrender at
the corporate trust office of the Warrant Agent [or __________], Warrant
Certificates evidencing Warrants may be exchanged for Warrant Certificates in
other denominations evidencing such Warrants or the transfer thereof may be
registered in whole or in part; provided that such other Warrant Certificates
evidence the same aggregate number of Warrants as the Warrant Certificates so
surrendered. The Warrant Agent shall keep, at its corporate trust office [and
at _________], books in which, subject to such reasonable regulations as it
may prescribe, it shall register Warrant Certificates and exchanges and
transfers of outstanding Warrant Certificates, upon surrender of the Warrant
Certificates to the Warrant Agent at its corporate trust office [or __________]
for exchange or registration of transfer, properly endorsed or accompanied by
-13-
<PAGE> 17
appropriate instruments of registration of transfer and written instructions
for transfer, all in form satisfactory to the Company and the Warrant Agent.
No service charge shall be made for any exchange or registration of transfer of
Warrant Certificates, but the Company may require payment of a sum sufficient
to cover any stamp or other tax or other governmental charge that may be
imposed in connection with any such exchange or registration of transfer.
Whenever any Warrant Certificates are so surrendered for exchange or
registration of transfer, an authorized officer of the Warrant Agent shall
manually countersign and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates duly authorized and executed by the
Company, as so requested. The Warrant Agent shall not be required to effect
any exchange or registration of transfer that will result in the issuance of a
Warrant Certificate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any
exchange or registration of transfer of Warrant Certificates shall be the valid
obligation of the Company, evidencing the same obligations, and entitled to the
same benefits under this Agreement, as the Warrant Certificate surrendered for
such exchange or registration of transfer.
[If Warrants are issuable as a Global Warrant -
Notwithstanding any other provision in this Agreement, no Global Warrant may be
transferred to, or registered or exchanged for Warrants registered in the name
of, any person other than the Depositary for such Global Warrant or any nominee
thereof, and no such transfer may be registered, unless (1) such Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for such Global Warrant, (2) the Company executes and delivers to the Warrant
Agent a written order executed by the Company that such Global Warrant shall be
so transferable, registerable and exchangeable, and such transfers shall be
registrable, or (3) there shall have occurred and be continuing an event of
default with respect to the Warrants evidenced by such Global Warrant.
Notwithstanding any other provision in this Agreement, a Global Warrant to
which the restriction set forth in the preceding sentence shall have ceased to
apply may be transferred only to, and may be registered and exchanged for
Warrants registered only in the name or names of, such person or persons as the
Depositary for such Global Warrant shall have directed and no transfer thereof
other than such a transfer may be registered.]
SECTION 4.02 Treatment of Holders of Warrant Certificates.
[If Offered Securities and Warrants are not immediately detachable -- Prior to
the Detachable Date, the Company, the Warrant Agent and all other persons may
treat the owner of any Offered Securities as the owner of the Warrant
Certificates initially attached thereto for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced by such
Warrant Certificates, any notice to the contrary notwithstanding. After the
Detachable Date and prior to the due presentment of a Warrant Certificate for
registration of transfer,] [t][T]he Company and the Warrant Agent and all other
persons may treat the registered holder of a Warrant Certificate as the
absolute owner thereof for any purpose and as the person entitled to exercise
the rights represented by the Warrants evidenced thereby, any notice to the
contrary notwithstanding.
-14-
<PAGE> 18
SECTION 4.03 Cancellation of Warrant Certificates. Any
Warrant Certificate surrendered for exchange, registration of transfer or
exercise of the Warrants evidenced thereby shall, if surrendered to the
Company, be delivered to the Warrant Agent and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly canceled by
the Warrant Agent and shall not be reissued and, except as expressly permitted
by this Agreement, no Warrant Certificate shall be issued hereunder in exchange
or in lieu thereof. The Warrant Agent shall deliver to the Company from time
to time or otherwise dispose of canceled Warrant Certificates in a manner
satisfactory to the Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT
SECTION 5.01 Warrant Agent. The Company hereby appoints
_______________ as the Warrant Agent of the Company in respect of the Warrants
and the Warrant Certificates upon the terms and subject to the conditions
herein set forth, and _______________________ hereby accepts such appointment.
The Warrant Agent shall have the powers and authority granted to and conferred
upon it in the Warrant Certificates and hereby and such further powers and
authority to act on behalf of the Company as the Company may hereafter grant to
or confer upon it. All of the terms and provisions with respect to such powers
and authority contained in the Warrant Certificates are subject to and governed
by the terms and provisions hereof.
SECTION 5.02 Conditions of Warrant Agent's Obligations.
The Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of
the Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the Warrant
Agent for reasonable out- of-pocket expenses (including counsel fees)
reasonably incurred without negligence or bad faith by the Warrant Agent in
connection with the services rendered hereunder by the Warrant Agent. The
Company also agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on the part of the Warrant Agent, arising out of or in connection with
its acting as Warrant Agent hereunder, as well as the reasonable costs and
expenses of defending against any claim of such liability.
(b) Agent for the Company. In acting under this
Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligations or
relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
-15-
<PAGE> 19
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it, and the written advice of such counsel shall be full and
complete authorization and protection in respect of any action reasonably
taken, suffered or omitted by it hereunder in good faith and in accordance with
the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken or thing
suffered by it in reliance upon any Warrant Certificate, notice, direction,
consent, certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented or signed by
the proper parties.
(e) Certain Transactions. The Warrant Agent, and its
officers, directors and employees, may become the owner of, or acquire any
interest in, Warrants, with the same rights that it or they would have if it
were not the Warrant Agent hereunder, and, to the extent permitted by
applicable law, it or they may engage or be interested in any financial or
other transaction with the Company and may act on, or as depositary, trustee or
agent for, any committee or body of holders of Warrant Securities or other
obligations of the Company as freely as if it were not the Warrant Agent
hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant
Agent from acting as trustee under any indentures.
(f) No Liability for Interest. Unless otherwise agreed
with the Company, the Warrant Agent shall have no liability for interest on any
monies at any time received by it pursuant to any of the provisions of this
Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall
have no liability with respect to any invalidity of this Agreement or any of
the Warrant Certificates (except as to the Warrant Agent's countersignature
thereon).
(h) No Responsibility for Representations. The Warrant
Agent shall not be responsible for any of the recitals or representations
herein or in the Warrant Certificates (except as to the Warrant Agent's
countersignature thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations shall
be read into this Agreement or the Warrant Certificates against the Warrant
Agent. The Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Company of any of the Warrant Certificates
authenticated by the Warrant Agent and delivered by it to the Company pursuant
to this Agreement or for the application by the Company of the proceeds of the
Warrant Certificates. The Warrant Agent shall have no duty or responsibility
in case of any default by the Company in the performance of its covenants or
agreements contained herein or in the Warrant Certificates or in the case of a
receipt of any written demand from a
-16-
<PAGE> 20
holder of a Warrant Certificate with respect to such default, including,
without limiting the generality of the foregoing, any duty or responsibility to
initiate or attempt to initiate any proceedings at law or otherwise or, except
as provided in Section 7.02 hereof, to make any demand upon the Company.
SECTION 5.03 Resignation, Removal and Appointment of
Successor.
(a) The Company agrees, for the benefit of the holders
from time to time of the Warrant Certificates, that there shall at all times be
a Warrant Agent hereunder until all the Warrants have been exercised or are no
longer exercisable.
(b) The Warrant Agent may at any time resign as such
agent by giving written notice to the Company of such intention on its part,
specifying the date on which its desired resignation shall become effective;
provided that such date shall be not less than three months after the date on
which such notice is given unless the Company otherwise agrees. The Warrant
Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed by or on behalf of the Company and specifying such
removal and the intended date when it shall become effective. Such resignation
or removal shall take effect upon the appointment by the Company, as
hereinafter provided, of a successor Warrant Agent (which shall be a bank or
trust company authorized under the laws of the jurisdiction of its organization
to exercise corporate trust powers) and the acceptance of such appointment by
such successor Warrant Agent. The obligation of the Company under Section
5.02(a) shall continue to the extent set forth therein, notwithstanding the
resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign,
or shall be removed, or shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or under any other applicable
Federal or state bankruptcy, insolvency or similar law or shall consent to the
appointment of or taking possession by a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Warrant
Agent or its property or affairs, or shall make an assignment for the benefit
of creditors, or shall admit in writing its inability to pay its debts
generally as they become due, or shall take corporate action in furtherance of
any such action, or a decree or order for relief by a court having jurisdiction
in the premises shall have been entered in respect of the Warrant Agent in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or state bankruptcy, insolvency or
similar law, or a decree or order by a court having jurisdiction in the
premises shall have been entered for the appointment of a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or similar official) of the
Warrant Agent or of its property or affairs, or any public officer shall take
charge or control of the Warrant Agent or of its property or affairs for the
purpose of rehabilitation, conservation, winding up or liquidation, a successor
Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor Warrant Agent
-17-
<PAGE> 21
and acceptance by the successor Warrant Agent of such appointment, the Warrant
Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor, upon payment of its charges and disbursements then
unpaid, shall thereupon become obligated to transfer, deliver and pay over, and
such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent
hereunder may be merged or converted or any corporation with which the Warrant
Agent may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a party, or any
corporation to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
ARTICLE VI.
ACCELERATION OF WARRANTS
SECTION 6.01 Acceleration. At any time on or after
_________, the Company shall have the right to accelerate any or all Warrants
at any time by causing them to expire at the close of business on the day next
preceding a specified date (the "Acceleration Date"), if the Market Price (as
determined in Section 2.02(d)) of the Common Stock equals or exceeds
_____ percent of the then effective Warrant Price, adjusted as if no changes
in such Warrant Price had been made pursuant to Section 2.02, on any 20 trading
days within a period of 30 consecutive trading days ending no more than five
trading days prior to the date on which the Company gives notice to the Warrant
Agent of its election to accelerate the Warrants.
SECTION 6.02 Acceleration of Portion of Warrants. In the
event of an acceleration of less than all of the Warrants, the Warrant Agent
shall select the Warrants to be accelerated by lot, pro rata or in such other
manner as it deems, in its discretion, to be fair and appropriate.
SECTION 6.03 Notice. Notice of an acceleration specifying
the Acceleration Date shall be sent by mailing such notice first class, postage
prepaid, to each
-18-
<PAGE> 22
registered holder of a Warrant Certificate representing a Warrant accelerated
to such holder's address appearing on the Warrant register not more than [60
days nor less than 30 days] before the Acceleration Date. [Such notice of an
acceleration also shall be given no more than [20 days, and no less than 10
days], prior to the mailing of notice to registered holders of Warrant pursuant
to this Section, by publication at least once in a newspaper of general
circulation in the City of New York, New York, and in such other cities where
securities exchanges are located on which the Warrants and/or Warrant
Securities are listed if any. Such costs of publication will be paid by the
Company.]
SECTION 6.04 Time of Acceleration. Any Warrant
accelerated may be exercised until 5 P.M. New York City time on the business
day next preceding the Acceleration Date. The Warrant Price shall be payable
as provided in this Agreement.]
ARTICLE VII.
MISCELLANEOUS
SECTION 7.01 Notice. Any notices required or permitted to
be given hereunder shall be in writing (including telegraphic, telex or
facsimile transmission) and shall be duly given if (i) personally delivered or
sent by telegraph, telex or facsimile, and (ii) mailed by certified or
registered mail, postage prepaid, return receipt requested, addressed as
follows:
If to the Company:
Battle Mountain Gold Company
333 Clay Street, 42nd Floor
Houston, Texas 77002
Attention: Vice President and General Counsel
Facsimile No. (713) 650-3636
If to the Warrant Agent:
______________________________
______________________________
______________________________
Facsimile No. ________________
-19-
<PAGE> 23
If to the Warrantholder:
At the address as it appears on the
books of the Warrant Agent [or on the
register of the Offered Securities prior
to the Detachable Date], or if such
Warrantholder shall have filed with the
Warrant Agent a written request that notices
intended for such Warrantholder be mailed to
some other address, at the address designated
in such request.
All such notices shall be effective: (i) if mailed or
personally delivered, when received, or (ii) if sent by telegraph, telex or
facsimile, when sent with evidence of transmission. The address to which
notices hereunder should be sent may be changed by any party by giving notice
of such change to the others in the manner provided in this Agreement.
SECTION 7.02 Notices and Demands to the Company and
Warrant Agent. If the Warrant Agent shall receive any notice or demand
addressed to the Company by the holder of a Warrant Certificate pursuant to the
provisions of the Warrant Certificates, the Warrant Agent shall promptly
forward such notice or demand to the Company.
SECTION 7.03 Amendment. This Agreement may be amended by
the parties hereto, without the consent of the holder of any Warrant
Certificate, for the purpose of curing any ambiguity, or of curing, correcting
or supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; provided,
however, that such action shall not affect adversely the interests of the
holders of the Warrant Certificates. The Company and the Warrant Agent may
also supplement or amend the Warrant Agreement in any other respect with the
approval of the holders of a majority in number of the Warrants then
outstanding; however, no such supplement or amendment may (i) shorten the
expiration date of the Warrants, (ii) increase the then effective Warrant Price
or reduce the number of shares to be received upon exercise of a Warrant, (iii)
change the provisions set forth in Sections 2.02 and 6.01 hereof, or (iv)
change the percentage of the holders of Warrant Certificates who must consent
to such amendment or supplement, without the consent of each holder affected
thereby.
SECTION 7.04 Saturdays, Sundays, Holidays, etc. If the
last or appointed day for the taking of any action or the expiration of any
right required or granted pursuant to this Agreement or the Warrant
Certificates shall be a Saturday, Sunday or legal holiday
-20-
<PAGE> 24
in the United States, then such action may be taken or such right may be
exercised on the next succeeding business day that is not a legal holiday.
SECTION 7.05 Applicable Law. The validity, interpretation
and performance of this Agreement and each Warrant Certificate issued hereunder
and of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of __________________.
SECTION 7.06 Obtaining of Governmental Approvals. The
Company will from time to time take all reasonable actions necessary to obtain
and keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under Federal and state
laws (including, without limitation, a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933, as amended
(the "Securities Act")), which may be or become requisite in connection with
the issuance, sale, transfer and delivery of the Warrant Securities issued upon
exercise of the Warrant Certificates, the exercise of the Warrants, the
issuance, sale, transfer and delivery of the Warrants or upon the expiration of
the period during which the Warrants are exercisable.
If there is no effective registration statement in respect of
the Warrants and Warrant Securities under the Securities Act, no Warrantholder
may sell or transfer any or all of such Warrants or Warrant Securities, as the
case may be, without first providing the Company with an opinion of counsel
(which may be counsel for the Company) to the effect that such sale or transfer
will be exempt from the registration and prospectus delivery requirements of
the Securities Act.
SECTION 7.07 Delivery of Prospectus. If the issuance and
sale of the Warrant Securities are registered under the Securities Act, the
Company will furnish to the Warrant Agent sufficient copies of a prospectus
relating to the Warrant Securities deliverable upon exercise of the Warrants
(the "Prospectus"), and the Warrant Agent agrees that upon the exercise of any
Warrant, the Warrant Agent will deliver a Prospectus to the holder of the
Warrant Certificate evidencing such warrant prior to or concurrently with the
delivery of the Warrant Securities issued upon such exercise. The Warrant
Agent shall not, by reason of any such delivery, assume any responsibility for
the accuracy or adequacy of such Prospectus.
SECTION 7.08 Persons Having Rights Under Warrant
Agreement. Nothing in this Agreement shall give to any person other than the
Company, the Warrant Agent and the holders of the Warrant Certificates any
right, remedy or claim under or by reason of this Agreement.
SECTION 7.09 Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
-21-
<PAGE> 25
SECTION 7.10 Counterparts. This Agreement may be executed
in any number of counterparts, each of which as so executed shall be deemed to
be an original, but such counterparts shall together constitute but one and the
same instrument.
SECTION 7.11 Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
SECTION 7.12 Successors and Assigns. All the covenants
and provisions of this Agreement by or for the benefit of the Company or the
Warrant Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
-22-
<PAGE> 26
IN WITNESS WHEREOF, Battle Mountain Gold Company and
________________ have caused this Agreement to be signed by their respective
duly authorized officers, and their respective corporate seals to be affixed
hereunto, and the same to be attested by their respective Secretaries or one of
their respective Assistant Secretaries, all as of the day and year first above
written.
BATTLE MOUNTAIN GOLD COMPANY
By --------------------------
Name:
Title:
Attest:
By ----------------------------
Name:
Title:
[Warrant Agent]
By --------------------------
Name:
Title:
Attest:
By ----------------------------
Name:
Title:
-23-
<PAGE> 27
Exhibit A
FORM OF WARRANT CERTIFICATE*
[Face of Warrant Certificate]
<TABLE>
<CAPTION>
<S> <C>
[Form of Legend if Offered Securities Prior to __________, this Warrant
with Warrants that are not immediately Certificate cannot be transferred
detachable. or exchanged unless attached to a
[Title of Offered Securities].]
[Form of Legend if Warrants are not Prior to __________, Warrants
immediately exercisable. evidenced by this Warrant
Certificate cannot be exercised.]
</TABLE>
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
BATTLE MOUNTAIN GOLD COMPANY
WARRANTS TO PURCHASE
COMMON STOCK
VOID AFTER 5 P.M., NEW YORK CITY TIME, ON ____________________.
No._____________ ______________ Warrants
This certifies that _________________ or registered assigns is the
registered owner of the above indicated number of Warrants, each Warrant
entitling such owner [if Offered Securities with Warrants that are not
immediately detachable --, subject to the registered owner qualifying as a
"holder" of this Warrant Certificate, as hereinafter defined] to purchase, at
any time [after 5 P.M., New York City time, on __________________ and] on or
before 5 P.M., New York City time, on ________________, _____________ shares of
Common Stock (the "Warrant Securities"), of Battle Mountain Gold Company (the
"Company") on the following basis: [during the period from ____________,
through and including _____________, each Warrant shall entitle the holder
thereof, subject to the provisions of the Warrant Agreement under which these
Warrants are issued, to purchase from the Company the number of Warrant
Securities stated above in this Warrant Certificate at the exercise price of
$___________, during the period from __________, through and including
_________________,] the exercise price of each Warrant will be ____________
(the "Warrant Price"), subject to such adjustments as provided in Section 2.02
of the Warrant Agreement (as defined below). Other than as provided in Section
2.02 of
_____________________
* For Common Stock.
A-1
<PAGE> 28
the Warrant Agreement, no adjustment shall be made for any dividends on any
Warrant Securities issuable upon exercise of any Warrant. The holder may
exercise the Warrants evidenced hereby by providing certain information set
forth on the back hereof and by paying in full [in lawful money of the United
States of America] [in cash or by certified check or official bank check or by
bank wire transfer, in each case,] [by bank wire transfer] in [immediately
available] [next-day] funds, the Warrant Price for each Warrant exercised to
the Warrant Agent (as hereinafter defined) and by surrendering this Warrant
Certificate, with the purchase form on the back hereof duly executed, at the
corporate trust office of [name of Warrant Agent], or its successor as warrant
agent (the "Warrant Agent"), [or ____________], which is, on the date hereof,
at the address specified on the reverse hereof, and upon compliance with and
subject to the conditions set forth herein and in the Warrant Agreement (as
hereinafter defined).
The term "holder" as used herein shall mean [if Offered
Securities with Warrants that are not immediately detachable --, prior to
________ (the "Detachable Date"), the registered owner of the Company's [title
of Offered Securities] to which this Warrant Certificate is initially attached,
and after such Detachable Date,] the person in whose name at the time of this
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose pursuant to Section 4.01 of the Warrant
Agreement.
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities in registered form.
Upon any exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of _____________ (the "Warrant Agreement")
by and between the Company and the Warrant Agent and is subject to the terms
and provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at _____________].
[If Offered Securities with Warrants that are not immediately
detachable -- Prior to ________________, this Warrant Certificate may be
exchanged or transferred only together with the [Title of Offered Securities]
(the "Offered Securities") to which this Warrant Certificate was initially
attached, and only for the purpose of effecting, or in conjunction with, an
exchange or transfer of such Offered Security. After such date, transfer] [if
Offered Securities with Warrants that are immediately detachable -- Transfer]
of this Warrant Certificate may be registered when this Warrant Certificate is
surrendered at the corporate trust office of the Warrant Agent [or ___________]
by the registered owner or such owner's assigns, in person or by an attorney
duly authorized in writing, in the manner and subject to the limitations
provided in the Warrant Agreement.]
A-2
<PAGE> 29
[If Offered Securities with Warrants that are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable or
Warrant alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or ____________]
for Warrant Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof
to any of the rights of a holder of the Warrant Securities, including, without
limitation, the right to receive payments of dividends or distributions, if
any, on the Warrant Securities or to exercise any voting rights.
A-3
<PAGE> 30
This Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of ________________________.
BATTLE MOUNTAIN GOLD COMPANY
By _________________________
Attest:
By ____________________________
Countersigned:
_______________________________
As Warrant Agent
By ____________________________
Authorized Signature
A-4
<PAGE> 31
[REVERSE OF WARRANT CERTIFICATE]
INSTRUCTIONS FOR EXERCISE OF WARRANT
To exercise the Warrants evidenced hereby, the holder of this
Warrant Certificate must pay in United States dollars [in cash or by certified
check or official bank check or by bank wire transfer] [by bank wire transfer]
in [immediately available] [next-day] funds the Warrant Price in full for each
of the Warrants exercised to [insert name of Warrant Agent] [Corporate Trust
Department] [insert address of Warrant Agent], Attn. ____________ [or
________________], which [payment] [wire transfer] must specify the name of the
holder and the number of Warrants exercised by such holder. In addition, such
holder must complete the information required below and present this Warrant
Certificate in person or by mail (certified or registered mail is recommended)
to the Warrant Agent at the appropriate address set forth below. This Warrant
Certificate, completed and duly executed, must be received by the Warrant Agent
within five business days of the [payment] [wire transfer].
TO BE EXECUTED UPON EXERCISE OF WARRANT
The undersigned hereby irrevocably elects to exercise ______
Warrants, evidenced by this Warrant Certificate, to purchase ______ shares of
Common Stock (the "Warrant Securities") of Battle Mountain Gold Company and
represents that the undersigned has tendered payment for such Warrant
Securities in Dollars [in cash or by certified check or official bank check or
by bank wire transfer, in each case] [by bank wire transfer] in [immediately
available] [next-day] funds to the order of Battle Mountain Gold Company, c/o
[insert name and address of Warrant Agent], in the amount of _______ in
accordance with the terms hereof. The undersigned requests that said amount
of Warrant Securities be in fully registered form in the authorized
denominations, registered in such names and delivered all as specified in
accordance with the instructions set forth below.
If the number of Warrants exercised is less than all of the
Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the remaining Warrants evidenced hereby be issued and
delivered to the undersigned unless otherwise specified in the instruction
below.
A-5
<PAGE> 32
<TABLE>
<CAPTION>
<S> <C>
Dated: ___________________________ Name ____________________________
---------------------------------- Address _________________________
(Insert Social Security or Other _________________________________
Identifying Number of Holder) (Signature must conform in all
Signature Guaranteed respects to name of holder as
specified on the face of this
---------------------------------- Warrant Certificate and must bear
a signature guarantee by a bank,
trust company or member broker of
the New York Stock Exchange)
</TABLE>
The Warrants evidenced hereby may be exercised at the
following addresses:
By hand at _____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
By mail at _____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing
unexercised Warrants -- complete as appropriate.]
A-6
<PAGE> 33
ASSIGNMENT
[FORM OF ASSIGNMENT TO BE EXECUTED IF HOLDER
DESIRES TO TRANSFER WARRANTS EVIDENCED HEREBY]
FOR VALUE RECEIVED ____________________________________ hereby
sells, assigns and transfers unto
<TABLE>
<CAPTION>
<S> <C>
_________________________________ ______________________________________
(Please print name) (Please insert social security or other
identifying number)
_________________________________
(Address)
_________________________________
(City, including zip code)
</TABLE>
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint ________________ as Attorney to transfer
said Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated:
______________________________________
Signature
(Signature must conform in all respects
to name of holder as specified on the
face of this Warrant Certificate and
must bear a signature guarantee by a
bank, trust company or member broker
of the New York Stock Exchange)
Signature Guaranteed
________________________________
A-7
<PAGE> 1
Exhibit 5
(LETTERHEAD OF BAKER & BOTTS, L.L.P. APPEARS HERE)
G-40,485.78
January 14, 1994
Battle Mountain Gold Company
333 Clay Street, 42nd Floor
Houston, Texas 77002
Gentlemen:
As set forth in the Registration Statement on Form S-3 (the
"Registration Statement") to be filed by Battle Mountain Gold Company, a Nevada
corporation (the "Company"), with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"),
relating to (i) debt securities of the Company ("Debt Securities"), (ii) shares
of preferred stock, par value $1.00 per share, of the Company ("Preferred
Stock"), (iii) depositary shares representing fractional interests in Preferred
Stock ("Depositary Shares"), (iv) shares of common stock, par value $0.10 per
share, of the Company ("Common Stock") and (v) warrants ("Warrants") to
purchase Debt Securities, Preferred Stock or Common Stock (the Debt Securities,
Preferred Stock, Depositary Shares, Common Stock and Warrants are collectively
referred to herein as the "Securities"), to be issued and sold by the Company
from time to time pursuant to Rule 415 under the Act for an aggregate initial
offering price not to exceed $200,000,000, certain legal matters in connection
with the Securities are being passed upon for you by us. At your request, this
opinion is being furnished to you for filing as Exhibit 5 to the Registration
Statement.
In our capacity as your counsel in the connection referred to
above, we have examined (i) the Company's Restated Articles of Incorporation
and Amended Bylaws, each as amended to date, (ii) the form of Indenture to be
executed by the Company and The Bank of New York, as trustee, relating to
senior Debt Securities (the "Senior Debt Indenture"), (iii) the form of
Indenture to be executed by the Company and The Bank of New York, as trustee,
relating to subordinated Debt Securities (the "Subordinated Debt Indenture")
and (iv) the originals, or copies certified or otherwise identified, of
corporate records of the Company, certificates of public officials and of
representatives of the Company, statutes and other instruments and documents as
a basis for the opinions
<PAGE> 2
Battle Mountain Gold Company -2- January 14, 1994
hereinafter expressed. In giving such opinions, we have relied upon
certificates of officers of the Company with respect to the accuracy
of the material factual matters contained in such certificates.
On the basis of the foregoing, and subject to the assumptions,
limitations and qualifications hereinafter set forth, we are of the opinion
that:
1. The Company is a corporation duly incorporated and
validly existing in good standing under the laws of the State of Nevada.
2. With respect to shares of Common Stock, when (i) the
Board of Directors of the Company or, to the extent permitted by the Nevada
Revised Statutes, a duly constituted and acting committee thereof (such Board
of Directors or committee being hereinafter referred to as the "Board"), has
taken all necessary corporate action to approve the issuance of and the terms
of the offering of the shares of Common Stock and related matters and (ii)
certificates representing the shares of Common Stock have been duly executed,
countersigned, registered and delivered either (a) in accordance with the
applicable definitive purchase, underwriting or similar agreement approved by
the Board upon payment of the consideration therefor (not less than the par
value of the Common Stock) provided for therein or (b) upon conversion,
exchange or exercise of any other Security, in accordance with the terms of
such Security, or the instrument governing such Security providing for such
conversion, exchange or exercise, as approved by the Board, for the
consideration approved by the Board (not less than the par value of the Common
Stock), the shares of Common Stock will be duly authorized, validly issued,
fully paid and nonassessable.
3. With respect to shares of Preferred Stock, when (i)
the Board has taken all necessary corporate action to approve the issuance and
terms of the shares of Preferred Stock, the terms of the offering thereof and
related matters, including the adoption of a Certificate of Resolution (a
"Certificate") relating to such Preferred Stock and the filing of such
Certificate with the Secretary of State of the State of Nevada, and (ii)
certificates representing the shares of Preferred Stock have been duly
executed, countersigned, registered and delivered either (a) in accordance with
the applicable definitive purchase, underwriting or similar agreement approved
by the Board upon payment of the consideration therefor (not less than the par
value of the Preferred Stock) provided for therein or (b) upon conversion,
exchange or exercise of any other Security, in accordance with the terms of
such Security, or the instrument governing such Security providing for such
conversion, exchange or exercise, as approved by the Board, for the
consideration approved
<PAGE> 3
Battle Mountain Gold Company -3- January 14, 1994
by the Board (not less than the par value of the Preferred Stock), the shares
of Preferred Stock will be duly authorized, validly issued, fully paid and
nonassessable.
4. With respect to Depositary Shares, when (i) the Board
has taken all necessary corporate action to approve the issuance and terms of
the Depositary Shares, the terms of the offering thereof and related matters,
including the adoption of a Certificate relating to the Preferred Stock
underlying such Depositary Shares and the filing of such Certificate with the
Secretary of State of the State of Nevada, (ii) the Depositary Agreement or
Agreements relating to the Depositary Shares and the related Depositary
Receipts have been duly authorized and validly executed and delivered by the
Company and the Depositary appointed by the Company, (iii) the shares of
Preferred Stock underlying such Depositary Shares have been deposited with a
bank or trust company (which meets the requirements for the Depositary set
forth in the Registration Statement) under the applicable Depositary Agreement
and (iv) the Depositary Receipts representing the Depositary Shares have been
duly executed, countersigned, registered and delivered in accordance with the
appropriate Depositary Agreement and the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon payment (or
delivery) of the consideration therefor provided for therein (but not less than
the par value of the Preferred Stock underlying such Depositary Shares), the
Depositary Shares will be duly authorized and validly issued.
5. With respect to Debt Securities to be issued under
the Senior Debt Indenture, when (i) the Senior Debt Indenture has been duly
authorized and validly executed and delivered by the Company to The Bank of New
York, as trustee, (ii) the Senior Debt Indenture has been duly qualified under
the Trust Indenture Act of 1939, as amended, (iii) the Board has taken all
necessary corporate action to approve the issuance and terms of such Debt
Securities, the terms of the offering thereof and related matters and (iv) such
Debt Securities have been duly executed, authenticated, issued and delivered in
accordance with the provisions of the Senior Debt Indenture and the applicable
definitive purchase, underwriting or similar agreement approved by the Board
upon payment (or delivery) of the consideration therefor provided for therein,
such Debt Securities will be legally issued and will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as such enforcement is subject to (x) any
applicable bankruptcy, insolvency, reorganization or other law relating to or
affecting creditors' rights generally and (y) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
<PAGE> 4
Battle Mountain Gold Company -4- January 14, 1994
6. With respect to Debt Securities to be issued under
the Subordinated Debt Indenture, when (i) the Subordinated Debt Indenture has
been duly authorized and validly executed and delivered by the Company to The
Bank of New York, as trustee, (ii) the Subordinated Debt Indenture has been
duly qualified under the Trust Indenture Act of 1939, as amended, (iii) the
Board has taken all necessary corporate action to approve the issuance and
terms of such Debt Securities, the terms of the offering thereof and related
matters and (iv) such Debt Securities have been duly executed, authenticated,
issued and delivered in accordance with the provisions of the Subordinated Debt
Indenture and the applicable definitive purchase, underwriting or similar
agreement approved by the Board upon payment (or delivery) of the consideration
therefor provided for therein, such Debt Securities will be legally issued and
will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as such enforcement
is subject to (x) any applicable bankruptcy, insolvency, reorganization or
other law relating to or affecting creditors' rights generally and (y) general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
7. With respect to the Warrants, when (i) the Board has
taken all necessary corporate action to approve the creation of and the
issuance and terms of the Warrants, the terms of the offering thereof and
related matters, (ii) the Warrant Agreement or Agreements relating to the
Warrants have been duly authorized and validly executed and delivered by the
Company and the Warrant Agent appointed by the Company and (iii) the Warrants
or certificates representing the Warrants have been duly executed,
countersigned, registered and delivered in accordance with the appropriate
Warrant Agreement or Agreements and the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon payment (or
delivery) of the consideration therefor provided for therein, the Warrants will
be duly authorized and validly issued.
For the purposes of this opinion, we have assumed that (i) the
Registration Statement, and any amendments thereto (including post-effective
amendments), will have become effective, (ii) a Prospectus Supplement will have
been prepared and filed with the Commission describing the Securities offered
thereby, (iii) all Securities will be issued and sold in compliance with
applicable federal and state securities laws and in the manner stated in the
Registration Statement and the appropriate Prospectus Supplement, (iv) a
definitive purchase, underwriting or similar agreement with respect to any
Securities offered will have been duly authorized and validly executed and
delivered by the Company and the other parties thereto and (v) any Securities
issuable upon conversion, exchange or exercise of any Security being offered
will be duly authorized, created and, if appropriate, reserved for issuance
upon such conversion, exchange or exercise.
<PAGE> 5
Battle Mountain Gold Company -5- January 14, 1994
To the extent that the opinions expressed herein involve the
laws of the State of Nevada, we have relied upon the opinion of even date
herewith addressed to you of Messrs. Vargas & Bartlett of Reno, Nevada.
Very truly yours,
Baker & Botts, L.L.P.
<PAGE> 6
(LETTERHEAD OF VARGAS & BARTLETT APPEARS HERE)
January 14, 1994
Battle Mountain Gold Company
333 Clay Street, 42nd Floor
Houston, Texas 77002
Gentlemen:
As set forth in the Registration Statement on Form S-3 (the
"Registration Statement") to be filed by Battle Mountain Gold Company, a Nevada
corporation (the "Company"), with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"),
relating to (i) debt securities of the Company ("Debt Securities"), (ii) shares
of preferred stock, par value $1.00 per share, of the Company ("Preferred
Stock"), (iii) depositary shares representing fractional interests in Preferred
Stock ("Depositary Shares"), (iv) shares of common stock, par value $0.10 per
share, of the Company ("Common Stock") and (v) warrants ("Warrants") to
purchase Debt Securities, Preferred Stock or Common Stock (the Debt Securities,
Preferred Stock, Depositary Shares, Common Stock and Warrants are collectively
referred to herein as the "Securities"), to be issued and sold by the Company
from time to time pursuant to Rule 415 under the Act for an aggregate initial
offering price not to exceed $200,000,000, certain legal matters in connection
with the Securities are being passed upon for you by us. At your request, this
opinion is being furnished to you for the reliance of Baker & Botts, L.L.P.
with respect to the matters of Nevada law on which they will be furnishing an
opinion for filing as an exhibit to the Registration Statement.
In our capacity as your special Nevada counsel in the
connection referred to above, we have examined (i) the Company's Restated
Articles of Incorporation and Amended Bylaws, each as amended to date, (ii) the
form of Indenture to be executed by the Company and The Bank of New York, as
trustee, relating to senior Debt Securities (the "Senior Debt Indenture"),
(iii) the form of Indenture to be executed by the Company and The Bank of New
York, as trustee, relating to subordinated Debt Securities (the "Subordinated
Debt Indenture") and (iv) the originals, or copies certified or otherwise
identified, of corporate records of the Company, certificates of public
officials and of representatives of the Company, statutes and other instruments
and documents as a basis for the opinions hereinafter expressed. In giving
such opinions, we have relied upon
<PAGE> 7
Battle Mountain Gold Company
January 14, 1994
Page 2
certificates of officers of the Company with respect to the accuracy of the
material factual matters contained in such certificates.
On the basis of the foregoing, and subject to the assumptions,
limitations and qualifications hereinafter set forth, we are of the opinion
that:
1. The Company is a corporation duly incorporated and
validly existing in good standing under the laws of the State of Nevada.
2. With respect to shares of Common Stock, when (i) the
Board of Directors of the Company or, to the extent permitted by the Nevada
Revised Statutes, a duly constituted and acting committee thereof (such Board
of Directors or committee being hereinafter referred to as the "Board"), has
taken all necessary corporate action to approve the issuance of and the terms
of the offering of the shares of Common Stock and related matters and (ii)
certificates representing the shares of Common Stock have been duly executed,
countersigned, registered and delivered either (a) in accordance with the
applicable definitive purchase, underwriting or similar agreement approved by
the Board upon payment of the consideration therefor (not less than the par
value of the Common Stock) provided for therein or (b) upon conversion,
exchange or exercise of any other Security, in accordance with the terms of
such Security, or the instrument governing such Security providing for such
conversion, exchange or exercise, as approved by the Board, for the
consideration approved by the Board (not less than the par value of the Common
Stock), the shares of Common Stock will be duly authorized, validly issued,
fully paid and nonassessable.
3. With respect to shares of Preferred Stock, when (i)
the Board has taken all necessary corporate action to approve the issuance and
terms of the shares of Preferred Stock, the terms of the offering thereof and
related matters, including the adoption of a Certificate of Resolution (a
"Certificate") relating to such Preferred Stock and the filing of such
Certificate with the Secretary of State of the State of Nevada, and (ii)
certificates representing the shares of Preferred Stock have been duly
executed, countersigned, registered and delivered either (a) in accordance with
the applicable definitive purchase, underwriting or similar agreement approved
by the Board upon payment of the consideration therefor (not less than the par
value of the Preferred Stock) provided for therein or (b) upon conversion,
exchange or exercise of any other Security, in accordance with the terms of
such Security, or the instrument governing such Security providing for such
conversion, exchange or exercise, as approved by the Board, for the
consideration approved
<PAGE> 8
Battle Mountain Gold Company
January 14, 1994
Page 3
by the Board (not less than the par value of the Preferred Stock), the shares
of Preferred Stock will be duly authorized, validly issued, fully paid and
nonassessable.
4. With respect to Depositary Shares, when (i) the Board
has taken all necessary corporate action to approve the issuance and terms of
the Depositary Shares, the terms of the offering thereof and related matters,
including the adoption of a Certificate relating to the Preferred Stock
underlying such Depositary Shares and the filing of such Certificate with the
Secretary of State of the State of Nevada, (ii) the Depositary Agreement or
Agreements relating to the Depositary Shares and the related Depositary
Receipts have been duly authorized and validly executed and delivered by the
Company and the Depositary appointed by the Company, (iii) the shares of
Preferred Stock underlying such Depositary Shares have been deposited with a
bank or trust company (which meets the requirements for the Depositary set
forth in the Registration Statement) under the applicable Depositary Agreement
and (iv) the Depositary Receipts representing the Depositary Shares have been
duly executed, countersigned, registered and delivered in accordance with the
appropriate Depositary Agreement and the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon payment (or
delivery) of the consideration therefor provided for therein (but not less than
the par value of the Preferred Stock underlying such Depositary Shares), the
Depositary Shares will be duly authorized and validly issued.
5. With respect to Debt Securities to be issued under
the Senior Debt Indenture, when (i) the Senior Debt Indenture has been duly
authorized and validly executed and delivered by the Company to The Bank of New
York, as trustee, (ii) the Senior Debt Indenture has been duly qualified under
the Trust Indenture Act of 1939, as amended, (iii) the Board has taken all
necessary corporate action to approve the issuance and terms of such Debt
Securities, the terms of the offering thereof and related matters, and (iv)
such Debt Securities have been duly executed, authenticated, issued and
delivered in accordance with the provisions of the Senior Debt Indenture and
the applicable definitive purchase, underwriting or similar agreement approved
by the Board upon payment (or delivery) of the consideration therefor provided
for therein, such Debt Securities will be legally issued and will constitute
valid and binding obligations of the Company.
6. With respect to Debt Securities to be issued under
the Subordinated Debt Indenture, when (i) the Subordinated Debt Indenture has
been duly authorized and validly executed and delivered by the Company to The
Bank of New York, as trustee, (ii) the Subordinated Debt Indenture has been
duly qualified under the Trust Indenture Act of 1939, as amended, (iii) the
Board has taken all necessary corporate action to approve the
<PAGE> 9
Battle Mountain Gold Company
January 14, 1994
Page 4
issuance and terms of such Debt Securities, the terms of the offering thereof
and related matters and (iv) such Debt Securities have been duly executed,
authenticated, issued and delivered in accordance with the provisions of the
Subordinated Debt Indenture and the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon payment (or
delivery) of the consideration therefor provided for therein, such Debt
Securities will be legally issued and will constitute valid and binding
obligations of the Company.
7. With respect to the Warrants, when (i) the Board has
taken all necessary corporate action to approve the creation of and the
issuance and terms of the Warrants, the terms of the offering thereof and
related matters, (ii) the Warrant Agreement or Agreements relating to the
Warrants have been duly authorized and validly executed and delivered by the
Company and the Warrant Agent appointed by the Company and (iii) the Warrants
or certificates representing the Warrants have been duly executed,
countersigned, registered and delivered in accordance with the appropriate
Warrant Agreement or Agreements and the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon payment (or
delivery) of the consideration therefor provided for therein, the Warrants will
be duly authorized and validly issued.
For the purposes of this opinion, we have assumed that (i) the
Registration Statement, and any amendments thereto (including post-effective
amendments), will have become effective, (ii) a Prospectus Supplement will have
been prepared and filed with the Commission describing the Securities offered
thereby, (iii) all Securities will be issued and sold in compliance with
applicable federal and state securities laws and in the manner stated in the
Registration Statement and the appropriate Prospectus Supplement, (iv) a
definitive purchase, underwriting or similar agreement with respect to any
Securities offered will have been duly authorized and validly executed and
delivered by the Company and the other parties thereto and (v) any Securities
issuable upon conversion, exchange or exercise of any Security being offered
will be duly authorized, created and, if appropriate, reserved for issuance
upon such conversion, exchange or exercise.
<PAGE> 10
Battle Mountain Gold Company
January 14, 1994
Page 5
This opinion is limited to matters of Nevada law. We express
no opinion as to the laws of any other state, the federal law of the United
States, or the effect of any applicable federal or state securities laws. In
addition, we render no opinion as to the enforceability in accordance with
their respective terms of any specific provisions of the Senior Debt Indenture
or the Subordinated Debt Indenture.
Very truly yours,
VARGAS & BARTLETT
<PAGE> 1
Exhibit 12
BATTLE MOUNTAIN GOLD COMPANY
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(in thousands of dollars except ratios)
<TABLE>
<CAPTION>
Earnings Computation
Using Consolidated Nine Months Ended
Income Statement Data September 30, Year Ended December 31,
- --------------------- ----------------- ---------------------------------------
1993 1992 1992 1991 1990 1989 1988
-------- ------- ------- ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Income (loss) before
income taxes and
minority interest... $(4,281) (46,497) (46,000) (5,525) 14,056 38,950 70,835
Minority interest in
income of majority-
owned subsidiaries.. (3,304) (259) (1,182) 0 0 (197) 0
Income (loss) before
income taxes and
cumulative effects
of accounting
changes............. (7,585) (46,756) (47,182) (5,525) 14,056 38,753 70,835
Add fixed charges
included in income
(loss):
Interest Expense.. 6,522 1,128 1,375 2,290 774 0 0
Amortization of
deferrred
financing costs. 1,015 201 269 269 262 0 0
Interest portion
of rental ex-
penses (33%).... 775 660 528 429 396 297 198
Preferred Stock
Dividends....... 3,909 0 0 0 0 0 0
------- ------- ------- ------ ------ ------ ------
Sub-total fixed
charges in-
cluded in in-
come (loss)..... 12,221 1,989 2,172 2,988 1,432 297 198
Earnings.............. $ 4,636 (44,767) (45,010) (2,537) 15,488 39,050 71,033
======= ======= ======= ====== ====== ====== ======
Fixed Charges
- -------------
Included in income
(loss).............. $12,221 1,989 2,172 2,988 1,432 297 198
Capitalized interest.. 6,654 6,119 8,885 6,000 6,015 2,122 0
------- ------- ------- ------ ------ ------ ------
Total fixed charges. $18,875 8,108 11,057 8,988 7,447 2,419 198
Ratio of earnings to
fixed charges....... -- (1) (1) (1) 2.08 16.14 358.75
======= ======= ======= ====== ====== ====== ======
</TABLE>
- --------
(1) Earnings were inadequate to cover fixed charges in these periods as a
result of asset write downs and other non-cash charges.
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our report dated February 18,
1993, included in Battle Mountain Gold Company's Form 10-K for the year ended
December 31, 1992, and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN & CO.
Houston, Texas
January 13, 1994
<PAGE> 1
(LETTERHEAD OF COOPERS & LYBRAND APPEARS HERE)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
our report dated January 22, 1993 on our audit of Niugini Mining Limited
included in Battle Mountain Gold Company's Form 10-K for the year ended
December 31, 1992, and to all references to our Firm included in this
Registration Statement.
COOPERS & LYBRAND
Sydney, Australia
January 13, 1994
<PAGE> 1
EXHIBIT 23(c)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated January 17, 1992 on our audit of Empresa Minera Inti Raymi S.A. included
in Battle Mountain Gold Company's Annual Report on Form 10-K for the year ended
December 31, 1992.
Moreno, Munoz y Cia.
La Paz, Bolivia
January 13, 1994
<PAGE> 1
Exhibit 24
BATTLE MOUNTAIN GOLD COMPANY
Power of Attorney
WHEREAS, BATTLE MOUNTAIN GOLD COMPANY, a Nevada corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S- 3, with any amendment or amendments thereto,
as prescribed by the Commission pursuant to the Act and the rules and
regulations of the Commission promulgated thereunder, together with any and all
exhibits and other documents relating to such Registration Statement in
connection with the public offering and issuance by the Company of up to
$200,000,000 of securities.
NOW, THEREFORE, the undersigned, in his capacity as a director or
officer or both, as the case may be, of the Company, does hereby appoint Karl
E. Elers, Kenneth R. Werneburg, and Robert J. Quinn, and each of them
severally, his true and lawful attorneys- in-fact and agents with power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign such Registration Statement and any and all
amendments thereto and all instruments necessary or incidental in connection
therewith and to file the same with the Commission. Each of such
attorneys-in-fact and agents shall have full power and authority to do and
perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts of
such attorneys-in-fact and agents and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
the 14th day of January, 1994.
/s/ Douglas J. Bourne
--------------------------------
Douglas J. Bourne
<PAGE> 2
BATTLE MOUNTAIN GOLD COMPANY
Power of Attorney
WHEREAS, BATTLE MOUNTAIN GOLD COMPANY, a Nevada corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S- 3, with any amendment or amendments thereto,
as prescribed by the Commission pursuant to the Act and the rules and
regulations of the Commission promulgated thereunder, together with any and all
exhibits and other documents relating to such Registration Statement in
connection with the public offering and issuance by the Company of up to
$200,000,000 of securities.
NOW, THEREFORE, the undersigned, in his capacity as a director or
officer or both, as the case may be, of the Company, does hereby appoint Karl
E. Elers, Kenneth R. Werneburg, and Robert J. Quinn, and each of them
severally, his true and lawful attorneys- in-fact and agents with power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign such Registration Statement and any and all
amendments thereto and all instruments necessary or incidental in connection
therewith and to file the same with the Commission. Each of such
attorneys-in-fact and agents shall have full power and authority to do and
perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts of
such attorneys-in-fact and agents and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
the 14th day of January, 1994.
/s/ Delo H. Caspary
----------------------------------
Delo H. Caspary
<PAGE> 3
BATTLE MOUNTAIN GOLD COMPANY
Power of Attorney
WHEREAS, BATTLE MOUNTAIN GOLD COMPANY, a Nevada corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S- 3, with any amendment or amendments thereto,
as prescribed by the Commission pursuant to the Act and the rules and
regulations of the Commission promulgated thereunder, together with any and all
exhibits and other documents relating to such Registration Statement in
connection with the public offering and issuance by the Company of up to
$200,000,000 of securities.
NOW, THEREFORE, the undersigned, in his capacity as a director or
officer or both, as the case may be, of the Company, does hereby appoint Karl
E. Elers, Kenneth R. Werneburg, and Robert J. Quinn, and each of them
severally, his true and lawful attorneys- in-fact and agents with power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign such Registration Statement and any and all
amendments thereto and all instruments necessary or incidental in connection
therewith and to file the same with the Commission. Each of such
attorneys-in-fact and agents shall have full power and authority to do and
perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts of
such attorneys-in-fact and agents and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
the 11 day of January, 1994.
/s/ Charles E. Childers
-----------------------------------
Charles E. Childers
<PAGE> 4
BATTLE MOUNTAIN GOLD COMPANY
Power of Attorney
WHEREAS, BATTLE MOUNTAIN GOLD COMPANY, a Nevada corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S- 3, with any amendment or amendments thereto,
as prescribed by the Commission pursuant to the Act and the rules and
regulations of the Commission promulgated thereunder, together with any and all
exhibits and other documents relating to such Registration Statement in
connection with the public offering and issuance by the Company of up to
$200,000,000 of securities.
NOW, THEREFORE, the undersigned, in his capacity as a director or
officer or both, as the case may be, of the Company, does hereby appoint Karl
E. Elers, Kenneth R. Werneburg, and Robert J. Quinn, and each of them
severally, his true and lawful attorneys- in-fact and agents with power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign such Registration Statement and any and all
amendments thereto and all instruments necessary or incidental in connection
therewith and to file the same with the Commission. Each of such
attorneys-in-fact and agents shall have full power and authority to do and
perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts of
such attorneys-in-fact and agents and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
the 14th day of January, 1994.
/s/ Jack R. Crosby
-----------------------------------
Jack R. Crosby
<PAGE> 5
BATTLE MOUNTAIN GOLD COMPANY
Power of Attorney
WHEREAS, BATTLE MOUNTAIN GOLD COMPANY, a Nevada corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S- 3, with any amendment or amendments thereto,
as prescribed by the Commission pursuant to the Act and the rules and
regulations of the Commission promulgated thereunder, together with any and all
exhibits and other documents relating to such Registration Statement in
connection with the public offering and issuance by the Company of up to
$200,000,000 of securities.
NOW, THEREFORE, the undersigned, in his capacity as a director or
officer or both, as the case may be, of the Company, does hereby appoint Karl
E. Elers, Kenneth R. Werneburg, and Robert J. Quinn, and each of them
severally, his true and lawful attorneys- in-fact and agents with power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign such Registration Statement and any and all
amendments thereto and all instruments necessary or incidental in connection
therewith and to file the same with the Commission. Each of such
attorneys-in-fact and agents shall have full power and authority to do and
perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts of
such attorneys-in-fact and agents and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
the 10th day of January, 1994.
/s/ James H. Elder, Jr.
-----------------------------------
James H. Elder, Jr.
<PAGE> 6
BATTLE MOUNTAIN GOLD COMPANY
Power of Attorney
WHEREAS, BATTLE MOUNTAIN GOLD COMPANY, a Nevada corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S- 3, with any amendment or amendments thereto,
as prescribed by the Commission pursuant to the Act and the rules and
regulations of the Commission promulgated thereunder, together with any and all
exhibits and other documents relating to such Registration Statement in
connection with the public offering and issuance by the Company of up to
$200,000,000 of securities.
NOW, THEREFORE, the undersigned, in his capacity as a director or
officer or both, as the case may be, of the Company, does hereby appoint
Kenneth R. Werneburg and Robert J. Quinn, and each of them severally, his true
and lawful attorneys-in-fact and agents with power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign such Registration Statement and any and all amendments
thereto and all instruments necessary or incidental in connection therewith and
to file the same with the Commission. Each of such attorneys-in-fact and
agents shall have full power and authority to do and perform in the name and on
behalf of the undersigned, in any and all capacities, every act whatsoever
necessary or desirable to be done in the premises, as fully and to all intents
and purposes as the undersigned might or could do in person, the undersigned
hereby ratifying and approving the acts of such attorneys-in-fact and agents
and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
the 14th day of January, 1994.
/s/ Karl E. Elers
------------------------------------
Karl E. Elers
<PAGE> 7
BATTLE MOUNTAIN GOLD COMPANY
Power of Attorney
WHEREAS, BATTLE MOUNTAIN GOLD COMPANY, a Nevada corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S- 3, with any amendment or amendments thereto,
as prescribed by the Commission pursuant to the Act and the rules and
regulations of the Commission promulgated thereunder, together with any and all
exhibits and other documents relating to such Registration Statement in
connection with the public offering and issuance by the Company of up to
$200,000,000 of securities.
NOW, THEREFORE, the undersigned, in his capacity as a director or
officer or both, as the case may be, of the Company, does hereby appoint Karl
E. Elers, Kenneth R. Werneburg, and Robert J. Quinn, and each of them
severally, his true and lawful attorneys- in-fact and agents with power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign such Registration Statement and any and all
amendments thereto and all instruments necessary or incidental in connection
therewith and to file the same with the Commission. Each of such
attorneys-in-fact and agents shall have full power and authority to do and
perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts of
such attorneys-in-fact and agents and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
the 14th day of January, 1994.
/s/ Rodney L. Gray
-------------------------------------
Rodney L. Gray
<PAGE> 8
BATTLE MOUNTAIN GOLD COMPANY
Power of Attorney
WHEREAS, BATTLE MOUNTAIN GOLD COMPANY, a Nevada corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S- 3, with any amendment or amendments thereto,
as prescribed by the Commission pursuant to the Act and the rules and
regulations of the Commission promulgated thereunder, together with any and all
exhibits and other documents relating to such Registration Statement in
connection with the public offering and issuance by the Company of up to
$200,000,000 of securities.
NOW, THEREFORE, the undersigned, in his capacity as a director or
officer or both, as the case may be, of the Company, does hereby appoint Karl
E. Elers, Kenneth R. Werneburg, and Robert J. Quinn, and each of them
severally, his true and lawful attorneys- in-fact and agents with power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign such Registration Statement and any and all
amendments thereto and all instruments necessary or incidental in connection
therewith and to file the same with the Commission. Each of such
attorneys-in-fact and agents shall have full power and authority to do and
perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts of
such attorneys-in-fact and agents and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
the 14th day of January, 1994.
/s/ Baine P. Kerr
-------------------------------------
Baine P. Kerr
<PAGE> 9
BATTLE MOUNTAIN GOLD COMPANY
Power of Attorney
WHEREAS, BATTLE MOUNTAIN GOLD COMPANY, a Nevada corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S- 3, with any amendment or amendments thereto,
as prescribed by the Commission pursuant to the Act and the rules and
regulations of the Commission promulgated thereunder, together with any and all
exhibits and other documents relating to such Registration Statement in
connection with the public offering and issuance by the Company of up to
$200,000,000 of securities.
NOW, THEREFORE, the undersigned, in his capacity as a director or
officer or both, as the case may be, of the Company, does hereby appoint Karl
E. Elers, Kenneth R. Werneburg, and Robert J. Quinn, and each of them
severally, his true and lawful attorneys- in-fact and agents with power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign such Registration Statement and any and all
amendments thereto and all instruments necessary or incidental in connection
therewith and to file the same with the Commission. Each of such
attorneys-in-fact and agents shall have full power and authority to do and
perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts of
such attorneys-in-fact and agents and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
the 14th day of January, 1994.
/s/ J. Hugh Liedtke
------------------------------------
J. Hugh Liedtke
<PAGE> 10
BATTLE MOUNTAIN GOLD COMPANY
Power of Attorney
WHEREAS, BATTLE MOUNTAIN GOLD COMPANY, a Nevada corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S- 3, with any amendment or amendments thereto,
as prescribed by the Commission pursuant to the Act and the rules and
regulations of the Commission promulgated thereunder, together with any and all
exhibits and other documents relating to such Registration Statement in
connection with the public offering and issuance by the Company of up to
$200,000,000 of securities.
NOW, THEREFORE, the undersigned, in his capacity as a director or
officer or both, as the case may be, of the Company, does hereby appoint Karl
E. Elers, Kenneth R. Werneburg, and Robert J. Quinn, and each of them
severally, his true and lawful attorneys- in-fact and agents with power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign such Registration Statement and any and all
amendments thereto and all instruments necessary or incidental in connection
therewith and to file the same with the Commission. Each of such
attorneys-in-fact and agents shall have full power and authority to do and
perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts of
such attorneys-in-fact and agents and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
the 7th day of January, 1994.
/s/ Ted H. Pate
------------------------------------
Ted H. Pate
<PAGE> 11
BATTLE MOUNTAIN GOLD COMPANY
Power of Attorney
WHEREAS, BATTLE MOUNTAIN GOLD COMPANY, a Nevada corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S- 3, with any amendment or amendments thereto,
as prescribed by the Commission pursuant to the Act and the rules and
regulations of the Commission promulgated thereunder, together with any and all
exhibits and other documents relating to such Registration Statement in
connection with the public offering and issuance by the Company of up to
$200,000,000 of securities.
NOW, THEREFORE, the undersigned, in his capacity as a director or
officer or both, as the case may be, of the Company, does hereby appoint Karl
E. Elers and Robert J. Quinn, and each of them severally, his true and lawful
attorneys-in-fact and agents with power of substitution and resubstitution, for
him and in his name, place and stead, in any and all capacities, to sign such
Registration Statement and any and all amendments thereto and all instruments
necessary or incidental in connection therewith and to file the same with the
Commission. Each of such attorneys-in-fact and agents shall have full power
and authority to do and perform in the name and on behalf of the undersigned,
in any and all capacities, every act whatsoever necessary or desirable to be
done in the premises, as fully and to all intents and purposes as the
undersigned might or could do in person, the undersigned hereby ratifying and
approving the acts of such attorneys-in-fact and agents and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
the 14th day of January, 1994.
/s/ Kenneth R. Werneburg
------------------------------------
Kenneth R. Werneburg
<PAGE> 1
Exhibit 25(a)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2)
________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip Code)
BATTLE MOUNTAIN GOLD COMPANY
(Exact name of obligor as specified in its charter)
Nevada 76-0151431
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
333 Clay Street, 42nd Floor
Houston, Texas 77002
(Address of principal executive offices) (Zip Code)
________________
SENIOR DEBT SECURITIES
(Title of the indenture securities)
*Specific title(s) to be determined in connection with sale(s) of Securities
<PAGE> 2
GENERAL
ITEM 1. General Information.
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Superintendent of Banks 2 Rector Street,
of the State of New York New York, N.Y. 10006
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza,
New York, N.Y. 10045-001
Federal Deposit Insurance Corporation Washington, D.C. 20549
New York Clearing House Association 100 Broad Street
New York, N.Y. 10004
(b) Whether it is authorized to exercise corporate trust
powers:
Yes.
ITEM 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee,
describe each such affiliation.
None. (See Note on page 3.)
____________________
ITEM 16. List of Exhibits.
Exhibits identified in parentheses below, on file
with the Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and
Rule 24 of the Commission's Rules of Practice.
99.1. A copy of the Organization Certificate of The Bank of
New York (formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a
grant of powers to exercise corporate trust powers.
(See Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672
2
<PAGE> 3
and Exhibit 1 to Form T-1 filed with Registration Statement
No. 33- 29637.)
99.4. A copy of the existing By-laws of the Trustee. (See Exhibit
4 to Form T-1 filed with Registration Statement No. 33-31019.)
99.6. The consent of the Trustee required by Section 321(b) of the
Act. (See Exhibit 6 to Form T-1, Registration Statement
No. 33-44051.)
99.7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment
by the Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended
by an amendment to this Form T-1.
__________________
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York, a
corporation organized and existing under the laws of the State of New York, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New York, and State
of New York, on the 14th day of January, 1994.
The Bank of New York
By: /s/ ROBERT F. MCINTYRE
--------------------------
Name: Robert F. McIntyre
Title: Assistant Vice President
3
<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
Description Number
----------- ------
<S> <C>
Latest report of condition of 99.7
the Trustee published pursuant to
law or to the requirements of its
supervising or examining authority.
</TABLE>
4
<PAGE> 5
Exhibit 99.7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the
close of business September 30, 1993, published
in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
ASSETS Dollar Amounts
in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency
and coin . . . . . . . . . . . . . . . . . . . . . . . . . . . . $4,112,299
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . 607,187
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,712,310
Federal funds sold in domestice offices of
the bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613,944
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . . . . . . . . . . . . 23,923,315
Less Allowance for loan and lease losses . . . . . . . . . . . . . . . 800,277
Less allocated transfer risk reserve . . . . . . . . . . . . . . . . . 35,768
Loans and leases, net of unearned income, allowance, and reserve . . . 23,087,270
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . 959,333
Premises and fixed assets (including capitalized leases). . . . . . . . . . 664,500
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . 102,235
Investments in unconsolidated subsidiaries and associated companies . . . . 170,664
Customers' liability to this bank on acceptances outstanding. . . . . . . . 909,084
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45,858
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,562,551
-----------
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $36,547,235
===========
5
</TABLE>
<PAGE> 6
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . $19,443,240
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . 7,387,665
Interest-bearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,055,575
In foreign offices, Edge and Agreement subsidiaries, and IBFs . . . . . 8,104,447
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . 80,823
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,023,624
Federal funds purchased and securities sold under agreements to repurchase
in domestic offices of the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . 1,505,573
Securities sold under agreements to repurchase. . . . . . . . . . . . . 48,225
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . 300,000
Other borrowed money . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,082,537
Bank's liability on acceptances executed and outstanding . . . . . . . . . . 909,970
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . 1,070,780
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,305,376
-----------
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33,770,148
===========
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . 75,000
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942,284
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 474,677
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . 1,291,716
Cumulative foreign currency translation adjustments . . . . . . . . . . . . . (6,590)
-----------
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,777,087
-----------
Total liabilities, limited-life preferred stock and equity capital . . . . . $36,547,235
===========
</TABLE>
6
<PAGE> 7
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot
Alan R. Griffith Directors
Thomas A. Renyi
7
<PAGE> 1
Exhibit 25(b)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2)
________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip Code)
BATTLE MOUNTAIN GOLD COMPANY
(Exact name of obligor as specified in its charter)
Nevada 76-0151431
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
333 Clay Street, 42nd Floor
Houston, Texas 77002
(Address of principal executive offices) (Zip Code)
________________
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
*Specific title(s) to be determined in connection with sale(s) of Securities
<PAGE> 2
GENERAL
ITEM 1. General Information.
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Superintendent of Banks 2 Rector Street,
of the State of New York New York, N.Y. 10006
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza,
New York, N.Y. 10045-001
Federal Deposit Insurance Corporation Washington, D.C. 20549
New York Clearing House Association 100 Broad Street
New York, N.Y. 10004
(b) Whether it is authorized to exercise corporate trust
powers:
Yes.
ITEM 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None. (See Note on page 3.)
____________________
ITEM 16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of the
Commission's Rules of Practice.
99.1. A copy of the Organization Certificate of The Bank of
New York (formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a
grant of powers to exercise corporate trust powers.
(See Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672
2
<PAGE> 3
and Exhibit 1 to Form T-1 filed with Registration Statement
No. 33- 29637.)
99.4. A copy of the existing By-laws of the Trustee. (See Exhibit 4
to Form T-1 filed with Registration Statement No. 33-31019.)
99.6. The consent of the Trustee required by Section 321(b) of the
Act. (See Exhibit 6 to Form T-1, Registration Statement
No. 33-44051.)
99.7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
__________________
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York, a
corporation organized and existing under the laws of the State of New York, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New York, and State
of New York, on the 14th day of January, 1994.
The Bank of New York
By: /s/ ROBERT F. MCINTYRE
---------------------------
Name: Robert F. McIntyre
Title: Assistant Vice President
3
<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
Description Number
----------- ------
<S> <C>
Latest report of condition of 99.7
the Trustee published pursuant to
law or to the requirements of its
supervising or examining authority.
</TABLE>
4
<PAGE> 5
Exhibit 99.7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the
close of business September 30, 1993, published
in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
ASSETS Dollar Amounts
in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency
and coin . . . . . . . . . . . . . . . . . . . . . . . . . . . . $4,112,299
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . 607,187
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,712,310
Federal funds sold in domestice offices of
the bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613,944
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . . . . . . . . . . . . 23,923,315
Less Allowance for loan and lease losses . . . . . . . . . . . . . . . 800,277
Less allocated transfer risk reserve . . . . . . . . . . . . . . . . . 35,768
Loans and leases, net of unearned income, allowance, and reserve . . . 23,087,270
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . 959,333
Premises and fixed assets (including capitalized leases). . . . . . . . . . 664,500
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . 102,235
Investments in unconsolidated subsidiaries and associated companies . . . . 170,664
Customers' liability to this bank on acceptances outstanding. . . . . . . . 909,084
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45,858
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,562,551
-----------
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $36,547,235
===========
5
</TABLE>
<PAGE> 6
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . $19,443,240
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . 7,387,665
Interest-bearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,055,575
In foreign offices, Edge and Agreement subsidiaries, and IBFs . . . . . 8,104,447
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . 80,823
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,023,624
Federal funds purchased and securities sold under agreements to repurchase
in domestic offices of the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . 1,505,573
Securities sold under agreements to repurchase. . . . . . . . . . . . . 48,225
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . 300,000
Other borrowed money . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,082,537
Bank's liability on acceptances executed and outstanding . . . . . . . . . . 909,970
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . 1,070,780
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,305,376
-----------
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33,770,148
===========
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . 75,000
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942,284
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 474,677
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . 1,291,716
Cumulative foreign currency translation adjustments . . . . . . . . . . . . . (6,590)
-----------
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,777,087
-----------
Total liabilities, limited-life preferred stock and equity capital . . . . . $36,547,235
===========
</TABLE>
6
<PAGE> 7
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot
Alan R. Griffith Directors
Thomas A. Renyi
7
