<PAGE>
As filed with the Securities and Exchange Commission on April 15, 1999
Registration Statement No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Fortune Brands, Inc.
(Exact name of registrant as specified in its charter)
Delaware 1700 East Putnam Avenue, 13-3295276
(State or other Old Greenwich, Connecticut 06870-0811 (I.R.S. Employer
jurisdiction of (203) 698-5000 Identification
incorporation or (Address, including zip code, and No.)
organization) telephone number,
including area code, of registrant's
principal executive offices)
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LOUIS F. FERNOUS, JR., Vice President and Secretary
Fortune Brands, Inc.
1700 East Putnam Avenue,
Old Greenwich, Connecticut 06870-0811
(203) 698-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
EDWARD P. SMITH, Esq. FRANCIS J. MORISON, Esq.
Chadbourne & Parke LLP Davis Polk & Wardwell
30 Rockefeller Plaza 450 Lexington Avenue
New York, New York 10112 New York, New York 10017
(212) 408-5100 (212) 450-4000
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Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed
Proposed maximum
Title of each class of maximum aggregate Amount of
securities to be Amount to be offering price offering registration
registered registered(1) per unit(1) price(1) fee
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<S> <C> <C> <C> <C>
Debt Securities and War-
rants to Purchase Debt
Securities............. $550,000,000(2) 100% $550,000,000 $152,900
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Common Stock, par value
$3.125 per share, and
associated Preferred
Share Purchase Rights.. (3)
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</TABLE>
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(1) Estimated solely for purposes of calculating the amount of the registration
fee. Excludes an aggregate of $450,000,000 of unsold securities previously
registered pursuant to Registration Statement No. 33-50832, which are
covered by the Prospectus included in this Registration Statement.
(2) Or, if any such Debt Securities are issued (i) at an original issue
discount, such greater amount as shall result in aggregate net proceeds not
in excess of $550,000,000 to the Registrant or (ii) with a principal amount
denominated in a foreign currency or composite currency, such amount as
shall result in an aggregate principal amount equivalent to $550,000,000 at
the time of initial offering.
(3) Such indeterminate number of shares of Common Stock of the Registrant and
accompanying Preferred Share Purchase Rights, if any (i) as shall be
issuable or deliverable upon conversion of any Debt Securities registered
hereby which are convertible into such Common Stock and (ii) as may be
required for delivery upon conversion of any such convertible debt
securities as a result of anti-dilution provisions thereof.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
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Pursuant to Rule 429 of the General Rules and Regulations under the
Securities Act of 1933, the Prospectus included as part of this Registration
Statement will be used in connection with the offer and sale of Debt Securities
and Warrants to Purchase Debt Securities of the Registrant in the principal
amount of $450,000,000 previously registered under the Registrant's
Registration Statement on Form S-3 bearing Registration No. 33-50832, in
respect of which Registrant paid a filing fee of $140,625.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this Prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This Prospectus is not an +
+offer to sell these securities and it is not soliciting an offer to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED APRIL 15, 1999
PROSPECTUS
[LOGO]
$1,000,000,000
Debt Securities
Warrants to Purchase Debt Securities
-----------
We will provide specific terms of these securities in supplements to this
Prospectus. You should read this Prospectus and any supplement carefully before
you invest.
-----------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities, or determined if
this prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
The date of this Prospectus is , 1999.
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You can read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. Our SEC filings are also available
to the public at the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" into this prospectus the
information we file with it, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be a part of this Prospectus, and
later information filed with the SEC will update and supersede this
information. We incorporate by reference the documents listed below and any
future filings made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 until our offering is completed:
. Annual Report on Form 10-K for the year ended December 31, 1998;
. The description of our common stock, par value $3.125 per share, set
forth under the headings "Description of Fortune Brands Capital Stock"
and "Comparative Rights of Shareholders" on pages 94-105 of our Proxy
Statement for the 1997 Annual Meeting of Stockholders of Fortune Brands,
Inc.; and
. The description of our Preferred Share Purchase Rights, set forth on Form
8-A dated December 22, 1997.
You may request a copy of these filings, at no cost other than for exhibits
of such filings, by writing to or telephoning us at the following address (or
by visiting our web site at http://www.fortunebrands.com):
FORTUNE BRANDS, INC.
Office of the Secretary
1700 East Putnam Avenue
Old Greenwich, Connecticut 06870-0811
(telephone number (203) 698-5000)
We have filed with the SEC a Registration Statement to register the debt
securities and warrants to purchase such debt securities under the Securities
Act of 1933. This Prospectus omits certain information contained in the
Registration Statement, as permitted by SEC rules. You may obtain copies of the
Registration Statement, including exhibits, as noted in the paragraph above.
You should rely only on the information incorporated by reference or
provided in this Prospectus or the prospectus supplement. We have authorized no
one to provide you with different information. We are not making an offer of
these securities in any state where the offer is not permitted. You should not
assume that the information in this Prospectus or the prospectus supplement is
accurate as of any date other than the date on the front of the document.
<PAGE>
FORTUNE BRANDS, INC.
We are a holding company with subsidiaries engaged in various businesses.
Our subsidiaries manufacture and sell home and office products, golf products,
spirits and wine.
We are a legal entity separate and distinct from our subsidiaries. Our
rights, and the rights of our creditors (including holders of debt securities
and debt warrants) and stockholders, to participate in any distribution of the
assets or earnings of any subsidiary is subject to the claims of creditors of
the subsidiary, except to the extent that our claims as a creditor of our
subsidiaries may be recognized. Our claims may be subordinate to claims of
other creditors. Our principal source of unconsolidated revenues and funds is
dividends and other payments from our subsidiaries. Our principal subsidiaries
currently are not limited by long-term debt or other agreements in their
abilities to pay cash dividends or to make other distributions with respect to
their capital stock or other payments to us.
Our principal executive offices are currently located at 1700 East Putnam
Avenue, Old Greenwich, Connecticut 06870-0811 and our telephone number is (203)
698-5000.
USE OF PROCEEDS
We intend to use the net proceeds we receive from the sale of securities
offered by this Prospectus and the accompanying prospectus supplement for
general corporate purposes, unless we specify otherwise in the applicable
prospectus supplement. General corporate purposes may include the repayment of
existing indebtedness, additions to working capital, capital expenditures or
the financing of possible acquisitions.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
Fortune Brands, Inc.:
<TABLE>
<CAPTION>
Years Ended December 31,
------------------------
1994 1995 1996 1997 1998
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges.................. 1.22 3.23 2.81 2.06 5.22
</TABLE>
For the purpose of computing the ratio of earnings to fixed charges,
earnings means:
. income from continuing operations before income taxes and minority
interest;
. plus fixed charges;
. less capitalized interest; and
. less excess of earnings over dividends of less-than-fifty-percent-owned
companies.
Fixed charges means the sum of the following:
. interest (including capitalized interest) on all indebtedness;
. amortization of debt discount and expense; and
. that portion of rental expense which we believe to be representative of
an interest factor.
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<PAGE>
DESCRIPTION OF DEBT SECURITIES
The following description sets forth the general terms and provisions that
could apply to the debt securities. Each prospectus supplement will state the
particular terms that actually will apply to the debt securities covered by
such prospectus supplement.
We will issue debt securities in one or more series under an indenture dated
as of April 15, 1999 between us and The Chase Manhattan Bank, as trustee. The
indenture may be supplemented from time to time. We have filed a copy of the
indenture as an exhibit to the Registration Statement. In addition the
following summary, you should refer to the specific terms of the indenture for
more detailed information. Some of the capitalized terms used in the following
discussion are defined in the indenture, and their definitions are incorporated
by reference into this Prospectus. When we use italics, we are referring to
sections in the indenture. Wherever we refer to particular provisions of the
indenture, such provisions are incorporated by reference in our summary, which
is qualified by such reference.
General
The indenture does not limit the amount of securities we may issue. Debt
securities may be issued in one or more series as we may authorize at various
times. (Section 3.01). The prospectus supplement relating to the particular
series of debt securities we are offering will specify the amounts, prices and
terms of those debt securities. These terms may include:
. the title and aggregate principal amount of the debt securities;
. the percentage of the principal amount at which we will issue the debt
securities;
. the date or dates on which the debt securities will mature;
. any annual rate or rates, or the method of determining the rate or rates,
at which the debt securities will bear interest;
. the date or dates from which interest shall accrue and the date or dates
on which interest will be payable;
. redemption and sinking fund terms;
. whether the debt securities are convertible into Common Stock and, if so,
the initial conversion price or rate, the conversion period and the other
terms and conditions relating to the conversion, including whether any
Preferred Share Purchase Rights of Fortune Brands, Inc. will be delivered
with shares of Common Stock issued upon conversion;
. if the debt securities are not denominated in U.S. dollars, the foreign
currency or currencies or composite currency or currencies in which the
debt securities are denominated and, if any payment of principal of or
premium or interest on or any other amount for the debt securities is not
payable in U.S. dollars, the foreign currency or currencies or composite
currency or currencies in which the payment shall be payable and the
particular provisions applicable to the debt securities;
. whether the debt securities are issuable as registered securities or as
bearer securities, or both;
. whether the debt securities will be issued in whole or in part in the
form of one or more global securities and the depositary for the global
security or securities;
. any events of default or covenants that will apply to the debt
securities; and
. any other terms of the debt securities, which will not conflict with the
terms of the indenture. (Section 3.01).
3
<PAGE>
The debt securities will be our direct, unsecured and unsubordinated
obligations. The debt securities will rank equally with any of our other
unsecured and unsubordinated obligations for borrowed money.
The indenture does not limit other indebtedness or securities which we may
incur or issue. The indenture does not contain financial or similar
restrictions on us, except as described under "Certain Covenants". Other than
the protections which may otherwise be afforded holders of debt securities as a
result of the operation of the covenants described in the indenture, there are
no covenants or other provisions which may afford holders of debt securities
protection if there is a leveraged buyout or other highly leveraged transaction
involving us or any similar occurrence.
We will describe the restrictions, elections, tax consequences, specific
terms and other information relating to any debt securities denominated in a
foreign currency or composite currency in the prospectus supplement.
If we issue any original issue discount securities (securities bearing no
interest or interest at a rate which at the time of issuance is below market
rates), we will describe the federal income tax consequences and other special
considerations applicable to any debt securities issued as original issue
discount securities in the prospectus supplement.
Form, Denominations, Exchange and Transfer
Unless we provide otherwise in an applicable prospectus supplement with
respect to a series of debt securities, we will issue the debt securities in
definitive form solely as registered securities, solely as bearer securities or
as both registered securities and bearer securities. Unless otherwise provided
in an applicable prospectus supplement, interest coupons will be attached to
bearer securities. (Section 2.01). The indenture also provides that we may
issue debt securities of a series in temporary or permanent global form.
(Section 3.01).
Unless we specify otherwise in the applicable prospectus supplement, we will
issue registered securities in denominations of multiples of $1,000 and bearer
securities in denominations of $1,000 or $10,000. (Section 3.02). We will issue
debt securities denominated in a foreign currency or in a composite currency in
the denominations we specify in the prospectus supplement.
You may surrender debt securities for exchange and registered securities for
registration of transfer in the manner, at the places and subject to the
restrictions set forth in the prospectus supplement. This may be done without
service charge but we may require payment of related taxes or other
governmental charges. (Section 3.05). Bearer securities and the attached
coupons will be transferable by delivery.
In connection with their sale during the "restricted period" as defined in
Section 1.163-5(c)(2)(i)(D)(7) of the U.S. Treasury regulations (generally, the
first 40 days after the closing date (or, in the case of debt securities
issuable on exercise of a debt warrants, the first 40 days after the date of
exercise of such debt warrants) and, with respect to unsold allotments, until
sold), bearer securities may not be delivered within the U.S. or its
possessions and may be delivered only upon certification as to the beneficial
ownership of the bearer securities. See "Limitations on Issuance of Bearer Debt
Securities and Bearer Debt Warrants".
In the event of any redemption, we will not be required to:
. issue, register the transfer of or exchange debt securities of any series
during a period beginning at the opening of business 15 days before:
. if debt securities of the series are issuable only as registered
securities, the day the relevant notice of redemption is mailed and
ending at the close of business on the day of such mailing; and
. if debt securities of the series are issuable only as bearer
securities, the day the relevant notice of redemption is first
published, or, if earlier, and if debt securities of the series are
also issuable as registered securities and there is no publication,
the day of mailing of the relevant notice of redemption, and in
either case, ending at the close of business on the date of such
publication or mailing; or
4
<PAGE>
. register the transfer or exchange of any portion of a registered security
called for redemption, except the unredeemed portion of any registered
security being redeemed in part; or
. exchange any bearer security called for redemption, except to exchange
such bearer security for a registered security of that series and like
tenor which is immediately surrendered for redemption.
Payment and Paying Agents
Unless we indicate otherwise in an applicable prospectus supplement, we will
pay principal of and any premium and any interest on registered securities at
the office of the paying agent or paying agents as we may designate at various
times. However, at our option, we may make interest payments on registered
securities by check mailed to the address, as it appears on the security
register, of the person entitled to the payments. Unless we specify otherwise
in the applicable prospectus supplement, we will make payment of any
installment of interest on registered securities to the person in whose name
the registered security is registered at the close of business on the record
date for such interest. (Sections 3.07 and 10.02).
Unless we indicate otherwise in an applicable prospectus supplement, we will
pay principal, any premium and any interest on bearer securities, subject to
any applicable laws and regulations, at the offices of those paying agents
outside the U.S. that we may designate at various times. However, at our
option, we may make interest payments by check or by transfer to an account
maintained by the payee with a bank located outside the U.S. (Sections 3.07 and
10.02). Unless we indicate otherwise in an applicable prospectus supplement, we
will pay any interest on bearer securities on any interest payment date only
upon presentation and surrender of the coupon relating to the interest payment
date. (Section 10.01). We will not pay principal, any premium or any interest
for any bearer security at any paying agency maintained by us in the U.S. or by
check mailed to any address in the U.S. or by transfer to an account maintained
with a bank located in the U.S. except as may be permitted without detriment to
us under U.S. tax laws and regulations in effect at the time of such payment.
Notwithstanding the foregoing,
. any payment in respect of bearer securities to be made in U.S. dollars
may be made at the office of a paying agent in the U.S. if payment at all
paying agencies outside the U.S. is illegal or effectively precluded by
exchange controls or other similar restrictions, and
. any payment in respect of bearer securities to be made in a foreign
currency or composite currency may be made at the office of a paying
agent in the U.S. in U.S. dollars in an amount equal to the sum otherwise
due in such foreign currency or composite currency as converted into U.S.
dollars at the rate of exchange as set forth in the indenture if payment
at all paying agencies outside the U.S. in such foreign currency or
composite currency and in U.S. dollars in such amount is illegal or
effectively precluded by exchange controls or other similar restrictions.
(Section 10.02).
We will name the paying agents outside the U.S. initially appointed by us
for a series of debt securities in the applicable prospectus supplement. We may
terminate the appointment of any of the paying agents at various times, but we
will maintain in the Borough of Manhattan, The City of New York, at least one
paying agency where the registered securities of each series may be presented
for payment. We will maintain one or more paying agencies in a city or cities
located outside the U.S. (including any city in which a paying agency is
required to be maintained under the rules of any stock exchange on which the
debt securities of such series are listed) where the bearer securities may be
presented for payment. (Section 10.02).
All monies we pay to a paying agent for the payment of principal of, any
premium or any interest on any debt securities that remains unclaimed at the
end of two years after becoming due and payable will be repaid to us. After
that time, the holder of the debt securities or coupon will look only to us for
payment. (Section 10.03).
5
<PAGE>
Global Securities
The debt securities of a series may be issued in whole or in part in the
form of one or more fully registered global securities that we will deposit
with a Depositary identified in the applicable prospectus supplement.
Registered global securities will be issued in a denomination or aggregate
denominations equal to the portion of the aggregate principal amount of
outstanding debt securities of the series to be represented by the registered
global security or securities. Unless and until it is exchanged in whole or in
part for the individual debt securities it represents, a registered global
security may not be transferred or exchanged except as a whole:
. by the applicable Depositary to a nominee of the Depositary;
. by any nominee to the Depositary itself or another nominee; or
. by the Depositary or any nominee to a successor Depositary or any nominee
of the successor Depositary and except in the circumstances described in
the applicable prospectus supplement. (Section 3.05).
We will describe the specific terms of the depositary arrangement with
respect to any portion of a series of debt securities in the applicable
prospectus supplement. We anticipate that the following provisions will
generally apply to depositary arrangements.
Ownership of beneficial interests in a registered global security will be
limited to institutions that have accounts with the Depositary ("participants")
and to persons that may hold interests through participants. For interests of
participants, ownership of beneficial interests in the registered global
security will be shown on the records maintained by the applicable Depositary.
For interests of persons other than participants, ownership of beneficial
interests in the registered global security will be shown on the records of
participants. Transfer of that ownership will be effected only through those
records.
We expect that upon the issuance of a registered global security, and the
deposit of the registered global security with or on behalf of the Depositary,
the Depositary will immediately credit, on its book-entry registration and
transfer system, the respective principal amounts of the debt securities
represented by the registered global security to the accounts of participants.
The accounts to be credited shall be designated by the underwriters or agents
engaging in the distribution of such debt securities or by us if those debt
securities are offered and sold directly by us.
Unless we specify otherwise in the applicable prospectus supplement, payment
of principal of and premium, and any interest on debt securities represented by
any registered global security will be made to the Depositary or its nominee,
as the sole registered owner and the sole holder of the debt securities.
Neither we, the trustee, nor any agents will be responsible for any aspect of
the Depositary's records or any participant's records relating to or payments
made by the Depositary or any participants on account of beneficial ownership
interests in a registered global security representing any debt securities.
Neither we, the trustee nor any agents will be responsible or liable for
maintaining, supervising or reviewing any of the Depositary's records or any
participant's records relating to beneficial ownership interests.
We expect that the Depositary or its nominee, upon receipt of any payment of
principal of or any premium or any interest on any registered global security,
immediately will credit, on its book-entry registration and transfer system,
the participant's accounts with the payments. Those payments will be credited
in amounts proportionate to the respective beneficial interests of the
participants in the principal amount of the registered global security as shown
on the records of the Depositary or its nominee. We also expect that payments
by participants to owners of beneficial interests in a registered global
security held through those participants will be governed by standing
instructions and customary practices. This is now the case with securities held
for customer accounts in bearer form or registered in "street name". Those
payments will be the sole responsibility of those participants.
6
<PAGE>
Except as otherwise set forth in the applicable prospectus supplement, we
will issue certificated debt securities in exchange for each registered global
security only if:
. the Depositary notifies us that it is unwilling or unable to continue as
Depositary for the registered global security or if at any time the
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, and we have not appointed a successor of the
Depositary within 90 calendar days;
. we determine (in our sole discretion) that the registered global security
shall be exchangeable for definitive debt securities in registered form;
or
. an Event of Default (as defined below under "Defaults and Certain Rights
on Default") for the debt securities represented by such registered
global security has occurred and is continuing.
Any registered global security that is exchangeable pursuant to the
preceding sentence shall be exchangeable in whole for definitive debt
securities in registered form, of like tenor and of an equal aggregate
principal amount, in denominations of $100,000 and any larger amount that is an
integral multiple of $1,000. Such definitive debt securities will be registered
in the name or names of the owners of such person or persons as the Depositary
shall instruct the trustee. It is expected that the instructions may be based
upon directions received by the Depositary from its participants regarding
ownership of beneficial interests in the registered global security.
Unless we specify otherwise in the applicable prospectus supplement and
except as provided above, owners of beneficial interests in the registered
global security will not be entitled to receive physical delivery of debt
securities in definitive form and will not be considered the holders for any
purpose under the indenture. No registered global security representing debt
securities will be exchangeable except for another permanent registered global
security of like denomination and tenor to be registered in the name of the
Depositary or its nominee. Each person owning a beneficial interest in the
registered global security must rely on the procedures of the Depositary.
Persons who are not participants must rely on the procedures of the participant
through which such person owns its interest, to exercise any rights of a holder
under the indenture. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of the securities in definitive
form. Such limits and such laws may impair the ability to transfer beneficial
interests in a registered global security.
The indenture permits the Depositary, as a holder, to authorize participants
as its agents to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other action which a holder is entitled
to make, give or take under the indenture. We understand that under existing
industry practices, in the event that we request any action of holders or an
owner of a beneficial interest in the registered global security desires to
make, give or take any request, demand, authorization, direction, notice,
consent, waiver or other action which a holder is entitled to make, give or
take under the indenture, the Depositary would authorize the participants
holding the relevant beneficial interests to make, give or take such action.
The participants would authorize beneficial owners owning through them to make,
give or take such action or would otherwise act upon the instructions of
beneficial owners owning through them.
We may also issue the debt securities of a series in whole or in part in the
form of one or more bearer global securities that we will deposit with a common
depositary for Morgan Guaranty Trust Company of New York, Brussels office, as
operator of the Euroclear System ("Euroclear"), and for Cedelbank, or with a
nominee for such common depositary, identified in the applicable prospectus
supplement. We may issue the bearer global securities in temporary or permanent
form. The specific terms and procedures, including the specific terms of the
depositary arrangement, for any portion of a series of debt securities to be
represented by one or more bearer global securities, will be described in the
applicable prospectus supplement. See "Limitations on Issuance of Bearer Debt
Securities and Bearer Debt Warrants".
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<PAGE>
Convertible Debt Securities
The terms and conditions upon which any convertible debt securities of a
series may be converted into shares of Common Stock, including the initial
conversion price or rate and the conversion period, and other provisions, will
be set forth in the prospectus supplement. See "Description of Capital Stock".
Certain Covenants
Definitions. The following is a summary of certain defined terms used in the
restrictive covenants contained in the indenture:
. "Consolidated Net Tangible Assets" means the excess over current
liabilities of all assets as set forth in our consolidated balance sheet
after deducting goodwill, trademarks, patents, other like intangibles and
minority interests of others.
. "Funded Debt" includes, in addition to indebtedness for borrowed money
maturing more than one year from the date of creation or extension
thereof, guarantees of funded debt or of dividends (except guarantees
arising in connection with the sale or pledge of customers' paper or
otherwise arising in the ordinary course of business) and any funded debt
secured by a mortgage on our property or any Restricted Subsidiary
whether or not assumed.
. "Restricted Subsidiary" is defined to exclude a Subsidiary organized
under foreign laws or operating outside the U.S., a Subsidiary involved
primarily in the business of finance, banking, credit, leasing,
insurance, financial services, real estate, petroleum or gas,
transportation or overseas financing, and Subsidiaries of the foregoing.
A Subsidiary required to be disposed of by court order and determined by
our board of directors not to be a Restricted Subsidiary is also excluded
from the definition of Restricted Subsidiary.
. "Secured Debt" includes indebtedness for money borrowed secured by a
mortgage upon any of our assets or a Restricted Subsidiary; "mortgage"
includes any mortgage, pledge or security interest.
. "Subsidiary" is defined as any corporation of which we or any one or
more Subsidiaries directly or indirectly own outstanding stock having
voting power sufficient to elect, under ordinary circumstances, a
majority of the directors. (Section 1.01).
Restrictions on Secured Debt. The indenture provides that, except as
described below, neither we nor any Restricted Subsidiary may incur any Secured
Debt without securing the debt securities (and, if we so elect, any
indebtedness ranking equally with the debt securities) equally and ratably
with, or prior to, such Secured Debt. This restriction does not apply to
indebtedness secured by:
. mortgages existing at the time a corporation becomes a Restricted
Subsidiary;
. mortgages assumed in connection with a merger with, or an acquisition of
substantially all of the properties of, a corporation, if any such
mortgage existed prior to such merger or acquisition and did not apply to
any property owned by us or a Restricted Subsidiary immediately prior to
such merger or acquisition;
. mortgages on property existing at the time of acquisition or mortgages on
certain property to finance the cost of acquisition, construction or
improvement;
. mortgages securing indebtedness owing to us or a Restricted Subsidiary;
. mortgages in favor of the U.S. or any State or any instrumentality of
either to secure partial, progress, advance or other payments pursuant to
any contract or statute;
. mortgages incurred under industrial revenue bond or similar financings;
or
. extensions, renewals or refundings of any of the foregoing.
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Notwithstanding the above provisions, we and our Restricted Subsidiaries may
incur Secured Debt without equally and ratably securing the debt securities if
after giving effect thereto the sum of:
. the total of all of our Secured Debt and the Secured Debt of Restricted
Subsidiaries (except Secured Debt of the types described in the paragraph
immediately above);
. the value of all sale and lease back transactions; and
. the aggregate of all unsecured Funded Debt of Restricted Subsidiaries
which, if it were secured debt, would be permitted by this paragraph,
does not exceed 10% of Consolidated Net Tangible Assets. (Section 10.06).
Restrictions on Borrowing by Restricted Subsidiaries. The indenture provides
that Restricted Subsidiaries may not incur any Funded Debt, except:
. Funded Debt owed to us or a Restricted Subsidiary;
. Funded Debt which is Secured Debt that could under the preceding
paragraphs of "Restrictions on Secured Debt" be incurred without ratably
securing the debt securities;
. unsecured Funded Debt which represents an extension, renewal or refunding
of Secured Debt described in the second sentence of the first paragraph
of "Restrictions on Secured Debt" above;
. unsecured Funded Debt, which, if it were Secured Debt, would be permitted
by the last paragraph of "Restrictions on Secured Debt" above;
. existing unsecured Funded Debt assumed by a Restricted Subsidiary in
connection with its merger with, or acquisition of all or a substantial
part of the assets of any corporation;
. unsecured Funded Debt of any corporation existing when it becomes a
Restricted Subsidiary;
. Funded Debt incurred in connection with industrial revenue bond or
similar financings; or
. extensions, renewals or refundings of any of the foregoing. (Section
10.05).
Restrictions on Sale and Lease Back Transactions. The indenture provides
that neither we nor any Restricted Subsidiary may sell and lease back for
periods exceeding five years any major facility owned as of the date of the
indenture unless:
. fair value is received for the facility sold; and
. an amount equal to the net proceeds of such sale is applied to the
retirement of Funded Debt which is not subordinated in right of payment
to the debt securities, provided that the amount of such required
retirement shall be reduced by:
--the amount of any Secured Debt which we or such Restricted Subsidiary could
then incur under the last paragraph of "Restrictions on Secured Debt"
above, and
--the principal amount of any instruments evidencing Funded Debt (which may
include the debt securities) delivered within 120 days after the sale to
the applicable trustee for retirement and cancellation, other than
instruments retired by payment at maturity or pursuant to mandatory sinking
fund or prepayment provisions. (Section 10.07).
Restrictions on Transfers of Property. Neither we nor any Restricted
Subsidiary may transfer or lease any major facility to any Subsidiary not
considered a "Restricted Subsidiary" for any of the reasons described in the
first sentence of the Restricted Subsidiary definition in the "Definitions"
paragraph above. (Section 10.08).
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Limitations on Merger
The indenture provides that if, we merge or consolidate with or into any
other corporation or we transfer substantially all of our assets to any other
corporation, and as a result any of our property or the property of a
Restricted Subsidiary would become subject to any mortgage, we will
simultaneously with or prior to such transaction secure the debt securities by
a prior lien on such property. (Section 8.03). If we merge or consolidate with
any other corporation or we transfer substantially all of our assets to any
other corporation, the successor corporation shall be substituted as obligor
under the indenture. (Sections 8.01 and 8.02).
Modification of Indenture
In general, our rights and obligations and the rights of holders of debt
securities under the indenture may be modified if holders of a majority in
aggregate principal amount of the outstanding debt securities of each series
affected by the modification consent to it. However, the indenture provides
that, unless each affected holder agrees, we cannot
.make any adverse change to any payment term of a debt security such as:
.extending the maturity date;
.extending the date on which we have to pay interest;
.reducing the interest rate;
.reducing the amount of principal we have to repay;
.changing the currency in which we have to make any payment of
principal, premium or interest;
. modifying any redemption or repurchase right to the detriment of the
holder;
. modifying any right to convert the debt securities for another
security to the detriment of the holder;
. impairing any right of a holder to bring suit for payment;
. reducing the percentage of the aggregate principal amount of debt
securities needed to make any amendment to the indenture or to waive
any covenant or default; or
.make any change to this provision of the indenture. (Section 9.02).
However, if the trustee and we agree, we can amend the indenture without
notifying any holders or seeking their consent if the amendment does not
materially and adversely affect any holder.
Defaults and Certain Rights on Default
An "Event of Default" is defined under the indenture as any of the
following:
. default for 30 days in payment of any interest;
. default in payment of principal;
. default for 60 days after notice in performance of any other covenant in
the indenture; and
. certain events of bankruptcy, insolvency, receivership or reorganization.
We will furnish to the trustee annually a written statement as to the
fulfillment of our obligations under the indenture. In case an Event of
Default with respect to debt securities of any series at the time outstanding
occurs and is continuing, the trustee or the holders of at least 25% in
principal amount of the debt securities of such series then outstanding may
declare the principal of all the debt securities of such series to be due and
payable. The indenture permits such declaration, under certain circumstances,
to be rescinded by the holders of a majority in principal amount of the debt
securities of the series at the time outstanding. (Sections 5.01, 5.02 and
10.04).
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Subject to the provisions of the indenture relating to the duties of the
trustee in case an Event of Default occurs and is continuing, the indenture
provides that the trustee is not obligated to exercise any of the rights or
powers under the indenture at the request or direction of any of the holders of
debt securities, unless the holders have offered to the trustee reasonable
security or indemnity.
Subject to the provisions for indemnification and certain limitations
contained in the indenture, the holders of a majority in principal amount of
the debt securities of any series at the time outstanding and so affected have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the trustee or exercising any trust or power conferred
on the trustee with respect to the debt securities of such series.
The holders may, in certain cases, waive any default except a default in
payment of principal of or premium, if any, or interest, if any, on the debt
securities of such series. (Sections 5.12, 5.13 and 6.03).
Defeasance
The prospectus supplement will state if any defeasance provision will apply
to the debt securities.
The indenture contains a provision that, if made applicable to any series of
debt securities, permits us to elect (a) to defease and be discharged from all
our obligations (subject to limited exceptions) with respect to any series of
debt securities then outstanding (known as "legal defeasance") (Section 4.03),
or (b) to be released from our obligations under certain restrictive covenants
(including those described above under "Certain Covenants") (known as "covenant
defeasance") (Section 10.10). To make either of the above elections, we must:
. deposit in trust with the trustee (a) in the case of debt securities and
coupons denominated in U.S. dollars, U.S. government obligations and (b)
in the case of debt securities and coupons denominated in a foreign
currency, foreign government securities denominated in such foreign
currency, which through the payment of principal and interest in
accordance with their terms and, together with any additional currency
deposited, will provide sufficient money, without reinvestment, to repay
in full those debt securities; and
. deliver to the trustee an opinion of counsel that holders of the debt
securities will not recognize income, gain or loss for Federal income tax
purposes as a result of the deposit and related defeasance and will be
subject to Federal income tax in the same amount, in the same manner and
at the same times as would have been the case if such deposit and related
defeasance had not occurred (in the case of legal defeasance only, such
opinion of counsel is to be based on a ruling of the IRS to such effect,
unless we indicate otherwise in the prospectus supplement).
Governing Law
The indenture, the debt securities and any coupons will be governed by, and
construed in accordance with, the laws of the State of New York. (Section
1.12).
Concerning the Trustee
The Chase Manhattan Bank is one of a number of banks with which we maintain
ordinary banking relationships and with which we maintain credit facilities. As
of the date of this prospectus, The Chase Manhattan Bank is a trustee under one
other indenture under which unsecured debt obligations of ours are outstanding.
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DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock includes a summary of certain
provisions of our Restated Certificate of Incorporation and our By-laws, as
amended. This description is not complete and is qualified by reference to the
Restated Certificate of Incorporation and the By-laws. We have filed copies of
the Restated Certificate of Incorporation and By-laws as exhibits to the
Registration Statement of which this Prospectus is a part.
Capital Stock Generally
We have authorized 810 million shares, of which 750 million are Common
Stock, par value $3.125 per share, and 60 million are Preferred Stock, without
par value.
Apart from the $2.67 Convertible Preferred Stock (the "$2.67 Preferred")
described below under "Outstanding Preferred Stock", the rights, preferences
and limitations of which are set forth in the Restated Certificate of
Incorporation, our board of directors is empowered to provide for any series of
Preferred Stock and, in general, to determine the relative rights, preferences
and limitations of such series. The Restated Certificate of Incorporation
provides that no holder of Common Stock or Preferred Stock shall have any
preemptive rights.
The outstanding shares of Common Stock and $2.67 Preferred are, and any
shares of Common Stock issued upon conversion of any convertible debt
securities will be, validly issued, fully paid and nonassessable.
Common Stock
Holders of Common Stock are entitled to receive such dividends as are
declared by our board of directors. Holders of Common Stock are entitled to
cast one vote for each share on all matters voted upon by stockholders, except
where holders of Preferred Stock are entitled to vote separately in certain
cases. Upon liquidation of Fortune Brands, Inc., holders of Common Stock are
entitled to share equally and ratably in any assets available for distribution
to them.
No dividend may be paid or declared on the Common Stock or any other junior
stock, other than a dividend payable in Common Stock or other junior stock, nor
may any shares of Common Stock or any junior stock be acquired for a
consideration by us or any subsidiary, unless all dividends on the $2.67
Preferred accrued for all past quarterly dividend periods have been paid and
unless, in the case of dividends on the Common Stock or any other junior stock,
the full dividends on the $2.67 Preferred for the then current quarterly
dividend period have been then paid or declared. Subject to the foregoing, the
Restated Certificate of Incorporation does not restrict us from purchasing
shares of Common Stock.
The co-transfer agent and registrar for shares of the Common Stock is
Continental Stock Transfer & Trust Company. We also serve as the co-transfer
agent for shares of the Common Stock.
Outstanding Preferred Stock
Holders of $2.67 Preferred are entitled to cumulative dividends at an annual
rate of $2.67 per share, payable quarterly on the 10th day of March, June,
September and December, as and when declared by our board of directors. Holders
are also entitled to preference in liquidation of $30.50 per share plus accrued
dividends then unpaid and to three-tenths of a vote per share on all matters
voted upon by stockholders (but are not, except in certain cases, entitled to
vote as a class) and effective June 2, 1997 have the right to convert each
share of $2.67 Preferred into 6.205 (6205/1000) shares of Common Stock (subject
to adjustment to prevent dilution of the conversion right in certain events).
We may redeem all or any part of the $2.67 Preferred at a price of $30.50 per
share, plus accrued dividends then unpaid.
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Preferred Share Purchase Rights
Each outstanding share of Common Stock also evidences one preferred share
purchase right (the "Rights"). Unless otherwise specified in the prospectus
supplement applicable to any convertible debt securities, as long as the Rights
are attached to the Common Stock, we presently intend to deliver one Right with
each new share of Common Stock issued, including shares issued upon conversion
of such debt securities, prior to the expiration or earlier redemption or
exchange of the Rights. All such shares will have attached Rights. The
description and terms of the Rights are set forth in a Rights agreement dated
as of November 19, 1997, as amended, between us and First Chicago Trust Company
of New York, as Rights Agent, and the following is qualified by reference to
such Rights agreement. We have filed a copy of the Rights agreement as an
exhibit to the Registration Statement of which this Prospectus is a part.
Each Right entitles its registered holder until December 24, 2007 (or, if
earlier, the redemption or exchange of the Rights) to purchase from us one one-
hundredth ( 1/100) of a share of Series A Junior Participating Preferred Stock,
without par value (the "Preferred Shares"), of Fortune Brands, Inc. at an
exercise price of $150 per one one-hundredth of a Preferred Share (the
"Purchase Price"), subject to certain adjustments.
The Rights will not be exercisable or transferable apart from the Common
Stock, until the earlier of (1) the tenth day after the public announcement
that a person or group has acquired, or obtained the right to acquire,
beneficial ownership of 15% or more of the Common Stock (other than a person or
group that becomes such a 15% beneficial owner by means of share acquisitions
by us or a person or group that our board of directors determines in good faith
has become such a 15% beneficial owner inadvertently, so long as such person or
group as promptly as possible divests enough Common Stock so as no longer to be
such a 15% beneficial owner) or (2) the tenth business day (or such later date
as may be determined by our board of directors prior to a person or group
becoming such a 15% beneficial owner) after the commencement of, or the
announcement of an intention to commence, a tender or exchange offer the
consummation of which would result in beneficial ownership by a person or group
of 15% or more of the Common Stock. The Rights will not have any voting rights
or be entitled to dividends.
In the event that we are acquired in a merger or other business combination
transaction or 50% or more of our assets or earning power and the assets or
earning power of our subsidiaries (taken as a whole) are sold, each Right will
entitle its holder to purchase, at the Purchase Price, that number of shares of
common stock of the acquiring company which at the time of such transaction
would have a market value of two times the Purchase Price. Alternatively, if a
person or group has become a 15% beneficial owner as described in clause (1) of
the first sentence of the preceding paragraph, each Right, other than Rights
beneficially owned by the 15% holder (which will thereafter be void), will
become exercisable for the number of shares of Common Stock which, at that
time, would have a market value of two times the Purchase Price. If such
beneficial ownership is less than 50% of the outstanding Common Stock, each
Right may be exchanged by our board of directors, at its option, in whole or in
part, for shares of Common Stock at an exchange ratio of one share of Common
Stock for each Right, subject to adjustment.
The Rights are redeemable at $.01 per Right (the "Redemption Price"),
subject to adjustment, at any time prior to the time that a person or group has
acquired, or obtained the right to acquire, beneficial ownership of 15% or more
of the Common Stock. Immediately upon any redemption of the Rights, the right
to exercise the Rights will terminate and the only right of the holders of
Rights will be to receive the Redemption Price. The rights will expire on
December 24, 2007 (unless earlier redeemed or exchanged).
In the event that we are not able to authorize a sufficient number of
additional shares of Common Stock to satisfy the exercise or exchange of a
Right pursuant to its terms, we will be required to substitute Preferred Shares
(or a fraction thereof) for the shares of Common Stock that would otherwise be
issuable upon exercise or exchange of such Right at a rate such that the
Preferred Shares substituted would have the same market value as the shares of
Common Stock that would otherwise have been issued upon such exercise or
exchange.
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Election of Directors, Other Voting Provisions and Related Matters
Pursuant to the Restated Certificate of Incorporation, our board of
directors is divided into three classes of directors serving staggered three-
year terms. The exact number of directors will be determined from time to time
by or pursuant to the By-laws, provided that their number shall not exceed 20.
The board of directors is currently comprised of 14 directors. The Restated
Certificate of Incorporation also provides a procedure requiring that we
receive advance written notice of stockholder nominations of directors.
The Restated Certificate of Incorporation requires, in addition to any
affirmative vote required by law, the Restated Certificate of Incorporation or
the By-laws, the affirmative vote of two-thirds of the votes cast by our
stockholders entitled to vote in order to obtain stockholder approval of
amendments to the Restated Certificate of Incorporation, mergers,
consolidations and sales or leases of substantially all of our assets.
Currently, Delaware law generally requires the affirmative vote of the holders
of a majority of the outstanding shares of our capital stock entitled to vote
thereon. Notwithstanding the foregoing, the Restated Certificate of
Incorporation further provides that the affirmative vote of at least 80 percent
of the votes entitled to be cast by the holders of all the then outstanding
shares of stock of Fortune Brands, Inc. entitled to be voted generally in the
election of directors, voting together as a single class, shall be required for
the amendment or repeal of, or the adoption of provisions inconsistent with,
the above-described provisions of the Restated Certificate of Incorporation
relating to classification and stockholder nomination of directors unless such
amendment, repeal or adoption has been approved by three-fourths of the
directors then in office.
The By-laws require that the Annual Meeting of our stockholders for the
election of directors and other proper business be held at such place as may
from time to time be designated by the directors on the first Wednesday of May
or on such other day as the directors may designate (or, if the day fixed for
the meeting is a legal holiday, on the next business day which is not a legal
holiday.) The By-laws further provide that special meetings of the stockholders
may be called only by the Chairman of the Board, the President or the
directors, by resolution adopted by a majority of the entire board of
directors. In addition, the Restated Certificate of Incorporation provides that
any action to be taken by the stockholders must be effected at a duly called
annual or special meeting and may not be effected by written consent. The By-
laws require that, except as otherwise provided by law, at least ten days'
prior notice of each annual or special meeting shall be given by written notice
signed by the Secretary or an Assistant Secretary and mailed to each
stockholder of record entitled to vote. The By-laws also provide a procedure
requiring that advance written notice be given to us of the proposal by
stockholders of business other than the nomination of directors and then only
such business as is stated in a notice of a special meeting shall be transacted
at such meeting.
Certain of the provisions described under this section entitled "Description
of Capital Stock", including the right to issue additional shares of Preferred
Stock, could have the effect of discouraging transactions that might lead to a
change in control of Fortune Brands, Inc.
DESCRIPTION OF DEBT WARRANTS
We may issue, together with debt securities or separately, debt warrants for
the purchase of debt securities. If we issue the debt warrants together with
any debt securities, they may be attached to or separate from the debt
securities. We will issue the debt warrants under a debt warrant agreement to
be entered into between us and a bank or trust company, as debt warrant agent,
as set forth in the prospectus supplement. We are summarizing certain
provisions of the debt warrant agreement. In addition to the following summary,
we have filed copies of the debt warrant agreements as an exhibit to the
Registration Statement of which this Prospectus is a part. You should read the
debt warrant agreement for more detailed information. When we use italics we
are referring to sections in the debt warrant agreement. Wherever we refer to
particular provisions of the debt warrant agreement, such provisions are
incorporated by reference in our summary, which is qualified by such reference.
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General
The prospectus supplement will describe the particular terms of the debt
warrants. These terms may include:
. the price at which the debt warrants will be issued;
. the currency or composite currency for which the debt warrants may be
purchased;
. the designation, aggregate principal amount, currency or composite
currency and terms of the debt securities which may be purchased upon
exercise of the debt warrants;
. if applicable, the designation and terms of the debt securities with
which the debt warrants are issued and the number of debt warrants issued
with each of such debt securities;
. if applicable, the date on and after which the debt warrants and the
related debt securities will be separately transferable;
. the principal amount of debt securities purchasable upon exercise of each
debt warrant and the price at which and the currency or composite
currency in which such principal amount of debt securities may be
purchased upon such exercise;
. the date on which the right to exercise the debt warrants will commence
and the date on which the right will expire (if the debt warrants are not
continuously exercisable throughout such period, the specific date or
dates on which they will be exercisable which term shall also mean, with
respect to debt warrants continuously exercisable for a period of time,
every date during such period);
. whether the debt warrants certificates representing the debt warrants
will be in registered form or bearer form, or both;
. any applicable federal income tax consequences;
. the identity of the debt warrants agent for the debt warrants; and
. any other terms of the debt warrants which will not conflict with the
debt warrant agreement.
Registered warrants of each series will be evidenced by debt warrant
certificates in registered form and bearer warrants of each series will be
evidenced by a permanent global debt warrant certificate in bearer form. The
global debt warrant certificate will be deposited with a common depositary for
Euroclear and Cedelbank, for credit to the accounts of the subscribers for the
bearer warrants on the related date of issue. Bearer warrants will not be
issued in definitive form.
At the option of the holder upon request confirmed in writing, and subject
to the terms of the relevant debt warrant agreement, registered warrants of any
series will be exchangeable for registered warrants of the same series
representing in the aggregate the number of debt warrants surrendered for
exchange. Registered warrants may be presented for exchange and for
registration of transfer (with the form of transfer endorsed thereon duly
executed), at the corporate trust office of the debt warrant agent for such
series of debt warrants (or any other office indicated in the prospectus
supplement relating to such series of debt warrants). This may be done without
service charge and upon payment of any taxes and other governmental charges as
described in the relevant debt warrant agreement. Such transfer or exchange
will be effected upon the debt warrant agent for such series of debt warrants
being satisfied with the documents of title and identity of the person making
the request. (Section 4.01).
We will not offer, sell or deliver bearer warrants at any time to persons
within the U.S. or to U.S. persons, except to the extent permitted under U.S.
Treasury regulations. See "Limitations on Issuance of Bearer Debt Securities
and Bearer Debt Warrants".
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Exercise of Debt Warrants
Each debt warrant will entitle the holder to purchase for cash the principal
amount of debt securities at the exercise price set forth in the prospectus
supplement. Debt warrants may be exercised at any time up to the close of
business on the debt warrant expiration date set forth in the prospectus
supplement. After the close of business on the debt warrant expiration date (or
such later date to which the debt warrant expiration date may be extended by
us), unexercised debt warrants will become void. (Section 2.02).
Subject to any restrictions and additional requirements that may be set
forth in the prospectus supplement, registered warrants may be exercised by
delivering to the debt warrant agent the debt warrant certificate evidencing
the registered warrants properly completed and duly executed and by delivering
payment as provided in the prospectus supplement of the amount required to
purchase the debt securities purchasable upon exercise. (Section 2.03).
Subject to any such restrictions and additional requirements, bearer
warrants may be exercised by delivering to Euroclear or Cedelbank a duly
completed exercise letter or tested telex, in the form obtainable from
Euroclear or Cedelbank or the debt warrant agent. The exercise letter will set
forth, among other things, instructions for payment as provided in the
prospectus supplement on the date of exercise of the amount required to
purchase the debt securities purchasable upon exercise of bearer warrants.
Purchasers of bearer securities to be delivered upon exercise of the bearer
warrants will be subject to certification requirements as to beneficial
ownership thereof. See "Limitations on Issuance of Bearer Debt Securities and
Bearer Debt Warrants".
The procedures to be followed in connection with the delivery of the
exercise letter will be set forth in the prospectus supplement. The exercise
price of debt warrants will be that price applicable on the date of receipt of
payment in full of the requisite amount of funds, determined as set forth in
the prospectus supplement. Upon receipt of such payment (plus payment under
certain circumstances of accrued interest on the debt securities being
purchased) and upon either (1) surrender of such debt warrant certificate at
the corporate trust office of the debt warrant agent or any other office
indicated in the prospectus supplement, in the case of Registered Warrants, or
(2) satisfaction of the certification requirements referred to above, in the
case of bearer warrants, we will, as soon as practicable, forward the debt
securities purchasable upon such exercise.
Only registered securities will be deliverable upon exercise of registered
warrants. Registered securities or, subject to the certification procedures
referred to above, bearer securities will be delivered upon exercise of bearer
warrants, as may be specified in the exercise letter. If fewer than all of the
registered warrants represented by a debt warrant certificate are exercised, a
new debt warrant certificate will be issued representing the remaining number
of registered warrants. (Section 2.03).
Modifications
The debt warrant agreement and the terms of the debt warrants and the debt
warrant certificates may be amended by us and the debt warrant agent, without
the consent of the holders, for the purpose of curing any ambiguity, or of
curing, correcting or supplementing any defective or inconsistent provision or
in any other manner which we may deem necessary or desirable and which will not
adversely affect the interests of the holders in any material respect. (Section
6.01).
Merger, Consolidation, Sale or Other Disposition
If at any time we should merge or consolidate or transfer substantially all
of our assets as permitted under the indenture, the successor corporation shall
succeed to and assume all of our obligations under the debt warrant agreement
and the debt warrant certificates. (Section 3.04).
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Enforceability of Rights of Debt Warrants Holders; Governing Law
The debt warrant agent will act solely as our agent in connection with the
debt warrant certificates and will not assume any obligation or relationship of
agency or trust for or with any holders of debt warrants certificates or
beneficial owners of debt warrants. (Section 5.02). Any holder of debt warrant
certificates evidencing registered warrants and any beneficial owner of bearer
warrants may, without the consent of the debt warrant agent, any other holder,
the trustee, the holder of any debt securities issued upon exercise of debt
warrants or, if applicable, the common depositary for Euroclear and Cedelbank,
enforce by appropriate legal action, on its own behalf, its right to exercise
the debt warrants evidenced by such debt warrant certificates or the global
debt warrant certificates evidencing such bearer warrants, as the case may be,
in the manner provided therein and in the debt warrant agreement. (Section
3.03).
Prior to the exercise of the debt warrants, a record or beneficial owner of
debt warrants will not have any rights of a holder of the debt securities
purchasable upon exercise, including the right to receive payments of principal
of, any premium or interest on such debt securities or to enforce any of the
covenants in the indenture. (Section 3.01). The debt warrants and each debt
warrant agreement will be governed by, and construed in accordance with, the
laws of the State of New York. (Section 6.04).
LIMITATIONS ON ISSUANCE OF BEARER DEBT SECURITIES AND BEARER DEBT WARRANTS
Except as may otherwise be provided in the prospectus supplement, in
compliance with U.S. federal tax laws and regulations:
. debt securities that are bearer securities (including debt securities in
global form) may not be offered or sold during the restricted period (as
defined under "Description of Debt Securities--Form, Denominations,
Exchange and Transfer") to persons within the U.S. or its possessions
("U.S.") or to U.S. persons,
. bearer securities sold during the restricted period may not be delivered
within the U.S., and
. bearer warrants may not be offered, sold or delivered to persons within
the U.S. or to U.S. persons at any time, except to the extent permitted
under Section 1.163-5(c)(2)(i)(D) of the U.S. Treasury regulations (the
"D Rules").
Any underwriters, agents and dealers participating in the offering of bearer
securities or bearer warrants must agree that, except to the extent permitted
under the D Rules, they will not offer or sell bearer securities to persons
within the U.S. or to U.S. persons during the restricted period, will not
deliver within the U.S. bearer securities sold during the restricted period,
and will not offer, sell or deliver bearer warrants to persons within the U.S.
or to U.S. persons at any time. In addition, any underwriters, agents and
dealers must have in effect procedures reasonably designed to ensure that their
employees or agents who are directly engaged in selling bearer securities or
bearer warrants are aware that bearer securities and bearer warrants cannot be
offered or sold, during the applicable period, to persons within the U.S. or to
U.S. persons.
Bearer securities (other than temporary global debt securities) will be
delivered in definitive form only upon certification, as provided in the D
Rules, that the beneficial owners thereof are not U.S. persons, or other
certification as to ownership permissible under the D Rules.
Bearer securities (other than temporary global debt securities) and any
related coupons will bear a legend substantially to the following effect: "Any
U.S. person who holds this obligation will be subject to limitations under the
U.S. income tax laws, including the limitations provided in Sections 165(j) and
1287(a) of the U.S. Internal Revenue Code". The sections referred to in such
legend provide that a U.S. person (other than a U.S. financial institution
described above or U.S. person holding through such a financial institution)
who holds a bearer security or coupon will not be allowed to deduct any loss
realized on the sale, exchange or redemption
17
<PAGE>
of such bearer security and any gain (which might otherwise be characterized as
capital gain) recognized on such sale, exchange or redemption will be treated
as ordinary income.
As used herein, "U.S. person" means a citizen, national or resident of the
U.S., a corporation, partnership or other entity created or organized in or
under the laws of the U.S. or any political subdivision thereof, or an estate
or trust the income of which is subject to U.S. federal income taxation
regardless of its source.
PLAN OF DISTRIBUTION
We may sell the debt securities and the debt warrants in any of three ways
(or in any combination thereof):
. through underwriters or dealers;
. directly to a limited number of purchasers or to a single purchaser; or
. through agents.
The prospectus supplement with respect to the debt securities and the debt
warrants will set forth the terms of the offering, including:
. the name or names of any underwriters and the amounts of the debt
securities;
. the debt warrants underwritten or purchased by each of them;
. the purchase price of the debt securities;
. the debt warrants and the proceeds to us from such sale, any discounts,
commissions or other items constituting compensation from us;
. any initial public offering price and any discounts, commissions or
concessions allowed or reallowed or paid to dealers;
. any restrictions or limitations on persons to whom, jurisdictions in
which or the manner in which the debt securities and the debt warrants
may be offered, sold, resold or delivered; and
. any securities exchanges on which the debt securities and the debt
warrants may initially be listed.
Only underwriters named in the prospectus supplement are deemed to be
underwriters in connection with the debt securities and the debt warrants.
If underwriters or dealers are used in the sale, the debt securities and the
debt warrants will be acquired by underwriters and dealers for their own
account and may be resold at various times 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 debt securities and the debt
warrants may be offered to the public either through underwriting syndicates
represented by managing underwriters or directly by the managing underwriter or
underwriters. Unless otherwise set forth in the prospectus supplement, the
obligations of the underwriters to purchase the debt securities and the debt
warrants will be subject to certain conditions precedent and the underwriters
will be obligated to purchase all the debt securities and the debt warrants if
any are purchased. Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed at various
times.
We may sell debt securities and debt warrants directly through agents
designated by us. The prospectus supplement will name any agent involved in the
offer or sale in respect of which this prospectus is delivered and will set
forth any commissions payable by us to such agent. Unless otherwise indicated
in the prospectus supplement, any agent will be acting on a best efforts basis
for the period of its appointment.
If an applicable prospectus supplement indicates, we will authorize agents,
underwriters or dealers to solicit offers by certain purchasers to purchase
debt securities and debt warrants from us at the public offering
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<PAGE>
price set forth in the prospectus supplement under delayed delivery contracts
providing for payment and delivery on a specified date in the future. These
contracts will be subject to only those conditions set forth in the prospectus
supplement, and the prospectus supplement will set forth the commission payable
for solicitation of the contracts.
Agents, dealers and underwriters may be entitled under agreements entered
into with us to indemnification by us against certain civil liabilities,
including liabilities under the Securities Act of 1933, or to contribution with
respect to payments which the agents or underwriters may be required to make.
Agents and underwriters may be customers of, engage in transactions with or
perform services for us in the ordinary course of business.
LEGAL OPINION
The legality of the debt securities and debt warrants will be passed upon
for us by Chadbourne & Parke LLP, New York, New York, and, if debt securities
and debt warrants are being distributed in an underwritten offering, the
legality of such debt securities and debt warrants will be passed upon for the
underwriters by Davis Polk & Wardwell, New York, New York.
EXPERTS
The consolidated financial statements and financial statement schedule
incorporated in this Prospectus by reference to Fortune Brands, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1998, have been so
incorporated in reliance on the reports of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the issuance and distribution of the
securities being registered hereby, other than underwriting discounts and
commissions, are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee................ $152,900
*Legal Fees and Expenses........................................... 100,000
*Accountants' Fees and Expenses.................................... 20,000
*Trustee's Fees and Expenses....................................... 40,000
*Printing and Engraving Expenses................................... 20,000
*Rating Agency Fees................................................ 100,000
*State Qualification Expenses (including legal fees)............... 4,000
*Miscellaneous..................................................... 4,000
--------
Total............................................................ $440,900
========
</TABLE>
- --------
* Estimated
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware provides in part as
follows:
"(a) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by the
person in connection with such action, suit or proceeding if the person
acted in good faith and in a manner the person reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe
the person's conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which
the person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that the person's conduct was
unlawful.
"(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that the person is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably
incurred by the person in connection with the defense or settlement of such
action or suit if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged
to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
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<PAGE>
"(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of
this section, or in defense of any claim, issue or matter therein, such
person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection therewith.
"(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the present or former director, officer, employee or agent is proper in
the circumstances because the person has met the applicable standard of
conduct set forth in subsections (a) and (b) of this section. Such
determination shall be made, with respect to a person who is a director or
officer at the time of such determination, (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even
though less than a quorum, or (2) by a committee of such directors
designated by majority vote of such directors, even though less than a
quorum, or (3) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, or (4) by the
stockholders.
"(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that such person is not
entitled to be indemnified by the corporation as authorized in this
section. Such expenses (including attorneys' fees) incurred by former
directors or officers or other employees and agents may be so paid upon
such terms and conditions, if any, as the corporation deems appropriate.
"(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any bylaw, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action
in such person's official capacity and as to action in another capacity
while holding such office.
"(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against such person and incurred by such person in
any such capacity, or arising out of such person's status as such, whether
or not the corporation would have the power to indemnify such person
against such liability under this section.
"(h) For purposes of this section, references to 'the corporation' shall
include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as such
person would have with respect to such constituent corporation if its
separate existence had continued.
"(i) For purposes of this section, references to 'other enterprises'
shall include employee benefit plans; references to 'fines' shall include
any excise taxes assessed on a person with respect to any employee benefit
plan; and references to 'serving at the request of the corporation' shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner such person reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan shall be
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<PAGE>
deemed to have acted in a manner "not opposed to the best interests of the
corporation' as referred to in this section.
"(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
"(k) The Court of Chancery is hereby vested with exclusive jurisdiction
to hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw, agreement,
vote of stockholders or disinterested directors, or otherwise. The Court of
Chancery may summarily determine a corporation's obligation to advance
expenses (including attorney's fees)."
Article XIII of Registrant's By-laws provides as follows:
"Section 1. (A) Each person (an 'indemnitee') who was or is made or
threatened to be made a party to or was or is involved (as a witness or
otherwise) in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding'), by reason of the
fact that he or she or a person of whom he or she is the legal representative
was or is a director, officer or employee of the Company or was or is serving
at the request of the Company as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding was or is alleged action in an official capacity
as a director, officer, employee or agent or in any other capacity while
serving as a director, officer, employee or agent, shall be indemnified and
held harmless by the Company to the fullest extent permitted by the General
Corporation Law of the State of Delaware as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Company to provide broader indemnification rights than
said law permitted the Company to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees and retainers therefor,
judgments, fines, excise taxes or penalties under the Employee Retirement
Income Security Act of 1974, as amended, and amounts paid in settlement)
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that except as provided in
Section 3 of this Article XIII with respect to proceedings seeking to enforce
rights to indemnification, the Company shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
board of directors of the Company.
(B) The right to indemnification conferred in this Article XIII is and shall
be a contract right. The right to indemnification conferred in this Article
XIII shall include the right to be paid by the Company the expenses (including
attorneys' fees and retainers therefor) reasonably incurred in connection with
any such proceeding in advance of its final disposition, such advances to be
paid by the Company within 20 days after the receipt by the Company of a
statement or statements from the indemnitee requesting such advance or advances
from time to time; provided, however, that if the General Corporation Law of
the State of Delaware requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director of officer (and not in
any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be
made only upon delivery to the Company of an undertaking by or on behalf of
such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this Article XIII or otherwise.
"Section 2. (A) To obtain indemnification under this Article XIII, an
indemnitee shall submit to the Company a written request, including therein or
therewith such documentation and information as is reasonably available to the
indemnitee and is reasonably necessary to determine whether and to what extent
the indemnitee is entitled to indemnification. Upon written request by an
indemnitee for indemnification pursuant to the first
II-3
<PAGE>
sentence of this Section 2(A), a determination, if required by applicable law,
with respect to the indemnitee's entitlement thereto shall be made as follows:
(1) if requested by the indemnitee, by Independent Counsel (as hereinafter
defined), or (2) if no request is made by the indemnitee for a determination by
Independent Counsel, (a) by the board of directors by a majority vote of a
quorum consisting of Disinterested directors (as hereinafter defined), or (b)
if a quorum of the board of directors consisting of Disinterested directors is
not obtainable or, even if obtainable, such quorum of Disinterested directors
so directs, by Independent Counsel in a written opinion to the board of
directors, a copy of which shall be delivered to the indemnitee, or (c) by the
stockholders of the Company. In the event the determination of entitlement to
indemnification is to be made by Independent Counsel at the request of the
indemnitee, the Independent Counsel shall be selected by the indemnitee unless
the indemnitee shall request that such selection be made by the board of
directors, in which event the Independent Counsel shall be selected by the
board of directors. If it is so determined that the indemnitee is entitled to
indemnification, payment to the indemnitee shall be made within 10 days after
such determination.
(B) In making a determination with respect to entitlement to indemnification
hereunder, the person, persons or entity making such determination shall
presume that the indemnitee is entitled to indemnification under this Article
XIII, and the Company shall have the burden of proof to overcome that
presumption in connection with the making by any person, persons or entity of
any determination contrary to that presumption.
"Section 3. (A) If a claim under Section 1 of this Article XIII is not paid
in full by the Company within 30 days after a written claim pursuant to Section
2(A) of this Article XIII has been received by the Company, or if an advance is
not made within 20 days after a request therefor pursuant to Section 1(B) of
this Article XIII has been received by the Company, the indemnitee may at any
time thereafter bring suit (or, at the indemnitee's option, an arbitration
proceeding before a single arbitrator pursuant to the rules of the American
Arbitration Association) against the Company to recover the unpaid amount of
the claim or the advance and, if successful in whole or in part, the indemnitee
shall be entitled to be paid also the expense of prosecuting such claim. It
shall be a defense to any such suit or proceeding (other than a suit or
proceeding brought to enforce a claim for expenses incurred in connection with
any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Company) that the
indemnitee has not met the standards of conduct which make it permissible under
the General Corporation Law of the State of Delaware for the Company to
indemnify the indemnitee for the amount claimed or that such indemnification
otherwise is not permitted under the General Corporation Law of the State of
Delaware, but the burden of proving such defense shall be on the Company.
(B) Neither the failure of the Company (including its board of directors,
Independent Counsel or stockholders) to have made a determination prior to the
commencement of such action that indemnification of the indemnitee is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the General Corporation Law of the State of Delaware, nor an
actual determination by the Company (including its board of directors,
Independent Counsel or stockholders) that the indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the indemnitee has not met the applicable standard of conduct.
(C) If a determination shall have been made pursuant to Section 2(A) of this
Article XIII that the indemnitee is entitled to indemnification, the Company
shall be bound by such determination in any judicial proceeding or arbitration
commenced pursuant to paragraph (A) of this Section 3.
(D) The Company shall be precluded from asserting in any judicial proceeding
or arbitration commenced pursuant to paragraph (A) of this Section 3 that the
procedures and presumptions of this Article XIII are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Company is bound by all the provisions of this Article XIII.
"Section 4. The right to indemnification and the payment of expenses
incurred in connection with a proceeding in advance of its final disposition
conferred in this Article XIII shall not be exclusive of any other
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<PAGE>
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, by-laws, agreement, vote of
stockholders or Disinterested directors or otherwise.
"Section 5. The Company may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Company or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Company would have the power to
indemnify such person against such expense, liability or loss under the General
Corporation Law of the State of Delaware. To the extent that the Company
maintains any policy or policies providing such insurance, each such director,
officer or employee, and each such agent to which rights to indemnification
have been granted as provided in Section 6 of this Article XIII, shall be
covered by such policy or policies in accordance with its or their terms to the
maximum extent of the coverage thereunder for any such director, officer,
employee or agent.
"Section 6. The Company may, to the extent authorized from time to time by
the board of Directors, grant rights to indemnification, and rights to be paid
by the Company the expenses incurred in connection with any proceeding in
advance of its final disposition, to any agent of the Company to the fullest
extent of the provisions of this Article XIII with respect to the
indemnification and advancement of expenses of directors, officers and
employees of the Company.
"Section 7. If any provision or provisions of this Article XIII shall be
held to be invalid, illegal or unenforceable for any reason whatsoever: (A) the
validity, legality and enforceability of the remaining provisions of this
Article XIII (including without limitation, each portion of any Section of this
Article XIII containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby; and (B) to the fullest extent
possible, the provisions of this Article XIII (including, without limitation,
each portion of any Section of this Article XIII containing any such provision
held to be invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
"Section 8. For purposes of this Article XIII:
(A) 'Disinterested director' means a director of the Company who is not
and was not a party to the matter in respect of which indemnification is
sought by the indemnitee.
(B) 'Independent Counsel' means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither presently is,
nor in the past five years has been, retained to represent: (1) the Company
or the indemnitee in any matter material to either such party, or (2) any
other party to the matter giving rise to a claim for indemnification.
Notwithstanding the foregoing, the term "Independent Counsel' shall not
include any person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing
either the Company or the indemnitee in an action to determine the
indemnitee's rights under this Article XIII.
"Section 9. Any notice, request or other communication required or permitted
to be given to the Company under this Article XIII shall be in writing and
either delivered in person or sent by telecopy, telex, telegram or certified or
registered mail, postage prepaid, return receipt requested, to the Secretary of
the Company and shall be effective only upon receipt by the Secretary."
Registrant has procured insurance protecting it under its obligation to
indemnify officers and directors against certain types of liabilities
(including certain liabilities under the Securities Act of 1933) that may be
incurred by them in the performance of their duties and affording protection to
such officers and directors in certain areas to which the corporate indemnity
does not extend, all within specified limits and subject to specified
deductions.
In addition, Registrant and certain other persons may be entitled under
agreements entered into with agents or underwriters to indemnification by such
agents or underwriters against certain liabilities, including liabilities under
the Securities Act of 1933, or to contribution with respect to payments which
Registrant or such persons may be required to make in respect thereof.
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Item 16. List of Exhibits.
<TABLE>
<C> <S>
1a1 --Forms of proposed Underwriting Agreement, Underwriting Agreement
Standard Provisions (Debt Securities and Warrants to Purchase Debt
Securities) and Delayed Delivery Contract.
4a1 --Indenture, to be dated as of April 15, 1999, between Registrant and
The Chase Manhattan Bank, as Trustee (the "Trustee").
4b1 --Restated Certificate of Incorporation of Registrant is incorporated
herein by reference to Exhibit 3(i) to the Annual Report on Form 10-K
of Registrant for the Fiscal Year ended December 31, 1998.
4c1 --By-laws of Registrant, as amended, are incorporated herein by
reference to Exhibit 3(ii)b to the Annual Report on Form 10-K of
Registrant for the Fiscal Year ended December 31, 1998.
4d1 --Rights Agreement, dated as of November 19, 1997, between Registrant
and First Chicago Trust Company of New York, as Rights Agent, is
incorporated herein by reference to Exhibit 4a to the Current Report
on Form 8-K of Registrant dated December 2, 1997.
4e1 --Forms of Debt Securities.
4f1 --Forms of Debt Warrant Agreements, including forms of Debt Warrant
Certificates.
5 --Opinion of Chadbourne & Parke LLP as to the legality of the
securities being registered.
12 --Statement re Computation of Ratio of Earnings to Fixed Charges for
the five years ended December 31, 1998 is incorporated herein by
reference to Exhibit 12 to the Annual Report on Form 10-K of
Registrant for the Fiscal Year ended December 31, 1998.
23a --Consent of PricewaterhouseCoopers LLP, independent accountants.
23b --Consent of Chadbourne & Parke LLP is contained in their opinion filed
as Exhibit 5 to this Registration Statement.
24 --Power of Attorney authorizing certain persons to sign this
Registration Statement on behalf of certain directors and officers of
Registrant.
25 --Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank, the Trustee under
the Indenture constituting Exhibit 4a1 hereto.
</TABLE>
Item 17. Undertakings.
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration Statement;
notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement; and (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 clauses (i)
and (ii) do not apply if the information
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required to be included in a post-effective amendment by those clauses is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) To file an application for the purpose of determining the eligibility of
the trustee to act under subsection (a) of Section 310 of the Trust Indenture
Act of 1939 in accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Trust Indenture Act of 1939.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
Registrant pursuant to the foregoing provisions, or otherwise, Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by Registrant
of expenses incurred or paid by a director, officer or controlling person of
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, Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy, as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Old Greenwich, Connecticut, on this 15th day of April, 1999.
FORTUNE BRANDS, INC.
Dudley L. Bauerlein, Jr.
By __________________________________
Dudley L. Bauerlein, Jr.
Senior Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on this 15th day of April, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
Thomas C. Hays* Chairman of the Board and Chief Executive
Officer (principal executive officer) and
- -------------------------- Director
(Thomas C. Hays)
Norman H. Wesley* President and Chief Operating Officer and
Director
- --------------------------
(Norman H. Wesley)
John T. Ludes* Vice Chairman and Director
- --------------------------
(John T. Ludes)
Gilbert L. Klemann, II* Executive Vice President--Corporate and
Director
- --------------------------
(Gilbert L. Klemann, II)
Dudley L. Bauerlein, Jr. Senior Vice President and Chief Financial
Officer (principal financial officer)
- --------------------------
(Dudley L. Bauerlein, Jr.)
Craig P. Omtvedt* Senior Vice President and Chief Accounting
Officer (principal accounting officer)
- --------------------------
(Craig P. Omtvedt)
Eugene R. Anderson* Director
- --------------------------
(Eugene R. Anderson)
Patricia O. Ewers* Director
- --------------------------
(Patricia O. Ewers)
John W. Johnstone, Jr.* Director
- --------------------------
(John W. Johnstone, Jr.)
</TABLE>
II-8
<PAGE>
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
Sidney Kirschner* Director
- ------------------------
(Sidney Kirschner)
Gordon R. Lohman* Director
- ------------------------
(Gordon R. Lohman)
Director
- ------------------------
(Charles H. Pistor, Jr.)
Eugene A. Renna* Director
- ------------------------
(Eugene A. Renna)
Anne M. Tatlock* Director
- ------------------------
(Anne M. Tatlock)
John W. Thompson* Director
- ------------------------
(John W. Thompson)
Peter M. Wilson* Director
- ------------------------
(Peter M. Wilson)
</TABLE>
A. Robert Colby
*By _________________________________
(A. Robert Colby, Attorney-in-
Fact)
II-9
<PAGE>
<TABLE>
<CAPTION>
INDEX OF EXHIBITS
Sequentially
Exhibit Numbered
Number Description Page
------- ----------- ------------
<C> <S> <C>
1a1 Forms of proposed Underwriting Agreement, Underwriting Agreement
Standard Provisions (Debt Securities and Warrants to Purchase Debt
Securities) and Delayed Delivery Contract.
4a1 Indenture, to be dated as of April 15, 1999, between Registrant and
The Chase Manhattan Bank, as Trustee (the "Trustee").
4b1 Restated Certificate of Incorporation of Registrant is incorporated
herein by reference to Exhibit 3(i) to the Annual Report on Form 10-K
of Registrant for the Fiscal Year ended December 31, 1998.
4c1 By-laws of Registrant, as amended, are incorporated herein by
reference to Exhibit 3(ii)b to the Annual Report on Form 10-K of
Registrant for the Fiscal Year ended December 31, 1998.
4d1 Rights Agreement, dated as of November 19, 1997, between Registrant
and First Chicago Trust Company of New York, as Rights Agent, is
incorporated herein by reference to Exhibit 4a to the Current Report
on Form 8-K of Registrant dated December 2, 1997.
4e1 Forms of Debt Securities.
4f1 Forms of Debt Warrant Agreements, including forms of Debt Warrant
Certificates.
5 Opinion of Chadbourne & Parke LLP as to the legality of the
securities being registered.
12 Statement re Computation of Ratio of Earnings to Fixed Charges for the
five years ended December 31, 1998 is incorporated herein by reference
to Exhibit 12 to the Annual Report on Form 10-K of Registrant for the
Fiscal Year ended December 31, 1998.
23a Consent of PricewaterhouseCoopers LLP, independent accountants.
23b Consent of Chadbourne & Parke LLP is contained in their opinion filed
as Exhibit 5 to this Registration Statement.
24 Power of Attorney authorizing certain persons to sign this
Registration Statement on behalf of certain directors and officers of
Registrant.
25 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank, the Trustee under
the Indenture constituting Exhibit 4a1 hereto.
</TABLE>
<PAGE>
Exhibit 1a1
UNDERWRITING AGREEMENT
[ ]
Fortune Brands, Inc.
1700 East Putnam Avenue
Old Greenwich, Connecticut 06870-0811
Dear Sirs:
We (the "Manager") understand that Fortune Brands, Inc., a Delaware
corporation (the "Company"), proposes to issue and sell $[ ] aggregate
principal amount of its [ ]% [ ] Due [ ] (the "Debt Securities" or
the "Offered Securities"). Subject to the terms and conditions set forth herein
or incorporated by reference herein, the Company hereby agrees to sell and the
underwriters named below (the "Underwriters") agree to purchase $[ ]
principal amount of the Debt Securities at [ ]% of the principal amount of
such Debt Securities and accrued interest from [ ], if any, to the date
of payment and delivery.
Principal Amount
Name of Underwriter of Debt Securities
------------------- ------------------
$
Upon delivery of such Offered Securities, the Underwriters will pay
for such Offered Securities at a closing to be held at the offices of the
Company at 1700 East Putnam Avenue, Old Greenwich, Connecticut at [ ] [a.m.]
(New York time) on [ ], or at such other time, not later than [ ],
as shall be designated by the Manager.
The Debt Securities shall have the following terms:
<PAGE>
Maturity: [ ], [ ]
Interest Rate: [ ]% per annum
Redemption Provisions: [ ]
Interest Payment Dates: [ ] and [ ],
commencing [ ], [ ]
(the Interest payable on
[ ] being in
respect of the period
commencing [ ])
Form and Denomination: Global Security held through
the book-entry facilities of
The Depository Trust Company
All the provisions (other than the provisions of Article VII)
contained in the document entitled Fortune Brands, Inc. Underwriting Agreement
Standard Provisions (Debt Securities and Warrants to Purchase Debt Securities )
dated [ ], 1999, a copy of which you have previously received, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein. The term "Manager" as used therein shall mean [
] whose authority thereunder may be exercised by them jointly or by [
] alone.
Very truly yours,
[ ]
Acting severally and on behalf
of itself and the other
Underwriters referred to above
By ____________________________
[Name]
[Title]
Accepted:
FORTUNE BRANDS, INC.
By ____________________________
<PAGE>
FORTUNE BRANDS, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT SECURITIES AND
WARRANTS TO PURCHASE DEBT SECURITIES)
[ ], 1999
<PAGE>
From time to time, FORTUNE BRANDS, INC., a Delaware corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein.
The standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this Agreement. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined.
I.
The Company proposes to issue and sell from time to time certain of
(a) its debt securities (the "Debt Securities") to be issued pursuant to the
provisions of an Indenture dated as of [ ], 1999, as supplemented (the
"Indenture"), between the Company and The Chase Manhattan Bank, N.A., as Trustee
(the "Trustee") and (b) its Warrants (the "Debt Warrants") to purchase Debt
Securities (such Debt Securities to be purchasable through the exercise of Debt
Warrants being referred to herein as the "Debt Warrant Securities") to be
evidenced by warrant certificates (the "Warrant Certificates") and to be issued
pursuant to the provisions of the Debt Warrant Agreement identified in the
Underwriting Agreement. The Debt Securities may be convertible into Common
Stock, par value $3.125 per share, of the Company ("Common Stock") as provided
in or pursuant to the Indenture, and Preferred Share Purchase Rights (the
"Rights") may be delivered with Common Stock upon conversion of any convertible
Debt Securities. The Debt Securities and Debt Warrants to be sold pursuant to
this Agreement, but not the Debt Warrant Securities or the Common Stock or
Rights, if any, issuable or deliverable upon conversion of any convertible Debt
Securities, are collectively referred to herein as the "Offered Securities".
The Debt Securities and Debt Warrants will have or be of varying designations,
maturities, rates and times of payment of interest, selling prices, exercise
prices, conversion prices, expiration dates, redemption terms, currencies and
other terms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") registration statements relating to the Debt Securities and Debt
Warrants and the shares of Common Stock and Rights, if any, issuable or
deliverable upon conversion of any convertible Debt Securities, has filed such
amendments thereto as may have been required to the date of the Underwriting
Agreement and has filed with, or mailed for filing to, or shall promptly
<PAGE>
hereafter file with or mail for filing to, the Commission a prospectus
supplement specifically relating to the Offered Securities and the Debt Warrant
Securities, if any, pursuant to Rule 424 under the Securities Act of 1933. The
term "Registration Statement" means such registration statements as amended to
the date of the Underwriting Agreement. The term "Basic Prospectus" means the
prospectus included in the Registration Statement relating to the Debt
Securities and the Debt Warrants, as updated from time to time. The term
"Prospectus" means the Basic Prospectus together with the prospectus supplement
specifically relating to the Offered Securities and the Debt Warrant Securities,
if any, as filed with, or mailed for filing to, or as shall promptly hereafter
be filed with or mailed for filing to, the Commission pursuant to such Rule 424.
The term "preliminary prospectus" means a preliminary prospectus supplement
specifically relating to the Offered Securities and the Debt Warrant Securities,
if any, together with the Basic Prospectus. As used herein, the terms
"Registration Statement", "Basic Prospectus", "Prospectus" and "preliminary
prospectus" shall include in each case the material, if any, incorporated by
reference therein.
The term "Underwriters' Securities" means the Offered Securities to be
purchased by the Underwriters herein. The term "Contract Securities" means the
Offered Securities, if any, to be purchased pursuant to the delayed delivery
contracts referred to below.
II.
If the Prospectus provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Exhibit A attached hereto ("Delayed Delivery
Contracts") but with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as hereinafter defined), the Company will pay the Manager as
compensation, for the accounts of the Underwriters, the fee set forth in the
Underwriting Agreement in respect of the principal amount and number of Contract
Securities. The Underwriters will not have any responsibility in respect of the
validity or the performance of Delayed Delivery Contracts.
2
<PAGE>
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the principal amount and number of Contract Securities
shall be deducted from the principal amount and number of Offered Securities to
be purchased by the several Underwriters and the aggregate principal amount or
number of Offered Securities to be purchased by each Underwriter shall be
reduced pro rata in proportion to the principal amount or number, as the case
may be, of Offered Securities set forth opposite each Underwriter's name in the
Underwriting Agreement, except to the extent that the Manager determines that
such reduction shall be otherwise and so advises the Company.
III.
The Company is advised by the Manager that the Underwriters propose to
make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
IV.
Except as otherwise provided in this Article IV, payment for the
Underwriters' Securities shall be made by wire transfer to an account designated
by the Company in immediately available funds at the time, on the date and at
the place set forth in the Underwriting Agreement, upon delivery to the Manager
for the respective accounts of the several Underwriters of the Underwriters'
Securities (other than Debt Securities in registered global form) registered in
such names and in such denominations as the Manager shall request in writing not
less than two full business days prior to the date of delivery and, in the case
of Underwriters' Securities that are Debt Securities in registered global form,
upon delivery to the Depositary identified in the Underwriting Agreement of a
single global Debt Security certificate, registered in the name of the
Depositary or a nominee thereof, for credit to the respective accounts of the
Depositary participants. The time and date of such payment and delivery with
respect to the Underwriters' Securities are herein referred to as the Closing
Date.
Delivery of any Underwriters' Securities that are (i) Debt Securities
in bearer form on the Closing Date shall be initially effected by delivery of a
single temporary
3
<PAGE>
global Debt Security without coupons (the "Global Debt Security") evidencing the
Offered Securities that are Debt Securities in bearer form and (ii) Debt
Warrants in bearer form shall be effected only by delivery of a single permanent
global Debt Warrant (the "Global Debt Warrant") evidencing the Offered
Securities that are Debt Warrants in bearer form, in each case to a common
depositary for Morgan Guaranty Trust Company of New York, Brussels office, as
operator of the Euro-clear System ("Euro-clear"), and for Centrale de Livraison
de Valeurs Mobilieres S.A. ("CEDEL") for credit to the respective accounts at
Euro-clear or CEDEL of each Underwriter or such other accounts as each
Underwriter may direct. Any Global Debt Security or Global Debt Warrant shall be
delivered to the Manager not later than the Closing Date, against payment of
funds to the Company in the net amount due to the Company for such Global Debt
Security or Global Debt Warrant, as the case may be, by the method and in the
form set forth herein. The Company shall cause definitive Debt Securities in
bearer form to be prepared and delivered in exchange for such Global Debt
Security in such manner and at such time as may be provided in or pursuant to
the Indenture; provided, however, that the Global Debt Security shall be
-------- -------
exchangeable for definitive Debt Securities in bearer form only on or after the
date specified for such purpose in the Prospectus. The Offered Debt Warrants
shall be evidenced only by a Global Debt Warrant until their expiration.
V.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission and there
shall have been no material adverse change in the condition of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Registration Statement and the Prospectus; and the Manager shall have
received, on the Closing Date, a certificate, dated the Closing Date and
signed by an executive officer of the Company, to the foregoing effect.
Such certificate will also provide that the representations and warranties
of the Company contained herein are true and correct as of the Closing
Date. The officer making such certificate may rely upon the best of his
knowledge as to proceedings pending or threatened.
4
<PAGE>
(b) The Manager shall have received on the Closing Date an
opinion of Chadbourne & Parke LLP, counsel for the Company, dated the
Closing Date, to the effect set forth in Exhibit B attached hereto.
(c) The Manager shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, counsel for the Underwriters, dated the
Closing Date, to the effect set forth in Exhibit C attached hereto.
(d) The Manager shall have received on the Closing Date a letter
dated the Closing Date, in form and substance satisfactory to the Manager,
from PricewaterhouseCoopers LLP, independent certified public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference in the Registration Statement and the Prospectus.
VI.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
(a) To furnish the Manager, without charge, a copy of the
Registration Statement including exhibits and materials, if any,
incorporated by reference therein and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto as the Manager may reasonably request. The terms "supplement" and
"amendment" or "amend" as used in this Agreement shall include all
documents filed by the Company with the Commission subsequent to the date
of the Basic Prospectus, pursuant to the Securities Exchange Act of 1934,
which are deemed to be incorporated by reference in the Prospectus.
(b) Before amending or supplementing the Registration Statement
or the Prospectus with respect to the Offered Securities, to furnish the
Manager a copy of each such proposed amendment or supplement.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered, any event
5
<PAGE>
shall occur as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at its own expense, to
the Underwriters, either amendments or supplements to the Prospectus so
that the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus will comply with law.
(d) To endeavor to qualify the Offered Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Manager shall reasonably request and to pay all expenses (including fees
and disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Offered
Securities for investment under the laws of such jurisdictions as the
Manager may designate; provided, however, that the Company shall not be
-------- -------
obligated to file any general consent to service of process or to qualify
as a foreign corporation in any jurisdiction in which it is not qualified.
(e) To make generally available to the Company's security
holders as soon as practicable an earnings statement covering a twelve-
month period beginning after the date of the Underwriting Agreement and
ending at the end of a fiscal quarter of the Company, which shall satisfy
the provisions of Section 11(a) of the Securities Act of 1933 and the
applicable rules and regulations (including Rule 158) thereunder.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any securities of the
Company substantially similar to the Offered Securities, without the prior
written consent of the Manager.
VII.
Each of the several Underwriters agrees with the Company that:
6
<PAGE>
(a) except to the extent permitted under U.S. Treas. Reg.
Section 1.163-5(c)(2)(i)(D) (the "D Rules"), (i) it has not offered or
sold, and during the restricted period will not offer or sell, Debt
Securities in bearer form to a person who is within the United States or
its possessions or to a United States person, and (ii) it has not delivered
and will not deliver within the United States or its possessions definitive
Debt Securities in bearer form that are sold during the restricted period;
(b) it has and throughout the restricted period will have in
effect procedures reasonably designed to ensure that its employees or
agents who are directly engaged in selling Debt Securities in bearer form
are aware that such Debt Securities may not be offered or sold during the
restricted period to a person who is within the United States or its
possessions or to a United States person, except as permitted by the D
Rules;
(c) if it is a United States person, it is acquiring the Debt
Securities in bearer form for purposes of resale in connection with their
original issuance and if it retains Debt Securities in bearer form for its
own account, it will only do so in accordance with the requirements of U.S.
Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
(d) with respect to each affiliate that acquires from it Debt
Securities in bearer form for the purpose of offering or selling such Debt
Securities during the restricted period, it either (i) repeats and confirms
the representations and agreements contained in clauses (a), (b) and (c) on
its behalf or (ii) agrees that it will obtain from such affiliate for the
Manager's benefit and the benefit of the Company the representations and
agreements contained in clauses (a), (b) and (c); and
(e) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Securities may be
offered, sold, resold or delivered.
If Underwriters' Securities that are Debt Securities are to be distributed
through a selling group consisting of banks, brokers or dealers, the Manager
agrees that it shall cause each member of such selling group to enter into an
agreement that it will comply with this paragraph. Terms used in this paragraph
have the meanings given to them by the applicable
7
<PAGE>
provisions of the U.S. Internal Revenue Code and regulations thereunder,
including the D Rules.
Each of the several Underwriters further agrees with the Company that:
(a) except to the extent permitted under the D Rules, (i) it has
not offered or sold, and will not offer or sell at any time, Debt Warrants
in bearer form to a person who is within the United States or its
possessions or to a United States person, and (ii) it has not delivered and
will not deliver within the United States or its possessions Debt Warrants
in bearer form that are sold at any time;
(b) except to the extent permitted under the D Rules, (i) it has
not offered or sold, and during the restricted period will not offer or
sell, Debt Warrant Securities in bearer form to a person who is within the
United States or its possessions or to a United States person, and (ii) it
has not delivered and will not deliver within the United States or its
possessions definitive Debt Warrant Securities in bearer form that are sold
during the restricted period;
(c) it has and throughout the restricted period will have in
effect procedures reasonably designed to ensure that its employees or
agents who are directly engaged in selling Debt Warrants in bearer form or
Debt Warrant Securities in bearer form are aware that such Debt Warrants
may not be offered or sold at any time, and such Debt Warrant Securities
may not be offered or sold during the restricted period, to a person who is
within the United States or its possessions or to a United States person,
except as permitted by the D Rules;
(d) if it is a United States person, it is acquiring the Debt
Warrants in bearer form and any Debt Warrant Securities in bearer form for
purposes of resale in connection with their original issuance and if it
retains Debt Warrants in bearer form or Debt Warrant Securities in bearer
form for its own account, it will only do so in accordance with the
requirements of U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
(e) with respect to each affiliate that acquires from it Debt
Warrants in bearer form or Debt Warrant Securities in bearer form for the
purpose of offering or selling such Debt Warrants at any time or offering
or selling such Debt Warrant Securities during the restricted period, it
either (i) repeats and
8
<PAGE>
confirms the representations and agreements contained in clauses (a), (b),
(c) and (d) on its behalf or (ii) agrees that it will obtain from such
affiliate for the Manager's benefit and the benefit of the Company the
representations and agreements contained in clauses (a), (b), (c) and (d);
and
(f) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Warrants may be
offered, sold, resold or delivered.
If Underwriters' Securities that are Debt Warrants are to be distributed through
a selling group consisting of banks, brokers or dealers, the Manager agrees that
it shall cause each member of such selling group to enter into an agreement that
it will comply with this paragraph. Terms used in this paragraph have the
meanings given to them by the applicable provisions of the U.S. Internal Revenue
Code and regulations thereunder, including the D Rules.
VIII.
The Company represents and warrants to each Underwriter that (i) each
document, if any, filed or to be filed pursuant to the Securities Exchange Act
of 1934 and incorporated by reference in the Prospectus complied or will comply
when so filed in all material respects with such Act and the rules and
regulations thereunder, (ii) each part of the registration statement (including
the documents incorporated by reference therein), filed with the Commission
pursuant to the Securities Act of 1933 relating to the Debt Securities and Debt
Warrants when such part became effective, did not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (iii) each
preliminary prospectus, if any, filed pursuant to Rule 424 under the Securities
Act of 1933 complied when so filed in all material respects with such Act and
the applicable rules and regulations thereunder, (iv) the Registration Statement
and the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act of 1933 and the
applicable rules and regulations thereunder and (v) the Registration Statement
and the Prospectus do not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they
9
<PAGE>
were made, not misleading; except that these representations and warranties do
not apply to (a) statements or omissions in the Registration Statement, any
preliminary prospectus or the Prospectus based upon information furnished to the
Company in writing by any Underwriter expressly for use therein and (b) those
parts of the Registration Statement which constitute the Statement of
Eligibility under the Trust Indenture Act of 1939 on Form T-1 of the Trustee.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities Act of 1933 or Section 20 of the Securities
Exchange Act of 1934, from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any preliminary
prospectus or the Prospectus (if used within the period set forth in paragraph
(c) of Article VI hereof and as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by any Underwriter expressly for
use therein; provided, however, that the foregoing indemnity with respect to
preliminary prospectuses shall not inure to the benefit of any Underwriter (or
to the benefit of any person controlling such Underwriter) from whom the person
asserting any such losses, claims, damages or liabilities purchased Offered
Securities if a copy of the Prospectus or the Prospectus as then amended or
supplemented (if the Prospectus has been amended or supplemented prior to the
written confirmation of the sale of such Offered Securities to such person) had
not been sent or given to such person at or prior to such written confirmation
and the untrue statement or omission of a material fact contained in such
preliminary prospectus was corrected in such Prospectus or Prospectus as amended
or supplemented, as the case may be.
Each Underwriter agrees to indemnify and hold harmless the Company,
its directors, its officers who sign the Registration Statement and any person
controlling the Company to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to information relating to
such Underwriter furnished in writing by such Underwriter expressly for use in
the Registration Statement, any preliminary prospectus or the Prospectus.
10
<PAGE>
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and the representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm (in addition to local counsel) for all
such indemnified parties, and that all such fees shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Manager in the case
of parties indemnified pursuant to the second preceding paragraph and by the
Company in the case of parties indemnified pursuant to the first preceding
paragraph. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment.
If the indemnification provided for in this Article VIII is
unavailable to an indemnified party under the second or third paragraphs hereof
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect (i) the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Offered Securities and (ii) the relative fault of the Company on
the one hand and of the
11
<PAGE>
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other in connection with the
offering of the Offered Securities shall be deemed to be in the same proportion
as the total net proceeds from the offering of such Offered Securities (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters in respect thereof. The
relative fault of the Company on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VIII were determined by pro
rata allocation or by any other method of allocation which does not take account
of the considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VIII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten and distributed to the public
by such Underwriter were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act of 1933) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Article VIII are several, in
proportion to the respective principal amount or number, as the case may be, of
Offered Securities purchased by each of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article
VIII and the representations and warranties of the Company in this Agreement
shall remain operative and
12
<PAGE>
in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by any Underwriter or on behalf of any Underwriter
or any person controlling any Underwriter or by or on behalf of the Company, its
directors or officers or any person controlling the Company and (iii) acceptance
of and payment for any of the Offered Securities.
IX.
This Agreement shall be subject to termination in the absolute
discretion of the Underwriters, by notice given to the Company, if prior to the
Closing Date (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iii) there shall have occurred any
material outbreak or escalation of hostilities or other calamity or crisis the
effect of which on the United States or the international financial markets is
such as to make it, in the judgment of the Manager, impracticable to market the
Offered Securities.
X.
If any one or more of the Underwriters shall fail or refuse to
purchase Underwriters' Securities which it or they have agreed to purchase
pursuant to the Underwriting Agreement, and the aggregate amount of
Underwriters' Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate amount of the Underwriters' Securities, the other Underwriters shall
be obligated severally in the proportions which the amounts of Underwriters'
Securities set forth opposite their names in the Underwriting Agreement bear to
the aggregate amount of Underwriters' Securities set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as the
Manager may specify, to purchase the Underwriters' Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase;
provided that in no event shall the amount of Underwriters' Securities which any
Underwriter has agreed to purchase pursuant to the Underwriting Agreement be
increased pursuant to this Article X by an amount in excess of one-ninth of such
amount of Underwriters' Securities without the written consent of such
Underwriter. If any Underwriter or
13
<PAGE>
Underwriters shall fail or refuse to purchase Underwriters' Securities and the
aggregate amount of Underwriters' Securities with respect to which such default
occurs is more than one-tenth of the aggregate amount of the Underwriters'
Securities and arrangements satisfactory to the Manager and the Company for the
purchase of such Underwriters' Securities, are not made within 36 hours after
such default, this Agreement, or the provisions hereof applicable to the sale
and purchase of the Underwriters' Securities, will terminate without liability
on the part of any non-defaulting Underwriter or of the Company. In any such
case either the Manager or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under the Underwriting Agreement.
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement, with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with the Offered
Securities.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
14
<PAGE>
Exhibit A
DELAYED DELIVERY CONTRACT
[ ]
Fortune Brands, Inc.
1700 East Putnam Avenue
Old Greenwich, Connecticut 06870-0811
Dear Sirs:
The undersigned hereby agrees to purchase from FORTUNE BRANDS, INC., a
Delaware corporation (the "Company"), and the Company agrees to sell to the
undersigned the Company's securities described in Schedule I annexed hereto (the
"Securities"), offered by the Company's Prospectus dated [ ] and
Prospectus Supplement dated [ ], receipt of copies of which is hereby
acknowledged, at the purchase price stated in Schedule I and on the further
terms and conditions set forth in this contract. The undersigned does not
contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amounts and number on the delivery dates as set forth in Schedule I.
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by wire
transfer to an account designated by the Company in immediately available funds,
at [10:00 A.M.] (New York time) on the Delivery Date, upon delivery to the
undersigned of the Securities to be purchased by the undersigned on the Delivery
Date, in such denominations and registered in such names as the undersigned may
designate by written or telegraphic communication addressed to the Company not
less than five full business days prior to the Delivery Date, except that
payment for any Securities that are Debt Securities in registered global form
A-1
<PAGE>
shall be so made on the Delivery Date upon delivery to the Depositary named in
the Prospectus Supplement referred to above of a single global Debt Security
certificate, registered in the name of such Depositary or a nominee thereof, for
credit to the account of such Depositary participant as the undersigned may so
designate.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this contract is acceptable to the Company, it is requested that
the Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This
will become a binding contract, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
A-2
<PAGE>
This contract shall be governed by and construed in accordance with
the internal laws of the State of New York.
Very truly yours,
____________________________
(Purchaser)
By _________________________
_________________________
(Title)
_________________________
_________________________
(Address)
Accepted:
FORTUNE BRANDS, INC.
By__________________________
Name:
Title:
A-3
<PAGE>
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
are as follows (please print):
<TABLE>
<CAPTION>
Telephone No.
Name (including Area Code) Department
---- -------------------- ----------
<S> <C> <C>
_______________________ _______________________ _______________________
_______________________ _______________________ _______________________
_______________________ _______________________ _______________________
_______________________ _______________________ _______________________
_______________________ _______________________ _______________________
_______________________ _______________________ _______________________
A-4
</TABLE>
<PAGE>
SCHEDULE I
----------
Securities:
- ----------
Principal amount or Number to be Purchased:
- ------------------------------------------
Purchase Price:
- --------------
Delivery Dates:
- --------------
A-5
<PAGE>
Exhibit B
Opinion of Chadbourne & Parke LLP,
Counsel for the Company
The opinion of Chadbourne & Parke LLP, counsel for the Company, to be
delivered pursuant to Article V, paragraph (b) of the document entitled Fortune
Brands, Inc. Underwriting Agreement Standard Provisions (Debt Securities and
Warrants to Purchase Debt Securities) shall be to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware;
(ii) each of the following subsidiaries of the Company: ACCO
World Corporation, Acushnet Company, Jim Beam Brands Worldwide, Inc. and
MasterBrand Industries, Inc. has been duly incorporated and is validly
existing under the laws of its state of incorporation;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company and has been duly qualified under the Trust Indenture Act of 1939,
as amended;
(iv) the Debt Warrant Agreement, if any, has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company;
(v) the Offered Securities and the Debt Warrant Securities, if
any, when executed and either authenticated or countersigned in accordance
with the provisions of, as the case may be, the Indenture or the Debt
Warrant Agreement, if any, and delivered and paid for (A) by the
Underwriters pursuant to the Underwriting Agreement or by institutional
investors, if any, pursuant to Delayed Delivery Contracts, in the case of
the Offered Securities, and (B) upon exercise of Debt Warrants pursuant to
the Debt Warrant Agreement, in the case of the Debt Warrant Securities,
will be valid and binding obligations of the Company and will be entitled
to the benefits of, as the case may be, the Indenture or the Debt Warrant
Agreement;
B-1
<PAGE>
(vi) the shares of Common Stock initially issuable upon
conversion of any convertible Debt Securities have been duly authorized and
reserved for such issuance, the shares of Common Stock, if any, issued upon
conversion of any convertible Debt Securities in accordance with their
terms will be validly issued, fully paid and non-assessable and the
accompanying Rights, if any, have been duly authorized and will be validly
issued;
(vii) the Registration Statement and the Prospectus, as amended
or supplemented, if applicable (except for the financial statements and
other financial and statistical data contained or incorporated by reference
therein, as to which such counsel need express no opinion), comply as to
form in all material respects with the Securities Act of 1933 and the rules
and regulations thereunder;
(viii) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement
of the Company, except as rights to indemnity and contribution thereunder
may be limited by applicable law;
(ix) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and are valid and binding
agreements of the Company;
(x) the issuance of the Offered Securities and the Debt
Warrant Securities, if any, in accordance with, as the case may be, the
Indenture and the Debt Warrant Agreement, if any, and the sale thereof in
accordance with the Underwriting Agreement, and the issuance of the shares
of Common Stock initially issuable upon conversion of any convertible Debt
Securities and the accompanying Rights, if any, do not and will not
contravene the Certificate of Incorporation or By-laws of the Company or
any provision of any indenture, mortgage or other agreement known to such
counsel by which the Company is bound;
(xi) no authorization from any regulatory board, agency or
instrumentality having jurisdiction over the Company (other than
registration under the Securities Act of 1933 and qualification of the
Indenture under the Trust Indenture Act of 1939, as amended, and
qualification or other authorization under state securities or "blue sky"
laws, as to which such counsel need express no opinion) is required for the
B-2
<PAGE>
performance by the Company of the Underwriting Agreement;
(xii) the Indenture and the Debt Warrant Agreement, if any, and
the Offered Securities, the Debt Warrant Securities, if any, and, if
applicable, the capital stock of the Company and the Rights conform to the
descriptions thereof in the Prospectus;
(xiii) such counsel is of the opinion that each document, if
any, filed pursuant to the Securities Exchange Act of 1934 (except as to
financial statements and other financial and statistical data contained or
incorporated therein, as to which such counsel need not express any
opinion) and incorporated by reference in the Prospectus complied when so
filed as to form in all material respects with such Act and the rules and
regulations thereunder; and
(xiv) such counsel believes that, based upon their examination
and participation in conferences, but without independent verification
except as specified (except for the financial statements and other
financial and statistical data contained or incorporated by reference
therein, as to which such counsel need express no opinion), each part of
the Registration Statement (including the documents incorporated by
reference therein) filed with the Commission pursuant to the Securities Act
of 1933 relating to the Offered Securities and the Debt Warrant Securities,
if any, when such part became effective, did not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and that (except for the financial statements and other
financial and statistical data contained or incorporated by reference
therein, as to which such counsel need express no opinion) the Registration
Statement and the Prospectus on the date of the Underwriting Agreement did
not, and the Prospectus, as amended or supplemented, if applicable, on the
Closing Date does not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering its opinion, Chadbourne & Parke LLP may limit its opinion
to matters of the laws of the United States of America and the State of New York
and the General Corporation Law of the State of Delaware.
B-3
<PAGE>
Exhibit C
Opinion of Davis Polk & Wardwell,
Counsel for the Underwriters
The opinion of Davis Polk & Wardwell, counsel for the Underwriters, to
be delivered pursuant to Article V, paragraph (c) of the document entitled
Fortune Brands, Inc. Underwriting Agreement Standard Provisions (Debt Securities
and Warrants to Purchase Debt Securities) shall be to the effect that:
(i) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company and has been duly qualified under the Trust Indenture Act of 1939;
(ii) the Debt Warrant Agreement, if any, has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company;
(iii) the Offered Securities and the Debt Warrant Securities, if
any, when executed and either authenticated or countersigned in accordance
with the provisions of, as the case may be, the Indenture or the Debt
Warrant Agreement, if any, and delivered and paid for (A) by the
Underwriters or by institutional investors, if any, pursuant to Delayed
Delivery Contracts, in the case of the Offered Securities, and (B) upon
exercise of the Debt Warrants pursuant to the Debt Warrant Agreement, in
the case of the Debt Warrant Securities, will be valid and binding
obligations of the Company and will be entitled to the benefits of, as the
case may be, the Indenture and the Debt Warrant Agreement;
(iv) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement
of the Company, except as rights to indemnity and contribution thereunder
may be limited by applicable law;
(v) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the
C-1
<PAGE>
Company and are valid and binding agreements of the Company;
(vi) the statements in the Prospectus under "Description of Debt
Securities", "Description of Debt Warrants", "Description of Capital Stock"
and "Plan of Distribution", insofar as such statements constitute a summary
of the documents or proceedings referred to therein, fairly present the
information called for with respect to such documents and proceedings; and
(vii) such counsel (A) is of the opinion that the Registration
Statement and Prospectus, as amended or supplemented, if applicable (except
for the financial statements contained or incorporated by reference therein
and other financial data derived from such financial statements, as to
which such counsel need not express any opinion), comply as to form in all
material respects with the Securities Act of 1933 and the rules and
regulations thereunder and (B) believes that the Registration Statement and
the Prospectus (except for the financial statements contained or
incorporated by reference therein and other financial data derived from
such financial statements, as to which such counsel need not express any
belief) on the date of the Underwriting Agreement did not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading and that the
Prospectus (except as aforesaid), as amended or supplemented, if
applicable, on the Closing Date does not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that such counsel may state that their
opinion and belief is based upon their participation in the preparation of
the Registration Statement and the Prospectus and any amendments and
supplements thereto (other than the documents incorporated by reference
therein) and review and discussion of the contents thereof, but is without
independent check or verification except as specified.
C-2
<PAGE>
EXHIBIT 4A1
================================================================================
FORTUNE BRANDS, INC.
and
THE CHASE MANHATTAN BANK,
Trustee
____________________________
INDENTURE
Dated as of April 15, 1999
____________________________
Debt Securities
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Parties.................................................................................................1
Recitals................................................................................................1
ARTICLE ONE.............................................................................................1
Definitions and Other Provisions of General Application.................................................1
Section 1.01. Definitions.........................................................................1
"this Indenture", "Articles" and "Sections" ........................................1
"Act" ..............................................................................2
"Affiliate" ........................................................................2
"Authorized Newspaper" .............................................................2
"Bearer Security" ..................................................................2
"Board of Directors" ...............................................................3
"Board Resolution" .................................................................3
"Business Day" .....................................................................3
"CEDEL" ............................................................................3
"Commission" .......................................................................3
"Common Depositary" ................................................................3
"Common Stock" .....................................................................3
"Company" ..........................................................................3
"Company Request", "Company Order" and "Company Consent" ...........................4
"Consolidated Net Tangible Assets" .................................................4
Conversion Agent\.......................................................................................4
- ----------------
"Coupon" ...........................................................................4
"Defaulted interest" ...............................................................4
"Depositary" .......................................................................4
"Dollars", "$", "U.S. Dollars" and "U.S.$" .........................................4
"Euro-clear" .......................................................................4
"European Communities" .............................................................4
"Event of Default" .................................................................5
"Exchange Date" ....................................................................5
"Foreign Currency" .................................................................5
"Funded Debt" ......................................................................5
"generally accepted accounting principles" .........................................5
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
"Global Security" ..................................................................5
"Government Obligations" ...........................................................5
"Holder" or "Securityholder" .......................................................6
"Independent" ......................................................................6
"interest" .........................................................................6
"Interest Payment Date" ............................................................6
"mandatory sinking fund payment" ...................................................6
"Maturity" .........................................................................6
"mortgage" .........................................................................6
"Officers' Certificate" ............................................................7
"Opinion of Counsel" ...............................................................7
"optional sinking fund payment" ....................................................7
"Original Issue Discount Security" .................................................7
"Outstanding" ......................................................................7
"Paying Agent" .....................................................................8
"Permanent Global Security" ........................................................8
"Person" ...........................................................................8
"Place of Payment" .................................................................8
"Predecessor Securities" ...........................................................8
"Qualified Account Holder" .........................................................9
"Redemption Date" ..................................................................9
"Redemption Price" .................................................................9
"Registered Security" ..............................................................9
"Regular Record Date" ..............................................................9
"Responsible Officer" ..............................................................9
"Restricted Subsidiary" ............................................................9
"Secured Debt" ....................................................................10
"Security" or "Securities" ........................................................10
"Security Register" and "Security Registrar" ......................................10
"Special Record Date" .............................................................10
"Stated Maturity" .................................................................11
"Subsidiary" ......................................................................11
"Temporary Global Security" .......................................................11
"Trustee" .........................................................................11
"Trust Indenture Act" or "TIA" ....................................................11
"United States" ...................................................................11
"Value" ...........................................................................11
"Yield to Maturity" ...............................................................11
Section 1.02. Compliance Certificates and Opinions...............................................12
Section 1.03. Form of Documents Delivered to Trustee.............................................12
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Section 1.04. Acts of Securityholders............................................................13
Section 1.05. Notices, etc., to Trustee and Company..............................................15
Section 1.06. Notices to Securityholders; Waiver.................................................15
Section 1.07. Conflict with Trust Indenture Act..................................................16
Section 1.08. Effect of Headings and Table of Contents...........................................16
Section 1.09. Successors and Assigns.............................................................16
Section 1.10. Separability Clause................................................................16
Section 1.11. Benefits of Indenture..............................................................17
Section 1.12. Governing Law......................................................................17
Section 1.13. Payments Due on Non-Business Days..................................................17
ARTICLE TWO............................................................................................17
Forms of Securities....................................................................................17
Section 2.01. Forms Generally....................................................................17
Section 2.02. Form of Trustee's Certificate of Authentication....................................18
Section 2.03. Global Securities..................................................................19
ARTICLE THREE..........................................................................................19
The Securities.........................................................................................19
Section 3.01. Amount Unlimited; Issuable in Series...............................................19
Section 3.02. Denominations......................................................................23
Section 3.03. Execution, Authentication, Delivery and Dating.....................................23
Section 3.04. Temporary Securities; Exchange of Temporary Global Securities......................26
Section 3.05. Registration, Registration of Transfer and Exchange................................30
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.......................35
Section 3.07. Payment of Interest; Interest Rights Preserved.....................................36
Section 3.08. Persons Deemed Owners..............................................................38
Section 3.09. Cancellation.......................................................................39
ARTICLE FOUR...........................................................................................40
Satisfaction and Discharge.............................................................................40
Section 4.01. Satisfaction and Discharge of Indenture............................................40
Section 4.02. Application of Trust Money.........................................................42
Section 4.03. Defeasance and Discharge of Securities of any Series...............................43
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
ARTICLE FIVE..........................................................................................45
Remedies..............................................................................................45
Section 5.01. Events of Default.................................................................45
Section 5.02. Acceleration of Maturity; Rescission and Annulment................................46
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee...................48
Section 5.04. Trustee May File Proofs of Claim..................................................49
Section 5.05. Trustee May Enforce Claims Without Possession of Securities.......................50
Section 5.06. Application of Money Collected....................................................50
Section 5.07. Limitation on Suits...............................................................51
Section 5.08. Unconditional Right of Securityholders to Receive Principal, Premium and
Interest and to Convert Securities............................................52
Section 5.09. Restoration of Rights and Remedies................................................52
Section 5.10. Rights and Remedies Cumulative....................................................52
Section 5.11. Delay or Omission Not Waiver......................................................52
Section 5.12. Control by Securityholders........................................................53
Section 5.13. Waiver of Past Defaults...........................................................53
Section 5.14. Undertaking for Costs.............................................................54
Section 5.15. Waiver of Stay or Extension Laws..................................................54
Section 5.16. Judgment Currency.................................................................54
ARTICLE SIX...........................................................................................55
The Trustee...........................................................................................55
Section 6.01. Certain Duties and Responsibilities...............................................55
Section 6.02. Notice of Default.................................................................56
Section 6.03. Certain Rights of Trustee.........................................................57
Section 6.04. Not Responsible for Recitals or Issuance of Securities............................58
Section 6.05. May Hold Securities...............................................................58
Section 6.06. Money Held in Trust...............................................................59
Section 6.07. Compensation and Reimbursement....................................................59
Section 6.08. Disqualification; Conflicting Interests...........................................60
Section 6.09. Corporate Trustee Required; Eligibility...........................................60
Section 6.10. Resignation and Removal; Appointment of Successor.................................60
Section 6.11. Acceptance of Appointment by Successor............................................62
Section 6.12. Merger, Conversion, Consolidation or Succession to Business of Trustee............63
</TABLE>
iv
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Section 6.13. Preferential Collection of Claims Against Company...............................63
ARTICLE SEVEN.......................................................................................64
Securityholders' Lists and Reports by Trustee and Company...........................................64
Section 7.01. Company to Furnish Trustee Names and Addresses of Securityholders...............64
Section 7.02. Preservation of Information; Communications to Securityholders..................64
Section 7.03. Reports by Trustee..............................................................66
Section 7.04. Reports by Company..............................................................66
ARTICLE EIGHT.......................................................................................67
Consolidation, Merger, Conveyance or Transfer.......................................................67
Section 8.01. Company May Consolidate, etc., Only on Certain Terms............................67
Section 8.02. Successor Corporation Substituted...............................................68
Section 8.03. Securities to be Secured in Certain Events......................................68
ARTICLE NINE........................................................................................69
Supplemental Indentures.............................................................................69
Section 9.01. Supplemental Indentures Without Consent of Securityholders......................69
Section 9.02. Supplemental Indentures With Consent of Securityholders.........................71
Section 9.03. Execution of Supplemental Indentures............................................72
Section 9.04. Effect of Supplemental Indentures...............................................72
Section 9.05. Conformity with Trust Indenture Act.............................................72
Section 9.06. Reference in Securities to Supplemental Indentures..............................73
ARTICLE TEN.........................................................................................73
Covenants...........................................................................................73
Section 10.01. Payment of Principal, Premium and Interest.....................................73
Section 10.02. Maintenance of Office or Agency................................................73
Section 10.03. Money for Securities Payments to be Held in Trust..............................76
Section 10.04. Statement as to Compliance.....................................................77
Section 10.05. Restrictions on Borrowing by Restricted Subsidiaries...........................78
Section 10.06. Restrictions on Secured Debt...................................................78
Section 10.07. Restrictions on Sale and Lease Back Transactions...............................80
Section 10.08. Restrictions on Transfers of Property..........................................81
</TABLE>
v
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Section 10.09. Assumption of Obligations in Connection with Mergers and Acquisitions..........81
Section 10.10. Defeasance of Certain Obligations..............................................82
Section 10.11. Additional Amounts.............................................................83
ARTICLE ELEVEN......................................................................................85
Redemption of Securities............................................................................85
Section 11.01. Applicability of Article.......................................................85
Section 11.02. Election to Redeem; Notice to Trustee..........................................85
Section 11.03. Selection by Trustee of Securities to be Redeemed..............................85
Section 11.04. Notice of Redemption...........................................................86
Section 11.05. Deposit of Redemption Price....................................................86
Section 11.06. Securities Payable on Redemption Date..........................................87
Section 11.07. Securities Redeemed in Part....................................................88
ARTICLE TWELVE......................................................................................89
Sinking Funds.......................................................................................89
Section 12.01. Applicability of Article.......................................................89
Section 12.02. Satisfaction of Sinking Fund Payments with Securities..........................89
Section 12.03. Redemption of Securities for Sinking Fund......................................89
ARTICLE THIRTEEN....................................................................................90
Meetings of Holders of Securities...................................................................90
Section 13.01. Purposes for Which Meetings May Be Called.....................................90
Section 13.02. Call, Notice and Place of Meetings............................................90
Section 13.03. Persons Entitled to Vote at Meetings..........................................91
Section 13.04. Quorum; Action....................................................................91
Section 13.05. Determination of Voting Rights; Conduct and Adjournment of Meetings...............92
Section 13.06. Counting Votes and Recording Action of Meetings...................................93
ARTICLE FOURTEEN........................................................................................94
Immunity of Incorporators, Stockholders, Officers and Directors.........................................94
Section 14.01. Exemption from Individual Liability...............................................94
</TABLE>
vi
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
ARTICLE FIFTEEN.........................................................................................95
Conversion..............................................................................................95
Section 15.01. Conversion of Securities..........................................................95
</TABLE>
vii
<PAGE>
TABLE SHOWING REFLECTION IN THE INDENTURE OF CERTAIN PROVISIONS OF TRUST
INDENTURE ACT OF 1939* *
<TABLE>
<CAPTION>
<S>
TIA Section Page
- --------------------------------------------------- ----------------------------- ----
<S> <C> <C>
ss.310(a)(1)....................................... 6.09......................... 60
(a)(2)............................................. 6.09......................... 60
(a)(3)............................................. Not Applicable
(a)(4)............................................. Not Applicable
(b)................................................ 6.08......................... 60
ss. 311(a)......................................... 6.13......................... 63
(b)................................................ 6.13......................... 63
(b)(2)............................................. 6.13......................... 63
ss. 312(a)......................................... 7.01......................... 64
7.02(a)...................... 64
(b)................................................ 7.02(b)...................... 64
(c)................................................ 7.02(c)...................... 64
ss. 313(a)......................................... 7.03......................... 66
(b)................................................ 7.03......................... 66
(c)................................................ 7.03......................... 66
(d)................................................ 7.03......................... 66
ss. 314(a)......................................... 7.04......................... 66
(b)................................................ Not Applicable
(c)(1)............................................. 1.02......................... 12
(c)(2)............................................. 1.02......................... 12
(c)(3)............................................. Not Applicable
(d)................................................ Not Applicable
(e)................................................ 1.02......................... 12
</TABLE>
______________________________
* This table is not part of the Indenture
viii
<PAGE>
TABLE SHOWING REFLECTION OF TIA
<TABLE>
<CAPTION>
TIA Section Page
- --------------------------------------------------- ---------------------------- ----
<S> <C> <C>
ss. 315(a)......................................... 6.01(a)...................... 55
6.01(c)...................... 55
(b)................................................ 6.02......................... 56
7.03......................... 66
(c)................................................ 6.01(b)...................... 55
(d)................................................ 6.01......................... 55
(d)(1)............................................. 6.01(a)...................... 55
(d)(2)............................................. 6.01(c)(2)................... 55
(d)(3)............................................. 6.01(c)(3)................... 55
(e)................................................ 5.14......................... 54
ss. 316(a)......................................... 1.01......................... 1
(a)(1)(A).......................................... 5.02......................... 46
5.12......................... 53
(a)(1)(B).......................................... 5.13......................... 53
(a)(2)............................................. Not Applicable
(b)................................................ 5.08......................... 52
ss. 317(a)(1)...................................... 5.03......................... 48
(a)(2)............................................. 5.04......................... 49
(b)................................................ 10.03........................ 76
ss. 318(a)......................................... 1.07......................... 16
</TABLE>
ix
<PAGE>
INDENTURE dated as of April 15, 1999 between FORTUNE BRANDS, INC., a
Delaware corporation (hereinafter called the "Company") having its principal
office at 1700 East Putnam Avenue, Old Greenwich, Connecticut 06870, and THE
CHASE MANHATTAN BANK, a New York banking corporation (hereinafter called the
"Trustee") having its principal corporate trust office in the Borough of
Manhattan, The City of New York.
WHEREAS, the Company has duly authorized the issuance from time to
time of its unsecured debentures, notes or other evidences of indebtedness to be
issued in one or more series (hereinafter called the "Securities") up to such
principal amount or amounts as may from time to time be authorized in accordance
with the terms of this Indenture, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, 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, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
-------------------------------------------------------
SECTION 1.01. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the term "this 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 forms and terms of
particular series of Securities established as contemplated hereunder;
(2) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this instrument as originally executed. The
words "herein",
<PAGE>
"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;
(3) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(4) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein; and
(5) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles.
"Act" when used with respect to any Securityholder has the meaning
---
specified in Section 1.04.
------------
"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.
"Authorized Newspaper", when used with respect to Securities of any
--------------------
series, means a newspaper (which will be, if practicable, The Wall Street
---------------
Journal (Eastern Edition), the Financial Times (London Edition) and the
- ------- ---------------
Luxemburger Wort in the case of, respectively, The City of New York, London and
- ----------------
Luxembourg) of general circulation published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week (i) in the place specified pursuant to the
provisions hereof or (ii) if no place is so specified, in The City of New York
and in London and, so long as the Securities of such series are listed on the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and the Luxembourg Stock Exchange or such other stock exchange so
requires, in Luxembourg or in any city required by such other stock exchange
(or, if it shall be impracticable in the opinion of the Trustee to make such
publication in Luxembourg or such other city, elsewhere in Europe).
"Bearer Security" means any Security that is not a Registered
---------------
Security.
2
<PAGE>
"Board of Directors" means the Board of Directors of the Company, the
------------------
Executive Committee of such Board of Directors or any other committee of such
Board of Directors duly authorized to act for it hereunder.
"Board Resolution" means a copy of a resolution delivered to the
----------------
Trustee and certified by the Secretary or an Assistant Secretary of the Company
as having been duly adopted by the Board of Directors of the Company, or by the
Secretary or an Assistant Secretary of the Company or the Secretary of the
Executive Committee of such Board of Directors as having been duly adopted by
such Executive Committee, or by the Secretary or an Assistant Secretary of the
Company or the Secretary of any other committee of such Board of Directors duly
authorized to act for it hereunder as having been duly adopted by such other
committee.
"Business Day" , when used with respect to the Securities of any
------------
series, has the meaning specified with respect to the Securities of such series
as contemplated by Section 3.01; except that, if no such meaning is so
------------
specified, (i) when used with respect to any of the Places of Payment as to any
Security of such series or with respect to any payment in respect of such
Security, means a day that in each of the Places of Payment as to such Security
is neither a Saturday or Sunday nor a day on which banking institutions are
authorized or required by law or regulation to remain closed and (ii) otherwise
means a day that in the place where any specified act pursuant to this Indenture
is to occur is neither a Saturday or Sunday nor a day on which banking
institutions are authorized or required by law or regulation to remain closed.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres S.A., or
-----
its successor
"Commission" means the Securities and Exchange Commission, as from
----------
time to time constituted, created under the Securities Exchange Act of 1934, 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 on such date.
"Common Depositary" has the meaning set forth in Section 3.04(b).
----------------- ---------------
"Common Stock" means the Common Stock of the Company.
------------
"Company" means the corporation named as the "Company" in the first
-------
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
3
<PAGE>
"Company Request", "Company Order" and "Company Consent" mean,
--------------- ------------- ---------------
respectively, a written request, order or consent signed in the name of the
Company by the Chairman of the Board, any Vice Chairman, the President, the
principal financial officer, the general counsel, a Vice President, the
Treasurer or an Assistant Treasurer of the Company, and by the principal
accounting officer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the excess over current
--------------------------------
liabilities of all assets as determined by the Company and set forth in a
consolidated balance sheet of the Company and its consolidated Subsidiaries
prepared in accordance with generally accepted accounting principles as of a
date within 90 days of the date of such determination, after deducting goodwill,
trademarks, patents, other like intangibles and the minority interest of others.
"Conversion Agent" has the meaning set forth in Section 15.01(b).
---------------- ----------------
"Coupon" means any interest coupon appertaining to a Security.
------
"Defaulted Interest" has the meaning set forth in Section 3.07.
------------------ ------------
"Depositary" means, with respect to the Securities of any series
----------
issuable or issued in the form of a Global Security, the Person designated
pursuant to Section 3.01(19) as the Common Depositary or other depositary with
---------------
respect to any Securities of such series until a successor person shall have
become such as provided pursuant to Section 3.01(19) of the Indenture, and
---------------
thereafter 'Depositary' shall mean or include each Person which is then a
Depositary hereunder with respect to any Securities of such series. If at any
time there is more than one such Person which is then a Depositary with respect
to the Securities of any series, "Depositary" as used with respect to any
Securities of such series shall mean each Person which is then a Depositary with
respect to such Securities.
"Dollars", "$", "U.S. Dollars" and "U.S.$" mean the coin or currency
------- - ------------ -----
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
"Euro-clear" means Morgan Guaranty Trust Company of New York,
----------
Brussels office, as operator of the Euro-clear System, or any successor to
Morgan Guaranty Trust Company of New York, Brussels office, as operator thereof.
"European Communities" means the European Economic Community, the
--------------------
European Coal and Steel Community and the European Atomic Energy Community.
4
<PAGE>
"Event of Default" has the meaning specified in Article Five.
---------------- ------------
"Exchange Date" has the meaning set forth in Section 3.04(b).
------------- ---------------
"Foreign Currency" means a currency other than Dollars or a composite
----------------
currency (including, without limitation, the European Currency Unit, as defined
and revised from time to time by the Council of European Communities).
"Funded Debt" of any corporation means (i) all indebtedness for money
-----------
borrowed which by its terms matures more than 12 months from the creation,
extension or renewal thereof or which is extendible or renewable at the option
of the obligor on such indebtedness to a time more than 12 months after its
creation, extension or renewal and (ii) all guarantees, direct or indirect, of
such indebtedness of others or of dividends; provided, however, that Funded Debt
-------- -------
shall not include endorsements of negotiable instruments for collection, deposit
or negotiation and guarantees by the Company or a Restricted Subsidiary arising
in connection with the sale, discount, guarantee or pledge of notes, chattel
mortgages, leases, accounts receivable, trade acceptances and other paper
arising, in the ordinary course of business, out of installment or conditional
sales to or by, or transactions involving title retention with, distributors,
dealers or other customers, of merchandise, equipment or services. The Company
or a Restricted Subsidiary shall be deemed to have assumed any Funded Debt
secured by any mortgage upon any of its property or assets whether or not it has
actually done so.
"generally accepted accounting principles" with respect to any
----------------------------------------
computation required or permitted hereunder means such accounting principles
which are generally accepted at the date or time of such computation.
"Global Security" means, with respect to any series of Securities
---------------
issued hereunder, a Security, which may be a Registered Security or a Bearer
Security, executed by the Company and authenticated and delivered by the Trustee
pursuant to Section 3.03, which shall represent, and shall be denominated in an
------------
amount equal to the aggregate principal amount of, all of the outstanding
Securities of such series or a portion thereof having the same terms, including,
without limitation, the same date or dates on which principal is due, the same
interest rate or method of determining interest and, in the case of Original
Issue Discount Securities, the same issue price (except that such outstanding
Securities of such series or portion thereof need not have the same issue date),
and which shall be a Temporary Global Security or a Permanent Global Security.
"Government Obligations" means obligations which are (i) direct
----------------------
obligations of the sovereign government in the currency of which Securities of
the relevant series are payable or (ii) obligations of any Person controlled or
supervised by
5
<PAGE>
and acting as an instrumentality of such sovereign government the payment of
which is unconditionally guaranteed by such sovereign government, and which, in
the case of either (i) or (ii), are full faith and credit obligations of such
sovereign government, are payable in such currency and are not, by their terms,
callable or redeemable.
"Holder" or "Securityholder" , when used with respect to any Security
------ --------------
(including a Global Security), means, in the case of a Registered Security, the
Person in whose name such Security is registered on 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.
"Independent" when used with respect to any specified Person means
-----------
such a Person who (1) is in fact independent, (2) does not have any direct
financial interest or any material indirect financial interest in the Company or
in any other obligor upon the Securities or in any Affiliate of the Company or
of such other obligor, and (3) is not connected with the Company or such other
obligor or any Affiliate of the Company or of such other obligor, as an officer,
employee, promoter, underwriter, trustee, partner, director or person performing
similar functions. Whenever it is herein provided that any Independent Person's
opinion or certificate shall be furnished to the Trustee, such Person shall be
appointed by a Company Order and approved by the Trustee in the exercise of
reasonable care, and such opinion or certificate shall state that the signer has
read this definition and that the signer is Independent within the meaning
hereof.
"interest", when used with respect to non-interest bearing
--------
Securities, 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.
"mandatory sinking fund payment" has the meaning set forth in Section
------------------------------ -------
12.01.
- -----
"Maturity" when used with respect to any Security, means the date on
--------
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, repayment at the option of the Holder or
otherwise.
"mortgage" means any mortgage, pledge or security interest.
--------
6
<PAGE>
"Officers' Certificate" means a certificate signed by the Chairman of
---------------------
the Board, any Vice Chairman, the President, the principal financial officer,
the general counsel, a Vice President, the Treasurer or an Assistant Treasurer
of the Company, and by the principal accounting officer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
------------------
(except as otherwise expressly provided in this Indenture) be counsel for the
Company and who shall be acceptable to the Trustee.
"optional sinking fund payment" has the meaning set forth in Section
----------------------------- -------
12.01.
- -----
"Original Issue Discount Security" means any Security that 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 5.02.
------------
"Outstanding", when used with respect to the Securities of any
-----------
series, means, as of the date of determination, all Securities of such series
theretofore authenticated and delivered under this Indenture, except:
------
(i) Securities of such series theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities of such series for whose payment or redemption money
in the necessary amount and in the required currency or composite currency
has been theretofore deposited with the Trustee or any Paying Agent in
trust for the Holders of such Securities, provided that, if such Securities
--------
are to be redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the Trustee has
been made; and
(iii) Securities of such series which have been paid pursuant to
Section 3.06 or in exchange for or in lieu of which other Securities of the
------------
same series 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 Outstanding Securities of any series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, (a) the
principal amount of
7
<PAGE>
an Original Issue Discount Security that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 5.02, (b) the principal amount of a Security
------------
denominated in a Foreign Currency or Currencies that shall be deemed to be
Outstanding for such purposes shall be the U.S. Dollar equivalent of the
principal amount (or, in the case such a Security which is an Original Issue
Discount Security, the principal amount deemed to be Outstanding pursuant to
clause (a) of this proviso) of such Security (or, as the case may be, any
Predecessor Security) determined upon original issuance thereof as provided
pursuant to Section 3.01(3) with respect to the Securities of such series and
--------------
(c) Securities of such series owned by the Company or any other obligor upon
such Securities or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities of such
series which the Trustee knows to be so owned shall be so disregarded.
Securities of such series 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 such Securities or any
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
------------
principal of (or premium, if any) or interest, if any, on Securities of any
series on behalf of the Company.
"Permanent Global Security" shall mean a permanent Global Security
-------------------------
representing Securities of a series or a portion thereof.
"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 Securities of any
----------------
series and the Coupons, if any, appertaining thereto, means the place or places
established as such with respect to the Securities of such series pursuant to
Section 3.01.
- ------------
"Predecessor Securities" 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 3.06 in lieu of a lost,
------------
destroyed or stolen Security or a Security to which a
8
<PAGE>
lost, stolen or destroyed Coupon appertains shall be deemed to evidence the same
debt as the lost, destroyed or stolen Security or the Security to which the
lost, stolen or destroyed Coupon appertains, as the case may be.
"Qualified Account Holder" means any Person which is shown in the
------------------------
records of Euro-clear or CEDEL as being entitled to Securities represented by
all or any portion of a Temporary Global Security.
"Redemption Date" when used with respect to any Security to be
---------------
redeemed means the date fixed for such redemption 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 registered on 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
as provided in Section 3.01.
------------
"Responsible Officer" when used with respect to the Trustee means the
-------------------
Chairman or Vice Chairman of the board of directors, the Chairman or Vice
Chairman of the executive committee of the board of directors, the Chairman of
the trust committee, the President, any Vice President (however titled), the
Secretary, any Assistant Secretary or any Trust Officer, or any other officer or
assistant 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.
"Restricted Subsidiary" means any Subsidiary other than (i) each
---------------------
Subsidiary organized and existing under laws other than the laws of the United
States or a state thereof, (ii) each Subsidiary substantially all of the
physical properties of which are located, or substantially all of the business
of which is carried on, outside of the United States, (iii) each Subsidiary the
primary business of which consists of finance, banking, credit, leasing,
insurance, financial services, or similar operations or any combination thereof,
(iv) each Subsidiary the primary business of which consists of the ownership,
construction, management, operation, sale or leasing of real property or
improvements thereon, or similar operations or any combination thereof, (v) each
Subsidiary the primary business of which consists of the exploration for, or the
extraction, production,
9
<PAGE>
transporting, or marketing of, petroleum or gas or other extracted substances,
or similar operations or any combination thereof, (vi) each Subsidiary the
primary business of which consists of the ownership or operation of one or more
transportation businesses or facilities or equipment related thereto or similar
operations or any combination thereof, (vii) each Subsidiary the primary
business of which consists of obtaining funds with which to make investments
outside of the United States, (viii) each Subsidiary substantially all of the
assets of which consist of the ownership directly or indirectly of the capital
stock of one or more Subsidiaries covered by the preceding clauses (i) through
(vii), (ix) each Subsidiary which the Company or any Subsidiary is, by the terms
of the final order of any court of competent jurisdiction from which no further
appeal may be taken, required to dispose of and which shall by Board Resolution
be determined not to be a Restricted Subsidiary, effective as of the date
specified in such resolution and (x) any corporation a majority of the voting
shares of which shall at the time be owned directly or indirectly by one or more
corporations specified in the preceding clauses (i) through (ix); provided,
--------
however, that the Board of Directors may by Board Resolution declare any such
- -------
Subsidiary to be a Restricted Subsidiary, effective as of the date such
resolution is adopted.
"Secured Debt" means indebtedness for money borrowed if such
------------
indebtedness is secured by a mortgage upon any assets of the Company or a
Restricted Subsidiary, including in such assets, without limitation, shares of
stock or indebtedness of any Restricted Subsidiary owned by the Company or
another Restricted Subsidiary. Indebtedness secured by mortgages on property
existing at the time it is acquired and mortgages securing any part of the
purchase price of property purchased, constructed or improved shall be deemed to
be indebtedness for money borrowed. The Company or a Restricted Subsidiary
shall be deemed to have assumed any indebtedness secured by any mortgage upon
any of its property or assets whether or not it has actually done so.
"Security" or "Securities" has the meaning stated in the first
-------- ----------
recital of this Indenture and more particularly any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
----------------- ------------------
meanings specified in Section 3.05.
------------
"Special Record Date" for the payment of any Defaulted Interest on
-------------------
the Registered Securities of any series means the date fixed by the Trustee
pursuant to Section 3.07.
------------
10
<PAGE>
"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 a 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 any corporation of which the Company, or the
----------
Company and one or more Subsidiaries, or any one or more Subsidiaries, directly
or indirectly own outstanding shares of capital stock having voting power
sufficient to elect, under ordinary circumstances (not dependent upon the
happening of a contingency), a majority of the directors.
"Temporary Global Security" has the meaning set forth in Section
------------------------- -------
3.04(b).
- -------
"Trustee" means the Person named as the "Trustee" in the first
-------
paragraph of this instrument and, subject to the provisions of Article Six,
-----------
shall also include its successors and assigns.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
------------------- ---
1939, as amended, as in force at the date as of which this instrument was
executed, except as otherwise provided in Section 9.05.
------------
"United States" means the United States of America, its territories
-------------
and possessions and areas subject to its jurisdiction and the Commonwealth of
Puerto Rico.
"Value" means, as to any sale and lease back transaction to which
-----
Section 10.07 applies, the product of (a) the net proceeds from any such sale
- -------------
(less the amount applied in connection with such sale to the retirement of
outstanding Funded Debt in accordance with Section 10.07(c)) and (b) a fraction,
----------------
the numerator of which is the number of full years of the term of the lease
relating to such property (without regard to any options to renew or extend such
term) remaining at the time of the determination of such value and the
denominator of which is the number of full years of such term at the time of
such sale.
"Yield to Maturity" when used with respect to an Original Issue
-----------------
Discount Security, means the yield to Maturity on such Security calculated at
the time of issuance thereof, or, if applicable, at the most recent
redetermination of interest on such Security, and calculated in accordance with
either the constant interest method or such other accepted financial practice as
is specified in the terms of such Security established pursuant to Section 3.01.
------------
11
<PAGE>
SECTION 1.02. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.03. 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.
12
<PAGE>
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, or, insofar as it relates to accounting matters,
upon a certificate or opinion of, or representations by, independent public
accountants, 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 1.04. Acts of Securityholders.
-----------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be made, given or taken by
the Holders of Securities of any series may be embodied in and evidenced by (i)
one or more instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing, or (ii) in the event the
Securities of such series are issuable in whole or in part as Bearer Securities,
the record of Holders of such series voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of Holders of such
series duly called and held in accordance with the provisions of Article
-------
Thirteen, or (iii) a combination of such instrument or instruments and any such
- --------
record; and, except as herein otherwise expressly provided, such action shall
become effective with respect to such series 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 of such series signing such
---
instrument or instruments or so voting at any such meeting. Proof of execution
of any such instrument or of a writing appointing any such agent, or of the
holding of any Security of such series, shall be sufficient for any purpose of
this Indenture and (subject to Section 6.01) conclusive with respect to such
------------
series in favor of the Trustee and the Company, and any agent of the Trustee and
the Company, if made in the manner provided in this Section.
13
<PAGE>
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The holding of Registered Securities of any series by any Person
shall be proved by the Security Register or by a certificate of the Security
Registrar.
(d) The holding of Bearer Securities of any series 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 or affidavit 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 (i) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or (ii) such Bearer Security
is produced to the Trustee by some other Person, or (iii) such Bearer Security
is surrendered in exchange for a Registered Security, or (iv) such Bearer
Security is no longer Outstanding. The principal amount and serial numbers of
Bearer Securities of any series held by any Person, and the date of holding the
same, may also be proved in any other manner which the Company and the Trustee
deem sufficient.
(e) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every subsequent
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 or suffered or omitted to be done by the Trustee, the
Security Registrar, any Paying Agent or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
14
<PAGE>
SECTION 1.05. Notices, etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Securityholders 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 Securityholder or by the Company shall be
sufficient for every purpose hereunder only if made, given, furnished or
filed in writing to or with the Trustee at its principal corporate trust
office, or
(2) the Company by the Trustee or by any Securityholder shall be
sufficient for every purpose hereunder if in writing and mailed, first-
class, postage prepaid, to the Company addressed to it at the address of
its principal office specified in the first paragraph of this instrument or
at any other address previously furnished in writing to the Trustee by the
Company.
SECTION 1.06. Notices to Securityholders; Waiver.
----------------------------------
Where this Indenture provides for notice to Securityholders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) (a) to Holders of Registered Securities, if in writing and
mailed, first-class, postage prepaid, to each Holder of a Registered Security
affected by such event, at his address as it appears on the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice and (b) to Holders of Bearer
Securities, if published in an Authorized Newspaper 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 herein for the giving of such notice.
In any case where 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 by publication to Holders of Bearer
Securities given as provided herein. Any notice mailed to Holders in the manner
prescribed herein shall be deemed to have been given whether or not received by
any particular Holder. In case, by reason of the suspension of regular mail
service, or by reason of any other cause, it shall be impossible or
impracticable to give any notice to Holders of Registered Securities by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute notification for every purpose hereunder.
15
<PAGE>
In case, by reason of the suspension of publication of any Authorized
Newspaper, or by reason of any other cause, it shall be impossible or
impracticable to make publication of any notice to Holders of Bearer Securities
in an Authorized Newspaper or Authorized Newspapers as provided by this
Indenture, then such method of publication or notification to Holders of Bearer
Securities as shall be made with the approval of the Trustee shall constitute a
sufficient publication of such notice for every purpose hereunder. Neither the
failure to give notice by publication, nor any defect in any notice so given, to
any particular Holder of a Bearer Security as provided herein shall affect the
sufficiency of such notice with respect to other Holders of Bearer Securities or
the sufficiency of any notice to Holders of Registered Securities 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 Securityholders 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 1.07. Conflict with Trust Indenture Act.
---------------------------------
If any provision of this Indenture limits, qualifies or conflicts with
another provision hereof which is required to be included in this Indenture by
any of the provisions of TIA, such required provision shall control.
SECTION 1.08. 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 1.09. 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 1.10. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities of any
series or in any Coupons 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.
16
<PAGE>
SECTION 1.11. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities or in any Coupons
appertaining thereto, express or implied, shall give to any Person, other than
the parties hereto, the Security Registrar and any Paying Agent, and their
successors hereunder, and the Holders of Securities and Coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
-------------
This Indenture and the Securities and any Coupons appertaining thereto
shall be deemed to be contracts made under the laws of the State of New York and
for all purposes shall be construed in accordance with and governed by the laws
of said State.
SECTION 1.13. Payments Due on Non-Business Days.
---------------------------------
If any Stated Maturity, Redemption Date, Interest Payment Date or
other day on which payment of any principal, premium or interest is required to
be made in respect of a Security of any series shall not be a Business Day with
respect to the Securities of such series, then (notwithstanding any other
provision of this Indenture or of such Security or any Coupon appertaining
thereto) payment of the principal (and premium, if any) and interest otherwise
due in respect of such Security need not be made at such Stated Maturity or on
such Redemption Date, Interest Payment Date or other day, as the case may be,
but may be made on the next succeeding Business Day with the same force and
effect as if made at such Stated Maturity or on such Redemption Date, Interest
Payment Date or other day, as the case may be, and no interest shall accrue for
the period from and after such Stated Maturity, Redemption Date, Interest
Payment Date or other day, as the case may be.
ARTICLE TWO
FORMS OF SECURITIES
SECTION 2.01. Forms Generally.
---------------
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and the Coupons, if any, appertaining
thereto, shall be substantially in such form or forms (not inconsistent with
this Indenture) as shall be established in or pursuant to a Board Resolution
(and set forth in a Board Resolution or, to the extent established pursuant to
rather than set forth in such Board Resolution, in an Officers' Certificate as
to such establishment) or in one or more indentures supplemental hereto, in
17
<PAGE>
each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture or any indenture
supplemental hereto, and, may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with any law or with any rules or regulations pursuant
thereto, or with the rules of any securities exchange or to conform to usage, as
may, consistently herewith, be determined by the officers executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons. The form of any Registered Security or Bearer Security which is a
Global Security shall be as provided in the preceding sentence.
The Securities of each series shall be issuable as Registered
Securities without Coupons or as Bearer Securities with or without Coupons.
Unless otherwise specified with respect to the Securities of a series as
contemplated by Section 3.01, Bearer Securities (other than Global Securities)
------------
will have Coupons attached and Bearer Securities that are Global Securities will
not have Coupons attached. Registered Securities and Bearer Securities of a
series may, to the extent specified with respect to the Securities of such
series, as contemplated by Section 3.01, be issued as Global Securities.
------------
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities and Coupons, as evidenced by their
execution of such Securities and Coupons.
SECTION 2.02. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's Certificate of Authentication on all Securities shall be
in substantially the following form:
"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By _____________________________
Authorized Officer"
18
<PAGE>
SECTION 2.03. Global Securities.
-----------------
If the Securities of a series are issuable as a Global Security, such
Global Security may provide that it shall represent the aggregate amount of
Outstanding Securities from time to time endorsed thereon and may also provide
that the aggregate amount of Outstanding Securities represented thereby may from
time to time be reduced to reflect exchanges. Any endorsement of a Global
Security to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee and in
such manner as shall be specified in such Global Security. Any instructions by
the Company with respect to a Global Security, after its initial issuance, shall
be in writing but need not comply with Section 1.02.
------------
Unless otherwise provided with respect to the Securities of any series
in accordance with Section 3.01, payment of principal of (and premium, if any,
------------
on) a Permanent Global Security of such series shall be made to each of Euro-
clear and CEDEL with respect to the portion of such Permanent Global Security
held for its account by the Depositary. Each of Euro-clear and CEDEL will in
such circumstances credit the payment or principal (or premium, if any) received
by it in respect of such Permanent Global Security to the accounts of the
beneficial owners thereof. Payment of interest, if any, on such Permanent
Global Security shall be made as provided in Section 3.07.
------------
ARTICLE THREE
THE SECURITIES
SECTION 3.01. 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
19
<PAGE>
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 3.04, 3.05, 3.06, 9.06 or 11.07);
------------ ---- ---- ---- -----
(3) if the Securities of the series are not denominated in Dollars,
the Foreign Currency or Foreign Currencies in which such Securities are
denominated, the manner in which the U.S. Dollar equivalent of the
principal amount of each such Security is to be determined upon original
issuance and, if any payment of principal of (or premium, if any) or
interest on or any other amount in respect of the Securities of the series
is not payable in Dollars, the Foreign Currency or Foreign Currencies in
which such payment shall be payable and the particular provisions
applicable thereto;
(4) the date or dates (or the manner of determining the same) on which
the principal of the Securities of the series is payable (which, if so
provided in or pursuant to such Board Resolution or in such an indenture
supplemental hereto, may be determined by the Company from time to time and
set forth in the Securities of the series issued from time to time);
(5) the rate or rates (or the method of determining the same) at which
the Securities of the series shall bear interest, if any, and the date or
dates from which such interest shall accrue (which, in the case of either
or both, if so provided in or pursuant to such Board Resolution or in such
an indenture supplemental hereto, may be determined by the Company from
time to time and set forth in the Securities of the series issued from time
to time), the Interest Payment Dates (or the manner of determining the
same) on which such interest, if any, shall be payable, the Regular Record
Dates (or the manner of determining the same), if any, for the
determination of Holders to whom interest on Registered Securities is
payable on any Interest Payment Date and the extent to which, or the manner
in which, any interest payable on a Global Security will be paid if other
than as provided in Section 3.07;
------------
(6) the place or places where, subject to Section 10.02, the principal
-------------
of (and premium, if any) and interest, if any, on Securities of the series
shall be payable, any Registered Securities of the series may be
surrendered for registration of transfer and Securities of the series may
be surrendered for exchange;
(7) the period or periods within which, the price or prices at which,
the Foreign Currency or Foreign Currencies, if any, in which and the terms
and
20
<PAGE>
conditions upon which Securities of the series may be redeemed, in whole or
in part, at the option of the Company, pursuant to any sinking fund or
otherwise;
(8) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which, the Foreign Currency or Foreign
Currencies, if any, in which and the terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in whole
or in part, pursuant to such obligation;
(9) if other than denominations of U.S. $1,000 and any integral
multiple thereof, in the case of Registered Securities, or U.S. $1,000 and
U.S. $10,000 in the case of Bearer Securities, the denominations in which
Securities of the series shall be issuable;
(10) 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
-------
5.02;
----
(11) if the amount of payments of principal of (or any premium) or any
interest on the Securities of the series may be determined with reference
to an index, the manner in which such amounts shall be determined;
(12) whether the Securities of the series will be issuable as
Registered Securities or Bearer Securities, or both, and, if applicable,
whether any Bearer Securities of the series (other than Global Securities)
will be issuable without Coupons attached or any Bearer Securities of the
series that are Global Securities will be issuable with Coupons attached,
whether any Securities of the series are to be issued initially as a
Temporary Global Security and whether any Securities of the series are to
be issued as a Permanent Global Security, and the terms and conditions upon
which any such Global Security or any Bearer Securities of the series may
be issued, delivered or exchanged or any Registered Security of the series
may be exchanged for Bearer Securities of the series, if other than as
provided herein and the form of any certificates or documents to be
delivered in connection with (i) the exchange of an interest in a Temporary
Global Security for an interest in a Permanent Global Security or a
definitive Bearer Security as required by Section 1.163-5(c)(2)(i)(D) of
the United States Treasury Regulations or (ii) the payment of principal (or
premium, if any) or interest, if any, in respect
21
<PAGE>
of a Temporary Global Security as required by Section 1.163-5(c)(2)(i)(D)
of the United States Treasury Regulations;
(13) whether and under what circumstances, and the terms and
conditions on which, the Company will pay additional amounts on the
Securities of the series in respect of any tax, assessment or governmental
charge withheld or deducted and whether the Company will have the option to
redeem such Securities rather than pay such additional amounts or to redeem
such Securities in the event of the imposition of any certification,
documentation, information or other reporting requirement and, if so, under
what circumstances and the terms and conditions on which the Company may
exercise such option;
(14) the date as of which any Bearer Security of the series (including
any Global Security) shall be dated if other than as of the date of
original issuance of the first Security of the series to be issued;
(15) any Events of Default or covenants other than as set forth herein
with respect to the Securities of the series;
(16) the application, if any, of Section 4.03 or Section 10.10
------------ -------------
(including the application, if any, of the condition specified in
subparagraph (4) of Section 4.03 or subparagraph (5) of Section 10.10, or
---------------- ------------ ---------------- -------------
both, and, in the case of the application of subparagraph (4) of Section
---------------- -------
4.03, the application, if any, of clause (B) in lieu of clause (A) thereof)
---- ---------- ----------
to the Securities of the series;
(17) any percentage greater than a majority in principal amount of the
Outstanding Securities of the series as shall apply to Sections 9.02 and
-------------
13.04;
-----
(18) the obligation, if any, of the Company to convert Securities of
the series pursuant to the terms thereof, at the option of the Holders
thereof, into shares of Common Stock issued by the Company, and the terms
and conditions upon which such Securities shall be converted, in whole or
in part, pursuant to such obligation;
(19) any trustees, authenticating or paying agents, warrant agents,
transfer agents or registrars with respect to the Securities of the series
(if different from those named herein) and, if applicable, the Person which
shall be the Common Depositary or other depositary for the Securities of
such series or any portion thereof and any provisions for the appointment
of a successor Common Depositary or other depositary, as the case may be;
and
22
<PAGE>
(20) 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, if any, appertaining
to any Bearer Securities of such series shall be substantially identical except
that such Securities and Coupons may differ as to denomination, date of issue,
Stated Maturity, rate of interest, if any, and the date from which interest, if
any, shall accrue and as may otherwise be provided in or pursuant to such Board
Resolution or in such an indenture supplemental hereto. The terms of such
Securities, as set forth above, may be determined by the Company from time to
time if so provided in or pursuant to such Board Resolution or in such an
indenture supplemental hereto. All Securities of any one series need not, but
may, be issued at the same time.
If any terms of the series are established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.02. Denominations.
-------------
Unless otherwise specified with respect to Securities of a series as
contemplated by Section 3.01, any Registered Securities of such series shall be
------------
issuable in the denominations of U.S. $1,000 and any integral multiple thereof
and any Bearer Securities of such series shall be issuable in denominations of
U.S. $1,000 and U.S. $10,000.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities and the Coupons, if any, shall be executed on behalf of
the Company by its Chairman of the Board of Directors (or its Chairman of the
Executive Committee of such Board of Directors), any Vice Chairman, its
President, its principal financial officer, its principal accounting officer,
its general counsel, any Vice President or its Treasurer, in each case (except
in the case of Coupons) under its corporate seal, which may, but need not, be
attested. The signature of any of these officers on the Securities or the
Coupons may be manual or facsimile and may be imprinted or otherwise reproduced
thereon. The corporate seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities or the Coupons. Notwithstanding the foregoing, any Temporary Global
Security may be executed on behalf of the Company as provided herein without any
necessity of being under its corporate seal as aforesaid.
23
<PAGE>
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 offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities; and any Security or Coupon appertaining thereto may be executed on
behalf of the Company by such person or persons as, at the actual date of
execution of such Security or Coupon, shall be the proper officers of the
Company, although at the date of the execution and delivery hereof such person
or persons were not such officers.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities (including Global 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; provided,
--------
however, that, in connection with its original issuance, no Bearer Security
- -------
shall be mailed or otherwise delivered to any location in the United States; and
provided, further, that a Bearer Security may be delivered in connection with
- -------- -------
its original issuance only if the person entitled to receive such Bearer
Security shall have furnished a certificate referred to in the third sentence of
the second paragraph of Section 3.04(b), dated no earlier than 15 days prior to
---------------
the earlier of the date on which such Bearer Security is delivered and the date
on which any Temporary Global Security or any Permanent Global Security first
becomes exchangeable for such Bearer Security in accordance with the terms of
such Temporary Global Security or Permanent Global Security and this Indenture.
Except as permitted by Section 3.06, the Trustee shall not authenticate and
------------
deliver any Bearer Security unless all appurtenant Coupons then matured (other
than matured Coupons in default) have been detached and canceled. If all the
Securities of any one series are not to be issued at one time and if a Board
Resolution or indenture supplemental hereto relating to the Securities of such
series shall so permit, such Company Order may set forth procedures acceptable
to the Trustee for the issuance of such Securities, including, without
limitation, procedures with respect to date of issue, Stated Maturity, rate of
interest, if any, and date from which interest, if any, shall accrue as
determined by the Company as contemplated by Section 3.01. In authenticating
------------
and delivering 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 6.01) shall be fully protected in
------------
relying upon, an Opinion of Counsel stating,
(a) that the form or forms of such Securities has been established in
conformity with the provisions of this Indenture;
24
<PAGE>
(b) that the terms of such Securities have been established in
conformity with the provisions of this Indenture;
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles; and
(d) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities have been complied with.
The Trustee shall not be required to authenticate such Securities if (i) the
Trustee, being advised by counsel, determines that such action may not be
lawfully taken, (ii) the Trustee in good faith by its Board of Directors,
executive committee or a trust committee of directors and/or Responsible
Officers determines that such action would expose the Trustee to personal
liability to Holders of any Outstanding Securities or (iii) 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. The Trustee shall
authenticate and deliver each Security of any such series in accordance with the
procedures, if any, specified by the Company in the Company Order delivered
pursuant to the preceding paragraph.
Notwithstanding the provisions of Section 3.01 and of the preceding
------------
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver any Board Resolution, Officers'
Certificate or Opinion of Counsel otherwise required pursuant to Section 3.01,
------------
such preceding paragraph or Section 1.02 at or prior to the time of
------------
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Registered Security (including a Global Security) shall be dated
the date of its authentication. Each Bearer Security of a series (including a
Global Security) shall be dated as of the date of original issuance of the first
Security of such series to be issued except as otherwise established in or
pursuant to the Board Resolution or indenture supplemental hereto referred to in
Section 3.01 relating to the Securities of such series.
- ------------
25
<PAGE>
No Security or Coupon 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 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.
If the Company shall establish pursuant to Section 3.01(12) that the
----------------
Securities of all or part of a series are to be issued in whole or in part in
the form of a Global Security which is a Registered Security, such Global
Security shall be registered in the name of the Depositary for such Global
Security or the nominee of such Depositary and shall be delivered by the Trustee
to such Depositary or pursuant to such Depositary's instructions.
Unless otherwise specified with respect to the Securities of a series
as contemplated by Section 3.01, each Person designated pursuant to Section
------------ -------
3.01(19) as a Depositary for a Global Security which is a Registered Security of
- -------
such series, at the time of its designation and at all times while it serves as
Depositary, shall be a clearing agency registered under the Securities Exchange
Act of 1934, as amended, and any other applicable statute or regulation.
SECTION 3.04. Temporary Securities; Exchange of Temporary Global
--------------------------------------------------
Securities.
----------
(a) Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, in the manner specified in Section 3.03, temporary Securities of
------------
such series 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 either as
Registered Securities without Coupons or, if authorized, Bearer Securities with
or without Coupons and with such appropriate insertions, omissions,
substitutions and other variations as the officer executing such Securities may
determine, as evidenced by his execution of such Securities. In the case of any
series of Securities, such temporary Securities may be issued as a Temporary
Global Security representing such of the Outstanding Securities of such series
as shall be specified therein.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay but, in the case of Securities initially represented by a Temporary Global
Security, in any event not
26
<PAGE>
later than the applicable Exchange Date. Except in the case of Temporary Global
Securities (which shall, except as otherwise specified with respect to the
Securities of such series pursuant to Section 3.01, be exchanged in accordance
------------
with the provisions of Subsection (b)), 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
maintained pursuant to Section 10.02 at a Place of Payment with respect to
-------------
Securities of such 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 such series of authorized denominations and
of a like Stated Maturity, with like terms and provisions, and, in the case of
Bearer Securities, having attached thereto any appropriate Coupons; provided,
--------
however, that, unless otherwise specified with respect to the Securities of such
- -------
series pursuant to Section 3.01, no definitive Bearer Security shall be
------------
delivered in exchange for a temporary Registered Security; and provided,
--------
further, that a definitive Bearer Security shall be delivered in exchange for a
- -------
temporary Bearer Security only in compliance with the conditions set forth in
Section 3.03. Until so exchanged the temporary Securities of any series shall in
- ------------
all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series and with like terms and conditions authenticated and
delivered hereunder, except as otherwise specified with respect to the
Securities of such series pursuant to Section 3.01 or as provided in Subsection
------------ ----------
(b) as to payment of interest, if any.
- ---
(b) Unless otherwise specified by the applicable Board Resolution or
indenture supplemental hereto pursuant to Section 3.01, the Securities of any
------------
series issuable as Bearer Securities shall initially be represented by one or
more temporary Global Securities without Coupons (each, a "Temporary Global
----------------
Security"). Any Temporary Global 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 Euro-clear and CEDEL for credit to
-----------------
the respective accounts of the Qualified Account Holders.
Unless otherwise specified in a Temporary Global Security, on or after
the date which is 40 days after the date of payment for and delivery of such
Temporary Global Security (the "Exchange Date"), any Qualified Account Holder
-------------
shall be entitled to delivery of the aggregate principal amount of definitive
Securities of such series, without charge (except as set forth in this
Subsection) in exchange for the portion of such Temporary Global Security with
respect to which it is a Qualified Account Holder, of authorized denominations
and with like terms and provisions as the portion of such
27
<PAGE>
Temporary Global Security to be exchanged. The definitive Securities to be
delivered in exchange for such portion shall be definitive Registered
Securities, definitive Bearer Securities or all or a portion of a Permanent
Global Security without Coupons, or any combination thereof, as specified with
respect to the Securities of such series pursuant to Section 3.01, and, if any
------------
combination thereof is so specified, as requested on behalf of the Qualified
Account Holder by Euro-clear or CEDEL, as the case may be. A Qualified Account
Holder of Euro-clear or CEDEL, as the case may be, desiring to effect the
exchange of the portion of such Temporary Global Security with respect to which
it is a Qualified Account Holder for such definitive Securities or one or more
Permanent Global Securities shall instruct Euro-clear or CEDEL, as the case may
be, to request such exchange on its behalf and shall deliver to Euro-clear or
CEDEL, as the case may be, a certificate substantially in such form as shall be
specified with respect to the Securities of such series pursuant to Section 3.01
------------
and dated no earlier than 15 days prior to the Exchange Date. On or after the
Exchange Date, upon request of the Common Depositary, acting on behalf of Euro-
clear and CEDEL, acting on behalf of the respective Qualified Account Holders,
the Trustee, as the Company's agent for such purpose, but only upon surrender of
such Temporary Global Security by the Common Depositary to the Trustee and
delivery to the Trustee of a certificate of Euro-clear or CEDEL, as the case may
be, substantially in such form as shall be specified with respect to the
Securities of such series pursuant to Section 3.01, to the effect that it has
-------------
received in writing, by tested telex or by electronic transmission a certificate
or certificates substantially in the form referred to in the preceding sentence
dated no earlier than 15 days prior to the Exchange Date and signed by the
Qualified Account Holders in respect of such Temporary Global Security or
portions thereof being exchanged, shall, on the date of such certificate of
Euro-clear or CEDEL, as the case may be, (1) endorse such Temporary Global
Security to reflect the reduction of its principal amount by an amount equal to
the aggregate principal amount of such definitive Securities or Permanent Global
Security, as the case may be, (2) cause the applicable terms of such Securities
to be entered on any definitive Security or Securities to be exchanged therefor
and the Coupons, if any, appertaining thereto or, as the case may be, endorse
any applicable Permanent Global Security to reflect the initial amount, or an
increase in the amount, of Securities represented thereby, (3) manually
authenticate such definitive Securities or such Permanent Global Security, as
the case may be, (4) subject to and in compliance with the requirements of
Section 3.03, deliver such definitive Securities to the Holder thereof or, as
- ------------
the case may be, deliver such Permanent Global Security to the Common Depositary
to be held outside the United States for the accounts of Euro-clear and CEDEL
for credit to the respective accounts at Euro-clear and CEDEL of the Qualified
Account Holders and (5) redeliver such Temporary Global Security to the Common
Depositary, unless such Temporary Global Security shall have been canceled in
accordance with Section 3.09.
------------
28
<PAGE>
Unless otherwise specified in such Temporary Global Security, any
exchange thereof or of a portion thereof shall be made free of charge to the
beneficial owners of such Temporary Global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euro-clear or CEDEL.
Until exchanged in full as hereinabove provided, any Temporary Global
Security of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and with like terms
and conditions authenticated and delivered hereunder, except that, unless
otherwise specified with respect to the Securities of such series as
contemplated by Section 3.01, (i) interest payable on such Temporary Global
------------
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable on such Interest Payment
Date to Euro-clear and CEDEL for credit without further interest on or after
such Interest Payment Date to the respective accounts of the Qualified Account
Holders in respect of such Temporary Global Security on such Interest Payment
Date who have each delivered to Euro-clear or CEDEL, as the case may be, a
certificate as provided in this clause (i); provided, however, that such
------ --- -------- -------
interest shall be so payable to Euro-clear and CEDEL only upon delivery to the
Trustee of a certificate of Euro-clear or CEDEL, as the case may be, and on the
date of such certificate and that such certificate shall be substantially in
such form as specified with respect to the Securities of such series pursuant to
Section 3.01 and to the effect that Euro-clear or CEDEL, as the case may be, has
- ------------
received in writing, by tested telex or electronic transmission a certificate or
certificates substantially in such form as shall also be so specified dated no
earlier than 15 days prior to such Interest Payment Date and signed by such
Qualified Account Holders; and (ii) interest payable on such Temporary Global
Security on an Interest Payment Date for Securities of such series occurring on
or after the applicable Exchange Date shall be payable to Euro-clear and CEDEL
on such Interest Payment Date but shall not be credited by Euro-clear or CEDEL
to the account of any Qualified Account Holder or other Person who is a
beneficial owner of such Temporary Global Security on such Interest Payment Date
until such Qualified Account Holder or other Person shall exchange its interest
in such Temporary Global Security in full as hereinabove provided. Any interest
so received by Euro-clear and CEDEL and not credited as provided in clause (ii)
of the preceding sentence shall be returned to the Trustee immediately prior to
the expiration of two years after such Interest Payment Date, to be repaid to
the Company in accordance with Section 10.03.
-------------
The delivery to the Trustee by Euro-clear or CEDEL of any certificate
of Euro-clear or CEDEL, as the case may be, referred to in this Subsection (b)
--------------
may be relied
29
<PAGE>
upon by the Company and the Trustee as conclusive evidence that a corresponding
certificate of Qualified Account Holders of Euro-clear or CEDEL, as the case may
be, referred to in this Subsection (b) has or have been delivered to Euro-clear
--------------
or to CEDEL, as the case may be, pursuant to the terms of this Indenture.
Any definitive Bearer Security authenticated and delivered by the
Trustee in exchange for a portion of a Temporary Global Security shall not bear
a Coupon in respect of any interest which shall theretofore have been duly paid
by the Trustee to Euro-clear or CEDEL or by the Company to the Trustee in
accordance with the provisions of this Subsection, and any Coupon in respect
thereof shall be canceled by the Trustee and destroyed in accordance with
Section 3.09.
- ------------
SECTION 3.05. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at one of its offices or agencies
maintained pursuant to Section 10.02 a register or registers in respect of each
-------------
series of Securities issuable as Registered Securities (herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
-----------------
regulations as it may prescribe, the Company shall provide for the registration
of Registered Securities of such series and the registration of transfers of
Registered Securities of such series. Said office or agency is hereby initially
appointed "Security Registrar" in respect of each series of Securities issuable
------------------
as Registered Securities for the purpose of registering Registered Securities of
such series and transfers of Registered Securities of such series as herein
provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company in a Place of Payment in
respect of such series, but subject to any restrictions thereon, 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 such series of any authorized denominations, of a like Stated Maturity and
aggregate principal amount and with like terms and conditions.
At the option of the Holder, Registered Securities (including
Registered Securities which are Global Securities) of any series may be
exchanged for one or more other Registered Securities of such series of any
authorized denominations, of a like Stated Maturity and aggregate principal
amount and with like terms and conditions, upon surrender of the Registered
Securities to be exchanged at any such office or agency. Except as otherwise
specified pursuant to Section 3.01, Registered Securities may not be exchanged
------------
for Bearer Securities.
30
<PAGE>
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations, of a like Stated Maturity and aggregate principal amount and with
like terms and conditions 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 appertaining thereto. 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 the amount of such payment; provided, however,
-------- -------
that, except as otherwise provided in Section 10.02, interest represented by
-------------
Coupons shall be payable only upon presentation and surrender of such 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 the office
or agency of the Company in a Place of Payment in respect of such series in
exchange for a Registered Security of the same series and with like terms and
conditions after the close of business at such office or agency on or after (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 (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the
Person so surrendering the Bearer Security), and interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date 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 Registered Securities or Bearer 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 with
respect to the Securities of any series pursuant to Section 3.01, any Permanent
------------
Global Security representing Securities of such series shall be exchangeable
only as provided in this
31
<PAGE>
paragraph. If the beneficial owners of interests in such Permanent Global
Security are entitled to exchange such interests for definitive Securities of
such series, as specified with respect to the Securities of such series pursuant
to Section 3.01, 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 in aggregate principal amount equal
to the principal amount of such Permanent Global Security, executed by the
Company. On or after such date, any such beneficial owner shall be entitled to
delivery, without charge (except as set forth in this paragraph), of the
aggregate principal amount of definitive Securities of such series in exchange
for the portion of the Permanent Global Security with respect to which it is
such beneficial owner, of authorized denominations and with like terms and
provisions as the portion of such Permanent Global Security to be exchanged. The
definitive Securities to be delivered in exchange for such portion shall, unless
the Securities of such series are not issuable as both Registered Securities and
Bearer Securities, be definitive Registered Securities or definitive Bearer
Securities, or any combination thereof, as requested on behalf of such
beneficial owner, or shall, if the Securities of such series are issuable only
as Registered Securities or only as Bearer Securities, be definitive Registered
Securities or definitive Bearer Securities, as the case may be. On or after the
earliest date on which interests in such Permanent Global Security may be so
exchanged, upon 30 days' notice to the Trustee by Euro-clear or CEDEL, as the
case may be, and upon surrender of such Permanent Global Security by the
Depositary to the Trustee, as the Company's agent for such purpose, for exchange
in whole or from time to time in part, the Trustee shall (1) endorse such
Permanent Global Security to reflect the reduction of its principal amount by an
amount equal to the aggregate principal amount of such definitive Securities,
(2) cause the terms of such Securities to be entered on the definitive Security
or Securities to be exchanged therefor and the Coupons, if any, appertaining
thereto, (3) manually authenticate such definitive Securities, (4) subject to
and in compliance with the requirements of Section 3.03, deliver such definitive
------------
Securities to the Holder thereof and (5) unless such Permanent Global Security
shall have been canceled in accordance with Section 3.09, redeliver such
------------
Permanent Global Security to the Depositary, as the case may be; 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 such series to
be redeemed and ending on the relevant Redemption Date. 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 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
32
<PAGE>
Registered Security, but will be payable on such Interest Payment Date or
proposed date 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. Unless otherwise specified
in such Permanent Global Security, any exchange thereof or of a portion thereof
shall be made free of charge to the beneficial owners of such Permanent Global
Security, except that a Person receiving definitive Securities must bear the
cost of insurance, postage, transportation and the like in the event that such
Person does not take delivery of such definitive Securities in person at the
offices of Euro-clear or CEDEL. Until exchanged in full as hereinabove provided,
any Permanent Global Security of any series shall in all respects be entitled to
the same benefits under this Indenture as definitive Securities of such series
and with like terms and conditions authenticated and delivered hereunder. Any
definitive Bearer Security authenticated and delivered by the Trustee in
exchange for a portion of a Permanent Global Security shall not bear a Coupon in
respect of any interest which shall theretofore have been duly paid to Euro-
clear or CEDEL as provided in Section 3.07, and any Coupon in respect thereof
------------
shall be canceled by the Trustee and destroyed in accordance with Section 3.09.
------------
All Securities issued upon registration of transfer of or in exchange
for 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 for such exchange or registration of transfer.
Unless otherwise specified with respect to the Securities of a series
as contemplated by Section 3.01, if at any time a Depositary for any Securities
------------
of such series represented by a Global Security which is a Registered Security
notifies the Company that it is unwilling or unable to continue as Depositary
for such Securities or if at any time a Depositary for any Securities of such
series represented by a Global Security which is a Registered Security shall no
longer be eligible under the last paragraph of Section 3.03 or if an Event of
------------
Default with respect to such Securities has occurred and is continuing, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for such Securities is not appointed by
the Company within 90 calendar days after the Company receives such notice or
becomes aware of such ineligibility or if such Event of Default shall be
continuing, such Securities shall, notwithstanding the terms of the Securities
of such series established pursuant to Section 3.01, no longer be represented by
------------
a Global Security and the Company will execute, and the Trustee, upon receipt of
a Company Order for the authentication and delivery of definitive Registered
Securities of such series, will authenticate and deliver, in exchange for such
Global Security, Registered Securities of such series in definitive form in
authorized denominations, in an aggregate principal amount equal to the
principal
33
<PAGE>
amount of each Global Security previously delivered to such Depositary and
having like terms and conditions.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of a Global Security which is a
Registered Security shall no longer be represented by such Global Security. In
such event the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Registered Securities of
such series, will authenticate and deliver, in exchange for such Global
Security, Registered Securities of such series in definitive form in authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Securities no longer to be represented by such Global Security and having
like terms and conditions.
If specified by the Company with respect to a series of Securities
pursuant to Section 3.01, the Depositary for any Securities of such series
------------
represented by a Global Security which is a Registered Security may surrender
such Global Security in exchange in whole or in part for Registered Securities
of such series of like terms and conditions and in definitive form on such terms
as are acceptable to the Company and such Depositary. At such Depositary's
request, the Company shall thereupon execute, and the Trustee shall authenticate
and deliver, (i) to each Person specified by such Depositary a new Registered
Security or Securities of the same series, of like terms and conditions and of
any authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in the
Global Security so surrendered and (ii) to such Depositary a new Global Security
which is a Registered Security of like terms and conditions and in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Global Security and the aggregate principal amount of Registered
Securities delivered to each such Person as provided in clause (i).
Every Registered Security of a series presented or surrendered for
registration of transfer or 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, the Trustee and the Security Registrar in
respect of such series 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 (except as otherwise set forth in Section 3.04 with
------------
respect to exchanges of Temporary Global Securities or portions thereof or in
this Section with respect to exchanges of Permanent Global Securities or
portions thereof) but the Company may require payment of a sum sufficient to
cover any tax or other
34
<PAGE>
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Sections
--------
3.04, 9.06 and 11.07 or conversions pursuant to Section 15.01 not involving any
- ---- ---- ----- -------------
transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security of any series during a period beginning at the
opening of business 15 days before (A) if Securities of such series are issuable
only as Registered Securities, the day of the mailing of a notice of redemption
of Securities of such series selected for redemption hereunder and ending at the
close of business on the day of such mailing and (B) if Securities of such
series are issuable as Bearer Securities, the day of the first publication of
the relevant notice of redemption or, if earlier, and if Securities of such
series are also issuable as Registered Securities and there is no publication,
the day of the mailing of the relevant notice of redemption and in either case
ending at the close of business on the day of such publication or mailing, or
(ii) to register the transfer of or exchange any Registered Security of such
series so selected for redemption in whole or in part, except the unredeemed
portion of any Registered Security being redeemed in part, or (iii) to exchange
any Bearer Security of such series so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of such series and
like tenor, provided that such Registered Security shall be simultaneously
--------
surrendered for redemption.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities and
----------------------------------------------------
Coupons.
-------
If any mutilated Security or a Security with a mutilated Coupon is
surrendered to the Trustee, or if the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Security or
Coupon, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them and any agent 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
exchange for any such mutilated Security or in lieu of any such destroyed, lost
or stolen Security, or in exchange for the Security to which a mutilated,
destroyed, lost or stolen Coupon appertains (with all appurtenant Coupons not
mutilated, destroyed, lost or stolen), a new Security of the same series, in a
like principal amount, of a like Stated Maturity and with like terms and
conditions and bearing a number not contemporaneously outstanding with Coupons
corresponding to the Coupons, if any, appertaining to such mutilated, destroyed,
lost or stolen Security or to the Security to which such mutilated, destroyed,
lost or stolen Coupon appertains.
35
<PAGE>
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 or Coupon
(without surrender thereof except in the case of a mutilated Security or Coupon)
if the applicant for such payment shall furnish to the Company and the Trustee
such security or indemnity as may be required by them to save each of them and
any agent of them harmless, and in case of destruction, loss or theft, evidence
satisfactory to the Company and such Trustee and any agent of either of them of
the destruction, loss or theft of such Security and the ownership thereof;
provided, however, that the principal of (and premium, if any) and interest, if
- -------- -------
any, on Bearer Securities shall, except as otherwise provided in Section 10.02,
-------------
be payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 3.01, any interest on
------------
Bearer Securities shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) 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 of
such series or in exchange for any mutilated Security of such series, or in
exchange for a Security to which a mutilated, 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 Coupon 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 such
series and the Coupons, if any, appertaining thereto 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 3.07. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest, if any, 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 such Registered Security (or one or more Predecessor
Securities) is registered on the Regular Record Date for such interest specified
as provided in Section 3.01.
------------
36
<PAGE>
Except as otherwise specified with respect to the Securities of a
series as contemplated by Section 3.01, interest, if any, on the Securities of
------------
each series shall be computed on the basis of a 360-day year of twelve thirty-
day months.
Unless otherwise provided with respect to the Securities of any series
in accordance with Section 3.01, and subject to Sections 3.04(b) and 3.05 and
------------ ---------------- ----
the next following paragraph, payment of interest may be made (i) by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register in respect of Securities of such series, or (ii)
at the option of the Company, (1) in the case of a Bearer Security, by transfer
to an account maintained by the payee with a bank located outside the United
States, or (2) in the case of a Registered Security, by transfer to an account
maintained by the payee with a bank located inside the United States.
Unless otherwise provided with respect to the Securities of any series
in accordance with Section 3.01, every Permanent Global Security of such series
------------
will provide that interest, if any, payable on any Interest Payment Date will be
paid to each of Euro-clear and CEDEL with respect to that portion of such
Permanent Global Security held for its account by the Depositary. Each of Euro-
clear and CEDEL will in such circumstances credit the interest, if any, received
by it in respect of such Permanent Global Security to the accounts of the
beneficial owners thereof.
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 paragraph (1) or paragraph (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 of such series) 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 in the currency or composite
currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 3.01 with respect to Securities of
------------
such series) equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory to the
37
<PAGE>
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 paragraph provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 nor 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 a
Registered Security of such series at the address of such Holder as it
appears in the Security Register in respect of the Securities of such
series 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 in each Place of Payment with respect to the Securities of such
series located in the United States, 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 Special
Record Date therefor having been mailed as aforesaid, 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 on such Special Record Date and shall no longer be payable
pursuant to the following paragraph (2).
-------------
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Registered Securities of such series 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 paragraph, such payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section and Section 3.05,
------------
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 3.08. Persons Deemed Owners.
---------------------
The Company, the Trustee and any Paying Agent, the Security Registrar
and any other agent of the Company or the Trustee in respect of the Securities
of any series may treat the Person in whose name any Registered Security of such
series is
38
<PAGE>
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 3.05 and
-------------
3.07) interest, if any, on such Security and for all other purposes whatsoever,
- ----
whether or not such Security be overdue, and neither the Company nor the Trustee
nor any Paying Agent, Security Registrar or other agent of the Company or the
Trustee in respect of the Securities of such series 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 Paying Agent
and any other agent of the Company or the Trustee in respect of the Securities
of any such series may treat the Holder of any Bearer Security and the Holder of
any Coupon as the absolute owner of such Bearer Security or Coupon for the
purpose of receiving payment of principal of (and premium, if any) and (subject
to Section 3.07) interest, if any, on such Security and for all other purposes
------------
whatsoever, whether or not such Security or Coupon be overdue, and neither the
Company nor the Trustee nor any Paying Agent or other agent of the Company or
the Trustee in respect of the Securities of such series shall be affected by any
notice to the contrary. All such payments so made to any such Person or Holder,
as the case may be, shall be valid and, to the extent of the sum or sums so
paid, effectual to satisfy and discharge the liability for moneys payable upon
such Security or Coupon.
Notwithstanding the foregoing, except as otherwise specified with
respect to the Securities of a series as contemplated by Section 3.01, and
------------
except as provided in Sections 2.03 and 3.07 with respect to the payment of
------------- ----
principal of (or premium, if any) or interest, if any, on a Permanent Global
Security, the Company, the Trustee and any agent of the Company and the Trustee
shall treat a Person having a beneficial interest in a Permanent Global Security
as a Holder of such principal amount of Outstanding Securities represented by
such Permanent Global Security as shall be specified in a written statement of
such Holder or, in the case of a Permanent Global Security that is a Bearer
Security, of Euro-clear or CEDEL, which is produced to the Trustee by such
Holder or by Euro-clear or CEDEL, as the case may be.
None of the Company, the Trustee and any Paying Agent, the Security
Registrar and any other agent of the Company or the Trustee will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
SECTION 3.09. Cancellation.
------------
All Securities and Coupons surrendered for payment, registration of
transfer, exchange, conversion, redemption or repayment, or delivered in
satisfaction of
39
<PAGE>
any sinking fund payment or analogous payment, shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee for cancellation and
shall be promptly canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder or any Coupons previously delivered hereunder which the Company may
have acquired in any manner whatsoever and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities and Coupons so delivered shall be promptly canceled by the
Trustee. No Security shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Securities and Coupons held by the Trustee shall
be destroyed by it and the Trustee shall deliver a certificate of such
destruction to the Company. In the case of any Temporary Global Security, which
shall be destroyed if the entire aggregate principal amount of the Securities
represented thereby has been exchanged, the certificate of such destruction
shall state that all certificates required pursuant to Section 3.04 hereof,
------------
substantially in the form of Exhibit B hereto, to be given by Euro-clear or
CEDEL, have been duly presented to the Trustee by Euro-clear or CEDEL, as the
case may be. Permanent Global Securities shall not be cancelled until exchanged
in full for other Permanent Global Securities or definitive Securities or until
payment thereof is made in full.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect with respect to any
series of Securities, and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to such series, when
(1) any of the following shall occur:
(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, the
surrender of which is not required or has been waived as provided in
Section 3.05, (ii) any Securities or Coupons, if any, appertaining
------------
thereto which have been destroyed, lost or stolen and which have been
replaced or paid as provided
40
<PAGE>
in Section 3.06, (iii) Coupons appertaining to Securities and called
------------
for redemption and maturing after the relevant Redemption Date, the
surrender of which is not required as provided in Section 11.06, and
-------------
(iv) Securities and Coupons money for the payment of which 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 10.03) have been delivered to the
-------------
Trustee for cancellation; or
(B) all Securities of such series and all unmatured Coupons, if
any, appertaining thereto not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within 1 year, or
(iii) are to be called for redemption within 1 year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee, as trust funds in trust for the
purpose, an amount sufficient to pay and discharge the entire indebtedness
on such Securities of such series and all Coupons, if any, appertaining
thereto not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, if any, to the date of such
deposit (in the case of Securities which have become due and payable), or
to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company in respect of the Securities of such series and
the Coupons, if any, appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
in respect of such series have been complied with.
41
<PAGE>
Notwithstanding the satisfaction and discharge of this Indenture with respect to
any series of Securities, so long as any Security of such series remains
Outstanding, the obligations of the Company to the Trustee under Section 6.07
------------
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of clause (1) of this Section or if money or Government Obligations shall
have been deposited with or received by the Trustee pursuant to Section 4.03 or
------------
10.10, the obligations of the Trustee under Section 4.02 and the last paragraph
- ----- ------------
of Section 10.03 with respect to such series shall survive and the remaining
-------------
rights of conversion of any Securities of such series, if convertible, shall
continue in full force and effect pursuant to the terms set forth in Article
-------
Fifteen herein.
- -------
SECTION 4.02. Application of Trust Money.
--------------------------
(a) Subject to the provisions of Section 4.02(c) and the last
---------------
paragraph of Section 10.03, all money or Government Obligations deposited with
-------------
the Trustee pursuant to Section 4.01, 4.03 or 10.10 or the principal of or
------------ ---- -----
interest on such Government Obligations shall be held in trust and applied by
the Trustee, in accordance with the provisions of this Indenture and of the
Securities of the series to which such money or Government Obligations relate
and the Coupons, if any, appertaining thereto, 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, if any, for the payment of which
such money or Government Obligations have been deposited with the Trustee or to
make mandatory sinking fund payments or analogous payments as contemplated by
Section 4.03 or 10.10, but such money or proceeds need not be segregated from
- ------------ -----
other funds except to the extent required by law.
(b) The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against Government Obligations
deposited pursuant to Section 4.03 or 10.10 or the principal of or interest on
------------ -----
such Government Obligations other than any payable by or on behalf of the
Holders.
(c) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any money or Government Obligations (or the principal of or
interest on such Government Obligations) held by it as provided in Section 4.01,
------------
4.03 or 10.10 which, in the opinion of a nationally recognized firm of
- ---- -----
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are then in excess of the amount thereof which then
would have been required to be deposited for the purpose for which such money or
Government Obligations were deposited or received. The principal of and
interest on the Government Obligations deposited in trust pursuant to Sections
--------
4.03(1) and 10.10(1), to the extent that such principal and interest
- ------- --------
42
<PAGE>
are not required for a period of time for the payment of the principal of (and
premium, if any) and interest, if any, on the Securities with respect to which
such Government Obligations relate, shall, so far as practicable, be invested as
agreed with the Trustee in Government Obligations of such maturities (six months
or less) as necessary to ensure that funds are available to pay the principal of
(and premium, if any) and interest, if any, on such Securities and the Trustee,
upon receipt thereof, shall pay to the Company the income from such investments.
SECTION 4.03. Defeasance and Discharge of Securities of any Series.
----------------------------------------------------
If this Section 4.03 has been specified in accordance with Section
-------
3.01 to be applicable to Securities of any series, then notwithstanding Section
- ---- -------
4.01, the Company shall be deemed to have paid and discharged the entire
- ----
indebtedness on all the Outstanding Securities of such series and the Coupons,
if any, appertaining thereto, the provisions of this Indenture as it relates to
such Outstanding Securities and Coupons (except as to the rights of Holders of
Outstanding Securities of such series and Coupons, if any, appertaining thereto
to receive, from the trust funds described in subparagraph (1), payment of the
----------------
principal of (and premium, if any) and any installment of principal of (and
premium, if any) or interest, if any, on such Securities on the Stated Maturity
of such principal or installment of principal or interest or any mandatory
sinking fund payments or analogous payments applicable to the Securities of such
series on the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities, the Company's obligations
with respect to such Securities under Sections 3.05, 3.06, 10.02, 10.03 and
------------- ---- ----- -----
15.01 the rights, powers, trusts, duties and immunities of the Trustee
- -----
hereunder) shall no longer be in effect, and the Trustee, at the expense of the
Company, shall, upon Company Request, execute proper instruments acknowledging
the same, provided that the following conditions have been satisfied:
(1) with reference to this Section 4.03, the Company has deposited or
caused to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.09), irrevocably (irrespective of whether the
------------
conditions in subparagraphs (2), (3), (4) (if applicable) or (5) have been
----------------- --- --- ---
satisfied, but subject to the provisions of Section 4.02(c) and the last
---------------
paragraph of Section 10.03), as trust funds in trust, specifically pledged
-------------
as security for, and dedicated solely to, the benefit of the Holders of the
Securities of such series and the Coupons, if any, appertaining thereto,
(A) money in an amount in the currency or composite currency in which the
Securities of such series are payable (except as otherwise specified with
respect to the Securities of such series pursuant to Section 3.01), or (B)
------------
Government Obligations which through the payment of interest and principal
in respect thereof in accordance with their terms will provide not later
than the
43
<PAGE>
opening of business on the due date of any payment referred to in clause
(i) or (ii) of this subparagraph (1) money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge (i) the principal of
(and premium, if any) and each installment of principal (and premium, if
any) and interest, if any, on such Outstanding Securities and Coupons on
the Stated Maturity of such principal or installment of principal or
interest, (ii) any mandatory sinking fund payments or analogous payments
applicable to the Securities of such series on the day on which such
payments are due and payable in accordance with the terms of this Indenture
and of such Securities and (iii) any repayment of the Securities of such
series at the option of a Holder of any of such Securities on the date such
repayment is due and payable;
(2) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(3) no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to
the Securities of such series shall have occurred and be continuing on the
date of such deposit and no Event of Default under Section 5.01(d) or
---------------
5.01(e) or event which with the giving of notice or lapse of time, or both,
-------
would become an Event of Default under Section 5.01(d) or 5.01(e) shall
--------------- -------
have occurred and be continuing on the 91st day after such date;
(4) if this subparagraph has been specified in accordance with
Section 3.01 to be applicable to the Securities of such series, the Company
------------
has delivered to the Trustee (A) an Opinion of Counsel to the effect that
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling to the effect, or (B) in lieu thereof, but only if
this clause (B) is specified in accordance with Section 3.01 to be
------------
applicable to the Securities of such series, an Opinion of Counsel to the
effect, that Holders of the Securities of such series and the Coupons, if
any, appertaining thereto will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amount and
in the same manner and at the same times, as would have been the case if
such deposit, defeasance and discharge had not occurred; and
44
<PAGE>
(5) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
provided for relating to the defeasance and discharge of the entire
indebtedness on all Outstanding Securities of such series as contemplated
by this Section have been complied with.
ARTICLE FIVE
REMEDIES
SECTION 5.01. 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):
(a) default in the due and punctual payment of any interest upon any
of the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the due and punctual payment of the principal of (and
premium, if any, on) any of the Securities of such series as and when the
same shall become due and payable either at Maturity, by declaration as
authorized by this Indenture, or otherwise; or
(c) failure on the part of the Company to duly observe or perform any
other of the covenants or agreements on the part of the Company in the
Securities of such series or in this Indenture contained (other than a
covenant or agreement 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 a series of
Securities other than such series) for a period of 60 days after the date
on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the
Securities of such series at the time Outstanding; provided, however, that,
-------- -------
subject to the provisions of Subsections (a), (b) and (c) of Section 6.01
--------------- --- --- ------------
hereof, the Trustee shall not be charged with knowledge of such default
unless the Trustee, in the course of its administration of corporate
trusts, shall have actual knowledge of such default or unless written
notice thereof shall have been given to the Trustee
45
<PAGE>
by the Company or by the Holders of not less than 25% in principal amount
of the Outstanding Securities of such series; or
(d) entry of a decree or order by a court having jurisdiction in the
premises for relief in respect of the Company in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee, trustee,
sequestrator (or 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 unstayed and in
effect for a period of 60 consecutive days; or
(e) commencement by the Company of a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or the consent by the Company to the entry of an order for relief
in an involuntary case under any such law, or the consent by the Company to
the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Company
or of any substantial part of its property, or the making by the Company of
a general assignment for the benefit of creditors, or the admission by the
Company in writing of its inability generally to pay its debts as they
become due, or the taking of corporate action by the Company in furtherance
of any such action; or
(f) any other Event of Default provided with respect to Securities of
such series.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series then
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of such series may declare the principal of all the Securities of
such series (or, in the case of Securities of such series that are Original
Issue Discount Securities, such portion of the principal of such Securities as
may be specified in the terms thereof) to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by
Securityholders), and upon any such declaration such principal (or, as the case
may be, such portion) shall become immediately due and payable.
At any time after such a declaration of acceleration 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
46
<PAGE>
amount of the Outstanding Securities of such series, 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 in the currency or composite currency in which the
Securities of such series are payable (except as otherwise specified with
respect to the Securities of such series pursuant to Section 3.01)
------------
(A) all overdue installments of interest on all Securities of
such series,
(B) the principal of (and premium, if any, on) any securities of
such series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate borne by such
Securities (or, in the case of Securities of such series that are
Original Issue Discount Securities, the Yield to Maturity in respect
thereof),
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate borne by
such Securities (or, in the case of Securities of such series that are
Original Issue Discount Securities, the Yield to Maturity in respect
thereof), 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 such series,
other than the non-payment of the principal of Securities of such series
which have become due solely by such acceleration, have been cured or
waived as provided in Section 5.13.
------------
No such recission shall affect any subsequent default or impair any
right consequent thereon.
47
<PAGE>
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
-------
The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Security of any series when such interest becomes 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 of any series at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of the Securities of such series and the Coupons, if any, appertaining
thereto, the whole amount then due and payable on such Securities and Coupons
for principal (and premium, if any) and interest, if any, with interest upon the
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon overdue installments of interest, at
the rate borne by such Securities (or in the case of Securities of such series
that are Original Issue Discount Securities, the Yield to Maturity in respect
thereof); 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, and 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 Coupons 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
and Coupons, 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 the Securities of such
series and the Coupons, if any, appertaining thereto, 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.
48
<PAGE>
SECTION 5.04. 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 of any series and the Coupons, if any, appertaining thereto or the
property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities of such series 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 or interest) 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,
in the case of Securities of such series that are Original Issue Discount
Securities, such portion of the principal of such Securities as may be
specified in the terms thereof) (and premium, if any) and interest owing
and unpaid in respect of the Securities of such series and the Coupons, if
any, 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 of the Securities of such series and the Coupons, if any,
appertaining thereto allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each such
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 such Holders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07.
------------
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities of any series or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
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SECTION 5.05. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities.
----------
All rights of action and claims under this Indenture or the Securities
of any series or the Coupons, if any, appertaining thereto may be prosecuted and
enforced by the Trustee without the possession of any of the Securities of such
series or any of such 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.
SECTION 5.06. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article with
respect to the Securities of any series or the Coupons, if any, appertaining
thereto 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) or interest, if any, upon presentation of the
Securities or Coupons, or both, as the case may be, in respect of which such
money was collected, 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
-------
6.07;
- ----
SECOND: To the payment of the amounts then due and unpaid upon the
Securities of such series and the Coupons, if any, appertaining thereto for the
principal (and premium, if any) and interest, if any, 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) and interest, if
any, respectively; and
THIRD: To the payment of the remainder, if any, to the Company or to
whomsoever may be lawfully entitled to receive the same, or as a court of
competent jurisdiction may determine.
50
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SECTION 5.07. Limitation on Suits.
-------------------
No Holder of any Security of any series or any Coupon appertaining
thereto 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) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to Securities of such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such 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 such series;
it being understood and intended that no one or more Holders of Securities of
any series or Coupons, if any, appertaining thereto 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 Holders of Securities of
such series or Coupons, if any, appertaining thereto or to obtain or to seek to
obtain priority or preference over any other 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 the Holders of Securities of such series and
Coupons, if any, appertaining thereto.
51
<PAGE>
SECTION 5.08. Unconditional Right of Securityholders to Receive
-------------------------------------------------
Principal, Premium and Interest and to Convert
----------------------------------------------
Securities.
----------
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 3.07) interest, if any, on such Security on the respective Stated
- ------------
Maturities expressed in such Security or Coupon (or, in the case of redemption,
on the Redemption Date), to require conversion of such Security, if convertible,
and to institute suit for the enforcement of any such payment and any such right
to convert and such right shall not be impaired without the consent of such
Holders.
SECTION 5.09. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or the Holder of any Security or Coupon 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 the Company, the Trustee and the Holders of Securities and Coupons, if any,
shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder, and thereafter all rights
and remedies of the Trustee and such Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10. 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 3.06, no right or remedy herein conferred upon or
------------
reserved to the Trustee or to the Holders of Securities or Coupons 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 hereinafter 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 5.11. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security
of any series or any Coupon appertaining thereto to exercise any right or remedy
accruing upon any Event of Default in respect of the Securities of such series
shall impair any such
52
<PAGE>
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 of Securities or Coupons may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by such
Holders, as the case may be.
SECTION 5.12. Control by Securityholders.
--------------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series, provided that
--------
(1) such direction shall not be in conflict with any rule of law or
this Indenture, expose the Trustee to personal liability or be unduly
prejudicial to Holders not joining therein, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all
Securities of such series and all Coupons, if any, appertaining thereto waive
any past default hereunder with respect to Securities of such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series, 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 of such series 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.
53
<PAGE>
SECTION 5.14. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security
of any series or any Coupon appertaining thereto 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 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 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 of
a Security or Coupon for the enforcement of the payment of the principal of (or
premium, if any) or interest, if any, on any Security or the payment of any
Coupon on or after the respective Stated Maturities expressed in such Security
or Coupon (or, in the case of redemption, on or after the Redemption Date).
SECTION 5.15. 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.
SECTION 5.16. Judgment Currency.
-----------------
The Company agrees, to the extent that it may effectively do so under
applicable law, that (i) if for the purpose of obtaining judgment in any court
it is necessary to convert a sum due in respect of the principal of (or premium,
if any) or interest, if any, on the Securities of any series in a Foreign
Currency into Dollars, the rate of exchange used shall be the rate of exchange
stated as the New York selling rate for such Foreign Currency into Dollars in
The Wall Street Journal (Eastern Edition) for the Business Day preceding that on
- -----------------------
which final unappealable judgment is given (or, if by reason of the temporary or
permanent suspension of publication of such newspaper or of such information in
such newspaper, such exchange rate is not given, then such rate of
54
<PAGE>
exchange as is stated for such day in such comparable newspaper as the Trustee
shall select) and (ii) the Company's obligations under this Indenture to make
payments in respect of such Securities or the Coupons, if any, appertaining
thereto, in a Foreign Currency (A) shall not be discharged or satisfied by any
tender, or any recovery pursuant to any judgment, in any currency other than
such Foreign Currency, except to the extent that such tender or recovery shall
result in the payee being able to receive the full amount of such Foreign
Currency expressed to be payable in respect of such payments, and (B) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in such Foreign Currency the amount, if any, by which such tender or
recovery shall fall short of the amount of such Foreign Currency so expressed to
be payable and shall not be affected by judgment being obtained for any other
sum due under this Indenture.
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default in respect
of 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 in respect of the Securities of any
series has occurred and is continuing, the Trustee shall with respect to
such Securities 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.
55
<PAGE>
(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;
and
(3) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount (or such lesser principal amount as is provided for
by this Indenture) of the Outstanding Securities of any series
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture, in respect of
the Securities of such series.
(d) 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.
(e) 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 6.02. Notice of Default.
-----------------
Within 90 days after the occurrence of any default hereunder in
respect of the Securities of any series, the Trustee shall give or transmit, in
the manner and to the extent provided in Sections 1.06 and, if applicable,
-------------
7.03(c)(2), notice of such default hereunder known to the Trustee, 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, if any, on any Security of such series or the making of any sinking
fund payment in respect of the Securities of such series when due, 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 and/or
Responsible Officers of the
56
<PAGE>
Trustee in good faith determine that the withholding of such notice is in the
interests of the Holders of Securities of such series; and provided, further,
-------- -------
that in the case of any default of the character specified in Section 5.01(c) no
---------------
such notice to Holders of Securities of such series shall be given until at
least 60 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 6.03. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 6.01:
------------
(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 or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request 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 Securityholders pursuant to this Indenture, unless such
Securityholders 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;
57
<PAGE>
(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 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;
(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; and
(h) the Trustee shall not be liable for any action taken, suffered or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture.
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities of any series,
except the certificates of authentication, and in any Coupons 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 of any series. The Trustee
shall not be accountable for the use or application by the Company of Securities
of any series or the proceeds thereof.
SECTION 6.05. May Hold Securities.
-------------------
The Trustee, any Paying Agent, any Security Registrar or any other
agent of the Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities of any series and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights
- ------------- ----
it would have if it were not Trustee, Paying Agent, Security Registrar or such
other agent.
58
<PAGE>
SECTION 6.06. 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
provided in Section 4.02 or as otherwise agreed with the Company.
------------
SECTION 6.07. Compensation and Reimbursement.
------------------------------
(a) 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 expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust or the performance of its
duties 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.
(b) As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a prior claim to the Securities
of a series upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of or
interest on particular Securities.
59
<PAGE>
SECTION 6.08. Disqualification; Conflicting Interests.
---------------------------------------
The Trustee shall comply with the provisions of Section 310(b) of the
Trust Indenture Act. The Indenture dated as of July 15, 1988, as amended,
between the Company and the Trustee (formerly known as Chemical Bank, as
successor by merger to Manufacturers Hanover Trust Company) shall be excluded
from the operation of such Section 310(b) of the Trust Indenture Act to the
extent permitted thereby.
SECTION 6.09. 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 or of any State, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $5,000,000, 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 the aforesaid 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 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 respect of the Securities of all series in the manner and
with the effect hereinafter specified in this Article.
SECTION 6.10. 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 under Section 6.11.
------------
(b) The Trustee may resign at any time in respect of the Securities
of one or more series by giving written notice thereof to the Company. If
an instrument of acceptance by a successor Trustee shall not have been
delivered to the 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 in respect of the
Securities of such series.
(c) The Trustee may be removed at any time in respect of 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.
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(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after
------------
written request therefor by the Company or by any Securityholder who
has been a bona fide Holder of a Security for at least 6 months, or
(2) the Trustee shall cease to be eligible under Section 6.09
------------
and shall fail to resign after written request therefor by the Company
or by any such Securityholder, or
(3) the Trustee shall become incapable of acting or shall have
entered against it a decree for relief under the Federal bankruptcy
laws or be adjudged a bankrupt or insolvent under applicable law 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 in respect of all Securities or (ii) subject to Section 5.14,
------------
any Holder who has been a bona fide Holder of a Security for at least 6
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
in respect of 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,
in respect of the Securities of one or more series, the Company, by a Board
Resolution shall promptly appoint a successor Trustee or Trustees (it being
understood that any such successor Trustee may be appointed in respect of
the Securities of any one or more or all of such series and that at any
time there shall be only one Trustee in respect of the Securities of any
one series). If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee in
respect of 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, become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee in respect of
the Securities of any series shall have been so appointed by the Company or
such Holders and accepted appointment in the manner hereinafter provided,
within 60 days after the
61
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occurrence of the event as a result of which a successor Trustee may be
appointed, then the Trustee may, or any Holder who has been a bona fide
Holder of a Security of such series for at least 6 months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee in respect of the
Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee in respect of the Securities of any series and each
appointment of a successor Trustee in respect of the Securities of any
series in the manner and to the extent set forth in Section 1.06 and, if
------------
applicable, 7.03(c)(2). Each notice shall include the name of the successor
----------
Trustee in respect of the Securities of such series and the address of its
principal corporate trust office.
SECTION 6.11. Acceptance of Appointment by Successor.
--------------------------------------
In case of the appointment hereunder of a successor Trustee in respect
of all Securities, every successor Trustee appointed hereunder 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 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. 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.
In case a successor Trustee is appointed in respect of the Securities
of one or more (but not all) series, the Company, the retiring Trustee and each
successor Trustee in respect of the Securities of any such series shall execute
and deliver a supplemental indenture hereto which (1) shall contain such
provisions as shall be deemed necessary or desirable to transfer and confirm to,
and to vest in, each successor Trustee all the rights, powers and trusts of the
retiring Trustee in respect of the Securities of that or those series to which
the appointment of the successor Trustee relates, (2) to confirm that all the
rights, powers and trusts of the retiring Trustee in respect of the Securities
of any 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
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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 successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee in respect of 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 in respect of the Securities of
that or those series for which the appointment of such successor Trustee
relates.
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 6.12. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business of Trustee.
-------------------
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 of 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 of the Securities of any series
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of Section 311(a) of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor), excluding any
creditor relationships described in Section 311(b) of the Trust Indenture Act.
A Trustee who resigned or has been removed
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shall be subject to Section 311(a) of the Trust Indenture Act to the extent
indicated therein.
ARTICLE SEVEN
SECURITYHOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Securityholders.
---------------
The Company will furnish or cause to be furnished to the Trustee, in
respect of each series of Securities:
(a) semi-annually, not more than 15 days after each Regular Record
Date in respect of the Securities of such series or, if there is no Regular
Record Date relating to the Securities of such series, on each June 30 and
December 31, a list in such form as the Trustee may reasonably require,
containing all the information in the possession or control of the Company
or any Paying Agent other than the Trustee as to the names and addresses of
the Holders of Securities of such series as of such Regular Record Date or
the preceding June 15 or December 15, as the case may be; and
(b) at such other times as the Trustee may request in writing, within
30 days after receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such
list is furnished;
provided, however, that so long as the Trustee is the Security Registrar in
-------- -------
respect of the Securities of such series, no such list shall be required to
be furnished in respect of Holders of Registered Securities of such series.
SECTION 7.02. Preservation of Information; Communications to
----------------------------------------------
Securityholders.
---------------
(a) The Trustee shall preserve, in respect of each series of
Securities, in as current a form as is reasonably practicable, (i) the
names and addresses of Holders of Securities of such series contained in
the most recent list furnished to it as provided in Section 7.01, (ii) the
------------
names and addresses of Holders of Registered Securities of such series
received by the Trustee in its capacity as Security Registrar or Paying
Agent in respect thereof, if so acting and (iii) the names and addresses of
Holders of Bearer Securities of such series received by the Trustee or
filed with it within the two preceding years pursuant to Section
-------
7.03(c)(2).
----------
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The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
-------------
(b) If 3 or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish
----------
to the Trustee reasonable proof that each such applicant has owned a
Security of such series for a period of at least 6 months preceding the
date of such application, and such application states that the applicants
desire to communicate with other Holders of such Securities with respect to
their rights under this Indenture or under such Securities and is
accompanied by a copy of the form of proxy or other communication which
such applicants propose to transmit, then the Trustee shall, within 5
Business Days after the receipt of such application, at its election,
either
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Subsection (a), or
(ii) inform such applicants as to the approximate number of
Holders of such Securities whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with
Subsection (a), and as to the approximate cost of mailing to such
--------------
Holders the form of proxy or other communication, if any, specified in
such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities of such series whose name and
address appear in the information preserved at the time by the Trustee in
accordance with Subsection (a), a copy of the form of proxy or other
--------------
communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and
of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within 5 days after such tender, the Trustee shall mail to
such applicants and file with the Commission together with a copy of the
material to be mailed, a written statement to the effect that, in the
opinion of the Trustee, such mailing would be contrary to the best
interests of the Holders of the Securities of such series or would be in
violation of applicable law. Such written statement shall specify the
basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the
objections so sustained
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have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(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 of Securities in accordance with Subsection (b),
--------------
regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Subsection (b).
--------------
SECTION 7.03. Reports by Trustee.
------------------
Within 60 days after May 15 in each year, commencing with the first
May 15 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit by mail to all Holders such reports concerning the
Trustee and its actions under this Indenture in accordance with and to the
extent required under Section 313 of the Trust Indenture Act.
A copy of each such report in respect of the Securities of any series
shall, at the time of such transmission to Holders of Securities of such series,
be filed by the Trustee with each stock exchange upon which the Securities of
such series are listed and also with the Commission and with the Company. The
Company will notify the Trustee when the Securities of any series are listed on
any stock exchange.
SECTION 7.04. Reports by Company.
------------------
The Company will
(1) 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; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it will file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to
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time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and
registered on a National Securities Exchange as may be prescribed from time
to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders of Securities of any series, as
provided in Section 7.03(c), within 30 days after the filing thereof with
---------------
the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
-------------- ---
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 8.01. Company May Consolidate, etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Company substantially as an entirety shall
be a corporation organized and existing under the laws of the United States
of America or any State or the District of Columbia, 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, if any, on all
Securities of all series and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
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(2) immediately after giving effect to such transaction, no Event of
Default in respect of the Securities of any series, and no event which,
after notice or lapse of time, or both, would become an Event of Default in
respect of the Securities of any series, shall have happened and be
continuing;
(3) with respect to Securities of any series that, in connection with
their original issuance, were offered for sale outside the United States,
the corporation formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance or transfer the
properties and assets of the Company substantially as an entirety shall
have agreed, by an indenture supplemental hereto, to indemnify the
individuals liable therefor for the amount of United States federal estate
tax attributable to or paid in respect of any such Securities includable in
the gross estate of an individual who is not a citizen or resident of the
United States at the time of death; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer and such indenture supplemental hereto comply with
the Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 8.02. Successor Corporation Substituted.
---------------------------------
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.01, the successor corporation formed by such consolidation or
------------
into which the Company is merged or to which such conveyance or transfer 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
corporation had been named as the Company herein. In the event of any such
conveyance or transfer (other than a transfer by way of lease) the predecessor
company shall be discharged from all obligations and covenants under this
Indenture, the Securities and any Coupons and may be liquidated and dissolved.
SECTION 8.03. Securities to be Secured in Certain Events.
------------------------------------------
If, upon any merger or consolidation of the Company with or into any
corporation, or upon the conveyance or transfer by the Company of its properties
and assets substantially as an entirety in accordance with Section 8.01 hereof
------------
to any Person, any of the property owned by the Company or a Restricted
Subsidiary immediately prior thereto would thereupon become subject to any
mortgage, the Company will,
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<PAGE>
simultaneously with or prior to such consolidation, merger, conveyance or
transfer, by an indenture supplemental hereto, make effective provision for the
securing of principal of (and premium, if any, on) and interest, if any, on all
Outstanding Securities of all series (equally and ratably with any other
indebtedness then entitled thereto) by a prior lien upon such property.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of
------------------------------------------
Securityholders.
----------------
Without the consent of the Holders of any Securities or Coupons, 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 corporation to the Company,
and the assumption by any such successor of the covenants of the Company
herein and in the Securities of all series contained; or
(2) to add to the covenants of the Company, for the benefit of the
Holders of all or any series of such Securities and any Coupons
appertaining thereto (and if such covenants are to be for the benefit of
less than all the Securities, stating that such covenants are being
included solely for the benefit of such series), or to surrender any right
or power herein conferred upon the Company, or
(3) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be defective or
inconsistent with any other provision herein or in any supplemental
indenture, or to make any other provisions with respect to matters or
questions arising under this Indenture or under any supplemental indenture,
in each case in such manner as shall not adversely affect the interests of
the Holders of Outstanding Securities of any series or any Coupons
appertaining thereto in any material respect; or
(4) to secure payment of Outstanding Securities of any series equally
and ratably with certain other liens as and to the extent required by this
Indenture; or
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<PAGE>
(5) to add any additional Events of Default with respect to any or
all series of Securities (and, if any such additional Event of Default
applies to fewer than all series of Securities, stating each series to
which such Event of Default applies); or
(6) 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 Outstanding Securities of any series
or any Coupons appertaining thereto in any material respect; or
(7) 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 indenture supplemental hereto which is entitled to the
benefit of such provision; or
(8) to add to such conditions, limitations and restrictions on the
authorized amount, form, terms or purposes of issue, authentication and
delivery of Securities as are herein set forth other conditions,
limitations and restrictions thereafter to be observed; or
(9) to add or change or eliminate any provisions of this Indenture as
shall be necessary or desirable in accordance with the Trust Indenture Act;
or
(10) to establish the forms or terms of Securities of any series and
Coupons, if any, appertaining thereto as permitted by Sections 2.01 and
-------------
3.01 or to amend such forms or terms (whether established by indenture
----
supplemental hereto or pursuant to Board Resolution) in any manner which
shall not adversely affect the interests of the Holders of Outstanding
Securities of any series or any Coupons appertaining thereto in any
material respect; or
(11) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to Securities of one or more
series or to add 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
-------
6.11.
----
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<PAGE>
SECTION 9.02. Supplemental Indentures With Consent of
---------------------------------------
Securityholders.
---------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected thereby
(or such greater percentage in such principal amount as may be specified with
respect to the Securities of such series pursuant to Section 3.01), 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 under this Indenture; provided, however, that no such supplemental
-------- -------
indenture shall, without consent of the Holder of each Outstanding Security of
each series affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security of such series, or reduce the
principal amount thereof or the rate of any interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of principal of
an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of Maturity thereof pursuant to Section 5.02,
------------
or change the coin or currency in which any Security of such series or any
premium or any interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or impair the right of repayment, if any, of the
Securities of such series at the option of the Holders thereof or the right
to institute suit for the enforcement of any such repayment on or after the
date such repayment is due and payable or impair the right of conversion,
if any, of any Security of such series at the option of the Holder thereof
or the right to institute suit for the enforcement of any such right of
conversion, or relieve the obligation of the Company to redeem, repay or
purchase any Security of such series pursuant to any sinking fund or
analogous provisions or otherwise; or
(2) reduce the percentage in principal amount of the Outstanding
Securities of such series, the consent of whose Holders is required for any
such indenture supplemental hereto 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
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(3) modify any of the provisions of this Section or Section 5.13,
------------
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Security affected thereby.
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 9.03. 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 6.01) shall be fully protected in relying upon, an
------------
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04. 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 the Holders
of Securities of any series affected thereby theretofore or thereafter
authenticated and delivered hereunder and of any Coupons appertaining thereto
shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of TIA as then in effect.
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<PAGE>
SECTION 9.06. 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 indentures. 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 Board of
Directors, 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 10.01. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of any series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on Securities of such series in accordance with the terms
thereof, any Coupons appertaining thereto and this Indenture. Unless otherwise
specified as contemplated by Section 3.01 with respect to any series of
------------
Securities, any interest due on 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. Except
as otherwise specified with respect to the Securities of a series as
contemplated by Section 3.01, the interest, if any, due in respect of any
------------
Temporary Global Security or any Permanent Global Security shall be payable only
upon presentation thereof to the Trustee for notation thereon of the payment of
such interest.
SECTION 10.02. Maintenance of Office or Agency.
-------------------------------
If the Securities of a series are issuable only as Registered
Securities, the Company will maintain one or more offices or agencies in each
Place of Payment for Securities of such series where the Securities of such
series may be presented or surrendered for payment, where the Securities of such
series may be surrendered for registration of transfer or exchange, where the
Securities of each series, if convertible, may be surrendered for conversion and
where notices and demands to or upon the Company in respect of the Securities of
such series and this Indenture may be served. The Trustee is hereby initially
appointed the Company's office or agency for each of said purposes with respect
to each such series issued hereunder. If the Securities of a series are
issuable as Bearer Securities, the Company will maintain (A) in a Place of
Payment
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<PAGE>
for Securities of such series which is located in the United States, an office
or agency where any Registered Securities of such series may be presented or
surrendered for payment, where any Registered Securities of such series may be
surrendered for registration of transfer, where any Registered Securities of
such series, if convertible, may be surrendered for conversion, where Securities
of such series may be surrendered for exchange, where notices and demands to or
upon the Company in respect of the Securities of such series and this Indenture
may be served and where Bearer Securities of such series and Coupons, if any,
appertaining thereto 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
Securities of such series which is located outside the United States, an office
or agency where Securities of such series and Coupons, if any, appertaining
thereto may be presented and surrendered for payment and where Securities of
such series, if convertible, may be surrendered for conversion; provided,
--------
however, that if and so long as the Securities of such series are listed on the
- -------
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and the Luxembourg Stock Exchange or such other exchange shall so
require, the Company will maintain a Paying Agent for the Securities of such
series and an office or agency where Securities of such series, if convertible,
may be surrendered for conversion in Luxembourg or any other required city
located outside the United States, as the case may be; and (C) subject to any
laws or regulations applicable thereto, in a Place of Payment for the Securities
of such series which is located outside the United States, an office or agency
where any Registered Securities of such series may be surrendered for
registration of transfer, where Securities of such series may be surrendered for
exchange, where Securities of such series, if convertible, may be surrendered
for conversion and where notices and demands to or upon the Company in respect
of the Securities of such series and this Indenture may be served. The Company
will give prompt written notice to the Trustee for the Securities of such series
of the location, and of any change in the location, of any such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency in respect of any series of Securities or shall fail to furnish
the Trustee with the address thereof, such presentations (to the extent
permitted by law) and surrenders of Securities of such series and such notices
and demands may be made or served at the principal corporate trust office of the
Trustee, except that Bearer Securities of such series and the Coupons, if any,
appertaining thereto may be presented and surrendered for payment, and Bearer
Securities of such series, if convertible, may be surrendered for conversion at
the place established for the purpose pursuant to Section 3.01, and the Company
------------
hereby appoints the same as its agents to receive such respective presentations,
surrenders, notices and demands.
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No payment of principal (and premium, if any) or interest, if any, on
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,
except as may be permitted by United States tax laws and regulations in effect
at the time of such payment without detriment to the Company. Payments will not
be made in respect of Bearer Securities or Coupons appertaining thereto pursuant
to presentation to the Company or its designated Paying Agents within the United
States. Notwithstanding the foregoing, (i) in the event that any payment in
respect of a Bearer Security of any series or a Coupon appertaining thereto
which is denominated and payable in Dollars may not be made at any office or
agency maintained by the Company in respect of such series outside the United
States for payment on such Bearer Security or Coupon because such payment would
be illegal or effectively precluded by exchange controls or other similar
restrictions, then the Company shall designate a paying agency in the United
States from which such payment shall be made; and (ii) in the event that any
payment in respect of a Bearer Security of any series or a Coupon appertaining
thereto which is denominated or payable in a Foreign Currency may not be made at
any office or agency maintained by the Company in respect of such series outside
the United States for payment on such Bearer Security or Coupon because such
payment would be illegal or effectively precluded by exchange controls or other
similar restrictions, then such payment shall be made at any such office or
agency in Dollars in an amount equal to the sum otherwise due in such Foreign
Currency as converted into Dollars at the rate of exchange stated as the New
York selling rate for such Foreign Currency into Dollars in The Wall Street
---------------
Journal (Eastern Edition) for the Business Day preceding that on which such
- -------
payment becomes due (or, if by reason of the temporary or permanent suspension
of publication of such newspaper or of such information in such newspaper, such
exchange rate is not given, then such rate of exchange as is stated for such
Business Day in such comparable newspaper as the Trustee shall select), provided
--------
that if such payment in Dollars pursuant to this clause (ii) may not be so made
because such payment would be illegal or effectively precluded by exchange
controls or other similar restrictions, then the Company shall designate a
paying agency in the United States from which such payment shall be made in
Dollars in an amount as aforesaid.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Place of Payment) where the Securities of
one or more series may be presented or surrendered for any or all of the
purposes specified above in this Section 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 such
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purpose. 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 office
or agency.
SECTION 10.03. Money for Securities Payments to be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent in
respect of any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on, any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum in the currency or composite currency in which the Securities of
such series are payable (except as otherwise specified with respect to the
Securities of such series pursuant to Section 3.01) 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 the
Securities of any series, it will, prior to each due date of the principal of
(and premium, if any) or interest on, any of the Securities of such series,
deposit with a Paying Agent for the Securities of such series a sum in the
currency or composite currency in which the Securities of such series are
payable (except as otherwise specified with respect to the Securities of such
series pursuant to Section 3.01 or as otherwise provided by Section 10.02)
------------ -------------
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 the Securities of any
series 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 principal of (and
premium, if any) or interest on the Securities of such 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 such series) in the making of any such
payment of principal (and premium, if any) or interest; and
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(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 in respect of the Securities of any
series 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 in respect of such series, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by the Company or any Paying Agent to the
Trustee, the Company and such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent or then held
by the Company in trust for the payment of the principal of (and premium, if
any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall, 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 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 or mail to each such Holder or both with respect to
Securities of such series notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication or mailing, 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.
SECTION 10.04. Statement as to Compliance.
--------------------------
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year (which on the date hereof is the calendar year), a written
statement signed by the principal executive officer, the principal financial
officer or the principal accounting officer of the Company and by the President,
any Vice Chairman, any Vice President, the Treasurer, any Assistant Treasurer,
the Controller or any Assistant Controller of the Company, stating, as to each
signer thereof, that
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(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his supervision and
(2) to the best of his knowledge, based on such review, the Company
has fulfilled all its obligations under this Indenture throughout such
year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to him and the nature and
status thereof.
SECTION 10.05. Restrictions on Borrowing by Restricted Subsidiaries.
----------------------------------------------------
The Company will not permit any Restricted Subsidiary to issue,
assume, guarantee or incur any Funded Debt, except (i) Funded Debt owed to the
Company or to a Restricted Subsidiary, or (ii) Funded Debt which is Secured Debt
permitted by Section 10.06 without equally and ratably securing the Outstanding
-------------
Securities of all series, or (iii) unsecured Funded Debt issued, assumed,
guaranteed or incurred which represents an extension, renewal or refunding of
Secured Debt permitted by the first paragraph of Section 10.06 to the extent of
-------------
the principal amount of the Secured Debt so extended, renewed or refunded, or
(iv) unsecured Funded Debt in an amount which, if it were Secured Debt, would be
permitted by the second paragraph of Section 10.06 without equally and ratably
-------------
securing the Outstanding Securities of all series, or (v) unsecured Funded Debt
assumed by a Restricted Subsidiary in connection with its merger with, or
acquisition of all or a substantial part of the assets and business of, any
Person and which constitutes existing indebtedness or an existing guarantee of
such Person, or (vi) unsecured Funded Debt of a Person existing at the time it
becomes a Restricted Subsidiary, or (vii) Funded Debt created in connection with
any industrial revenue bond, pollution control bond or similar financing
arrangement between the Company or any Restricted Subsidiary and the United
States, any- State thereof or any municipal government or other governmental
body or agency or (viii) any extension, renewal or refunding (or successive
extensions, renewals or refundings), in whole or in part, of any Funded Debt
referred to in the foregoing clauses (i) through (vii).
----------- -----
SECTION 10.06. Restrictions on Secured Debt.
----------------------------
The Company will not, and will not permit any Restricted Subsidiary
to, issue, assume, guarantee or incur any Secured Debt, without effectively
providing that the Outstanding Securities of all series (together with, if the
Company shall so determine, any other indebtedness of the Company or such
Restricted Subsidiary then existing or thereafter created ranking equally with
such Outstanding Securities, including guarantees of indebtedness of others)
shall be secured equally and ratably with (or prior to) such
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Secured Debt, so long as such Secured Debt shall be so secured, except that this
Section shall not apply to Secured Debt secured by:
(a) mortgages on property of any corporation existing at the time
such corporation becomes a Restricted Subsidiary;
(b) mortgages on property of any Person which is merged with, or all
or a substantial part of whose properties are acquired by, the Company or
any Restricted Subsidiary; provided, however, that any such mortgage shall
-------- -------
have existed prior to such merger or acquisition and shall not have applied
to any property owned by the Company or any Restricted Subsidiary
immediately prior to such merger or acquisition;
(c) mortgages upon or with respect to any property acquired,
constructed or improved by the Company or any Restricted Subsidiary after
the date hereof which are created, incurred or assumed contemporaneously
with, or within 90 days after, such acquisition, completion of construction
or completion of improvement to secure or provide for the payment of any
part of the purchase price of such property or the cost of such
construction or improvement, or mortgages upon or with respect to any
property existing at the time of acquisition thereof; provided, however,
that any such mortgage shall not apply to any property theretofore owned by
the Company or any Restricted Subsidiary other than any theretofore
unimproved real property on which the property so constructed, or the
improvement, is located;
(d) mortgages which secure indebtedness owing to the Company or to a
Restricted Subsidiary;
(e) the mortgage of any property of the Company or any Restricted
Subsidiary in favor of the United States, or any State thereof, or any
department, agency or instrumentality of either, to secure partial,
progress, advance or other payments to the Company or any Restricted
Subsidiary pursuant to the provisions of any contract or statute;
(f) the mortgage of any property of the Company or any Restricted
Subsidiary created, incurred or assumed in connection with any industrial
revenue bond, pollution control bond or similar financing arrangement
between the Company or any Restricted Subsidiary and the United States, any
state thereof or any municipal government or other governmental body or
agency; or
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(g) any extension, renewal or refunding (or successive extensions,
renewals or refundings), in whole or in part, of any mortgage referred to
in the foregoing clauses (a) through (f), or of any indebtedness secured
----------- ---
thereby; provided, however, that such extension, renewal or refunding
-------- -------
mortgage shall be limited to all or any part of the same property that
secured the mortgage extended, renewed or refunded (plus improvements on
such property).
Notwithstanding the foregoing provisions of this Section 10.06, the
Company and any one or more Restricted Subsidiaries may issue, assume, guarantee
or incur Secured Debt, without equally and ratably securing the Outstanding
Securities of all series, if after giving effect thereto, the sum of (i) the
aggregate amount of all Secured Debt of the Company and its Restricted
Subsidiaries (except Secured Debt pursuant to clauses (a) through (g) of the
----------- ---
first paragraph of this Section 10.06), (ii) the aggregate Value of sale and
lease back transactions to which Section 10.07 applies and (iii) the aggregate
-------------
amount of all unsecured outstanding Funded Debt of all Restricted Subsidiaries
permitted under Section 10.05(iv) (or any extension, renewal or refunding
-----------------
thereof), does not exceed 10% of Consolidated Net Tangible Assets.
If the Company shall hereafter be required to secure the Outstanding
Securities equally and ratably with (or prior to) any other indebtedness
pursuant to this Section 10.06, (i) the Company will promptly deliver to the
Trustee an Officers' Certificate stating that such covenant has been complied
with, and an Opinion of Counsel stating that in the opinion of such counsel such
covenant has been complied with, that any instruments executed by the Company or
any Restricted Subsidiary in the performance of such covenant comply with the
requirements of such covenant and that all steps necessary to perfect such
security have been taken, and (ii) the Trustee is hereby authorized to enter
into such instruments and to take such action, if any, as it may deem advisable
to enable it to enforce the rights of Holders of such Outstanding Securities so
secured.
SECTION 10.07. Restrictions on Sale and Lease Back Transactions.
------------------------------------------------
The Company will not, and will not permit any Restricted Subsidiary
to, sell or transfer (other than to the Company or to a Restricted Subsidiary)
any property owned by the Company or any Restricted Subsidiary on the date
hereof, which (as determined by Board Resolution) constitutes a major facility
of the Company and its Restricted Subsidiaries, taken as a whole, with the
intention of the Company or any Restricted Subsidiary taking back a lease of
such property, except a lease for a temporary period (not exceeding five years)
by the end of which it is intended that the use of such property by the lessee
will be discontinued. Notwithstanding the foregoing, the Company
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or any Restricted Subsidiary may so sell any such property and lease it back if
(a) the Company promptly gives notice of such sale to the Trustee; (b) the net
proceeds of such sale are at least equal to the fair value (as determined by
Board Resolution) of such property; and (c) the Company shall, and in any such
case the Company covenants that it will, within 120 days after such sale, apply,
or cause such Restricted Subsidiary to apply, not less than an amount equal to
the net proceeds of such sale to the retirement of outstanding Funded Debt of
the Company and/or any Restricted Subsidiary (other than any thereof which is
owed to the Company or any Restricted Subsidiary and other than any thereof
which is subordinate in right of payment to the Outstanding Securities);
provided, however, that the amount to be applied to the retirement of Funded
- -------- -------
Debt of the Company or such Restricted Subsidiary shall be reduced by
(i) the amount of Secured Debt which the Company or such Restricted
Subsidiary could at that time issue, assume, guarantee or incur pursuant to
the second paragraph of Section 10.06 without equally and ratably securing
-------------
the Outstanding Securities of all series, and
(ii) the principal amount of any debentures, notes or other
instruments evidencing Funded Debt of the Company (which may include
Securities of any series) or of a Restricted Subsidiary delivered within
120 days after such sale to the applicable trustee for retirement and
cancellation, other than any debentures, notes or other instruments retired
by payment at maturity or pursuant to any mandatory sinking fund payment or
any mandatory prepayment provision.
SECTION 10.08. Restrictions on Transfers of Property.
-------------------------------------
The Company will not itself, and will not permit any Restricted
Subsidiary to, transfer or lease any assets which, in the opinion of the Board
of Directors, constitute a major facility of the Company and its Restricted
Subsidiaries, taken as a whole, to any Subsidiary which would be a Restricted
Subsidiary except for clauses (i) through (viii) of the definition of Restricted
----------- ------
Subsidiary contained in Section 1.01 and clause (x) of such definition insofar
------------ ----------
as it relates to the said clauses (i) through (viii).
----------- ------
SECTION 10.09. Assumption of Obligations in Connection with Mergers
----------------------------------------------------
and Acquisitions.
----------------
Nothing herein shall prevent the Company or any Subsidiary, in
connection with its merger with or acquisition of all or substantially all of
the assets of any Person, from assuming all obligations and liabilities of such
Person; provided, however, that no mortgage of such Person shall be so assumed
-------- -------
if, as a result thereof, the property of the Company or any of its Restricted
Subsidiaries immediately prior thereto
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<PAGE>
would thereupon become subject to the lien of such mortgage, unless either the
assumption by the Company or any Restricted Subsidiary of the obligations and
liabilities secured by such mortgage would be permitted by the second paragraph
of Section 10.06 without equally and ratably securing the Outstanding Securities
-------------
of all series or simultaneously therewith or prior thereto effective provision
shall be made for the securing of such Outstanding Securities by a prior lien on
such property.
SECTION 10.10. Defeasance of Certain Obligations.
---------------------------------
If this Section 10.10 has been specified in accordance with Section
-------
3.01 to be applicable to Securities of any series, the Company may omit to
- ----
comply with any term, provision or condition set forth in Sections 10.05, 10.06,
-------------- -----
10.07 and 10.08, and Section 5.01(c) with respect to Sections 10.05, 10.06,
- ----- ----- --------------- -------------- -----
10.07 and 10.08 shall be deemed not to be an Event of Default, in each case with
- ----- -----
respect to the Securities of that series, provided that the following conditions
have been satisfied:
(1) with reference to this Section 10.10, the Company has deposited
or caused to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 6.09) irrevocably (irrespective of whether the
------------
conditions in subparagraphs (2), (3), (4), (5) (if applicable) and (6) have
----------------- --- --- --- ---
been satisfied, but subject to the provisions of Section 4.02(c) and the
---------------
last paragraph of Section 10.03), as trust funds in trust, specifically
-------------
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of that series and the Coupons, if any,
appertaining thereto, (A) money in an amount in the currency or composite
currency in which the Securities of such series are payable (except as
otherwise specified with respect to the Securities of such series pursuant
to Section 3.01), or (B) Government Obligations which through the payment
------------
of interest and principal in respect thereof in accordance with their terms
will provide not later than the opening of business on the due date of any
payment referred to in clause (i) or (ii) of this subparagraph (1) money in
an amount, or (C) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge (i) the principal of (and premium, if any) and each installment
of principal (and premium, if any) and interest, if any, on such
Outstanding Securities and Coupons on the Stated Maturity of such principal
or installment of principal or interest, (ii) any mandatory sinking fund
payments or analogous payments applicable to the Securities of such series
on the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities and (iii) any repayment
of the Securities of
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such series at the option of the Holder of any of such Securities on any
date such repayment is due and payable;
(2) such deposit shall not cause the Trustee with respect to the
Securities of that series to have a conflicting interest as defined in
Section 6.08 and for purposes of the Trust Indenture Act with respect to
------------
the Securities of any series;
(3) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to
the Securities of such series shall have occurred and be continuing on the
date of such deposit and no Event of Default under Section 5.01(d) or
---------------
Section 5.01(e) or event which with the giving of notice or lapse of time,
---------------
or both, would become an Event of Default under Section 5.01(d) or Section
--------------- -------
5.01(e) shall have occurred and be continuing on the 91st day after such
-------
date;
(5) if this subparagraph has been specified in accordance with
Section 3.01 to be applicable to the Securities of such series, the Company
------------
has delivered to the Trustee an Opinion of Counsel to the effect that
Holders of the Securities of such series and the Coupons, if any,
appertaining thereto will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and defeasance of certain
obligations and will be subject to federal income tax on the same amount
and in the same manner and at the same times, as would have been the case
if such deposit and defeasance had not occurred; and
(6) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the defeasance contemplated by this Section
have been complied with.
SECTION 10.11. Additional Amounts.
------------------
If the Securities of a series provide for the payment of additional
amounts as contemplated by clause (13) of Section 3.01, the Company will pay to
----------- ------------
the Holder of any Security of such series or any Coupon appertaining thereto
additional amounts upon the terms and subject to the conditions provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of (or premium, if any) or
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interest, if any, on, or in respect of, any Security of any series or the
payment of any Coupon appertaining thereto or the net proceeds received at
maturity or 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 such series (or if the Securities of such series will not bear interest prior
to Maturity, the first day on which a payment of principal (and premium, if any)
is made), and at least 10 days prior to each date of payment of principal (and
premium, if any) or interest if there has been any change with respect to the
matters set forth in the below-mentioned Officers' Certificate, the Company will
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 (or
premium, if any) or interest on the Securities of such series shall be made to
Holders of Securities of such series or any Coupons appertaining thereto who are
United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of 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 the Trustee or such Paying Agent the additional amounts, if any, 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.
As used in this Section, the term "United States Alien" means any
-------------------
corporation, partnership, individual or fiduciary that, as to the United States,
and for United States tax purposes, is (i) a foreign corporation, (ii) a foreign
partnership one or more of the members of which is, as to the United States, a
foreign corporation, a nonresident alien individual or a nonresident alien
fiduciary of a foreign estate or trust, (iii) a nonresident alien individual or
(iv) a nonresident alien fiduciary of a foreign estate or trust.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article.
------------------------
Redemption of Securities of any series which are redeemable before
their Stated Maturity at the election of the Company or otherwise, as permitted
or required by their terms, shall be made in accordance with such terms and,
except as otherwise specified as contemplated by Section 3.01 for the Securities
------------
of such series, this Article.
SECTION 11.02. Election to Redeem; Notice to Trustee.
-------------------------------------
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,
if applicable, each portion of the Securities of such series having like terms
and conditions to be redeemed, the principal amount of the Securities of such
series or such portion thereof, as the case may be, to be redeemed and the
principal amount thereof to be redeemed.
SECTION 11.03. Selection by Trustee of Securities to be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed, or
if less than all the Securities of such series having like terms and conditions
are to be redeemed, as the case may be, the particular Securities of such series
or portion thereof, as the case may be, 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 or portion thereof, as the case may be,
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 of the principal of such Securities of a denomination larger than the
minimum authorized denomination of Securities of such series. The portions of
the principal of such Securities so selected for partial redemption shall be
equal to the smallest authorized denomination of such Securities, or an integral
multiple thereof which is also an authorized denomination.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected for
partial redemption, the principal amount thereof to be redeemed.
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<PAGE>
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 Security redeemed or to be redeemed only in part, to the
portion of the principal of such Security which has been or is to be redeemed.
SECTION 11.04. Notice of Redemption.
--------------------
Notice of redemption shall be given in the manner provided in Section
-------
1.06 not less than 30 nor more than 60 days prior to the Redemption Date, to
- ----
each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
respective principal amounts) of the Securities of such series to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, and that interest, if any, thereon
shall cease to accrue from and after said date,
(5) the place or places where such Securities, together in the case
of Bearer Securities with all Coupons, if any, appertaining thereto
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price, each of which shall be the office or agency of the
Company in a Place of Payment, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name of and at the expense of the Company.
SECTION 11.05. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent in respect of the Securities of any series which
are to be redeemed on that date (or, if the Company is acting as its own Paying
Agent in respect of such
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<PAGE>
Securities, segregate and hold in trust as provided in Section 10.03) an amount
-------------
of money in the currency or composite currency in which the Securities of such
series are payable (except as otherwise specified with respect to the Securities
of such series pursuant to Section 3.01) sufficient to pay the Redemption Price
------------
of and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest, if any, on all the Securities which are to be redeemed on that date,
or, in the event of a defeasance and discharge of this Indenture, or defeasance
of certain covenants, with respect to such Securities pursuant to Section
-------
4.03(1) or 10.10(1), as the case may be, shall have deposited such money or
- ------- --------
Government Obligations required by such Section for purposes of the payment of
the Redemption Price of such Securities.
SECTION 11.06. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities of
any series so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified in the currency or composite
currency in which the Securities of such series are payable (except as otherwise
specified with respect to the Securities of such series pursuant to Section
-------
3.01), and from and after such date (unless the Company shall default in the
- ----
payment of the Redemption Price) 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 void. Upon surrender of
such Securities for redemption in accordance with said notice together with all
Coupons, if any, maturing after the Redemption Date, such Securities shall be
paid by the Company at the Redemption Price; provided, however, that
-------- -------
installments of any interest on Bearer Securities of such series the Stated
Maturity of which interest is on or prior to the Redemption Date shall be
payable (but without interest thereon, unless the Company shall default in the
payment thereof) only at an office or agency outside the United States (except
as otherwise provided in Section 10.02) and, unless otherwise specified with
-------------
respect to the Securities of such series pursuant to Section 3.01, only upon
------------
presentation and surrender of Coupons for such interest; and provided, further,
-------- -------
that, unless otherwise specified with respect to the Securities of such series
pursuant to Section 3.01, installments of any interest on Registered Securities
------------
of such series the Stated Maturity of which interest is on or prior to the
Redemption Date shall be payable (but without interest thereon, unless the
Company shall default in the payment thereof) to the Holders of such Registered
Securities or one or more Predecessor Securities, registered as such on the
relevant Regular Record Dates according to their terms and the provisions of
Section 3.07.
- ------------
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If a Bearer Security of any series surrendered for redemption shall
not be accompanied by all Coupons, if any, appertaining thereto maturing after
the Redemption Date, such Bearer Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such missing Coupons
or the surrender of such missing Coupon or Coupons may be waived by the Company
if there is furnished to the Company and the Trustee such security or indemnity
as they may require to save each of them and any agent of them harmless. If
thereafter the Holder of such Bearer Security shall surrender to the Trustee or
any Paying Agent in respect of such series any such missing Coupon in respect of
which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that
-------- -------
interest represented by Coupons shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section
-------
10.02) and, unless otherwise specified with respect to the Securities of such
- -----
series pursuant to Section 3.01, only upon presentation and surrender of those
------------
Coupons.
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 borne by the
Security (or, in the case of an Original Issue Discount Security, such
Security's Yield to Maturity).
SECTION 11.07. Securities Redeemed in Part.
---------------------------
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment (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 Registered Securities of the
same series, of any authorized denominations as requested by such Holder, of a
like Stated Maturity and with like terms and conditions, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Registered Security so surrendered. Any Permanent Global Security which is
to be redeemed only in part shall be so surrendered, and the Company shall
execute, and the Trustee shall authenticate and deliver to the Depositary for
such Permanent Global Security, without service charge, a new Permanent Global
Security in a denomination equal to and in exchange for the unredeemed portion
of the principal of the Permanent Global Security so surrendered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. Applicability of Article.
------------------------
Redemption or retirement of Securities of any series through operation
of a sinking fund, as permitted or required by their terms, shall be made in
accordance with such terms and, except as otherwise specified as contemplated by
Section 3.01 for the Securities of such series, this Article.
- ------------
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
-----------------
fund payment", and any payment in excess of such minimum amount provided for by
- ------------
the terms of Securities of any series is herein referred to as an "optional
--------
sinking fund payment". If provided for by the terms of Securities of any
- --------------------
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 12.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of the
Securities of such series.
SECTION 12.02. 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, if any, 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, however, that such
-------- -------
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 12.03. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
series of Securities or such shorter period as shall be satisfactory to the
Trustee, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the
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next ensuing sinking fund payment for Securities of such series pursuant to the
terms of such Securities, the portion thereof, if any, which is to be satisfied
by payment of cash, the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of such series pursuant to Section 12.02 and
-------------
the basis for such credit and stating that such Securities have not previously
been so credited and will also deliver to the Trustee any Securities to be so
delivered. The Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 11.03 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 11.04. Such notice having been
-------------
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 11.06 and 11.07.
-------------- -----
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 13.01. Purposes for Which Meetings May Be Called.
-----------------------------------------
If Securities of a series are issuable in whole or in part as Bearer
Securities, a meeting of Holders of Securities of such 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 13.02. Call, Notice and Place of Meetings.
----------------------------------
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series issuable in whole or in part as Bearer Securities for
any purpose specified in Section 13.01, to be held at such time and at such
-------------
place in the Borough of Manhattan, The City of New York, or in London 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 1.06, not less than 21 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 principal amount of the Outstanding Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 13.01, by
-------------
written request setting forth in reasonable detail the action proposed to be
taken at such meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after
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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 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).
--------------
SECTION 13.03. 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 13.04. Quorum; Action.
--------------
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
-------- -------
to be taken at such meeting with respect to a consent or waiver which is
required to be given by the Holders of not less than a greater percentage in
such principal amount as shall have been specified with respect to the
Securities of such series pursuant to Section 3.01, the Persons entitled to vote
------------
such greater percentage in principal amount of the Outstanding Securities of
such series shall constitute a quorum. 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 the absence of a quorum 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 13.05,
-------------
notice of the reconvening of any adjourned meeting shall be given as provided in
Section 13.02(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 the
percentage, as provided
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above, of the principal amount of the Outstanding Securities of such series
which shall constitute a quorum.
Except as limited by the proviso to Section 9.02, any resolution
------------
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 9.02, any
- -------- ------- ------------
resolution with respect to any consent or waiver which is required to be given
by the Holders of not less than a greater percentage in such principal amount as
shall have been specified with respect to the Securities of such series pursuant
to Section 3.01 may be adopted at a meeting or an adjourned meeting duly
------------
reconvened and at which a quorum is present as aforesaid only by the affirmative
vote of the Holders of such greater percentage in principal amount of the
Outstanding Securities of that series; and provided, further, that, except as
-------- -------
limited by the proviso to Section 9.02, any resolution with respect to any
------------
request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides 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 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 principal amount of the Outstanding Securities of that series.
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, if any,
appertaining thereto, whether or not present or represented at the meeting.
SECTION 13.05. Determination of Voting Rights; Conduct and
-------------------------------------------
Adjournment of Meetings.
-----------------------
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
-------
1.04 and the appointment of any proxy shall be proved in the manner specified in
- ----
Section 1.04 or by having the signature of the person executing the proxy
- ------------
witnessed or
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guaranteed by any trust company, bank or banker authorized by Section 1.04 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 1.04 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 13.02(b), in
----------------
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner 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 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 or proxy
shall be entitled to one vote for each $1,000 principal amount (or, in case the
Securities of such series are denominated in a Foreign Currency, the equivalent
thereof) of 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 proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 13.02 at which a quorum is present may be adjourned from
-------------
time to time by Persons entitled to vote a majority in 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 13.06. 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 triplicate of all votes cast at the meeting. A record, at least in
triplicate, 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 said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and
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<PAGE>
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 13.02 and, if applicable, Section 13.04. 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.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 14.01. Exemption from Individual Liability.
-----------------------------------
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security of any series or any Coupon appertaining
thereto, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors, as such, of
the Company or of any successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any
Securities of any series or any Coupon appertaining thereto or implied
therefrom; and that any and all such personal liability, either at common law or
in equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director, as
such, because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Indenture or in any such Securities or any Coupon appertaining thereto or
implied therefrom, are hereby expressly waived and released as a condition of,
and as a consideration for, the execution of this Indenture and the issue of
such Securities and Coupons.
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<PAGE>
ARTICLE FIFTEEN
CONVERSION
SECTION 15.01. Conversion of Securities.
------------------------
(a) If the terms of any series of Securities provide for any
Securities of such series to be convertible into shares of Common Stock issued
by the Company as contemplated by Section 3.01, then, subject to and upon
------------
compliance with (i) the provisions of this Section 15.01, if and to the extent
-------------
such provisions are specified as contemplated by Section 3.01 to be applicable
------------
to the Securities of such series, and (ii) such other provisions, if any, as
shall be so specified, the Holder of any Security or Securities of such series
shall have the right, at such Holder's option, to convert the principal amount
of such Security or Securities, or any portion of such principal amount which is
$1,000 or such other minimum amount (in Dollars or a Foreign Currency) as may be
specified with respect to the Securities of such series, or any integral
multiple thereof, into that number of fully paid and nonassessable shares of
Common Stock (as such shares shall then be constituted) obtained by dividing the
aggregate principal amount of the Security or Securities or portion thereof
surrendered for conversion by the conversion price in effect at such time, by
surrender of the Securities to be so converted in whole or in part in the manner
provided in Subsection (b) below or as otherwise provided with respect to the
---------- ---
Securities of such series as contemplated by Section 3.01. A Holder of
------------
Securities is not entitled to any rights of a holder of Common Stock until such
Holder has converted his Securities.
(b) In order to exercise a conversion privilege, the Holder of any
Security or Securities to be converted in whole or in part shall surrender such
Security or Securities at an office or agency maintained by the Company for such
purpose as provided in Section 10.02, together with, if such Securities are
------- -----
Bearer Securities, all unmatured Coupons and any matured Coupons in default
appertaining thereto or, if such Securities are Registered Securities, the
funds, if any, required by the last paragraph of this Subsection (b), and with
--------------
the conversion notice thereon (or such other notice which is acceptable to the
Company, the Trustee, any agent appointed by the Company as a conversion agent
in respect of such Securities (each, a "Conversion Agent") and, if such
----------------
Securities are Registered Securities, the Security Registrar) duly executed, to
the Company at the office or agency of any Conversion Agent maintained for such
purpose as provided in Section 10.02 at which the Holder elects to convert such
-------------
Security or Securities or the portion thereof specified in said notice;
provided, however, that any Bearer Securities may be surrendered for conversion
- -------- -------
only at an office or agency of any Conversion Agent maintained by the Company
pursuant to Section 10.02 which is
-------------
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<PAGE>
outside of the United States, except that, if conversion thereof at each such
office or agency outside the United States is illegal or effectively precluded
by exchange controls or other similar restrictions, such Bearer Securities may
be surrendered for conversion at such an office or agency in The City of New
York. Such notice shall be accompanied by such transfer taxes and duties, or
funds therefor, as are required pursuant to Subsection (g) below. Convertible
--------------
Registered Securities surrendered for conversion shall, unless the shares of
Common Stock issuable on conversion are to be issued in the name of the Holder
of such Registered Securities, be duly endorsed by, or be accompanied by
instruments of transfer in form satisfactory to the Company, the Trustee and the
applicable Security Registrar duly executed by, the Holder or his duly
authorized attorney.
As promptly as practicable after the surrender for conversion of any
such Security or Securities as aforesaid and the receipt of such Coupons, if
any, and notice as aforesaid (accompanied by the funds, if any, required by the
penultimate paragraph of this Section), the Company shall deliver or cause to be
delivered at such office or agency to or upon written order of the Holder
thereof a certificate or certificates representing the number of full shares of
Common Stock issuable upon the conversion of such Security or Securities or
portion thereof issued in such name or names as such Holder may direct and a
check or cash in respect of any fractional share of Common Stock arising upon
such conversion, as provided in Subsection (c) below. In case any Security or
--------------
Securities of a denomination greater than the minimum amount for conversion
referred to in Subsection (a) above shall be surrendered for conversion in part
--------------
only, the Company shall execute and the Trustee shall authenticate and deliver
to or upon the written order of the Holder of such Security or Securities so
surrendered, without charge to such Holder, and at the expense of the Company,
if any, a new Security or Securities in authorized denominations in an aggregate
principal amount equal to the unconverted portion of the surrendered Security or
Securities.
Each conversion of a convertible Security or Securities as aforesaid
shall be deemed to have been effected at the close of business on the date such
Security or Securities, Coupons, if any, and notices shall have been surrendered
as aforesaid (accompanied by the funds, if any, required by the penultimate
paragraph of this Section), and at such time the rights of the Holder of such
Security or Securities as Holder of the principal amount thereof so surrendered
for conversion shall cease and the person or persons in whose name or names the
certificate or certificates for shares of Common Stock are to be issued upon
such conversion shall be treated for all purposes as having become the holder or
holders of record of the shares represented thereby at such time and such
conversion shall be at the conversion price in effect at such time; provided,
--------
however, that any such surrender and payment on any date when the stock transfer
- -------
books of the
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<PAGE>
Company shall be closed shall constitute the person or persons in whose name or
names the certificates for such shares of Common Stock are to be issued as the
record holder or holders thereof for all purposes at the close of business on
the next succeeding day on which such stock transfer books are opened and such
conversion shall be at the conversion price in effect at such time on such
succeeding day.
If the conversion date in respect of any convertible Registered
Securities or portion thereof is during the period from the close of business on
any Regular Record Date to the opening of business on the next succeeding
Interest Payment Date, such Registered Securities shall (unless such Registered
Securities or portion thereof being converted shall have been called for
redemption on a date during such period) be accompanied by payment in funds
acceptable to the Company of an amount equal to the interest otherwise payable
on such Interest Payment Date to the Holder thereof at the Close of business on
the Regular Record Date for such Interest Payment Date with respect to the
principal amount being converted; provided, however, that no such payment need
-------- -------
be made if there shall exist at the time of conversion a default in the payment
of interest on the Securities of such series. An amount equal to such payment
shall be paid by the Company on such Interest Payment Date to the Holder of such
Registered Securities at the close of business on such Regular Record Date;
provided, however, that if the Company shall default in the payment of interest
- -------- -------
on such Interest Payment Date, such amount shall be paid to the person who made
such required payment. Except as provided in this paragraph, no adjustment
shall be made for any interest accrued on any Security or Securities converted
or for dividends on any shares of Common Stock issued upon the conversion of
such Security or Securities as provided in this Section 15.01.
-------------
If any Bearer Securities surrendered for conversion shall not be
accompanied by all related Coupons maturing after the conversion date, such
Securities may be converted only if there be furnished to the Company and the
Conversion Agent such security or indemnity as may be required by them to
indemnify and hold harmless each of them and any other agent of the Company and
evidence to their satisfaction that such Coupons are missing and of the
ownership thereof.
(c) No fractional shares of Common Stock or scrip representing
fractional shares shall be issued upon the conversion of any convertible
Securities. If more than one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares which shall be issuable
upon the conversion of such Securities shall be computed on the basis of the
aggregate principal amount of the Securities (or specified portions thereof to
the extent permitted hereby) so surrendered. If any fractional share of Common
Stock would, absent the provisions of this Subsection (c), be issuable upon the
--------------
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<PAGE>
conversion of any Security or Securities, the Company shall, in lieu of
delivering the fractional share therefor, adjust such fractional interest by
payment to the Holder of such surrendered Security or Securities of an amount in
cash equal to the current market value of such fractional interest, computed on
the basis of the closing price of the Common Stock (determined as provided in
paragraph (4) of Subsection (e) below) on the date of conversion.
- ------------- --------------
(d) The conversion price in respect of a series of convertible
Securities shall be as specified with respect to the Securities of such series
as contemplated by Section 3.01, subject to adjustment as provided in Subsection
------------ ----------
15.01(e).
- --------
(e) The conversion price shall be adjusted from time to time by the
Company as follows:
(1) In case the Company shall (A) pay a dividend on the Common
Stock, or make a distribution to all holders of the Common Stock of, shares
of its capital stock (whether shares of Common Stock or of capital stock of
any other class), (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 shares of Common Stock any shares of capital stock of the Company, the
conversion price in effect immediately prior to such action shall be
adjusted so that the Holder of any Security or Securities thereafter
surrendered for conversion shall be entitled to receive the number of
shares of capital stock of the Company which such Holder would have owned
or have been entitled to receive immediately following such action had such
Security or Securities been converted immediately prior thereto. An
adjustment made pursuant to this subparagraph (1) shall become effective
----------------
retroactively immediately after the record date in the case of a dividend
or distribution and shall become effective 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 subparagraph (1), the
----------------
Holder of any Security or Securities thereafter surrendered for conversion
shall become entitled to receive shares of two or more classes of capital
stock of the Company, the Company (whose determination shall be conclusive)
shall determine the allocation of the conversion price between or among
shares of such classes of capital stock.
(2) In case the Company shall issue rights (other than rights under
a periodic dividend reinvestment plan that are exercisable at a price per
share of Common Stock of not less than 85% of the current market price per
share (determined as provided in such plan) of Common Stock) or warrants to
all
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<PAGE>
holders of Common Stock entitling them (for a period expiring within 45
days after the record date mentioned below) to subscribe for or purchase
shares of Common Stock at a price per share less than the current market
price per share of Common Stock (as determined pursuant to subparagraph (4)
----------------
below) on the record date mentioned below, the conversion price shall be
adjusted so that the same shall equal the price determined by multiplying
the conversion price in effect immediately prior to the date of issuance of
such rights or warrants by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding on such date of issuance plus
the number of shares of Common Stock which the aggregate offering price of
the total number of shares of Common Stock so offered would purchase at
such current market price, and of which the denominator shall be the number
of shares of Common Stock outstanding on such date of issuance plus the
number of additional shares of Common Stock offered for subscription or
purchase. Such adjustment shall become effective retroactively immediately
after the record date for the determination of stockholders entitled to
receive such rights or warrants, and in the event that more than 10% of
such rights or warrants are not so exercised, the conversion price shall
again be adjusted to be the conversion price which would then be in effect
if the rights or warrants so exercised had been the only rights or warrants
offered.
(3) In case the Company shall distribute to all holders of the Common
Stock evidences of its indebtedness or assets (excluding any cash dividend
paid from the surplus account of the Company (designated "Retained
earnings" on the books of the Company)) or rights or warrants to subscribe
for securities of the Company (excluding (y) those referred to in
subparagraph (2) above and (z) rights under a periodic dividend or interest
----------------
reinvestment plan that are exercisable at a price per share of Common Stock
of not less than 85% of the current market price per share (determined as
provided in such plan) of Common Stock), 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 date of such distribution by a fraction of which the numerator shall
be the current market price per share (determined as provided in
subparagraph (4) below) of Common Stock less the then fair market value (as
----------------
determined by the Board of Directors, whose determination shall be
conclusive) per share of Common Stock of the assets or evidences of
indebtedness so distributed or of such subscription rights or warrants, and
of which the denominator shall be such current market price per share of
Common Stock on the record date mentioned below. Such adjustment shall
become effective retroactively immediately after the record date for the
determination of stockholders entitled to receive such distribution, and in
the event that more than 10% of the rights or warrants so distributed are
not so
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<PAGE>
exercised, the conversion price shall again be adjusted to be the
conversion price which would then be in effect if the rights or warrants so
exercised had been the only rights or warrants so distributed.
(4) For the purpose of any computation under subparagraphs (2) and
-----------------
(3) above, the current market price per share of Common Stock on any date
---
shall be deemed to be the average of the daily closing prices for 30
consecutive Business Days in The City of New York commencing 45 such
Business Days before the day in question; provided, however, that if an
-------- -------
issuance or distribution of the types described under subparagraphs (2) and
---
(3) above is to be made, and no public announcement of such issuance or
---
distribution is made by or on behalf of the Company more than 20 trading
days (as defined below) before the day in question, the current market
price per share of Common Stock on such date shall be deemed to be the
average of the daily closing prices for the five consecutive trading days
selected by the Company not more than 20 trading days before, and ending
not later than, the day in question. The closing price for each day shall
be the last reported sales price on the New York Stock Exchange Composite
Tape, or, if not so reported, or, in case no such reported sale takes place
on such day, the average of the reported closing bid and asked quotations
on the New York Stock Exchange, or, if the Common Stock is not at such time
listed on such Exchange or no such quotations are available, the average of
the closing bid and asked prices of the Common Stock on NASDAQ or any
comparable system, or if the Common Stock is not listed on NASDAQ or a
comparable system, the closing bid and asked prices as furnished by any
member of the National Association of Securities Dealers, Inc. selected
from time to time by the Company for that purpose. If on any trading day
the Common Stock is not quoted by any organization referred to in this
subparagraph (4), the fair value of the Common Stock on such day, as
----------------
determined by the Board of Directors (whose determination shall be
conclusive), shall be used. For purposes of this subparagraph (4), the
----------------
term "trading day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday other than any day on which securities are not traded on any such
exchange or in any such market referred to in this subparagraph (4).
----------------
(5) In the case of either (A) any consolidation or merger to which
the Company is a party, other than a consolidation or a merger in which the
Company is a continuing corporation and which does not result in any
reclassification of, or change (other than a change in, from or to par
value, or as a result of a subdivision or combination) in, outstanding
shares of the Common Stock, or (B) any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially
as an entirety, then the successor or purchasing corporation, as the
100
<PAGE>
case may be, shall execute with the Trustee an indenture supplemental
hereto providing that the Holder of each convertible Security or Securities
then Outstanding shall have the right to convert such Security or
Securities into the kind and amount of shares of stock and other securities
and property (including cash) receivable upon such consolidation, merger,
sale or conveyance by a holder of the number of shares of Common Stock
issuable upon conversion of such Security or Securities immediately prior
to such consolidation, merger, sale or conveyance, subject to adjustments
equivalent as nearly as practicable to the adjustments provided for in this
Section 15.01 assuming, in the case of any consolidation, merger, sale or
-------------
conveyance, such holder of Common Stock of the Company (i) is not a person
with or into which the Company consolidated or merged or which merged into
the Company or to which such sale or conveyance was made, as the case may
be ("constituent person"), or an affiliate of a constituent person and (ii)
----------- ------
failed to exercise such holder's rights of election, if any, as to the kind
or amount of shares of stock and other securities and property (including
cash) receivable upon such consolidation, merger, sale or conveyance
(provided that if the kind or amount of shares of stock and other
securities and property (including cash) receivable upon such
consolidation, merger, sale or conveyance is not the same for each share of
Common Stock held immediately prior to such consolidation, merger, sale or
conveyance by others than a constituent person or an affiliate thereof and
in respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this Section 15.01 the kind
------------------ -------------
and amount of shares of stock and other securities and property (including
cash) receivable upon such consolidation, merger, sale or conveyance with
respect to each non-electing share shall be deemed to be the kind and
amount so receivable per share with respect to a plurality of the non-
electing shares). The provisions of this subparagraph (5) shall similarly
----------------
apply to successive consolidations, mergers, sales or conveyances.
(6) No adjustment in the conversion price shall be required unless
such adjustment would require an increase or decrease of at least 1% in
such price; provided, however, that any adjustments which by reason of this
-------- -------
subparagraph (6) are not required to be made shall be carried forward and
----------------
taken into account in any subsequent adjustment; and provided, further,
-------- -------
that adjustment shall be required and made in accordance with the
provisions of this Section 15.01 (other than this subparagraph (6)) not
------------- ----------------
later than the earlier of (A) three years after the date of the particular
event involved, (B) the date as to which the aggregate adjustments not
previously made would require a total increase or decrease of 1% in the
conversion price and (C) such other time as may be required in order to
preserve the tax-free nature of a distribution to the holders of shares of
Common Stock.
101
<PAGE>
All calculations under this Section 15.01 shall be made by the Company and
-------------
shall be made to the nearest cent (or, in the case of Securities of a
series denominated in a Foreign Currency or Foreign Currencies, such other
nearest currency unit as may be specified with respect to the Securities of
such series as contemplated by Section 3.01) or to the nearest one-
------------
hundredth of a share, as the case may be. Anything in this Section 15.01
-------------
to the contrary notwithstanding, (i) the Company shall be permitted to make
such adjustments in the conversion price, in addition to those required by
this Section 15.01, as it in its discretion shall consider to be advisable
-------------
in order that any stock dividends, 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 holders of the Common Stock
and (ii) the Company may at any time decrease the conversion price by any
amount.
(7) Whenever the conversion price with respect to any convertible
Securities is adjusted as herein provided, the Company shall promptly file
with the Trustee and any Conversion Agent other than the Trustee an
Officers' Certificate setting forth the conversion price after such
adjustment, a brief statement of the facts requiring such adjustment and,
in the event the conversion price is adjusted other than pursuant to clause
------
(ii) of the last sentence of subparagraph (6) above, the method of
---- ----------------
calculation thereof. In lieu of delivering such Officers' Certificate, the
Company may deliver to the Trustee and any Conversion Agent, a certificate
of any firm of independent public accountants selected by the Company (who
may be the regular accountants employed by the Company) setting forth the
conversion price and the method of calculation thereof. Any such Officers'
Certificate or certificate of any firm of independent public accountants
shall be evidence of the correctness of any adjustment of the conversion
price made pursuant to this Subsection (e). Neither the Trustee nor any
--------------
Conversion Agent shall bear any responsibility with respect to any such
Officers' Certificate or certificate. Promptly after delivery of such
certificate, the Company shall, if any of such Securities are Bearer
Securities, cause a notice stating that the conversion price has been
adjusted and setting forth the adjusted conversion price to be published at
least once in an Authorized Newspaper and, if any of such Securities are
Registered Securities, to be mailed to each Holder at such Holder's address
as it appears on the Security Register; provided, however, that if it shall
-------- -------
be impractical to make publication of such notice as provided herein, then
such publication or other notice in lieu thereof as shall be made to the
Trustee shall constitute sufficient publication of such notice; and
provided, further, that if within ten days after the publishing and mailing
-------- -------
of such a notice an event occurs which would require the publishing and
mailing of an additional
102
<PAGE>
notice, such additional notice shall be published and mailed as aforesaid
promptly but in no event earlier than the tenth day after the publishing
and mailing of the immediately prior notice.
(8) In any case in which this Subsection (e) shall require that an
--------------
adjustment be made retroactively immediately following a record date, the
Company may elect to defer (but only until five Business Days following the
filing of the Officers' Certificate as provided in subparagraph (7) above)
----------------
(y) issuing to the holder of any share of Common Stock obtained upon
conversion of Securities after such record date the shares of Common Stock
and other capital stock of the Company issuable upon such conversion only
on the basis of the conversion price prior to adjustment and (z) paying to
such Holder any amount in cash in lieu of any fraction pursuant to
Subsection (c).
--------------
(f) In case of any consolidation or merger of the Company with or
into any other corporation (other than a consolidation or merger in which the
Company is the continuing corporation), or in case of any sale or transfer of
all or substantially all the assets of the Company, the corporation formed by
such consolidation or the corporation into which the Company shall have been
merged or the corporation which shall have acquired such assets, as the case may
be, execute with the Trustee an indenture supplemental hereto providing that the
Holder of each convertible Security or Securities then Outstanding shall
thereafter have the right to convert such Security or Securities pursuant to
Subsection (e)(5) above subject to adjustment for events after the grant
- -----------------
subsequent to the effective date thereof equivalent as nearly as practicable to
the adjustment provided for in Subsection (f) above. The provisions of this
--------------
Subsection (f) shall similarly apply to successive consolidations, mergers,
- --------------
sales or transfers.
(g) The issuance of certificates for shares of Common Stock on
conversion of Securities pursuant hereto shall be made at the expense of the
Company and without charge to the Holder converting a Security or Securities for
any stamp or other similar tax or duty in respect of the issue thereof;
provided, however, that if any such certificate is to be issued in a name other
- -------- -------
than that of the Holder of the Security or Securities to be converted, the
person or persons requesting the issuance thereof shall pay to the Company the
amount of any tax or duty which may be payable in respect of any transfer
involved in such issuance or delivery or shall establish to the satisfaction of
the Company that such tax or duty has been paid. Certificates representing
shares of Common Stock will not be issued or delivered unless all taxes and
duties, if any, payable by such Holder have been paid.
103
<PAGE>
(h) The Company covenants that it will at all times reserve and keep
available, solely for the purpose of issue upon conversion of Securities, such
number of shares of Common Stock as shall be issuable upon the conversion of all
outstanding Securities; provided, however, that nothing contained herein shall
-------- -------
be construed to preclude the Company from satisfying its obligations in respect
of the conversion of the Securities by delivery of purchased shares of Common
Stock which are held in the treasury of the Company. For the purposes of this
Subsection (h), the full number of shares of Common Stock issuable upon the
- --------------
conversion of all outstanding Securities shall be computed as if at the time of
computation of such number of shares of Common Stock all outstanding Securities
were held by a single holder. Unless otherwise provided with respect to the
convertible Securities of any series as provided in Section 3.01, the Company
------------
covenants that if any shares of Common Stock required to be reserved for
issuance upon conversions of such Securities hereunder require registration with
or approval of any governmental authority under any federal or state law before
such shares may be issued upon such conversions, the Company will cause such
shares to be duly registered or approved, as the case may be. Unless otherwise
provided with respect to the convertible Securities of any series as provided in
Section 3.01, the Company will endeavor to list the shares of Common Stock
- ------------
required to be delivered upon conversion of such Securities hereunder prior to
such delivery on the New York Stock Exchange and any other securities exchange
on which the outstanding Common Stock is listed at the time of such delivery.
Before taking any action which would cause an adjustment reducing the then
conversion price of any convertible Securities below the then par value, if any,
of the Common Stock, the Company will take all corporate action which may, in
the opinion of its counsel, be necessary in order that the Company may validly
and legally issue shares of such Common Stock at such adjusted conversion price.
The Company covenants that all authorized but unissued shares of Common Stock
which may at any time be reserved pursuant to this Subsection (h) for issuance
--------------
upon conversions of any convertible Securities will be free from preemptive
rights and duly and validly authorized for issuance upon such conversions and
that all shares of Common Stock which may at any time be issued upon conversions
of such Securities in accordance with the terms hereof and thereof will upon
such issuance, be free from preemptive rights, duly and validly authorized and
issued, fully paid and nonassessable.
(i) Neither the Trustee nor any Conversion Agent shall at any time be
under any duty or responsibility to any Holder of convertible Securities to
determine whether any facts exist which may require any adjustment of the
conversion price thereof, or with respect to the nature or extent of any such
adjustment when made or with respect to the method employed, herein provided to
be employed, in making the same. Neither the Trustee nor any Conversion Agent
shall be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities or
104
<PAGE>
property (including cash) which may at any time be issued or delivered upon the
conversion of any such Security or Securities; and neither the Trustee nor any
Conversion Agent makes any representations with respect thereto. Subject to
Section 6.01, neither the Trustee nor any Conversion Agent shall be responsible
- ------------
for any failure of the Company to issue, transfer or deliver any shares of
Common Stock or stock certificates or other securities or property (including
cash) upon the surrender of any convertible Security for the purpose of
conversion or to comply with any of the duties, responsibilities or covenants of
the Company contained in this Section 15.01.
-------------
(j) In case:
(1) the Company shall take any action which would require an
adjustment in the conversion price with respect to any convertible
Securities of a series pursuant to Subsection (e) above; or
--------------
(2) the Company shall authorize the granting to the holders of the
Common Stock of rights or warrants to subscribe for or purchase any shares
of stock of any class or any other rights or warrants and notice thereof
shall be given to holders of Common Stock; or
(3) there shall be any capital reorganization or reclassification
of the Common Stock (other than a subdivision or combination of the
outstanding Common Stock and other than a change in, from or to par value
of the Common Stock), or any consolidation or merger to which the Company
is a party 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) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee and any Conversion
Agent and, with respect to Registered Securities of such series, to be mailed to
each Holder and, with respect to Bearer Securities of such series, published as
provided in Subsection (e)(7), at least 10 days prior to the applicable date
-----------------
hereinafter specified, a notice setting forth (x) the date on which a record is
to be taken for the purpose of any distribution or grant to holders of Common
Stock, 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 or grant are to be
determined or (y) the date on which such reorganization, reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up is
expected to become effective, 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 or other
105
<PAGE>
property deliverable upon such reorganization, reclassification, consolidation,
merger, 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 paragraphs (1) through (4) of this Subsection (j).
--- --- --------------
(k) Notwithstanding anything else in this Section 15.01, any funds
-------------
which at any time shall have been deposited by the Company or on its behalf with
any Paying Agent for the purpose of paying interest on or the redemption or
repayment price of any convertible Securities and which shall not be required
for such purposes because of the conversion of such Securities, upon delivery to
such Paying Agent of evidence satisfactory to it of such conversion, after such
conversion, shall be repaid to the Company by such Paying Agent.
(1) All Securities surrendered for conversion shall, if applicable,
be delivered to the Trustee for cancellation and shall be cancelled and
destroyed by the Trustee as provided in Section 3.09.
------------
106
<PAGE>
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 date first above written.
FORTUNE BRANDS, INC.
By: _______________________________
Name:
Title:
Attest:
THE CHASE MANHATTAN BANK,
Trustee
By: ________________________________
Name:
Title:
Attest:
107
<PAGE>
Exhibit 4e1
[Form of Registered Security]
[FORM OF FACE OF REGISTERED SECURITY]
No.________________ [U.S.$]______
FORTUNE BRANDS, INC.
-------------
FORTUNE BRANDS, INC., a corporation duly organized and existing under
the laws of the State of Delaware (herein referred to as the "Company"), for
value received, hereby promises to pay to ___________________ or registered
assigns, the principal sum of _________ Dollars on ______________, and to pay
interest, semiannually on _________ and _____________ of each year, on said
principal sum at the rate of ___% per annum, from the ________ or ________, as
the case may be, next preceding the date of this Security to which interest has
been paid, unless the date hereof is a date to which interest has been paid, in
which case from the date of this Security, or unless no interest has been paid
on the Securities, in which case from _______, until payment of said principal
sum has been made or duly provided for. Notwithstanding the foregoing, if the
date hereof is after a _____________ or _________, as the case may be, and
before the following ______________ or ___________, this Security shall bear
interest from such _________ or _________; provided, however, that if the
Company shall default in the payment of interest due on such ___________ or
_________, then this Security shall bear interest from the next preceding
_____________ or _____________to which interest has been paid, or, if no
interest has been paid on the Securities from ___________. The interest so
payable on any ______________ or __________ will, subject to certain exceptions
provided in the Indenture referred to on the reverse hereof, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the __________ or __________, as the case
may be, next preceding such _____________or _______________. The principal of
[(and premium, if any)] and interest on this Security are payable at the office
or agency of the Company in the Borough of Manhattan, The City of New York, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts; provided that interest
--------
may be paid, at the option of the Company, by check mailed to the Person
entitled thereto at his address on the Security Register.
<PAGE>
Any interest not punctually paid or duly provided for shall be payable as
provided in said Indenture.
Reference is made to the further provisions of this Security set forth
on the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee by the manual signature of one of its authorized officers, this
Security shall not be entitled to any benefit under said Indenture, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:_________________
FORTUNE BRANDS, INC.
By:_______________________
[SEAL]
Attest:
_______________________
Secretary
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
, as Trustee
By:_______________________
Authorized Officer
2
<PAGE>
[FORM OF REVERSE OF REGISTERED SECURITY]
FORTUNE BRANDS, INC.
--------------
This Security is one of a duly authorized issue of Securities of the
Company designated as its ______________ (Securities of such series being
hereinafter called the "Securities"), [limited, except as provided in the
Indenture referred to below, in aggregate principal amount to $_______,] issued
and to be issued under an Indenture dated as of ________, 19__ (hereinafter
called the "Indenture") between the Company and ____________________, a New York
corporation (hereinafter called the "Trustee", which term includes any successor
trustee under the Indenture with respect to the Securities of this series), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, obligations,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities, and the terms upon which the Securities are, and are to be,
authenticated and delivered.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of [(and premium, if any)]
and interest on this Security at the times, place and rate, and in the coin and
currency, herein prescribed.
[The Securities are not subject to redemption by the Company prior to
maturity.]
[The Securities may be redeemed at the option of the Company, as a
whole or from time to time in part, on or at any time after ______________ and
prior to maturity upon mailing a notice of such redemption not less than 30 nor
more than 60 days prior to the Redemption Date to the Holders of Securities, all
as provided in the Indenture, at the following Redemption Prices, expressed in
percentages of the principal amount, together with accrued interest to the
Redemption Date:
3
<PAGE>
Year Percentage Year Percentage
Beginning of Principal Beginning of Principal
Amount Amount
---------- ------------ ---------- ------------
and at ____% of the principal amount thereafter[; provided, however, that no
-------- -------
such optional redemption may be effected, directly or indirectly, prior to
____________, from or in anticipation of moneys borrowed by or for the account
of the Company at an interest cost (computed in accordance with generally
accepted financial practice) of less than ___% per annum].]
[The Securities are [also] subject to redemption through the operation
of the mandatory and optional sinking funds as provided in the Indenture, on
__________, and on each _________ thereafter to and including ___________[, on
notice as set forth above,] at a Sinking Fund Redemption price equal to ____% of
the principal amount thereof, together with accrued interest to the Redemption
Date. Securities acquired or redeemed by the Company in any manner other than
by redemption through the mandatory sinking fund may be credited against future
mandatory sinking fund payments.]
[The Securities are [also] subject to repayment on _________, in whole
or in part, in increments of $_____ or integral multiples of $____ in excess of
$____, provided that the portion of the principal amount of any Security not
being repaid shall be at least $______, at the option of the Holders thereof at
a repayment price equal to the principal amount thereof to be repaid, together
with interest payable thereon to the repayment date. For this Security to be
repaid at the option of the Holder, the Company must receive at the corporate
trust office of the Trustee in the Borough of Manhattan, The City of New York,
during the period from and including __________ to and including __________ or,
if
4
<PAGE>
__________ is not a Business Day in The City of New York, the next succeeding
Business Day in The City of New York, (i) this Security with the form entitled
"Option to Elect Repayment" below duly completed or (ii) a telegram, telex,
facsimile transmission or letter from a member of a national securities exchange
or the National Association of Securities Dealers, Inc. or a commercial bank or
trust company in the United States of America setting forth the name of the
Holder of this Security, the principal amount of this Security, the amount of
this Security to be repaid, a statement that the option to elect repayment is
being made thereby and a guarantee that this Security with the form entitled
"Option to Elect Repayment" on the reverse hereof duly completed will be
received by the Company no later than five Business Days in The City of New York
after the date of such telegram, telex, facsimile transmission or letter, and
this Security and such form duly completed are received by the Company by such
fifth Business Day. Either form of notice duly received during the period from
and including _____________ to and including _______________ shall be
irrevocable. All questions as to the validity, eligibility (including time of
receipt) and acceptance of any Securities for repayment will be determined by
the Company, whose determination shall be final and binding.]
[Section 4.03 [(including subparagraph (4) thereof and [clause (A),
but not clause (B),] [clause (B), but not clause (A),] of such subparagraph)]
thereof)] and Section 10.10 [(including subparagraph (5) thereof)] of the
Indenture contain provisions applicable to this Security that provide for
defeasance at any time of (a) the entire indebtedness on this Security and (b)
certain restrictive covenants and certain Events of Default upon compliance by
the Company with certain conditions set forth therein.]
As provided in the Indenture and subject to certain limitations
therein set forth, this Security may be registered for transfer on the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company in the Borough of Manhattan, The
City of New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee and the Security
Registrar duly executed by, the registered Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
5
<PAGE>
The Securities are issuable only as Registered Securities in
denominations of [$1,000 and any integral multiple thereof]. As provided in the
Indenture, and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Registered Securities of
different authorized denominations, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company or the Trustee nor any such agent shall be affected by notice to the
contrary.
If an Event of Default, as defined in the Indenture, with respect to
the Securities shall occur, the principal of all the Securities may be declared
due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company with the consent of the Holders of [a majority]
[applicable greater percentage] in aggregate principal amount of the then
Outstanding Securities of this series and of each other series issued under the
Indenture and affected by such amendment or modification. The Indenture also
permits the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive certain past defaults under the Indenture with respect to
the Securities and their consequences. Any such consent or waiver shall be
conclusive and binding upon the Holder of this Security and upon all future
Holders of this Security and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof whether or not a
notation of such consent or waiver is made upon this Security.
6
<PAGE>
No recourse shall be had for the payment of the principal of [(or
premium, if any)] or the interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or any successor corporation, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
Except as otherwise defined herein, all terms used in this Security
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
This Security shall be deemed to be a contract made under the laws of
the State of New York and for all purposes shall be construed in accordance with
and governed by the laws of said State.
[FORM OF OPTION TO ELECT REPAYMENT]
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Security (or portion thereof specified below) pursuant to
its terms at a price equal to the principal amount thereof, together with
interest to the repayment date, to the undersigned, at
____________________________________________________________
________________________________Tax I.D. No.________________
(Please Print or Typewrite Name, Address and Tax Identification Number of the
Undersigned)
For this Security to be repaid the Company must receive at the
corporate trust office of the Trustee in the Borough of Manhattan, The City of
New York or at such additional place or places of which the Company shall from
time to time notify the Holder of the within Security during the period from and
including _____________________ to and including ___________ or, if
_______________ is not a Business Day in The City of New York, the next
succeeding Business Day in The City of New York, (i) this Security with this
"Option to Elect Repayment" form duly completed or (ii) a telegram, telex,
facsimile transmission or letter from a
7
<PAGE>
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States of America setting forth the name of the holder of this Security, the
principal amount of this Security, the amount of this Security to be repaid, a
statement that the option to elect repayment is being made thereby and a
guarantee that this Security with this form entitled "Option to Elect Repayment"
duly completed will be received by the Company not later than five Business Days
in The City of New York after the date of such telegram, telex, facsimile
transmission or letter, and this Security and form duly completed are received
by the Company by such fifth Business Day.
If less than the entire principal amount of the within Security is to
be repaid, specify the portion thereof (which shall be $______ or an integral
multiple of $______ in excess of $______) which the Holder elects to have
repaid: $_____; and specify the denomination or denominations (which shall be
$______ or an integral multiple of $______in excess of $______) of the Security
or Securities to be issued to the Holder for the amount of the portion of the
within Security not being repaid (in the absence of any such specification, one
such Security will be issued for the portion not being repaid): $______.
Dated:________________ _______________________________
NOTICE: The signature on this Option to Elect
Repayment must correspond with the name as written
upon the face of this Security in every particular
without alteration or enlargement or any other
change whatsoever.
8
<PAGE>
Exhibit 4e1
[Form of Bearer Security]
[FORM OF FACE OF BEARER SECURITY]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE
CODE.
No.________________ [U.S.$]______
FORTUNE BRANDS, INC.
___________________
FORTUNE BRANDS, INC., a corporation duly organized and existing under
the laws of the State of Delaware (herein referred to as the "Company"), for
value received, hereby promises to pay to bearer, the principal sum of
_______________ [United States Dollars] on _______________, and to pay interest
thereon, from the date hereof, [annually _______________ on in each year]
[semiannually on _______________ and _______________ in each year], commencing
_______________, 19___ at the rate of ____% per annum, until the principal
hereof is paid or made available for payment. Such payments (including premium,
if any) shall be made, subject to any laws or regulations applicable thereto and
to the right of the Company (limited as provided in the Indenture referred to on
the reverse hereof) to rescind the designation of any of the following Paying
Agents, at the [main] offices of _______________ in _______________, in
_______________, in _______________, _______________ in _______________,
and_______________ in _______________, or at such other offices or agencies
outside the United States of America, its territories and possessions and areas
subject to its jurisdiction and the Commonwealth of Puerto Rico (the "United
States") as the Company may designate, at the option of the Holder, by [United
States Dollar] check drawn on a bank in [The City of New York] or by transfer of
[United States Dollars] to an account maintained by the payee with a bank
located outside the United States. Interest on this Security due on or before
maturity shall be payable only upon presentation and surrender at such an office
or agency of the interest
9
<PAGE>
coupons hereto attached (the "Coupons") as they severally mature. No payment of
principal [(or premium, if any)] or interest on this Security 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; provided, however, that payment of principal
-------- -------
of [(and premium, if any)] and interest on this Security (including any
additional amounts which may be payable as provided below)[, converted for such
purpose into United States Dollars as provided in said Indenture,] 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 of the full amount of such principal,
[(or premium, if any)] interest or additional amounts, as the case may be, [in
the currency herein prescribed and as so converted,] in United States Dollars at
all offices or agencies outside the United States maintained for the purpose by
the Company in accordance with the Indenture is illegal or effectively precluded
by exchange controls or other similar restrictions.
Reference is made to the further provisions of this Security set forth
on the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
Unless the certificate of authentication hereon has been executed by
the trustee by the manual signature of one of its authorized officers, neither
this Security, nor
2
<PAGE>
any coupon appertaining hereto, shall be entitled to any benefit under said
Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated __________________
FORTUNE BRANDS, INC.
By:_________________________
[SEAL]
Attest:
_____________________
Secretary
3
<PAGE>
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated therein
referred to the within-mentioned Indenture.
, as Trustee
By:_______________________________
Authorized Officer
[FORM OF REVERSE OF BEARER SECURITY]
FORTUNE BRANDS, INC.
____________________
This Security is one of a duly authorized issue of Securities of the
Company designated as its ______________________ (Securities of such series
being hereinafter called the "Securities"), [limited, except as provided in the
Indenture referred to below, in aggregate principal amount to [U.S.$]______,]
issued and to be issued under an Indenture dated as of ________________, 19__
(hereinafter called the "Indenture") between the Company and
______________________, a New York corporation (hereinafter called the
"Trustee", which term includes any successor trustee under the Indenture with
respect to the Securities of this series), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and any Coupons
appertaining thereto and of the terms upon which the Securities are, and are to
be, authenticated and delivered.
No reference herein to the Indenture and no provision of this Security
or any Coupon appertaining hereto or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of [(and premium, if any)] and interest on this Security at the times,
place and rate, and in the coin and currency, herein prescribed.
Except as provided herein, the Securities are not subject to
redemption by the Company prior to maturity.
4
<PAGE>
The Company will pay to the Holder of any Security or any Coupon
appertaining thereto who is a United States Alien (as defined below) such
additional amounts ("Additional Amounts") as may be necessary in order that
every net payment by the Company or any of its Paying Agents of the principal of
[(or premium, if any)] or interest on such Security, after deduction or holding
for or on account of any present or future tax, assessment or other governmental
charge imposed upon or as a result of such payment by the United States or any
political subdivision or taxing authority thereof or therein, will not be less
than the amount provided for in such Security or in such Coupon to be then due
and payable; provided, however, that the foregoing obligation to pay Additional
-------- -------
Amounts shall not apply to:
(a) any tax, assessment or other governmental charge which would not
have been so imposed but for (i) the existence of any present or former
connection between such Holder (or between a fiduciary, settlor,
beneficiary or member or a shareholder of, or possessor of a power over,
such Holder if such Holder is an estate, trust, partnership or corporation)
and the United States, the Commonwealth of Puerto Rico or any territory or
possession of the United States or area subject to its jurisdiction, as the
case may be, including, without limitation, such Holder (or such fiduciary,
settlor, beneficiary, member, shareholder or possessor) being or having
been a citizen or resident or treated as a resident thereof or being or
having been engaged in a trade or business therein or being or having been
present therein or having or having had a permanent establishment therein,
(ii) the failure of such Holder to comply with any certification,
identification or other reporting requirement under United States income
tax laws or regulations (including backup withholding) to establish
entitlement to exemption from such tax, assessment or other governmental
charge, or (iii) such Holder's present or former status as a domestic
personal holding company or a foreign personal holding company with respect
to the United States, as a controlled foreign corporation with respect to
the United States, as a corporation which accumulates earnings to avoid
United States federal income tax, or as a private foundation or other tax
exempt organization;
5
<PAGE>
(b) any tax, assessment or other governmental charge which would not
have been so imposed but for the presentation by the Holder of such
Security or Coupon for payment on a date more than 10 days after the date
on which such payment became due and payable or the date on which payment
thereof is duly provided for, whichever occurs later;
(c) any estate, inheritance, gift, sales, transfer, personal property
or any similar tax, assessment or governmental charge;
(d) any tax, assessment or other governmental charge which is payable
otherwise than by withholding from payment of such Security or Coupon;
(e) any tax, assessment or other governmental charge imposed by reason
of the Holder[, actually or constructively,] owning or having owned 10% or
more of the total combined voting power of all classes of stock of the
Company entitled to vote; or
(f) any combination of items (a), (b), (c), (d) and (e);
nor will Additional Amounts be paid with respect to payment of the principal of
[(or premium, if any)] or interest on any such Security to a person who is a
fiduciary or partnership or other than the sole beneficial owner of such payment
to the extent such payment would be required by the laws of the United States
(or any political subdivision or taxing authority thereof or therein) to be
included in the income for tax purposes of a beneficiary or settlor with respect
to such fiduciary or a member of such partnership or a beneficial owner who
would not have been entitled to the Additional Amounts had such beneficial owner
been a Holder of such Security or Coupon.
The term "United States Alien" as used herein means any corporation,
partnership, individual or fiduciary that, as to the United States (including
the Commonwealth of Puerto Rico, any territory or possession of the United
States or other area subject to its jurisdiction), and for United States tax
purposes, is (i) a foreign corporation, (ii) a foreign partnership one or more
of the members of which is, as to the United States, a foreign corporation, a
nonresident alien individual or a nonresident alien fiduciary of a foreign
estate or trust, (iii) a nonresident
6
<PAGE>
alien individual or (iv) a nonresident alien fiduciary of a foreign estate or
trust.
The Securities may be redeemed at the option of the Company in whole
but not in part at any time, at a redemption price equal to their principal
amount, together with interest accrued to the date fixed for redemption, if the
Company determines that it will be obligated to pay to the Holder of any
Security or Coupon on the next succeeding Interest Payment Date Additional
Amounts as set forth herein. Prior to the publication of notice of such
redemption, the Company shall deliver to the Trustee (i) a certificate stating
that the Company is entitled to effect such redemption and setting forth a
statement of facts showing that the conditions precedent to the right of the
Company so to redeem have occurred, and (ii) an opinion of independent counsel
reasonably acceptable to the Trustee to such effect based on such statement of
facts.
If the Company shall determine, based upon an opinion of independent
legal counsel, that any payment made outside the United States by the Company or
any of its Paying Agents in respect of any Security or any Coupon appertaining
thereto would, under any present or future laws or regulations of the United
States, be subject to any certification, documentation, information or other
reporting requirement of any kind, the effect of which requirement is the
disclosure to the Company, any Paying Agent or any governmental authority of the
nationality, residence or identity of a beneficial owner of such Security or
Coupon who is a United States Alien (other than such a requirement (a) which
would not be applicable to a payment made either by the Company or by any one of
its Paying Agents (i) directly to the beneficial owner or (ii) to a custodian,
nominee or other agent of the beneficial owner, or (b) which can be satisfied by
such custodian, nominee or other agent certifying to the effect that the
beneficial owner is a United States Alien; provided, however, that, in any case
-------- -------
referred to in clause (a)(ii) or (b), payment by the custodian, nominee or agent
to the beneficial owner is not otherwise subject to any such requirement) the
Company shall at its option either (x) redeem the Securities as a whole, at a
redemption price equal to the principal amount thereof, together with accrued
interest to the date fixed for redemption and any Additional Amounts payable in
respect of such principal and accrued interest, or (y) if the conditions of the
next succeeding paragraph are satisfied, pay the Additional Amounts specified in
such paragraph. The
7
<PAGE>
Company shall make such determination as soon as practicable and publish prompt
notice thereof (the "Determination Notice"), stating the effective date of such
certification, documentation, information or reporting requirement, whether the
Company will redeem the Securities or pay the Additional Amounts specified in
the next succeeding paragraph, and (if applicable) the last date by which the
redemption of the Securities must take place, as provided in the next succeeding
sentence. If the Securities are to be redeemed as provided in this paragraph,
such redemption shall take place on such date, not later than one year after the
publication of the Determination Notice, as the Company shall elect by notice to
the Trustee at least 60 days before the date fixed for redemption.
Notwithstanding the foregoing, the Company shall not so redeem the Securities if
the Company, based upon an opinion of independent legal counsel, shall
subsequently determine, not less than 30 days prior to the date fixed for
redemption, that subsequent payments on the Securities and any Coupons
appertaining thereto would not be subject to any such certification,
documentation, information or other reporting requirement, in which case the
Company shall publish prompt notice of such subsequent determination and any
earlier redemption notice shall be deemed revoked and of no further effect.
If and so long as the certification, documentation, information or
other reporting requirement referred to in the immediately preceding paragraph
would be fully satisfied by payment of a backup withholding tax or similar
charge, the Company may elect to pay as Additional Amounts (regardless of clause
(a)(ii) of the fourth preceding paragraph) such amounts as may be necessary so
that every net payment made outside the United States following the effective
date of such requirement by the Company or any of its Paying Agents of principal
[(or premium, if any)] or interest in respect of any Security or any Coupon
appertaining thereto of which the beneficial owner is a United States Alien (but
without any requirement that the nationality, residence or identity of such
beneficial owner be disclosed to the Company, any Paying Agent or any
governmental authority), after deduction or withholding for or on account of
such backup withholding tax or similar charge (other than a backup withholding
tax or similar charge which is the result of a requirement referred to in the
parenthetical clause of the first sentence of the immediately preceding
paragraph), will not be less than the amount provided in such Security or Coupon
to be then due and payable. If the Company elects to pay Additional
8
<PAGE>
Amounts as provided in this paragraph, the Company shall have the right to
redeem the Securities at any time as a whole, subject to the provisions of the
last two sentences of the immediately preceding paragraph. If the Company elects
to pay Additional Amounts as provided in this paragraph and the condition
specified in the first sentence of this paragraph should no longer be satisfied,
then the Company shall redeem the Securities pursuant to the provisions of the
immediately preceding paragraph.
[The Securities may also be redeemed at the option of the Company, as
a whole or from time to time in part, on or at any time after
______________________ and prior to maturity upon publication of a notice as set
forth below, at the following Redemption Prices, expressed in percentages of the
principal amount, together with accrued interest to the Redemption Date:
Year Percentage Year Percentage
Beginning of Principal Beginning of Principal
Amount Amount
--------- ------------ --------- ------------
and at ___% of the principal amount thereafter[; provided, however, that no such
-------- -------
optional redemption may be effected, directly or indirectly, prior to
__________, from or in anticipation of moneys borrowed by or for the account of
the Company at an interest cost (computed in accordance with generally accepted
financial practice) of less than _____% per annum].]
[The Securities are [also] subject to redemption through the operation
of the mandatory and optional sinking funds as provided in the Indenture, on
__________, and on each__________ thereafter to and including __________, on
notice as set forth below, at a Sinking Fund Redemption Price equal to ___% of
the principal amount thereof,
9
<PAGE>
together with accrued interest to the Redemption Date. Securities acquired or
redeemed by the Company in any manner other than by redemption through the
mandatory sinking fund may be credited against future mandatory sinking fund
payments.]
If the conditions giving rise to an option of the Company to redeem
the Securities under more than one of the provisions of this Security are
satisfied, the Company's determination, in its sole discretion, as to the
provision under which a redemption shall be effected shall be conclusive and
binding upon all the holders of Securities.
Notice of redemption will be given by publication in an Authorized
Newspaper in The City of New York and London and, if the Securities are then
listed on the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and the Luxembourg Stock Exchange or such other stock
exchange shall so require, in Luxembourg or in any city required by such other
stock exchange (or, if it shall be impracticable in the opinion of the Trustee
to make such publication in Luxembourg or such other city, elsewhere in Europe)
on a Business Day at least twice, the first such publication to be not earlier
than the 60th day, and not later than the 30th day, prior to the Redemption
Date.
[Section 4.03 [(including subparagraph (4) thereof and [clause (A),
but not clause (B),] [clause (B), but not clause (A),] of such subparagraph)]
and Section 10.10 [(including subparagraph (5) thereof)] of the Indenture
contain provisions for defeasance at any time of (a) the entire indebtedness on
this Security and (b) certain restrictive covenants and certain Events of
Default upon compliance by the Company with certain conditions set forth
therein, which provisions apply to this Security.]
The Securities are issuable [only] as Bearer Securities, with Coupons
attached, in denominations of [U.S.$1,000] [U.S.$10,000]. As provided in the
Indenture, and subject to certain limitations therein set forth, Bearer
Securities are exchangeable for a like aggregate principal amount of Bearer
Securities of authorized denominations, as requested by the Holder surrendering
the same.
No service charge will be made for any such registration of transfer
or exchange, but the Company may
<PAGE>
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Title to this Security and any Coupon appertaining hereto will pass by
delivery. The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Security and any Coupon appertaining thereto as the
absolute owner thereof for all purposes, whether or not such Security or Coupon
be overdue, and neither the Company or the Trustee nor any such agent shall be
affected by notice to the contrary.
If an Event of Default, as defined in the Indenture, with respect to
the Securities shall occur, the principal of all the Securities may be declared
due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company with the consent of the Holders of [a majority]
[applicable greater percentage] in aggregate principal amount of the then
Outstanding Securities of this series and of each other series issued under the
Indenture and affected by such amendment or modification. The Indenture also
permits the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive certain past defaults under the Indenture with respect to
the Securities and their consequences. Any such consent or waiver shall be
conclusive and binding upon the Holder of this Security or any Coupon
appertaining hereto and upon all future Holders of this Security or any Coupon
appertaining hereto and of any Security issued in exchange herefor or in lieu
hereof whether or not a notation of such consent or waiver is made upon this
Security.
No recourse shall be had for the payment of the principal of [(or
premium, if any)] or the interest on this Security, or for any claim based
hereon or on any Coupon appertaining hereto, or otherwise in respect hereof or
thereto, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or any successor
corporation, either directly or through the Company or any successor
11
<PAGE>
corporation, whether by virtue of any constitutions statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
Except as otherwise defined in this Security or any Coupon
appertaining hereto, all terms used herein or therein which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
This Security and the Coupons appertaining hereto shall each be deemed
to be contracts made under the laws of the State of New York and for all
purposes shall be construed in accordance with and governed by the laws of said
State.
[FORM OF FACE OF COUPON]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT To
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE
CODE.
[U.S.$_______]
Due ________, 19__
FORTUNE BRANDS, INC.
____________________
Unless the Security to which this Coupon appertains shall have been
called for previous redemption and payment thereof duly provided for, on the
date set forth hereon, Fortune Brands, Inc., a Delaware corporation (the
"Company"), will pay to the bearer, upon surrender hereof, the amount shown
hereon (together with any additional amounts in respect thereof which the
Company may be required to pay according to the terms of said Security and the
Indenture referred to therein), subject to any applicable laws and regulations,
at the option of the bearer either (a) at the office of the Paying Agent in
London set forth on the reverse hereof, or (b) subject to the limitations set
forth in said Security and Indenture and as prescribed thereon and therein, at
the offices of the other Paying Agents set out on the reverse hereof or at such
other places outside the
12
<PAGE>
United States of America, its territories and possessions and areas subject to
its jurisdiction and the Commonwealth of Puerto Rico (the "United States") as
the Company may determine from time to time by a [United States Dollar] check
drawn on a bank located in [The City of New York] or, at the option of the
bearer, by transfer to a [United States Dollar] account maintained by the bearer
with a bank located outside the United States, being interest then payable on
said Security.
FORTUNE BRANDS, INC.
By:_________________________
[FORM OF REVERSE OF COUPON]
PAYING AGENTS
13
<PAGE>
Exhibit 4e1
[Form of Zero
Coupon Registered Security]
[FORM OF FACE OF ZERO COUPON REGISTERED SECURITY]
UNDER THE UNITED STATES INTERNAL REVENUE CODE, THIS SECURITY HAS BEEN
ISSUED WITH ORIGINAL ISSUE DISCOUNT OF ______ PER FACE AMOUNT AND THE YIELD TO
MATURITY IS ____% [,DETERMINED UNDER THE EXACT METHOD]. THE ISSUE DATE OF THIS
SECURITY IS ______[,AND THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ATTRIBUTABLE TO
THE ______ PERIOD FROM THE ISSUE DATE WOULD BE ______ PER ______ FACE AMOUNT].
No.________________ [U.S.$]______
FORTUNE BRANDS, INC.
____________________
FORTUNE BRANDS, INC., a corporation duly organized and existing under
the laws of the State of Delaware (herein referred to as the "Company"), for
value received, hereby promises to pay to ____________________ or registered
assigns, the principal sum of ____________ Dollars on _________________. The
principal on this Security shall not bear interest, except in the case of
default in payment of principal upon acceleration, redemption or maturity, and
in such case the amount in default shall bear interest at the rate of _____% per
annum (to the extent enforceable under applicable law) from the date of default
in payment to the date such payment has been made or duly provided for, at said
office or agency and in like coin or currency. The principal of [(and premium,
if any)] on this Security is [are] payable at the office or agency of the
Company in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Reference is made to the further provisions of this Security set forth
on the reverse hereof. Such further
<PAGE>
provisions shall for all purposes have the same effect as though fully set forth
at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee by the manual signature of one of its authorized officers, this
Security shall not be entitled to any benefit under said Indenture, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated__________________ FORTUNE BRANDS, INC.
By:________________________
[SEAL]
Attest:
_____________________
Secretary
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
, as Trustee
By:_________________________
Authorized Officer
2
<PAGE>
[FORM OF REVERSE OF ZERO COUPON REGISTERED SECURITY]
FORTUNE BRANDS, INC.
____________________
This Security is one of a duly authorized issue of Securities of the
Company designated as its ____________ (Securities of such series being
hereinafter called the "Securities"), [limited, except as provided in the
Indenture referred to below, in aggregate principal amount to $_________,]
issued and to be issued under an Indenture dated as of _________________, 19___
(hereinafter called the "Indenture") between the Company and _________________,
a New York corporation (hereinafter called the "Trustee", which term includes
any successor trustee under the Indenture with respect to the Securities of this
series), to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of rights,
obligations, duties and immunities thereunder of the Company, the Trustee and
the Holders of the Securities, and the terms upon which the Securities are, and
are to be, authenticated and delivered.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of [(and premium, if any)]
and interest (if any) on this Security at the times, place and rate, and in the
coin and currency, herein prescribed.
[The Securities are not subject to redemption by the Company prior to
maturity.]
[The Securities may be redeemed at the option of the Company as a
whole, or from time to time in part, on or at any time after _________________
and prior to maturity upon mailing a notice of such redemption not less than 30
nor more than 60 days prior to the Redemption Date to the Holders of Securities,
all as provided in the Indenture, at the following Redemption Prices, expressed
in percentages of the principal amount, together with accrued interest to the
Redemption Date:
3
<PAGE>
Year Percentage Year Percentage
Beginning of Principal Beginning of Principal
Amount Amount
--------- ------------ ---------- ------------
and at _____% of the principal amount thereafter[; provided, however, that no
-------- -------
such optional redemption may be effected, directly or indirectly, prior to
_____________, from or in anticipation of moneys borrowed by or for the account
of the Company at an interest cost (computed in accordance with generally
accepted financial practice) of less than _____% per annum].]
[The Securities are [also] subject to redemption through the operation
of the mandatory and optional sinking funds as provided in the Indenture, on
___________________, and on each ___________________ thereafter to and including
____________[,on notice as set forth above,] at a Sinking Fund Redemption Price
equal to ____% of the principal amount thereof. Securities acquired or redeemed
by the Company in any manner other than by redemption through the mandatory
sinking fund may be credited against future mandatory sinking fund payments.]
[The Securities are [also] subject to repayment on ____________, in
whole or in part, in increments of $______or integral multiples of $______ in
excess of $_____, provided that the portion of the principal amount of any
Security not being repaid shall be at least $_____, at the option of the Holders
thereof at a repayment price equal to ____% of the principal amount thereof.
For this Security to be repaid at the option of the Holder, the Company must
receive at the corporate trust office of the Trustee in the Borough of
Manhattan, The City of New York, during the period from and including
______________ to and including ______________ or, if ______________ is not a
Business Day in The City of New York, the next succeeding Business Day in
4
<PAGE>
The City of New York, (i) this Security with the form entitled "Option to Elect
Repayment" below duly completed or (ii) a telegram, telex, facsimile
transmission or letter from a member of a national securities exchange or the
National Association of Securities Dealers, Inc. or a commercial bank or trust
company in the United States of America setting forth the name of the Holder of
this Security, the principal amount of this Security, the amount of this
Security to be repaid, a statement that the option to elect repayment is being
made thereby and a guarantee that this Security with the form entitled "Option
to Elect Repayment" on the reverse hereof duly completed will be received by the
Company no later than five Business Days in The City of New York after the date
of such telegram, telex, facsimile transmission or letter, and this Security and
such form duly completed are received by the Company by such fifth Business Day.
Either form of notice duly received during the period from and including
_________ to and including _______________ shall be irrevocable. All questions
as to the validity, eligibility (including time of receipt) and acceptance of
any Securities for repayment will be determined by the Company, whose
determination shall be final and binding.]
[Section 4.03 [(including subparagraph (4) thereof and [clause (A),
but not clause (B),] [clause (B), but not clause (A),] of such subparagraph)]
and Section 10.10 [(including subparagraph (5) thereof)] of the Indenture
contain provisions applicable to this Security that provide for defeasance at
any time of (a) the entire indebtedness on this Security and (b) certain
restrictive covenants and certain Events of Default upon compliance by the
Company with certain conditions set forth therein.]
As provided in the Indenture and subject to certain limitations
therein set forth, this Security may be registered for transfer on the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company in the Borough of Manhattan, The
City of New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee and the Security
Registrar duly executed by, the registered Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
5
<PAGE>
The Securities are issuable only as Registered Securities in
denominations of [$1,000 and any integral multiple thereof]. As provided in the
Indenture, and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Registered Securities of
different authorized denominations, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company or the Trustee nor any such agent shall be affected by notice to the
contrary.
If an Event of Default, as defined in the Indenture, with respect to
the Securities shall occur, that portion of the principal amount equal to the
initial public offering price of this Security [plus accrued amortization of the
original issue discount calculated using the ["interest"] method (computed in
accordance with generally accepted accounting principles in effect on the date
of the Indenture) from _________________ to the date of acceleration] may be
declared, and upon such declaration shall become due and payable, in the manner
with the effect and subject to the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company with the consent of the Holders of [a majority]
[applicable greater percentage] in aggregate principal amount of the then
Outstanding Securities of this series and of each other series issued under the
Indenture and affected by such amendment or modification. The Indenture also
permits the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive certain past defaults under the Indenture with respect to
the Securities and their consequences. Any such consent or waiver shall be
conclusive and binding upon the Holder of this Security and upon all future
Holders of this
6
<PAGE>
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof whether or not a notation of such consent
or waiver is made upon this Security.
No recourse shall be had for the payment of the principal of [(or
premium, if any)] or the interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or any successor corporation, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and no part of the consideration for the issue hereof,
expressly waived and released.
Except as otherwise defined herein, all terms used in this Security
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
This Security shall be deemed to be a contract made under the laws of
the State of New York and for all purposes shall be construed in accordance with
and governed by the laws of said State.
[FORM OF OPTION TO ELECT REPAYMENT]
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Security (or portion thereof specified below) pursuant to
its terms at a price equal to _____% of the principal amount thereof to the
undersigned, at
________________________________________________________________________________
________________________________Tax I.D. No.____________________________________
(Please Print or Typewrite Name, Address and Tax Identification Number of the
Undersigned)
For this Security to be repaid the Company must receive at the
corporate trust office of the Trustee in the Borough of Manhattan, The City of
New York, or at such additional place or places of which the Company shall from
time to time notify the Holder of the within Security during the period from and
including ____________ to and including
7
<PAGE>
___________ or, if ___________ is not a Business Day in The City of New York,
the next succeeding Business Day in The City of New York, (i) this Security with
this "Option to Elect Repayment" form duly completed or (ii) a telegram, telex,
facsimile transmission or letter from a member of a national securities exchange
or the National Association of Securities Dealers, Inc. or a commercial bank or
trust company in the United States of America setting forth the name of the
holder of this Security, the principal amount of this Security, the amount of
this Security to be repaid, a statement that the option to elect repayment is
being made thereby and a guarantee that this Security with this form entitled
"Option to Elect Repayment" duly completed will be received by the Company not
later than five Business Days in The City of New York after the date of such
telegram, telex, facsimile transmission or letter, and this Security and form
duly completed are received by the Company by such fifth Business Day.
If less than the entire principal amount of the within Security is to
be repaid, specify the portion thereof (which shall be $______ or an integral
multiple of $______ in excess of $______) which the Holder elects to have
repaid: $______; and specify the denomination or denominations (which shall be
$______ or an integral multiple of $______ in excess of $______) of the Security
or Securities to be issued to the Holder for the amount of the portion of the
within Security not being repaid (in the absence of any such specification, one
such Security will be issued for the portion not being repaid): $______.
Dated:________________
_________________________________________________
NOTICE: The signature on this Option to Elect
Repayment must correspond with the name as written
upon the face of this Security in every particular
without alteration or enlargement or any other
change whatsoever.
8
<PAGE>
Exhibit 4e1
[Form of Original Issue
Discount Bearer Security]
[FORM OF FACE OF ORIGINAL ISSUE DISCOUNT BEARER SECURITY]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE
CODE.
UNDER THE UNITED STATES INTERNAL REVENUE CODE, THIS SECURITY HAS BEEN
ISSUED WITH ORIGINAL ISSUE DISCOUNT OF _____ PER _____ FACE AMOUNT AND THE YIELD
TO MATURITY IS _____%[, DETERMINED UNDER THE EXACT METHOD]. THE ISSUE DATE OF
THIS SECURITY IS ____________[, AND THE AMOUNT OF ORIGINAL ISSUE DISCOUNT
ATTRIBUTABLE TO THE ____________ PERIOD FROM THE ISSUE DATE WOULD BE _____ PER
_____ FACE AMOUNT].
No.________________ [U.S.$]______
FORTUNE BRANDS, INC.
_____________________
FORTUNE BRANDS, INC., a corporation duly organized and existing under
the laws of the State of Delaware (herein referred to as the "Company"), for
value received, hereby promises to pay to bearer, the principal sum of
____________________ [United States Dollars] on _______________, and to pay
interest thereon, from the date hereof, [annually on _______________ in each
year] [semiannually on _______________ and _______________ in each year],
commencing _______________, 19___, at the rate of _____% per annum, until the
principal hereof is paid or made available for payment. Such payments
(including premium, if any) shall be made, subject to any laws or regulations
applicable thereto and to the right of the Company (limited as provided in the
Indenture referred to on the reverse hereof) to rescind the designation of any
of the following Paying Agents, at the [main] offices of _____________ in
_____________, _____________ in _____________, _____________ in _____________,
_____________ in _____________ and _____________ in _____________, or at such
other offices or agencies outside the United States of America, its territories
and possessions and areas subject to its
<PAGE>
jurisdiction and the Commonwealth of Puerto Rico (the "United States") as the
Company may designate, at the option of the Holder, by [United States Dollar]
check drawn on a bank in [The City of New York] or by transfer of [United States
Dollars] to an account maintained by the payee with a bank located outside the
United States. Interest on this Security due on or before maturity shall be
payable only upon presentation and surrender at such an office or agency of the
interest coupons hereto attached (the "Coupons") as they severally mature. No
payment of principal [(or premium, if any)] or interest on this Security 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; provided, however, that
-------- -------
payment of principal of [(and premium, if any)] and interest on this Security
(including any additional amounts which may be payable as provided
below)[,converted for such purpose into United States Dollars as provided in
said Indenture,] 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 of the
full amount of such principal, [(or premium, if any)] interest or additional
amounts, as the case may be, [in the currency herein prescribed and, as so
converted,] in United States Dollars at all offices or agencies outside the
United States maintained for the purpose by the Company in accordance with the
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
Reference is made to the further provisions of this Security set forth
on the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee by the manual signature of one of its authorized officers, neither
this Security, nor any Coupon appertaining hereto, shall be entitled to any
benefit under said Indenture, or be valid or obligatory for any purpose.
2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:_________________
FORTUNE BRANDS, INC.
By _______________________
[SEAL]
Attest:
_______________________
Secretary
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
, as Trustee
By:___________________________
Authorized Officer
3
<PAGE>
[FORM OF REVERSE OF ORIGINAL ISSUE DISCOUNT BEARER SECURITY]
FORTUNE BRANDS, INC.
______________________
This Security is one of a duly authorized issue of Securities of the
Company designated as its ____________ (Securities of such series being
hereinafter called the "Securities"), [limited, except as provided in the
Indenture referred to below, in aggregate principal amount to
[U.S.$]____________,] issued and to be issued under an Indenture dated as of
_______, 19___ (hereinafter called the "Indenture") between the Company and
______________________, a New York corporation (hereinafter called the
"Trustee", which term includes any successor trustee under the Indenture with
respect to the Securities of this series), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and any Coupons
appertaining thereto and of the terms upon which the Securities are, and are to
be, authenticated and delivered.
No reference herein to the Indenture and no provision of this Security
or any Coupon appertaining hereto or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of [(and premium, if any)] and interest on this Security at the times,
place and rate, and in the coin and currency, herein prescribed.
Except as provided herein, the Securities are not subject to
redemption by the Company prior to maturity.
The Company will pay to the Holder of any Security or any Coupon
appertaining thereto who is a United States Alien (as defined below) such
additional amounts ("Additional Amounts") as may be necessary in order that
every net payment by the Company or any of its Paying Agents of the principal of
[(or premium, if any)] or interest on such Security, after deduction or
withholding for or on account of any present or future tax, assessment or other
governmental charge imposed upon or as a result of such
4
<PAGE>
payment by the United States or any political subdivision or taxing authority
thereof or therein, will not be less than the amount provided for in such
Security or in such Coupon to be then due and payable; provided, however, that
-------- -------
the foregoing obligation to pay Additional Amounts shall not apply to:
(a) any tax, assessment or other governmental charge which would not
have been so imposed but for (i) the existence of any present or former
connection between such Holder (or between a fiduciary, settlor,
beneficiary or member or a shareholder of, or possessor of a power over,
such Holder if such Holder is an estate, trust, partnership or corporation)
and the United States, the Commonwealth of Puerto Rico or any territory or
possession of the United States or area subject to its jurisdiction, as the
case may be, including, without limitation, such Holder (or such fiduciary,
settlor, beneficiary, member, shareholder or possessor) being or having
been a citizen or resident or treated as a resident thereof or being or
having been engaged in a trade or business therein or being or having been
present therein or having or having had a permanent establishment therein,
(ii) the failure of such Holder to comply with any certification,
identification or other reporting requirement under United States income
tax laws or regulations (including backup withholding) to establish
entitlement to exemption from such tax, assessment or other governmental
charge, or (iii) such Holder's present or former status as a domestic
personal holding company or a foreign personal holding company with respect
to the United States, as a controlled foreign corporation with respect to
the United States, as a corporation which accumulates earnings to avoid
United States federal income tax, or as a private foundation or other tax
exempt organization;
(b) any tax, assessment or other governmental charge which would not
have been so imposed but for the presentation by the Holder of such
Security or Coupon for payment on a date more than 10 days after the date
on which such payment became due and payable or the date on which payment
thereof is duly provided for, whichever occurs later;
5
<PAGE>
(c) any estate, inheritance, gift, sales, transfer, personal property
or any similar tax, assessment or governmental charge;
(d) any tax, assessment or other governmental charge which is payable
otherwise than by withholding from payment of such Security or Coupon;
(e) any tax, assessment or other governmental charge imposed by
reason of the Holder, actually or constructively, owning or having owned
10% or more of the total combined voting power of all classes of stock of
the Company entitled to vote; or
(f) any combination of items (a), (b), (c), (d) and (e);
nor will Additional Amounts be paid with respect to payment of the principal of
[(or premium, if any)] or interest on any such Security to a person who is a
fiduciary or partnership or other than the sole beneficial owner of such payment
to the extent such payment would be required by the laws of the United States
(or any political subdivision or taxing authority thereof or therein) to be
included in the income for tax purposes of a beneficiary or settlor with respect
to such fiduciary or a member of such partnership or a beneficial owner who
would not have been entitled to the Additional Amounts had such beneficial owner
been a Holder of such Security or Coupon.
The term "United States Alien" as used herein means any corporation,
partnership, individual or fiduciary that, as to the United States (including
the Commonwealth of Puerto Rico, any territory or possession of the United
States or other area subject to its jurisdiction), and for United States tax
purposes, is (i) a foreign corporation, (ii) a foreign partnership one or more
of the members of which is, as to the United States, a foreign corporation, a
nonresident alien individual or a nonresident alien fiduciary of a foreign
estate or trust, (iii) a nonresident alien individual or (iv) a nonresident
alien fiduciary of a foreign estate or trust.
The Securities may be redeemed at the option of the Company in whole
but not in part at any time, at a redemption price equal to their principal
amount, together with interest accrued to the date fixed for redemption, if the
Company determines that it will be obligated to pay to
6
<PAGE>
the Holder of any Security or Coupon on the next succeeding Interest Payment
Date Additional Amounts as set forth herein. Prior to the publication of notice
of such redemption, the Company shall deliver to the Trustee (i) a certificate
stating that the Company is entitled to effect such redemption and setting forth
a statement of facts showing that the conditions precedent to the right of the
Company so to redeem have occurred, and (ii) an opinion of independent counsel
reasonably acceptable to the Trustee to such effect based on such statement of
facts.
If the Company shall determine, based upon an opinion of independent
legal counsel, that any payment made outside the United States by the Company or
any of its Paying Agents in respect of any Security or any Coupon appertaining
thereto would, under any present or future laws or regulations of the United
States, be subject to any certification, documentation, information or other
reporting requirement of any kind, the effect of which requirement is the
disclosure to the Company, any Paying Agent or any governmental authority of the
nationality, residence or identity of a beneficial owner of such Security or
Coupon who is a United States Alien (other than such a requirement (a) which
would not be applicable to a payment made either by the Company or by any one of
its Paying Agents (i) directly to the beneficial owner or (ii) to a custodian,
nominee or other agent of the beneficial owner, or (b) which can be satisfied by
such custodian, nominee or other agent certifying to the effect that the
beneficial owner is a United States Alien; provided, however, that, in any case
-------- -------
referred to in clauses (a)(ii) or (b), payment by the custodian, nominee or
agent to the beneficial owner is not otherwise subject to any such requirement)
the Company shall at its option either (x) redeem the Securities as a whole, at
a redemption price equal to the principal amount thereof, together with accrued
interest to the date fixed for redemption and any Additional Amounts payable in
respect of such principal and accrued interest, or (y) if the conditions of the
next succeeding paragraph are satisfied, pay the Additional Amounts specified in
such paragraph. The Company shall make such determination as soon as
practicable and publish prompt notice thereof (the "Determination Notice"),
stating the effective date of such certification, documentation, information or
reporting requirement, whether the Company will redeem the Securities or pay the
Additional Amounts specified in the next succeeding paragraph, and (if
applicable) the last date by which the redemption of the Securities must take
place, as provided in the next
<PAGE>
succeeding sentence. If the Securities are to be redeemed as provided in this
paragraph, such redemption shall take place on such date, not later than one
year after the publication of the Determination Notice, as the Company shall
elect by notice to the Trustee at least 60 days before the date fixed for
redemption. Notwithstanding the foregoing, the Company shall not so redeem the
Securities if the Company, based upon an opinion of independent legal counsel,
shall subsequently determine, not less than 30 days prior to the date fixed for
redemption, that subsequent payments on the Securities and any Coupons
appertaining thereto would not be subject to any such certification,
documentation, information or other reporting requirement, in which case the
Company shall publish prompt notice of such subsequent determination and any
earlier redemption notice shall be deemed revoked and of no further effect.
If and so long as the certification, documentation, information or
other reporting requirement referred to in the immediately preceding paragraph
would be fully satisfied by payment of a backup withholding tax or similar
charge, the Company may elect to pay as Additional Amounts (regardless of clause
(a)(ii) of the fourth preceding paragraph) such amounts as may be necessary so
that every net payment made outside the United States following the effective
date of such requirement by the Company or any of its Paying Agents of principal
[(or premium, if any)] or interest in respect of any Security or any Coupon
appertaining thereto of which the beneficial owner is a United States Alien (but
without any requirement that the nationality, residence or identity of such
beneficial owner be disclosed to the Company, any Paying Agent or any
governmental authority), after deduction or withholding for or on account of
such backup withholding tax or similar charge (other than a backup withholding
tax or similar charge which is the result of a requirement referred to in the
parenthetical clause of the first sentence of the immediately preceding
paragraph), will not be less than the amount provided in such Security or Coupon
to be then due and payable. If the Company elects to pay Additional Amounts as
provided in this paragraph, the Company shall have the right to redeem the
Securities at any time as a whole, subject to the provisions of the last two
sentences of the immediately preceding paragraph. If the Company elects to pay
Additional Amounts as provided in this paragraph and the condition specified in
the first sentence of this paragraph should no longer be satisfied, then the
8
<PAGE>
Company shall redeem the Securities pursuant to the provision of the immediately
preceding paragraph.
[The Securities may also be redeemed at the option of the Company, as
a whole or from time to time in part, on or at any time after ______________ and
prior to maturity upon publication of a notice as set forth below, at the
following Redemption Prices, expressed in percentages of the principal amount,
together with accrued interest to the Redemption Date:
Year Percentage Year Percentage
Beginning of Principal Beginning of Principal
Amount Amount
----------- --------------- ------------ ----------------
and at _____% of the principal amount thereafter[; provided, however, that no
-------- -------
such optional redemption may be effected, directly or indirectly, prior to
_________, from or in anticipation of moneys borrowed by or for the account of
the Company at an interest cost (computed in accordance with generally accepted
financial practice) of less than _____% per annum].]
[The Securities are [also] subject to redemption through the operation
of the mandatory and optional sinking funds as provided in the Indenture, on
____________, and on each ____________, thereafter to and including
____________, on notice as set forth below, at a Sinking Fund Redemption Price
equal to _____% of the principal amount thereof, together with accrued interest
to the Redemption Date. Securities acquired or redeemed by the Company in any
manner other than by redemption through the mandatory sinking fund may be
credited against future mandatory sinking fund payments.]
9
<PAGE>
If the conditions giving rise to an option of the Company to redeem
the Securities under more than one of the provisions of this Security are
satisfied, the Company's determination, in its sole discretion, as to the
provision under which a redemption shall be effected shall be conclusive and
binding upon all the holders of Securities.
Notice of redemption will be given by publication in an Authorized
Newspaper in The City of New York and London and, if the Securities are then
listed on the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and the Luxembourg Stock Exchange or such other stock
exchange shall so require, in Luxembourg or in any city required by such other
stock exchange (or, if it shall be impracticable in the opinion of the Trustee
to make such publication in Luxembourg or such other city, elsewhere in Europe)
on a Business Day at least twice, the first such publication to be not earlier
than the 60th day, and not later than the 30th day, prior to the Redemption
Date.
[Section 4.03 [(including subparagraph (4) thereof and [clause (A),
but not clause (B),] [clause (B), but not clause (A),] of such subparagraph)]
and Section 10.10 [(including subparagraph (5) thereof)] of the Indenture
contain provisions for defeasance at any time of (a) the entire indebtedness on
this Security and (b) certain restrictive covenants and certain Events of
Default upon compliance by the Company with certain conditions set forth
therein, which provisions apply to this Security.]
The Securities are issuable [only] as Bearer Securities, with Coupons
attached, in denominations of (U.S.$1,000] [U.S.$10,000]. As provided in the
Indenture, and subject to certain limitations therein set forth, Bearer
Securities are exchangeable for a like aggregate principal amount of Bearer
Securities of authorized denominations, as requested by the Holder surrendering
the same.
No service charge will be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Title to this Security and any Coupon appertaining hereto will pass by
delivery. The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Security and any Coupon appertaining thereto as the
10
<PAGE>
absolute owner thereof for all purposes, whether or not such Security or Coupon
be overdue, and neither the Company or the Trustee nor any such agent shall be
affected by notice to the contrary.
If an Event of Default, as defined in the Indenture, with respect to
the Securities shall occur, (i) that portion of the principal amount equal to
the initial public offering price of this Security plus [accrued amortization of
the original issue discount calculated using the ["interest"] method (computed
in accordance with generally accepted accounting principles in effect on the
date of the Indenture) from ____________, ____________ to the date of
acceleration and (ii) any accrued interest to the date of acceleration] may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company with the consent of the Holders of [a majority]
[applicable greater percentage] in aggregate principal amount of the then
Outstanding Securities of this series and of each other series issued under the
Indenture and affected by such amendment or modification. The Indenture also
permits the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive certain past defaults under the Indenture with respect to
the Securities and their consequences. Any such consent or waiver shall be
conclusive and binding upon the Holder of this Security or any Coupon
appertaining hereto and upon all future Holders of this Security or any Coupon
appertaining hereto and of any Security issued in exchange herefor or in lieu
hereof whether or not a notation of such consent or waiver is made upon this
Security.
No recourse shall be had for the payment of the principal of [(or
premium, if any)] or the interest on this Security, or for any claim based
hereon or on any Coupon appertaining hereto, or otherwise in respect hereof or
thereto, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or any successor
corporation, either
11
<PAGE>
directly or through the Company or any successor corporation, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
Except as otherwise defined in this Security or any Coupon
appertaining hereto, all terms used herein or therein which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
This Security and the Coupons appertaining hereto shall each be deemed
to be contracts made under the laws of the State of New York and for all
purposes shall be construed in accordance with and governed by the laws of said
State.
12
<PAGE>
[FORM OF FACE OF COUPON]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE
CODE.
[U.S.$_______]
Due ________,19__
FORTUNE BRANDS, INC.
Unless the Security to which this Coupon appertains shall have been
called for previous redemption and payment thereof duly provided for, on the
date set forth hereon, Fortune Brands, Inc., a Delaware corporation (the
"Company"), will pay to the bearer, upon surrender hereof, the amount shown
hereon (together with any additional amounts in respect thereof which the
company may be required to pay according to the terms of said Security and the
Indenture referred to therein), subject to any applicable laws and regulations,
at the option of the bearer either (a) at the office of the Paying Agent in
London set forth on the reverse hereof, or (b) subject to the limitations set
forth in said Security and Indenture and as prescribed thereon and therein, at
the offices of the other Paying Agents set out on the reverse hereof or at such
other places outside the United States of America, its territories and
possessions and areas subject to its jurisdiction and the Commonwealth of Puerto
Rico (the "United States") as the Company may determine from time to time, by a
[United States Dollar] check drawn on a bank located in [The City of New York]
or, at the option of the bearer, by transfer to a [United States
13
<PAGE>
Dollar] account maintained by the bearer with a bank located outside the United
States, being interest then payable on said Security.
FORTUNE BRANDS, INC.
By:_________________________
[FORM OF REVERSE OF COUPON]
PAYING AGENTS
14
<PAGE>
Exhibit 4e1
[Form of Original Issue
Discount Bearer Security]
[FORM OF FACE OF ORIGINAL ISSUE
DISCOUNT REGISTERED SECURITY]
UNDER THE UNITED STATES INTERNAL REVENUE CODE, THIS SECURITY HAS BEEN
ISSUED WITH ORIGINAL ISSUE DISCOUNT OF _____ PER _____ FACE AMOUNT AND THE YIELD
TO MATURITY IS _____% [,DETERMINED UNDER THE EXACT METHOD]. THE ISSUE DATE OF
THIS SECURITY IS ___________ [, AND THE AMOUNT OF ORIGINAL ISSUE DISCOUNT
ATTRIBUTABLE TO THE ___________ PERIOD FROM THE ISSUE DATE WOULD BE ___________
PER _________ FACE AMOUNT].
No.________________ $______
FORTUNE BRANDS, INC.
_______________________
FORTUNE BRANDS, INC., a corporation duly organized and existing under
the laws of the State of Delaware (herein referred to as the "Company"), for
value received, hereby promises to pay to __________________ or registered
assigns, the principal sum of ______________ Dollars on ___________, and to pay
interest, semiannually on ___________ and ___________ of each year, on said
principal sum at the rate of _____% per annum, from the___________ or
___________, as the case may be, next preceding the date of this Security to
which interest has been paid, unless the date hereof is a date to which interest
has been paid, in which case from the date of this Security, or unless no
interest has been paid on the Securities, in which case from ___________, until
payment of said principal sum has been made or duly provided for.
Notwithstanding the foregoing, if the date hereof is after a ___________ or
___________, as the case may be, and before the following ___________ or
___________, this Security shall bear interest from such ___________ or
___________; provided, however, that if the Company shall default in the payment
-------- -------
of interest due on such ___________ or ___________, then this Security shall
bear interest from the next preceding ___________ or ___________ to which
interest has been paid, or, if no interest has been paid on the Securities, from
___________. The interest so payable on any ___________ or ___________ will,
subject to certain exception provided in the Indenture referred to on the
reverse hereof, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
___________ or
<PAGE>
___________, as the case may be, next preceding such ___________ or ___________.
The principal of [(and premium, if any)] and interest on this Security are
payable at the office or agency of the Company in the Borough of Manhattan, The
City of New York, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided that interest may be paid, at the option of the Company, by check
- --------
mailed to the Person entitled thereto at his address appearing on the Security
Register. Any interest not punctually paid or duly provided for shall be payable
as provided in said Indenture.
Reference is made to the further provisions of this Security set forth
on the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee by the manual signature of one of its authorized officers, this
Security shall not be entitled to any benefit under said Indenture, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:_________________
FORTUNE BRANDS, INC.
By _______________________
[SEAL]
Attest:
_______________________
Secretary
2
<PAGE>
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
, as Trustee
By ____________________
Authorized Officer
[FORM OF REVERSE OF ORIGINAL ISSUE
DISCOUNT REGISTERED SECURITY]
FORTUNE BRANDS, INC.
____________________
This Security is one of a duly authorized issue of Securities of the
Company designated as its _______________ (Securities of such series being
hereinafter called the "Securities"), [limited, except as provided in the
Indenture referred to below, in aggregate principal amount to $______,] issued
and to be issued under an Indenture dated as of July ____, 19___ (hereinafter
called the "Indenture") between the Company and
___________________________________, a New York corporation (hereinafter called
the "Trustee", which term includes any successor trustee under the Indenture
with respect to the Securities of this series), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities, and
the terms upon which the Securities are, and are to be, authenticated and
delivered.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of [(and premium, if any)]
and interest on this Security at the times, place and rate, and in the coin and
currency, herein prescribed.
[The Securities are not subject to redemption by the Company prior to
maturity.]
[The Securities may be redeemed at the option of the Company, as a
whole or from time to time in part, on or
3
<PAGE>
at any time after ___________ and prior to maturity upon mailing a notice of
such redemption not less than 30 nor more than 60 days prior to the Redemption
Date to the Holders of Securities, all as provided in the Indenture, at the
following Redemption Prices, expressed in percentages of the principal amount,
together with accrued interest to the Redemption Date:
Year Percentage Year Percentage
Beginning of Principal Beginning of Principal
Amount Amount
--------------- ---------------- ------------- ---------------
and at _____% of the principal amount thereafter[; provided, however, that no
-------- -------
such optional redemption may be effected, directly or indirectly, prior to
_______________, from or in anticipation of moneys borrowed by or for the
account of the Company at an interest cost (computed in accordance with
generally accepted financial practice) of less than _____% per annum].]
[The Securities are [also] subject to redemption through the operation
of the mandatory and optional sinking funds as provided in the Indenture, on
______________, and on each _________________ thereafter to and including
______________ [,on notice as set forth above,] at a Sinking Fund Redemption
Price equal to _____% of the principal amount thereof, together with accrued
interest to the Redemption Date. Securities acquired or redeemed by the Company
in any manner other than by redemption through the mandatory sinking fund may be
credited against future mandatory sinking fund payments.]
[The Securities are [also] subject to repayment on ___________, in
whole or in part, in increments of $_____ or integral multiples of $_____ in
excess of $_____, provided that the portion of the principal amount of any
Security not
4
<PAGE>
being repaid shall be at least $_____, at the option of the Holders thereof at a
repayment price equal to _____% of the principal amount thereof to be repaid,
together with interest payable thereon to the repayment date. For this Security
to be repaid at the option of the Holder, the Company must receive at the
corporate trust office of the Trustee in the Borough of Manhattan, The City of
New York, during the period from and including _____________ to and including
_____________ or, if _____________ is not a Business Day in The City of New
York, the next succeeding Business Day in The City of New York, (i) this
Security with the form entitled "Option to Elect Repayment" below duly completed
or (ii) a telegram, telex, facsimile transmission or letter from a member of a
national securities exchange or the National Association of Securities Dealers,
Inc. or a commercial bank or trust company in the United States of America
setting forth the name of the Holder of this Security, the principal amount of
this Security, the amount of this Security to be repaid, a statement that the
option to elect repayment is being made thereby and a guarantee that this
Security with the form entitled "Option to Elect Repayment" on the reverse
hereof duly completed will be received by the Company no later than five
Business Days in The City of New York after the date of such telegram, telex,
facsimile transmission or letter, and this Security and such form duly completed
are received by the Company by such fifth Business Day. Either form of notice
duly received during the period from and including ____________ to and including
____________ shall be irrevocable. All questions as to the validity, eligibility
(including time of receipt) and acceptance of any Securities for repayment will
be determined by the Company, whose determination shall be final and binding.]
[Section 4.03 [(including subparagraph (4) thereof and [clause (A),
but not clause (B),] (clause (B), but not clause (A),] of such subparagraph)]
and Section 10.10 [(including subparagraph (5) thereof)] of the Indenture
contain provisions applicable to this Security that provide for defeasance at
any time of (a) the entire indebtedness on this Security and (b) certain
restrictive covenants and certain Events of Default upon compliance by the
Company with certain conditions set forth therein.]
As provided in the Indenture and subject to certain limitations
therein set forth, this Security may be registered for transfer on the Security
Register of the Company, upon surrender of this Security for registration of
5
<PAGE>
transfer at the office or agency of the Company in the Borough of Manhattan, The
City of New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee and the Security
Registrar duly executed by, the registered Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities are issuable only as Registered Securities in
denominations of [$1,000 and any integral multiple thereof]. As provided in the
Indenture, and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Registered Securities of
different authorized denominations, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company or the Trustee nor any such agent shall be affected by notice to the
contrary.
If an Event of Default, as defined in the Indenture, with respect to
the Securities shall occur, (i) that portion of the principal amount equal to
the initial public offering price of this Security plus [accrued amortization of
the original issue discount calculated using the ["interest"] method (computed
in accordance with generally accepted accounting principles in effect on the
date of the Indenture) from ___________, ___________ to the date of acceleration
and (ii) any accrued interest to the date of acceleration] may be declared, and
upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any
6
<PAGE>
time by the Company with the consent of the Holders of [a majority] [applicable
greater percentage] in aggregate principal amount of the then Outstanding
Securities of this series and of each other series issued under the Indenture
and affected by such amendment or modification. The Indenture also permits the
Holders of a majority in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
certain past defaults under the Indenture with respect to the Securities and
their consequences. Any such consent or waiver shall be conclusive and binding
upon the Holder of this Security and upon all future Holders of this Security
and if any Security issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof whether or not a notation of such consent or
waiver is made upon this Security.
No recourse shall be had for the payment of the principal of [(or
premium, if any)] or the interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or any successor corporation, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
Except as otherwise defined herein, all terms used in this Security
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
This Security shall be deemed to be a contract made under the laws of
the State of New York and for all purposes shall be construed in accordance with
and governed by the laws of said State.
[FORM OF OPTION TO ELECT REPAYMENT]
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Security (or portion thereof specified below) pursuant to
its terms at a price equal to _____% of the principal amount thereof,
7
<PAGE>
together with interest to the repayment date, to the undersigned, at
____________________________________________________________
________________________________Tax I.D. No.________________ (Please Print or
Typewrite Name, Address and Tax Identification Number of the Undersigned)
For this Security to be repaid the Company must receive at the
corporate trust office of the Trustee in the Borough of Manhattan, The City of
New York, or at such additional place or places of which the Company shall from
time to time notify the Holder of the within Security during the period from and
including _____________ to and including _____________ or, if _____________ is
not a Business Day in The City of New York, the next succeeding Business Day in
The City of New York, (i) this Security with this "Option to Elect Repayment"
form duly completed or (ii) a telegram, telex, facsimile transmission or letter
from a member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States of America setting forth the name of the holder of this Security, the
principal amount of this Security, the amount of this Security to be repaid, a
statement that the option to elect repayment is being made thereby and a
guarantee that this Security with this form entitled "Option to Elect Repayment"
duly completed will be received by the Company not later than five Business Days
in The City of New York after the date of such telegram, telex, facsimile
transmission or letter, and this Security and form duly completed are received
by the Company by such fifth Business Day.
If less than the entire principal amount of the within Security is to
be repaid, specify the portion thereof (which shall be $_____ or an integral
multiple of $_____ in excess of $_____) which the Holder elects to have repaid:
$_____; and specify the denomination or denominations (which shall be $_____ or
an integral multiple of $_____ in excess of $_____) of the Security or
Securities to be issued to the Holder for the amount of the portion of the
within Security not being repaid (in the absence of any such specification,
8
<PAGE>
one such Security will be issued for the portion not being repaid): $_____.
Dated:________________ _________________________________________________
NOTICE: The signature on this Option to Elect
Repayment must correspond with the name as written
upon the face of this Security in every particular
without alteration or enlargement or any other
change whatsoever.
9
<PAGE>
Exhibit 4fl
[Form of Debt Warrant
Agreement for Warrants Sold
Attached to Debt Securities]
FORTUNE BRANDS, INC.
and
____________________,
as Warrant Agent
_______________________________
DEBT WARRANT AGREEMENT
Dated as of _______________
________________________________
Warrants to Purchase __________
_________________________
<PAGE>
TABLE OF CONTENTS/*/
--------------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I ISSUANCE OF WARRANTS [AND TEMPORARY
GLOBAL SECURITY] 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........................ 4
SECTION 1.04. Temporary Global Security............................... 5
ARTICLE II WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS........... 6
SECTION 2.01. Warrant Price........................................... 6
SECTION 2.02. Duration of Warrants.................................... 6
SECTION 2.03. Exercise of Warrants.................................... 6
ARTICLE III OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES....................... 11
SECTION 3.01. No Rights as Warrant Securityholder
Conferred by Warrants or Warrant
Certificates......................................... 11
SECTION 3.02. Lost, Mutilated, Stolen or
Destroyed Warrant Certificates....................... 11
SECTION 3.03. Enforcement of Rights................................... 12
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer........... 12
ARTICLE IV EXCHANGE AND TRANSFER...................................... 13
SECTION 4.01. Exchange and Transfer................................... 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................................ 16
</TABLE>
/*/ The Table of Contents is not a part of the Agreement.
i
<PAGE>
<TABLE>
<S> <C>
SECTION 5.01. Warrant Agent........................................... 16
SECTION 5.02. Conditions of Warrant Agent's Obligations............... 16
SECTION 5.03. Resignation and Appointment of Successor................ 18
ARTICLE VI MISCELLANEOUS.............................................. 20
SECTION 6.01. Amendment............................................... 20
SECTION 6.02. Notices and Demands to the Company and Warrant Agent.... 20
SECTION 6.03. Addresses............................................... 20
SECTION 6.04. Applicable Law.......................................... 21
SECTION 6.05. Delivery of Prospectus.................................. 21
SECTION 6.06. Obtaining of Governmental Approval...................... 21
SECTION 6.07. Persons Having Rights Under Warrant Agreement........... 21
SECTION 6.08. Headings................................................ 21
SECTION 6.09. Counterparts............................................ 22
SECTION 6.10. Inspection of Agreement................................. 22
SECTION 6.11. Notices to Holders of Warrants.......................... 22
</TABLE>
EXHIBIT A - Form of Warrant Certificates [in Registered Form]
[EXHIBIT B - Form of Global Warrant Certificates in Bearer Form]
[EXHIBIT C - Form of Certificate to be Delivered to the Warrant Agent by the
Euro-clear Operator or CEDEL]
[EXHIBIT D - Form of Warrant Exercise Notice]
ii
<PAGE>
DEBT WARRANT AGREEMENT/*/
THIS AGREEMENT dated as of ____________ between FORTUNE BRANDS, INC.,
a corporation duly organized and existing under the laws of the State of
Delaware (the "Company"), and _______________________________, a [bank] [trust
company] duly incorporated and existing under the laws of _______________, as
Warrant Agent (the "Warrant Agent"),
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company has entered into an Indenture dated as of [
], 1999, as amended (the "Indenture"), between the Company and [The Chase
Manhattan Bank], as Trustee (the "Trustee"), providing for the issuance from
time to time of its unsecured debt securities to be issued in one or more series
as provided in the Indenture; and
WHEREAS, the Company proposes to sell [Title of such debt securities
being offered] (the "Offered Securities") with one or more warrants (the
"Warrants") representing the right to purchase [title of such debt securities
purchasable through exercise of Warrants] (the "Warrant Securities"), the
Warrants to be evidenced by warrant certificates issued pursuant to this
Agreement (the "Warrant Certificates"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the
______________________
. Complete or modify the provisions of this form as appropriate to reflect
------------------------------------------------------------------------
the terms of the Warrants and Warrant Securities. Monetary amounts may be
-------------------------------------------------------------------------
in U.S. dollars, in a foreign currency or in a composite currency,
-----------------------------------------------------------------
including but not limited to the European Currency Unit.
-------------------------------------------------------
Bracketed language here and throughout this Agreement should be inserted as
---------------------------------------------------------------------------
follows:
-------
1: If Warrants are immediately detachable from the Offered Securities;
-------------------------------------------------------------------
and
---
2: If Warrants are detachable from the Offered Securities only after the
---------------------------------------------------------------------
Detachable Date.
---------------
<PAGE>
issuance, transfer, exchange, exercise and replacement of the Warrant
Certificates, and in this Agreement wishes to set forth, among other things, the
form[s] and provisions of the Warrant Certificates and the terms and conditions
on which they may be issued, transferred, 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. The Warrants shall be evidenced
--------------------
by one or more Warrant Certificates. 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 and shall be initially
issued in connection with the issuance of the Offered Securities [1: and shall
be separately transferable immediately thereafter] [2: but shall not be
separately transferable until on and after , 19 (the "Detachable Date")]. The
Warrants shall be initially issued [in units] with the Offered Securities, and
each Warrant [included in such a unit] shall evidence the right, subject to the
provisions contained herein and in the Warrant Certificates, to purchase [ ]
principal amount of Warrant Securities [included in such a unit].
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
----------------------------------------------
Warrant, whenever issued, shall be evidenced by a Warrant Certificate in
registered form [or a global Warrant Certificate in bearer form (the "Global
Warrant Certificate")] [the form to be the same as that of the Warrant Security
in connection with which the Warrant Certificate is issued], substantially in
the form[s] set forth in Exhibit A [and Exhibit B, respectively,] 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
2
<PAGE>
to usage. The Warrant Certificates shall be signed on behalf of the Company by
its Chairman of the Board (or its Chairman of the Executive Committee), any Vice
Chairman, its President, its principal financial officer, its principal
accounting officer, its general counsel, any Vice President or its Treasurer, in
each case under its corporate seal, which may but need not be attested by its
Secretary or one of its Assistant Secretaries [, except that the Global Warrant
Certificate may be executed by any such officer without any necessity that such
signature be under seal as aforesaid]. Such signatures may be manual or
facsimile signatures of such authorized officers and may be imprinted or
otherwise reproduced on the Warrant Certificates. The corporate 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 Warrant Agent by manual signature. Such signature by the
Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence, and the only evidence, that the Warrant Certificate so
countersigned has been duly issued hereunder.
[The Global Warrant Certificate shall be and remain subject to the
provisions of this Agreement until such time as all of the Warrants evidenced
thereby shall have been duly exercised or shall have expired or been cancelled
in accordance with the terms thereof.]
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 as provided herein, 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 officer.
The term "Holder", when used with respect to any Warrant Certificate
[in registered form], shall mean any person in whose name at the time such
Warrant Certificate shall be registered upon the books to be maintained by the
3
<PAGE>
Warrant Agent for that purpose [2: or, prior to the Detachable Date, any person
in whose name at the time the Offered Security to which such Warrant Certificate
is attached is registered upon the register of the Offered Securities. 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]. [The term "Holder", when used with
respect to the Global Warrant Certificate, shall mean [2:, prior to the
Detachable Date, the bearer of the Temporary Global Security (as defined in
Section 1.04) evidencing the Offered Securities to which the Warrants evidenced
by the Global Warrant Certificate were initially attached and, after the
Detachable Date,] the bearer of the Global Warrant Certificate.]
SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
--------------------------------
evidencing the right to purchase an aggregate principal amount not exceeding
_____ aggregate principal amount of _____ Warrant Securities (except as provided
in Sections 2.03, 3.02 and 4.01) may be executed by the Company and delivered to
the Warrant Agent upon the execution of this Warrant Agreement or from time to
time thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates
duly executed on behalf of the Company, countersign Warrant Certificates
evidencing ________ Warrants representing the right to purchase up to ________
aggregate principal amount of Warrant Securities and shall[, in the case of
Warrant Certificates in registered form,] deliver such Warrant Certificates to
or upon the order of the Company [and, in the case of the Global Warrant
Certificate, upon the order of the Company, deposit the Global Warrant
Certificate with _______________________, as common depositary (the "Common
Depositary") for Morgan Guaranty Trust Company of New York, Brussels office (or
any successor), as operator of the Euro-clear System (the "Euro-clear
Operator"), and for Centrale de Livraison de Valeurs Mobilieres S.A. ("CEDEL")
for credit to the accounts of persons appearing from time to time on the records
of the Euro-clear Operator or of CEDEL as being entitled to any portion thereof.
[2: the Temporary Global Security [, as defined in Section 1.04,] will at the
same time be deposited with the Common Depositary.] [The Global Warrant
Certificate shall be held by the Common Depositary outside the United Kingdom.]]
Subsequent to such original issuance of the Warrant Certificates, the Warrant
Agent shall countersign a Warrant Certificate only if the Warrant Certificate is
4
<PAGE>
issued in exchange or substitution for one or more previously countersigned
Warrant Certificates or [, with respect to Warrant Certificates in registered
form,] in connection with their transfer as hereinafter provided or as provided
in the antepenultimate paragraph of Section 2.03.
Pending the preparation of definitive Warrant Certificates [in
registered form] evidencing Warrants, the Company may execute and the Warrant
Agent shall countersign and deliver temporary Warrant Certificates [in
registered form] evidencing such Warrants (printed, lithographed, typewritten or
otherwise produced, in each case in form satisfactory to the Warrant Agent).
Such temporary Warrant Certificates shall be issuable substantially in the form
of the definitive Warrant Certificates [in registered form] but with such
omissions, insertions and variations as may be appropriate for temporary Warrant
Certificates, all as may be determined by the Company with the concurrence of
the Warrant Agent. Such temporary Warrant Certificates may contain such
reference to any provisions of this Warrant Agreement as may be appropriate.
Every such temporary Warrant Certificate shall be executed by the Company and
shall be countersigned by the Warrant Agent upon the same conditions and in
substantially the same manner, and with like effect, as the definitive Warrant
Certificates [in registered form]. Without unreasonable delay, the Company
shall execute and shall furnish definitive Warrant Certificates [in registered
form] and thereupon such temporary Warrant Certificates may be surrendered in
exchange therefor without charge pursuant to and subject to the provisions of
Section 4.01, and the Warrant Agent shall countersign and deliver in exchange
for such temporary Warrant Certificates definitive Warrant Certificates [in
registered form] of authorized denominations evidencing a like aggregate number
of Warrants evidenced by such temporary Warrant Certificates. Until so
exchanged, such temporary Warrant Certificates shall be entitled to the same
benefits under this Warrant Agreement as definitive Warrant Certificates [in
registered form].
[2: SECTION 1.04. Temporary Global Security. Prior to the Detachable
-------------------------
Date, each Offered Security to be issued with Warrants evidenced by the Global
Warrant Certificate shall, whenever issued, be evidenced by a single temporary
global Offered Security in bearer form without interest coupons (the "Temporary
Global Security") to be issued by the Company as provided in the Indenture.]
5
<PAGE>
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. On __________, 19__, the exercise price
-------------
of each Warrant will be ____________. During the period from _____________,
19__ through and including _____________, 19__, the exercise price of each
warrant Will be _____ plus ______ [accrued amortization of the original issue
discount] [accrued interest] from ___________, 19__. On _____________, 19__ the
exercise price of each Warrant will be ________. During the period from
___________, 19__ through and including ______________, 19__, the exercise price
of each Warrant will be _____ plus [accrued amortization of the original issue
discount] [accrued interest] from _____________, 19__. [In each case, the
original issue discount will be amortized at a ___% annual rate, computed on an
annual basis using the "interest" method and using a 360-day year consisting of
twelve 30-day months]. Such exercise 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. Subject to Section 4.03(b), each
--------------------
Warrant may be exercised [in whole but not in part] [in whole or in part] [at
any time, as specified herein, on or after [the date thereof] [_____________,
19__] and at or before [time, location] on _____________, 19__ (each day during
such period may hereinafter be referred to as an "Exercise Date")] [on [list of
specific dates] (each, an "Exercise Date")], or such later date as the Company
may designate by notice to the Warrant Agent and the Holders of Warrant
Certificates [in registered form and to the beneficial owners of the Global
Warrant Certificate] (the "Expiration Date"). Each Warrant not exercised at or
before [time, location] on the Expiration Date shall become void, and all rights
of the Holder [and any beneficial owners] of the Warrant Certificate evidencing
such Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. [During] [With respect to
--------------------
Warrants evidenced by Warrant Certificates in registered form, 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
Certificates evidencing such Warrants and by paying in full [in lawful money of
the United States of America] [in applicable currency] [in cash] [by certified
check or official bank check or by bank wire transfer, in each case,] [by bank
wire transfer] [in immediately
6
<PAGE>
available funds,] the Warrant Price for each Warrant exercised (plus accrued
interest, if any, on the Warrant Securities to be issued upon exercise of such
Warrant from and including the Interest Payment Date (as defined in the
Indenture), if any, in respect of such Warrant Securities immediately preceding
the Exercise Date to and including the Exercise Date (unless the Exercise Date
is after the Regular Record Date (as defined in the Indenture), if any, for such
Interest Payment Date, but on or before the immediately succeeding Interest
Payment Date for such Warrant Securities, in which event no such accrued
interest shall be payable)) to the Warrant Agent at its corporate trust office
at [address] [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 evidencing each Warrant exercised with
the form of election to purchase Warrant Securities set forth on the reverse
side of the Warrant Certificate properly completed and duly executed.
[With respect to Warrants evidenced by the Global Warrant Certificate,
during the period specified in Section 2.02, any whole number of Warrants may be
exercised by the Holder by presentation to the Warrant Agent at its office at
[address located outside the United States [and the United Kingdom]], at or
prior to [time], on any day on which the Warrants are exercisable, of (i) the
Global Warrant Certificate [2: together with, if prior to the Detachable Date,
the Temporary Global Security] (or written confirmation reasonably satisfactory
to the Warrant Agent that the Global Warrant Certificate [1: is] [2: and, if
prior to the Detachable Date, the Temporary Global Security are] held by the
Euro-clear Operator and CEDEL and will be duly endorsed to reflect the exercise
of Warrants [2: and, if prior to the Detachable Date, the surrender to the
Warrant Agent of the Offered Securities to which the Warrants are attached] by
the Euro-clear Operator and CEDEL), (ii) a duly executed certification from the
Euro-clear Operator or CEDEL, as the case may be, substantially in the form set
forth in Exhibit C hereto and (iii) payment in full [in lawful money of the
United States of America] [in applicable currency] [in cash] [by certified check
or official bank check or by bank wire transfer, in each case,] [by bank wire
transfer] [in immediately available funds,] of the Warrant Price for each
Warrant exercised (plus accrued interest, if any, on the Warrant Securities to
be issued upon exercise of such Warrant from and including the Interest Payment
Date, if any, in respect of such Warrant Securities immediately preceding the
Exercise Date to and including the Exercise Date (unless the Exercise Date is
<PAGE>
after the Regular Record Date, if any, for such Interest Payment Date, but on or
before the immediately succeeding Interest Payment Date for such Warrant
Securities, in which event no such accrued interest shall be payable in respect
of Warrant Securities to be issued in registered form)). Notwithstanding the
foregoing, the Holder may exercise Warrants as aforesaid on the Expiration Date
at any time prior to [time] in [city of Warrant Agent's office]. Any Warrants
exercised as set forth in this paragraph shall be deemed exercised at the
[country] office of the Warrant Agent.]
[The Warrant Agent shall retain each certificate received by it from
the Euro-clear Operator or CEDEL through the Expiration Date (or such earlier
date by which all of the Warrants may have been exercised or cancelled) and
thereafter shall dispose of them or deliver them to the Company pursuant to the
instructions of the Company.]
[The delivery to the Warrant Agent by the Euro-clear Operator or CEDEL
of any certification referred to above may be relied upon by the Company, the
Warrant Agent and the Trustee as conclusive evidence that a corresponding
certificate or certificates substantially in the form of Exhibit D hereto has or
have been delivered to the Euro-clear Operator or CEDEL, as the case may be.]
[The Company will maintain in [location] (or in such other city [in
western Europe] as the Company may deem advisable), until the right to exercise
the Warrants shall expire or be earlier cancelled as hereinafter provided, an
agency where the Global Warrant Certificate [2: and, if prior to the Detachable
Date, the Temporary Global Security] may be presented for exercise of the
Warrants represented thereby [2: and, if prior to the Detachable Date, for
surrender for cancellation of the Offered Securities to which such Warrants are
attached] and notices and demands to or upon the Company in respect of the
Warrants or of this Agreement may be made.]
The date on which payment in full of the Warrant Price (plus any such
accrued interest) is received by the Warrant Agent shall, subject to receipt of
the Warrant Certificate [in registered form or, as the case may be, the Global
Warrant Certificate [2: and, if required, the Temporary Global Security] and the
certification of the Euro-clear Operator or CEDEL] 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 for the exercise of Warrants in an account of
the Company maintained with it (or in such other account as may be
8
<PAGE>
designated by the Company) and shall advise the Company, by telephone or by
facsimile transmission or other form of electronic communication available to
both parties, at the end of each day on which a payment for the exercise of
Warrants is received of the amount so deposited to its account. The Warrant
Agent shall promptly confirm such advice to the Company in writing.
If a day on which Warrants may be exercised in the city in which such
Warrants are to be exercised shall be a Saturday or Sunday or a day on which
banking institutions in such city are authorized or required to be closed, then,
notwithstanding any other provision of this Agreement or the Warrant Certificate
evidencing such Warrants, but subject to the limitation that no Warrant may be
exercised after the Expiration Date, the Warrants shall be exercisable on the
next succeeding day which in such city is not a Saturday or Sunday or a day on
which banking institutions in such city are authorized or required to be closed.
The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company [and][,] the Trustee [and the Common Depositary
at [both] its London [and location] office[s]] in writing [(which, in the case
of exercised Warrants represented by the Global Warrant Certificate, shall be
tested telex with appropriate answerback received,)] of (i) the number of
Warrants exercised, (ii) the instructions of each Holder of the Warrant
Certificates [in registered form] evidencing such Warrants [or of the Euro-clear
Operator or CEDEL, as the case may be,] with respect to delivery of the Warrant
Securities to be issued upon such exercise, (iii) delivery of any Warrant
Certificates [in registered form] evidencing the balance, if any, of the
Warrants remaining after such exercise, and (iv) such other information as the
Company or the Trustee shall reasonably require. [In addition, in the case of
exercised Warrants evidenced by the Global Warrant Certificate, the Warrant
Agent shall, as promptly as practicable, endorse, or cause the Common
Depositary, [location] office, or one of the Warrant Agent's agents to endorse,
Schedule A annexed to the Global Warrant Certificate to reflect the exercise of
such Warrants [2: and the Temporary Global Security to reflect the surrender for
cancellation of the Offered Securities to which such Warrants are attached] and,
if applicable, return the Global Warrant Certificate [2: and the Temporary
Global Security] to the Common Depositary or to its order.]
As soon as practicable after the exercise of any Warrant [evidenced by
a Warrant Certificate in registered form], but subject to receipt by the Warrant
Agent of the
9
<PAGE>
Warrant Certificate evidencing such Warrant as provided in this Section, the
Company shall issue, pursuant to the Indenture, in authorized denominations to
or upon the order of the Holder of the Warrant Certificate evidencing each
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
[in registered form] evidencing the number of such Warrants remaining
unexercised.
[As soon as practicable after the exercise of any Warrant evidenced by
the Global Warrant Certificate, but, in the case of any Warrant Securities to be
issued in bearer form as provided in this sentence, on the date of the
applicable certification of the Euro-clear Operator or CEDEL referred to in the
second paragraph of this Section 2.03, the Company shall issue, pursuant to the
Indenture, the Warrant Securities issuable upon such exercise, in authorized
denominations (i) in fully registered form, registered in such name or names as
may be directed by the Euro-clear Operator or CEDEL, as the case may be, to or
upon order of the Euro-clear Operator or CEDEL, as the case may be, or (ii) in
bearer form to the Common Depositary to be held for the account of the Euro-
clear Operator or CEDEL, as the case may be; provided, however, that no Warrant
-------- -------
Security in bearer form shall be mailed or otherwise delivered to any location
in the United States of America, its territories or possessions or areas subject
to its jurisdiction or the Commonwealth of Puerto Rico.]
The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issuance of the Warrant Securities, and in the event that any
such transfer is involved, the Company shall not be required to issue or deliver
any Warrant 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.
10
<PAGE>
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 Certificate or Warrant evidenced
- --------------------------------
thereby shall entitle the Holder or any beneficial owner thereof to any of the
rights of a holder or beneficial owner of Warrant Securities, including, without
limitation, the right to receive the payment of principal of (premium, if any)
or interest, if any, on Warrant Securities or to enforce any of the covenants in
the Indenture.
SECTION 3.02. Lost, Mutilated, Stolen 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, mutilation,
theft or destruction of any Warrant Certificate and of such security or
indemnity as may be required by the Company and the Warrant Agent to hold each
of them and any agent of them harmless and, in the case of mutilation of a
Warrant Certificate, 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,
mutilated, stolen or destroyed Warrant Certificate, a new Warrant Certificate of
the same tenor and evidencing a like number of Warrants[; provided, however,
-------- -------
that any Global Warrant Certificate shall be so delivered only to the Common
Depositary]. Upon the issuance of any new Warrant Certificate under this
Section, the Company may require the payment of a sum sufficient to cover any
stamp or other 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, mutilated, stolen or
destroyed Warrant Certificate shall represent an additional contractual
obligation of the Company, whether or not the lost, stolen or destroyed Warrant
Certificate shall be at any time enforceable by anyone, and 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
11
<PAGE>
remedies with respect to the replacement of lost, mutilated, stolen or destroyed
Warrant Certificates.
SECTION 3.03. Enforcement of Rights. Notwithstanding any of the
---------------------
provisions of this Agreement, any Holder of a Warrant Certificate [in registered
form or the beneficial owner of any Warrant evidenced by the Global Warrant
Certificate], without the consent of [the Common Depositary,] the Warrant Agent,
the Trustee, the holder of any Offered Securities or the Holder of any other
Warrant Certificate, may, in its own behalf and for its own benefit, enforce,
and may institute and maintain any suit, action or proceeding against the
Company suitable to enforce, or otherwise in respect of, its right to exercise
its Warrants in the manner provided in its Warrant Certificate [or the Global
Warrant Certificate, as the case may be,] and in this Agreement. [Neither the
Company nor the Warrant Agent shall be required to treat any person as a
beneficial owner of any Warrant evidenced by the Global Warrant Certificate
unless such person is so certified as such a beneficial owner by the Euro-clear
Operator or CEDEL.]
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer. (a) If
---------------------------------------------
at any time there shall be a merger or consolidation of the Company or a
conveyance or transfer of its property and assets substantially as an entirety
as permitted under the Indenture, 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 the Indenture, as if it had been
named herein and in the Warrant Certificates as the Company; the Company shall
thereupon, except in the case of a transfer by way of lease, be relieved of any
further obligation hereunder and under the Warrants and the Warrant
Certificates, and the Company as the predecessor corporation, except in the case
of a transfer by way of lease, may thereupon or at any time thereafter be
dissolved, wound up or liquidated. Such successor or assuming corporation may
thereupon cause to be signed, and may issue either in its own name or in the
name of the Company, Warrant Certificates evidencing any or all of the Warrants
issuable hereunder which theretofore shall not have been signed by the Company,
and may execute and deliver Warrant Securities in its own name pursuant to the
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
12
<PAGE>
merger, consolidation, conveyance or transfer, such changes in phraseology and
form (but not in substance) may be made in the Warrant Certificates representing
the warrants thereafter to be issued as may be appropriate.
(b) The Warrant Agent may receive a written opinion of legal counsel
(who shall be acceptable to the Warrant Agent) as conclusive evidence that any
such merger, consolidation, conveyance or transfer complies with the provisions
of this Section and the Indenture.
ARTICLE IV
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer. (a) [1: Upon] [2: Prior to the
Detachable Date, a Warrant Certificate [in registered form] may be exchanged or
transferred only together with the Offered Security to which such Warrant
Certificate was initially attached, and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Offered Security. Prior to the
Detachable Date, the transfer of the beneficial ownership of any Warrant
evidenced by the Global Warrant Certificate shall effect and shall be deemed to
effect the transfer of the beneficial ownership of any Offered Securities
evidenced by the Temporary Global Security that are attached to such Warrants.
Prior to any Detachable Date, each transfer of the Offered Security [on the
register maintained with respect to the Offered Securities, in the case of an
Offered Security that is in regisered from], shall operate also to transfer the
related Warrant Certificates. Similarly, prior to the Detachable Date, the
transfer of the beneficial ownership of any Offered Security evidenced by the
Temporary Global Security shall be deemed to be the transfer of the benefical
ownership of any Warrants evidenced by the Global Warrant Certificate that are
attached to such Offered Securities. The transfer of the beneficial ownership of
Warrants and Warrant Securities hereunder shall be effected only as provided in
Section 4.01. On or after the Detachable Date, upon] surrender at the corporate
trust office of the Warrant Agent at [address] [or __________], Warrant
Certificates [in registered form] evidencing Warrants may be exchanged for
Warrant Certificates [in registered form] in other authorized denominations
evidencing such Warrants or the transfer thereof may be registered in whole or
in part; provided, however, that such other Warrant Certificates shall evidence
-------- -------
the same aggregate number of Warrants as the Warrant Certificates so
surrendered.
13
<PAGE>
(b) The Warrant Agent shall keep, at its corporate trust office at
[address] [and at ______________], books in which, subject to such reasonable
regulations as it may prescribe, it shall register Warrant Certificates [in
registered form] and exchanges and transfers of outstanding Warrant Certificates
[in registered form] upon surrender of such Warrant Certificates to the Warrant
Agent at its corporate trust office at [address] 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.]
(c) No service charge shall be made for any exchange or registration
of transfer of Warrant Certificates [in registered form], 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.
(d) Whenever any Warrant Certificates [in registered form], 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 [in
registered form], duly authorized and executed by the Company, as so requested.
The Warrant Agent shall not effect any exchange or registration of transfer
which will result in the issuance of a Warrant Certificate [in registered form],
evidencing a fraction of a Warrant or a number of full Warrants and a fraction
of a Warrant.
(e) All Warrant Certificates [in registered form], issued upon any
exchange or registration of transfer of Warrant Certificates shall be the valid
obligations of the Company, evidencing the same obligations, and entitled to the
same benefits under this Agreement, as the Warrant Certificates surrendered for
such exchange or registration or transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates. [With
--------------------------------------------
respect to the Global Warrant Certificate, the Holder thereof may be treated by
the Company, the Warrant Agent and all other persons dealing with such Holder 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.] [Each] [With respect to Warrant Certificates in
registered form, each] Holder of a Warrant Certificate, by accepting the
same, consents and
14
<PAGE>
agrees with the Company, the Warrant Agent and every subsequent Holder of such
Warrant Certificate that until the transfer of such Warrant Certificate is
registered on the books of such Warrant Agent, [2 : or, prior to the Detachable
Date, until the transfer of the Offered Security to which such Warrant
Certificate is attached, is registered in the register of the Offered
Securities], the Company and the Warrant Agent may treat the registered Holder
of such 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. (a) Any Warrant
------------------------------------
Certificate surrendered for exchange or 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 cancelled 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 therefor or in lieu
thereof. The Warrant Agent shall cause all cancelled Warrant Certificates to be
destroyed and shall deliver a certificate of such destruction to the Company.
(b) If the Company notifies the Trustee of its election to redeem [2:
prior to the Detachable Date][, as a whole but not in part,] [2: the Offered
Securities [or] [and]] the Warrant Securities pursuant to the Indenture or the
terms thereof, the Company may elect, and shall give notice to the Warrant Agent
of its election, to cancel the unexercised Warrants, the Warrant Certificates
and the rights evidenced thereby. Promptly after receipt of such notice by the
Warrant Agent, the Company shall, or, at the Company's request, the Warrant
Agent shall in the name of and at the expense of the Company, give notice of
such cancellation to the Holders of the Warrant Certificates [in registered form
and to the beneficial owners of the Global Warrant Certificate (except that such
notice shall be required to be published only once)], such notice to be so given
not less than 30 nor more than 60 days prior to the date fixed for the
redemption of [2: the Offered Securities [or] [and]] the Warrant Securities
pursuant to Indenture or the terms thereof. The unexercised Warrants, the
Warrant Certificates and the rights evidenced thereby shall be cancelled and
become void on the 15th day prior to such date fixed for redemption.
15
<PAGE>
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints __________
-------------
as Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein and in the
Warrant Certificates 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 herein 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 to be agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the Warrant
Agent for reasonable out-of-pocket expenses (including reasonable
attorneys' fees) incurred by the Warrant Agent without negligence, bad
faith or breach of this Agreement on its part 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 Warrants and the Warrant Certificates, the Warrant
Agent is acting solely as agent of the Company and does not assume any
obligation or relationship of agency or trust for or with any of the
Holders of Warrant Certificates or beneficial owners of Warrants.
16
<PAGE>
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
-------
to it in its reasonable judgment, and the advice of such counsel shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in 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 Warrant Agreement shall be deemed to prevent the
Warrant Agent from acting as Trustee under the Indenture.
(f) No Liability for Interest. 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 not be
---------------------------
under any responsibility with respect to the validity or sufficiency of
this Agreement or the execution and delivery hereof (except the due
authorization to execute this Agreement and the due execution and delivery
hereof by the Warrant Agent) or with respect to the validity or execution
of any Warrant Certificates (except its countersignature thereof).
(h) No Liability for Recitals. The recitals contained herein shall
-------------------------
be taken as the statements of
17
<PAGE>
Company and the Warrant Agent assumes no liability for the correctness of
the same.
(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 under any obligation to take any action
hereunder which may tend to involve it in any expense or liability, the
payment of which within a reasonable time is not, in its reasonable
opinion, assured to it. The Warrant Agent shall not be accountable or under
any duty or responsibility for the use by the Company of any of the Warrant
Certificates countersigned 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 the receipt of any written demand
from a Holder of a Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.02, to make any demand upon
the Company.
SECTION 5.03. Resignation 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 by giving
written notice of its resignation to the Company, specifying the desired date on
which its resignation shall become effective; provided, however, that such date
-------- -------
shall be not less than 90 days after the date on which such notice is given
unless the Company agrees to accept shorter notice. Upon receiving such notice
of resignation, the Company shall promptly appoint a successor Warrant Agent
(which shall be a bank or trust company in good standing, authorized under the
laws of the jurisdiction of its organization to exercise corporate trust powers)
by written instrument in duplicate signed on behalf of the Company, one copy of
which shall be delivered to the
18
<PAGE>
resigning Warrant Agent and one copy to the successor Warrant Agent. The Company
may, at any time and for any reason, remove the Warrant Agent and appoint a
successor Warrant Agent (qualified as aforesaid) by written instrument in
duplicate signed on behalf of the Company and specifying such removal and the
date when it is intended to become effective, one copy of which shall be
delivered to the Warrant Agent being removed and one copy to the successor
Warrant Agent. Any resignation or removal of the Warrant Agent and any
appointment of a successor Warrant Agent shall become effective upon acceptance
of appointment by the successor Warrant Agent as provided in this subsection
(b). In the event a successor Warrant Agent has not been appointed and accepted
its duties within 90 days of the Warrant Agent's notice of resignation, the
Warrant Agent may apply to any court of competent jurisdiction for the
designation of a successor Warrant Agent. Upon its resignation or removal, the
Warrant Agent shall be entitled to the payment by the Company of the
compensation and to the reimbursement of all reasonable out-of-pocket expenses
(including reasonable attorneys' fees) incurred by it hereunder as agreed to in
Section 5.02(a).
(c) The Company shall remove the Warrant Agent and appoint a
successor Warrant Agent if the Warrant Agent (i) shall become incapable of
acting, (ii) shall be adjudged bankrupt or insolvent, (iii) shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, (iv) shall consent to, or shall have had
entered against it a court order for, any such relief or to the appointment of
or taking possession by any such official in any involuntary case or other
proceedings commenced against it, (v) shall make a general assignment for the
benefit of creditors or (vi) shall fail generally to pay its debts as they
become due. Upon the appointment as aforesaid of a successor Warrant Agent and
acceptance by it of such appointment, the predecessor Warrant Agent shall, if
not previously disqualified by operation of law, cease to be Warrant Agent
hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and 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, immunities, duties and obligations of such
predecessor with
19
<PAGE>
like effect as if originally named as Warrant Agent hereunder, and such
predecessor 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
MISCELLANEOUS
SECTION 6.01. Amendment. This Agreement and the terms of the
---------
Warrants and the Warrant Certificates may be amended by the parties hereto,
without the consent of the Holder of any Warrant Certificate or the beneficial
owner of any Warrant, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective or inconsistent provision contained
herein or in the Warrant Certificates, 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 that such action
--------
shall not affect adversely the interests of the Holders of the Warrant
Certificates or the beneficial owners of Warrants in any material respect.
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. Addresses. Any communication from the Company to the
---------
Warrant Agent with respect to this Agreement shall be addressed to
__________________, Attention: ________________, and any communication from the
Warrant Agent to
20
<PAGE>
the Company with respect to this Agreement shall be addressed to Fortune Brands,
Inc., 1700 East Putnam Avenue, Old Greenwich, Connecticut 06870-0811, Attention:
Treasurer (or such other address as shall be specified in writing by the Warrant
Agent or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation and
--------------
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions hereof and thereof shall be governed by,
and construed in accordance with, the laws of the State of New York.
SECTION 6.05. Delivery of Prospectus. The Company will furnish to
----------------------
the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver 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, a Prospectus. The Warrant Agent shall not, by reason of any such
delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 6.06. Obtaining of Governmental Approval. The Company will
----------------------------------
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States federal and
state laws (including without limitation a registration statement in respect of
the Warrants and Warrant Securities under the Securities Act of 1933), which may
be or become requisite in connection with the issuance, sale, transfer and
delivery of the Warrant Certificates, the exercise of the Warrants, the
issuance, sale, transfer and delivery of the Warrant Securities issued upon
exercise of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 6.07. Persons Having Rights Under Warrant Agreement. [Except
---------------------------------------------
as otherwise provided in Section 3.03, nothing] [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 6.08. Headings. The descriptive headings of the several
--------
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or
21
<PAGE>
affect the meaning or construction of any of the provisions hereof.
SECTION 6.09. Counterparts. This Agreement may be executed in any
------------
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.10. Inspection of Agreement. A copy of this Agreement
-----------------------
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent 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 6.11. Notices to Holders of Warrants. Any notice to Holders
------------------------------
of Warrants evidenced by Warrant Certificates [in registered form] which by any
provisions of this Warrant Agreement is required or permitted to be given shall
be given by first class mail prepaid at such Holder's address as it appears on
the books of the Warrant Agent. [Any notice to beneficial owners of Warrants
evidenced by the Global Warrant Certificate which by any provisions of this
Warrant Agreement is required or permitted to be given shall be given in the
manner provided with respect to Warrant Securities in bearer form in Section
1.06 of the Indenture].
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the date first above written.
FORTUNE BRANDS, INC.
[SEAL] By____________________________
Name:
Title:
Attest:
___________________________
Name:
Title:
22
<PAGE>
[WARRANT AGENT]
[SEAL] By___________________________
Name:
Title:
Attest:
________________________
Name:
Title:
23
<PAGE>
Exhibit A
----------
[Attached]
FORM OF WARRANT CERTIFICATE [IN REGISTERED FORM]
[Face of Warrant Certificate]
[[1: This][2: Prior to ______ this] Warrant
Certificate cannot be transferred unless attached
to a [Title of Offered Securities].]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
FORTUNE BRANDS, INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5:00 P.M., NEW YORK CITY TIME, ON , 19__
No.___ _______ Warrants
This certifies that or registered assigns
(the "Registered Holder") is the registered owner of the above indicated number
of Warrants, each Warrant entitling such owner to purchase, at any time [after
5:00 P.M., New York City time, on , 19 and] on or before 5:00 P.M.,
New York City time, on , 19 , principal amount of [Title
of Warrant Securities] (the "Warrant Securities") of Fortune Brands, Inc. (the
"Company") issued and to be issued under the Indenture (as hereinafter defined),
on the following basis: [on , 19 the exercise price of each Warrant
will be ; during the period from , 19 through and
including ,19 , the exercise price of each Warrant will be plus
[accrued amortization of the original issue discount] [accrued interest] from
_____, 19 ; on , 19 the exercise price of each Warrant will be
_____; during the period from _____, 19 through and including , 19 ,
the exercise price of each Warrant will be plus [accrued amortization of the
original issue discount] [accrued interest] from 19 [; in each case, the
original issue discount will be amortized at a % 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
<PAGE>
Securities is .] The Registered 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
applicable currency] [in cash] [by certified check or official bank check or by
bank wire transfer, in each case,] [by bank wire transfer] [in immediately
available funds,] the Warrant Price for each Warrant exercised (plus accrued
interest, if any, on the Warrant Securities to be issued upon exercise of such
Warrant from and including the Interest Payment Date (as defined in the
Indenture), if any, in respect of such Warrant Securities immediately preceding
the Exercise Date to and including the Exercise Date (unless the Exercise Date
is after the Regular Record Date (as defined in the Indenture), if any, for such
Interest Payment Date, but on or before the immediately succeeding Interest
Payment Date for such Warrant Securities, in which event no such accrued
interest shall be payable)) to the Warrant Agent (as hereinafter defined) and by
surrendering this Warrant Certificate, with the form of election to purchase on
the reverse hereof completed and duly executed, at the corporate trust office of
[name of Warrant Agent], or its successor, as warrant agent (the "Warrant
Agent"), [or ] currently 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).
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in fully registered 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 Registered Holder hereof a new Warrant Certificate in
registered form evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _______________ 19__ (the "Warrant Agreement")
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the Registered Holder consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at ].
A-2
<PAGE>
The Warrant Securities to be issued and delivered upon the exercise of
the Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an Indenture dated as of [ ], 1999, as amended (the
"Indenture"), between the Company and The Chase Manhattan Bank, as Trustee (the
"Trustee"), and will be subject to the terms and provisions contained in the
Indenture. Copies of the Indenture and the form of the Warrant Securities are on
file at the corporate trust office of the Trustee [and at ].
[1: This Warrant] [2: Prior to _________, 19__ this] Certificate may
be transferred [2: only together with the [Title of Offered Securities] (the
"Offered Securities") to which the Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, a transfer of
such Offered Securities,] at the corporate trust office of the Warrant Agent [or
] by the Registered Holder or its assigns, in person or by an attorney duly
authorized in writing, in the manner and subject to the limitations provided in
the Warrant Agreement.
[1: After] [2: Except as otherwise provided in the immediately
preceding paragraph, 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 in registered form representing the same aggregate
number of Warrants.
This Warrant Certificate shall not entitle the Registered 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>
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of , 19 .
FORTUNE BRANDS, INC.
[SEAL] By___________________________
Name:
Title:
Attest:
___________________________
Countersigned:
___________________________
As Warrant Agent
By_________________________
Authorized Signature
A-4
<PAGE>
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the Registered Holder must
pay in full [in lawful money of the United States of America] [in applicable
currency] [in cash] [by certified check or official bank check or by bank wire
transfer, in each case,] [by bank wire transfer] [in immediately available
funds,] the Warrant Price for Warrants exercised (plus any accrued interest as
specified in this Warrant Certificate) 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
Registered Holder and the number of Warrants exercised by such Registered
Holder. In addition, the Registered 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 ______________
principal amount of the [Title of Warrant Securities] (the "Warrant Securities")
of Fortune Brands, Inc. and represents that he has tendered payment for such
Warrant Securities [in lawful money of the United States of America) [in
applicable currency] [in cash] [by certified check or official bank check or by
bank wire transfer, in each case,] [by bank wire transfer] [in immediately
available funds] to the order of Fortune Brands, Inc., 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 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 fewer than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued in registered
A-5
<PAGE>
form and delivered either to the undersigned or as otherwise specified in the
instructions below.
Dated________________________ Name___________________________
(Please Print)
_____________________________
(Insert Social Security Address________________________
or Other Identifying
Number of Holder) ________________________
Signature______________________
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at________________________________________________
________________________________________________
________________________________________________
________________________________________________
By mail at________________________________________________
________________________________________________
________________________________________________
________________________________________________
[Instructions as to delivery of Warrant Securities and, if applicable,
Warrant Certificates evidencing unexercised Warrants - complete as appropriate.]
A-6
<PAGE>
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 insert social security
or other identifying number
---------------------------
___________________________
__________________________________________________________________
(Please print name and address including zip code)
______________________________________________________________________________
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint ______________________ Attorney, to transfer
said Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated: _________________________________
Signature
(Signature must conform in all
respects to name of Registered
Holder as specified on the face
of this Warrant Certificate and
must bear a signature guarantee
by a bank, trust company or
member broker of the New York,
Midwest or Pacific Stock
Exchange).
Signature Guaranteed
________________________
A-7
<PAGE>
EXHIBIT B
---------
[Attached]
[DELETE THIS EXHIBIT IF WARRANT CERTIFICATES
IN ONLY REGISTERED FORM ARE TO BE ISSUED]
[FORM OF GLOBAL WARRANT CERTIFICATE IN BEARER FORM]
[Face of Global Warrant Certificate]
[[1: The] [2: Prior to , the ] beneficial ownership of
any Warrants evidenced by this Global Warrant Certificate
may be transferred only together with the beneficial
ownership of the Temporary Global Security referred to
herein to which this Global Warrant Certificate was
initially attached.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
FORTUNE BRANDS, INC.
GLOBAL WARRANT CERTIFICATE REPRESENTING _________
WARRANTS TO PURCHASE OF UP TO ________
PRINCIPAL AMOUNT OF [Title of Warrant Securities]
VOID AFTER [TIME], ON , 19 .
This Global Warrant Certificate evidences warrants (the "Warrants")
representing the right to purchase, subject to the terms and conditions hereof
and of the Debt Warrant Agreement referred to below, at any time [after [time]
on l9 , and] on or before the [time] in [location] on ,
19 , up to aggregate principal amount of [Title of Warrant
Securities] (the "Warrant Securities") of Fortune Brands, Inc. (the "Company")
issued and to be issued under the Indenture (as hereinafter defined), on the
following basis: on , 19 the exercise price of each Warrant will be
; during the period from , 19 through and including
, 19 , the exercise price of each Warrant will be plus [accrued
amortization of the original issue discount] [accrued interest] from
, 19 ; on , 19 the exercise price of each Warrant
will be ; during the period from , 19 through and
including , 19 , the exercise price of each Warrant will be
plus [accrued amortization of the original issue discount] [accrued
interest] from , 19 [; in each
<PAGE>
case, the original issue discount will be amortized at a % 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 .]
Beneficial owners of Warrants represented by this Global Warrant Certificate may
cause such Warrants to be exercised only by transmitting by tested telex or by
delivering or causing to be delivered to Morgan Guaranty Trust Company of New
York, Brussels office (or any successor), as operator of the Euro-clear System
(the "Euro-clear Operator"), in Brussels, Belgium, or to Centrale de Livraison
de Valeurs Mobilieres S.A. ("CEDEL") in Luxembourg, a warrant exercise notice,
substantially in the form attached as Exhibit D to the Debt Warrant Agreement
referred to below (the "Warrant Exercise Notice"), copies of which will be
available from the Euro-clear Operator or CEDEL or from [name of Warrant Agent],
or its successor as warrant agent (the "Warrant Agent") under the Debt Warrant
Agreement (the "Debt Warrant Agreement") dated as of , 19 between
the Company and the Warrant Agent. The Warrant Exercise Notice shall specify,
among other things, the aggregate principal amount of Warrant Securities to be
purchased on exercise of the Warrants, the account number or numbers on the
records of the Euro-clear Operator or CEDEL to which the Warrants being
exercised [2: and, if prior to , 19 , the Offered Securities (as defined
below)] to which such Warrants are attached are credited, the account number to
be debited for the Warrant Price of each Warrant being exercised (plus accrued
interest, if any, on the Warrant Securities to be issued upon exercise of such
Warrant from and including the Interest Payment Date (as defined in the
Indenture), if any, in respect of such Warrant Securities immediately preceding
the Exercise Date to and including the Exercise Date (unless the Exercise Date
is after the Regular Record Date (as defined in the Indenture), if any, for such
Interest Payment Date, but on or before the immediately succeeding Interest
Payment Date for such Warrant Securities, in which event no such accrued
interest shall be payable in respect of Warrant Securities to be issued in
registered form)), the account number to which the Warrant Securities issued on
exercise of the Warrants are to be credited and the form in which Warrant
Securities are to be issued. A Warrant Exercise Notice must be received by the
Euro-clear Operator or CEDEL prior to [time] (Brussels or Luxembourg time, as
the case may be) on the business day next preceding the Exercise Date (as
defined in such Warrant Exercise Notice). The delivery
B-2
<PAGE>
to the Euro-clear Operator or CEDEL, as the case may be, of a Warrant Exercise
Notice shall constitute an irrevocable election to purchase the aggregate
principal amount of Warrant Securities specified therein.
Any whole number of Warrants evidenced by this Global Warrant
Certificate may be exercised to purchase Warrant Securities in bearer or
registered form in denominations of [ or ], in the case of Warrant
Securities in bearer form, and of and any integral multiple thereof, in
the case of Warrant Securities in registered form; provided, however, that no
-------- -------
Warrant Security in bearer form shall be mailed or otherwise delivered to any
location in the United States of America, its territories or possessions or
areas subject to its jurisdiction or the Commonwealth of Puerto Rico (the
"United States").
The Warrants evidenced by this Global Warrant Certificate, this Global
Warrant Certificate and the rights evidenced hereby may be cancelled in the
manner and under the circumstances described in the Debt Warrant Agreement.
Notice of cancellation of the Warrants evidenced by this Global Warrant
Certificate, this Global Warrant Certificate and the rights evidenced hereby
shall be given by publication in the manner described in the Debt Warrant
Agreement.
This Global Warrant Certificate is issued under and in accordance with
the Debt Warrant Agreement between the Company and the Warrant Agent and is
subject to the terms and provisions contained in the Debt Warrant Agreement, to
all of which terms and provisions the holder hereof consents by acceptance
hereof. Copies of the Debt Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at ].
The Warrant Securities to be issued and delivered upon the exercise of
the Warrants evidenced by this Global Warrant Certificate will be issued under
and in accordance with an Indenture dated as of [ ], 1999, as amended (the
"Indenture"), between the Company and [The Chase Manhattan Bank], as Trustee
(the "Trustee"), and will be subject to the terms and provisions contained in
the Indenture. Copies of the Indenture and the form of the Warrant Securities
are on file at the corporate trust office of the Trustee [and at ].
B-3
<PAGE>
[1: The] [2: Prior to , 19 , the] beneficial ownership of any
Warrants evidenced by this Global Warrant Certificate may be transferred only
together with the beneficial ownership of the Temporary Global Security (as
defined in the Debt Warrant Agreement) evidencing the [Title of Offered
Securities] (the "Offered Securities") to which this Global Warrant Certificate
was initially attached, and only for the purpose of effecting, or in conjunction
with, a transfer of such Temporary Global Security. After such date, the Global
Warrant Certificate, and all rights hereunder, may be transferred by delivery,
and the Company and the Warrant Agent may treat the holder hereof as the owner
for all purposes.
The Global 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.
B-4
<PAGE>
This Global Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of , 19 .
FORTUNE BRANDS, INC.
By_____________________________
Name:
Title:
Attest:
__________________________
Countersigned:
__________________________
As Warrant Agent
By________________________
Authorized Signature
B-5
<PAGE>
Schedule A
(additional continuation sheets may be attached
if required)
Exercises of Warrants
The following exercises of a portion of this Global Warrant Certificate for
Warrant Securities have been made:
Number of Warrants Remaining Number of
Date of Exercised Warrants Following Notation
Exercise for Warrant Securities Such Exercise Made By:
- -------- ---------------------- ------------------- --------
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
B-6
<PAGE>
Number of Warrants Remaining Number of
Date of Exercised Warrants Following Notation
Exercise for Warrant Securities Such Exercise Made By:
- -------- ---------------------- ------------------- --------
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
________ ______________________ ___________________ ________
B-7
<PAGE>
Exhibit C
---------
[Attached]
[DELETE THIS EXHIBIT IF WARRANT CERTIFICATES
IN ONLY REGISTERED FORM ARE TO BE ISSUED]
[FORM OF CERTIFICATE TO BE DELIVERED TO WARRANT AGENT
BY THE EURO-CLEAR OPERATOR OR CEDEL]
FORTUNE BRANDS, INC.
Warrants (the "Warrants") to Purchase
[Title of Warrant Securities]
[Name of Warrant Agent]
[Address]
Dear Sirs:
The undersigned hereby irrevocably elects to exercise
__________________ Warrants to purchase as of _____________________ (the
"Exercise Date") ______ principal amount of the [Title of Warrant Securities]
(the "Warrant Securities") of Fortune Brands, Inc. and represents that it has
tendered payment for such Warrant Securities [in lawful money of the United
States of America] [in applicable currency] [in cash] [by certified check or
official bank check or by bank wire transfer, in each case,] [by bank wire
transfer] [in immediately available funds] to the order of Fortune Brands, Inc.,
c/o [insert name and address of Warrant Agent], in the amount of ______ in
accordance with the terms hereof and the Debt Warrant Agreement dated as of
, 19__ between Fortune Brands, Inc. and you (the "Debt Warrant
Agreement").
In connection with the Undersigned's request that you deliver to us
any Warrant Securities in bearer form, the undersigned hereby certifies that as
of the date hereof, and except as set forth below, the Warrant Securities in
bearer form which are to be delivered to the Common Depositary referred to below
for our account (i) are being acquired by a person that is not a citizen or
resident of the United States, a domestic partnership, a domestic corporation or
an estate or trust the income of which is subject to United States Federal
income taxation regardless of its source (a "United States person"), (ii) are
being acquired by a United States person that is (A) the foreign branch of a
United States financial institution (as defined in U.S. Treasury
<PAGE>
Regulations Section l.165-12(c)(l)(v)(a "financial institution"), purchasing for
its own account or for resale, or (B) a United States person acquiring the
Warrant Securities through the foreign branch of a financial institution on the
date hereof (and in either case (A) or (B), the financial institution hereby
agrees to 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 being acquired by a financial institution 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 such financial institution is not acquiring the
Warrant Securities for purposes of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
As a clearing organization within the meaning of Section 1.163-
5(c)(2)(i)(D)(8) of the regulations promulgated under the Internal Revenue Code
of 1986, as amended, the undersigned further certifies that (a) the above
certification is based solely on statements received from member organizations
appearing in our records (our "Account Holders") in certificates in the form set
forth in Exhibit D to the Debt Warrant Agreement and (b) as of the date hereof
we have not received any notification from any of our Account Holders to the
effect that the statements made by such Account Holders in such certificates are
no longer true.
"United States" means the United States of America, its territories
and possessions and areas subject to its jurisdiction and the Commonwealth of
Puerto Rico.
We hereby undertake to notify you immediately by telex if any of the
statements of our Account Holders referred to above is not correct at any time
on or before the Warrant Securities in bearer form are delivered, and in the
absence of any such notification it may be assumed that this Certificate applies
as of such date. We further agree to cause a [confirmation substantially in the
form of Exhibit E to the Debt Warrant Agreement and a] copy of the prospectus
relating to the Warrant Securities delivered to us as contemplated by Section
6.05 of the Debt Warrant Agreement to be delivered to our Account Holders
entitled to such Warrant Securities prior to or contemporaneously with our
transfer of such Warrant Securities to or to the account of such Account
Holders.
C-2
<PAGE>
We understand that this Certificate is required in connection with
United States laws, tax laws and regulations. We irrevocably authorize 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.
The undersigned requests that said principal amount of Warrant
Securities be [in registered form in the authorized denominations, registered in
such names and delivered all as specified in accordance with the instructions
set forth below] [bearer form in the authorized denominations and delivered to
_______, as Common Depositary under the Debt Warrant Agreement, to be held for
our account].* [Instructions as to delivery of Warrant Securities to be issued
in registered form].
Dated:_______, 19__**
Very truly yours,
[MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
Brussels Office, as operator of the Euro-clear
System]*
By_________________________________
Title:
[CENTRALE DE LIVRAISONS DE VALEURS MOBILIERES
S.A.]*
By_________________________________
Title:
___________________
* Delete inapplicable reference.
** To be dated no earlier than the fifteenth day prior to the certification
date.
C-3
<PAGE>
Exhibit D
---------
[Attached]
[DELETE THIS EXHIBIT IF WARRANT CERTIFICATES
IN ONLY REGISTERED FORM ARE TO BE ISSUED]
[FORM OF WARRANT EXERCISE NOTICE]
Morgan Guaranty Trust Company
of New York, Brussels Office,
as operator of the Euro-clear
System*
[Address]
Centrale de Livraison de Valeurs
Mobilieres S.A.*
[Address]
FORTUNE BRANDS, INC.
WARRANTS (THE "WARRANTS") TO PURCHASE
[Title of Warrant Securities]
(the "Warrant Securities")
Dear Sirs:
We hereby irrevocably elect to exercise ____________ Warrants to
purchase _____ (being _____ or an integral multiple thereof) aggregate principal
amount of Warrant Securities of Fortune Brands, Inc. (the "Company") on
_____________________, 19__ (the "Exercise Date"). The account number(s) on
your books in which the Warrants being exercised [and the [Title of Offered
Securities] to which such Warrants are attached]** are held is (are) _______
__________________. The Warrant Securities to be issued to us on exercise of
the Warrants are to be credited to such account, unless otherwise indicated
below and shall _________________.
* Delete inapplicable reference.
** Delete if dated on or after , 19 .
<PAGE>
be in [registered] [bearer]* form in the following authorized
denominations: ________________.
We hereby request that you complete a certification in the form
required by the Debt Warrant Agreement hereinafter referred to make payment
directly to [ ], as Warrant Agent (the "Warrant Agent", which
term shall include its successors as such Warrant Agent), under the Debt Warrant
Agreement dated as of [ ] between the Company and the Warrant
Agent (the "Debt Warrant Agreement") at or prior to [time] on the Exercise Date,
or if the Exercise Date is the last day on which Warrants may be exercised under
the Debt Warrant Agreement, prior to [time] in [location] on the Exercise Date,
[in lawful money of the United States of America] [in applicable currency] [in
cash] [by certified check or official bank check or by bank wire transfer, in
each case,] [by bank wire transfer] [in immediately available funds] of
_____________, such amount being the Warrant Price (as defined in the Global
Warrant Certificate representing the Warrants, as provided in Section 1.02 of
the Debt Warrant Agreement) for Warrants exercised (plus any accrued interest as
specified in such Global Warrant Certificate) on the Exercise Date, and debit
account number ____________ for said amount.
The undersigned hereby certifies that as of the date hereof, and
except as set forth below, the Warrant Securities held by you for our account
(i) are being acquired by a person that is not a citizen or resident of the
United States, a domestic partnership, a domestic corporation or an estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source (a "United States person"), (ii) are being acquired by
a United States person that is (A) the foreign branch of a United States
financial institution (as defined in U.S. Treasury Regulations Section l.165-
12(c)(l)(v))(a "financial institution") purchasing for its own account or for
resale, or (B) a United States person who is acquiring the Warrant Securities
through the foreign branch of a financial institution on the date hereof (and in
either case (A) or (B), the financial institution hereby agrees to 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 being
acquired by a financial institution 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 such financial
D-2
<PAGE>
institution is not acquiring the Warrant 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 this Certificate is being provided by a
clearing organization, it is based on statements provided to it by its member
organizations. As used herein, a "clearing organization" is an entity which is
in the business of holding obligations for member organizations and transferring
obligations among such members by credit or debit to the account of a member
without the necessity of physical delivery of the obligation.
We undertake to advise you immediately by telex if the foregoing
statement as to beneficial ownership is not correct on or before the date of
delivery of such Warrant Securities as to the entire principal amount of the
Warrant Securities to be issuable upon exercise then appearing on your books as
being held for our account, and in the absence of any such notification it may
be assumed that this Certificate applies as of such date.
This Certificate excepts and does not relate to [ ] of such
interest in the above Warrants in respect of which we are not able to certify
and as to which we understand exchange and delivery of Warrant Securities cannot
be made until we do so certify.
We understand that this Certificate is required in connection with
certain tax regulations in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
Certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States" means the United States of America, its territories and
possessions and areas subject to its jurisdiction and the Commonwealth of Puerto
Rico.
D-3
<PAGE>
Dated: ______________, l9__*
Very truly yours,
[Name and, if appropriate,
title] As the beneficial
owner(s) of the interest in
the Warrants to which this
Warrant Exercise Notice relates.
By______________________________
Title:
* To be dated no earlier than the fifteenth day prior to the certification
date.
D-4
<PAGE>
Exhibit 4fl
[Form of Debt Warrant Agreement
for Warrants Sold Alone]
FORTUNE BRANDS, INC.
and
____________________,
as Warrant Agent
DEBT WARRANT AGREEMENT
Dated as of _______________
Warrants to Purchase __________
_____________________
<PAGE>
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
ARTICLE II WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS...................................... 5
SECTION 2.01. Warrant Price...................................................................... 5
SECTION 2.02. Duration of Warrants............................................................... 5
SECTION 2.03. Exercise of Warrants............................................................... 6
ARTICLE III OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES............... 10
SECTION 3.01. No Rights as Warrant Securityholder Conferred by Warrants or Warrant Certificates.. 10
SECTION 3.02. Lost, Mutilated, Stolen or Destroyed Warrant Certificates.......................... 10
SECTION 3.03. Enforcement of Rights.............................................................. 11
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer...................................... 11
</TABLE>
_______________
/*/ The Table of Contents is not part of the Agreement.
<PAGE>
<TABLE>
<S> <C>
ARTICLE IV EXCHANGE AND TRANSFER................................................................. 12
SECTION 4.01. Exchange and Transfer.............................................................. 12
SECTION 4.02. Treatment of Holders of Warrant Certificates....................................... 13
SECTION 4.03. Cancellation of Warrant Certificates............................................... 14
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 and Appointment of Successor........................................... 17
ARTICLE VI MISCELLANEOUS......................................................................... 19
SECTION 6.01. Amendment.......................................................................... 19
SECTION 6.02. Notices and Demands to the Company and Warrant Agent............................... 19
SECTION 6.03. Addresses.......................................................................... 20
SECTION 6.04. Applicable Law..................................................................... 20
SECTION 6.05. Delivery of Prospectus............................................................. 20
SECTION 6.06. Obtaining of Governmental Approval................................................. 20
SECTION 6.07. Persons Having Rights Under Warrant Agreement...................................... 20
SECTION 6.08. Headings........................................................................... 21
SECTION 6.09. Counterparts....................................................................... 21
SECTION 6.10. Inspection of Agreement............................................................ 21
SECTION 6.11. Notices to Holders of Warrants..................................................... 21
</TABLE>
3
<PAGE>
DEBT WARRANT AGREEMENT *
THIS AGREEMENT dated as of ____________ between FORTUNE BRANDS, INC.,
a corporation duly organized and existing under the laws of the State of
Delaware (the "Company"), and _______________________________, a [bank] [trust
company] duly incorporated and existing under the laws of _______________, as
Warrant Agent (the "Warrant Agent"),
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company has entered into an Indenture dated as of [
], 1999, as amended (the "Indenture"), between the Company and [The Chase
Manhattan Bank], as Trustee (the "Trustee"), providing for the issuance from
time to time of its unsecured debt securities to be issued in one or more series
as provided in the Indenture; and
WHEREAS, the Company proposes to sell [title of such debt securities
being offered] (the "Offered Securities") with one or more warrants (the
"Warrants") representing the right to purchase [title of such debt securities
purchasable through exercise of Warrants] (the "Warrant Securities"), the
Warrants to be evidenced by warrant certificates issued pursuant to this
Agreement (the "Warrant Certificates"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, transfer, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form[s] and provisions of
_______________________
* Complete or modify the provisions of this form as appropriate to reflect the
terms of the Warrants and Warrant Securities. Monetary amounts may be in
U.S. dollars, in a foreign currency or in a composite currency, including
but not limited to the European Currency Unit.
<PAGE>
the Warrant Certificates and the terms and conditions on which they may be
issued, transferred, 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. The Warrants shall be evidenced
--------------------
by one or more Warrant Certificates. 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 ______________.
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
----------------------------------------------
Warrant, whenever issued, shall be evidenced by a Warrant Certificate in
registered form [or a global Warrant Certificate in bearer form (the "Global
Warrant Certificate")] [the form to be the same as that of the Warrant Security
in connection with which the Warrant Certificate is issued], substantially in
the form[s] set forth in Exhibit A [and Exhibit B, respectively,] 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 (or its Chairman
of the Executive Committee), any Vice Chairman, its President, its principal
financial officer, its principal accounting officer, its general counsel, any
Vice President or its Treasurer, in each case under its corporate seal, which
may but need not be attested by its Secretary or one of its Assistant
Secretaries [, except that the Global Warrant Certificate may be executed by any
such officer
2
<PAGE>
without any necessity that such signature be under seal as aforesaid]. Such
signatures may be manual or facsimile signatures of such authorized officers and
may be imprinted or otherwise reproduced on the Warrant Certificates. The
corporate 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 Warrant Agent by manual signature. Such signature by the
Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence, and the only evidence, that the Warrant Certificate so
countersigned has been duly issued hereunder.
[The Global Warrant Certificate shall be and remain subject to the
provisions of this Agreement until such time as all of the Warrants evidenced
thereby shall have been duly exercised or shall have expired or been cancelled
in accordance with the terms thereof.]
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 officer.
The term "Holder", when used with respect to any Warrant Certificate
[in registered form], shall mean any person in whose name at the time such
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose. [The term "Holder", when used with respect to
the Global Warrant Certificate, shall mean the bearer thereof.]
SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
--------------------------------
evidencing the right to purchase an
3
<PAGE>
aggregate principal amount not exceeding _____ aggregate principal amount of
Warrant Securities (except as provided in Sections 2.03, 3.02 and 4.01) may be
executed by the Company and delivered to the Warrant Agent upon the execution of
this Warrant Agreement or from time to time thereafter. The Warrant Agent shall,
upon receipt of Warrant Certificates duly executed on behalf of the Company,
countersign Warrant Certificates evidencing ________ Warrants representing the
right to purchase up to ________ aggregate principal amount of Warrant
Securities and shall[, in the case of Warrant Certificates in registered form,]
deliver such Warrant Certificates to or upon the order of the Company [and, in
the case of the Global Warrant Certificate, upon the order of the Company,
deposit the Global Warrant Certificate with _______________________, as common
depositary (the "Common Depositary") for Morgan Guaranty Trust Company of New
York, Brussels office (or any successor), as operator of the Euro-clear System
(the "Euro-clear Operator"), and for Centrale de Livraison de Valeurs Mobilieres
S.A. ("CEDEL") for credit to the accounts of persons appearing from time to time
on the records of the Euro-clear Operator or of CEDEL as being entitled to any
portion thereof. [The Global Warrant Certificate shall be held by the Common
Depositary outside the United Kingdom.]] 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 [,
with respect to Warrant Certificates in registered form,] in connection with
their transfer as hereinafter provided or as provided in the antepenultimate
paragraph of Section 2.03.
Pending the preparation of definitive Warrant Certificates [in
registered form] evidencing Warrants, the Company may execute and the Warrant
Agent shall countersign and deliver temporary Warrant Certificates [in
registered form] evidencing such Warrants (printed, lithographed, typewritten or
otherwise produced, in each case in form satisfactory to the Warrant Agent).
Such temporary Warrant Certificates shall be issuable substantially in the form
of the definitive Warrant Certificates [in registered form] but with such
omissions, insertions and variations as may be appropriate for temporary Warrant
Certificates, all as may be determined by the Company with the concurrence of
the Warrant Agent. Such temporary Warrant Certificates may contain such
reference to any provisions of this Warrant
4
<PAGE>
Agreement as may be appropriate. Every such temporary Warrant Certificate shall
be executed by the Company and shall be countersigned by the Warrant Agent upon
the same conditions and in substantially the same manner, and with like effect,
as the definitive Warrant Certificates [in registered form]. Without
unreasonable delay, the Company shall execute and shall furnish definitive
Warrant Certificates [in registered form] and thereupon such temporary Warrant
Certificates may be surrendered in exchange therefor without charge pursuant to
and subject to the provisions of Section 4.01, and the Warrant Agent shall
countersign and deliver in exchange for such temporary Warrant Certificates
definitive Warrant Certificates [in registered form] of authorized denominations
evidencing a like aggregate number of Warrants evidenced by such temporary
Warrant Certificates. Until so exchanged, such temporary Warrant Certificates
shall be entitled to the same benefits under this Warrant Agreement as
definitive Warrant Certificates [in registered form].
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. On __________, 19__, the exercise price
-------------
of each Warrant will be ____________. During the period from _____________,
19__ through and including _____________, 19__, the exercise price of each
warrant Will be _____ plus ______ [accrued amortization of the original issue
discount] [accrued interest] from ___________, 19__. On _____________, 19__ the
exercise price of each Warrant will be ________. During the period from
___________, 19__ through and including ______________, 19__, the exercise price
of each Warrant will be _____ plus [accrued amortization of the original issue
discount] [accrued interest] from _____________, 19__. [In each case, the
original issue discount will be amortized at a ___% annual rate, computed on an
annual basis using the "interest" method and using a 360-day year consisting of
twelve 30-day months]. Such exercise 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 ___________].
5
<PAGE>
SECTION 2.02. Duration of Warrants. Subject to Section 4.03(b), each
--------------------
Warrant may be exercised [in whole but not in part] [in whole or in part] [at
any time, as specified herein, on or after [the date thereof] [_____________,
19__] and at or before [time, location] on _____________, 19__ (each day during
such period may hereinafter be referred to as an "Exercise Date")] [on [list of
specific dates] (each, an "Exercise Date")], or such later date as the Company
may designate by notice to the Warrant Agent and the Holders of Warrant
Certificates [in registered form and to the beneficial owners of the Global
Warrant Certificate] (the "Expiration Date"). Each Warrant not exercised at or
before [time, location] on the Expiration Date shall become void, and all rights
of the Holder [and any beneficial owners] of the Warrant Certificate evidencing
such Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. [With respect to Warrants
--------------------
evidenced by Warrant Certificates in registered form, during] [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
Certificates evidencing such Warrants and by paying in full [in lawful money of
the United States of America] [in applicable currency] [in cash] [by certified
check or official bank check or by bank wire transfer, in each case,] [by bank
wire transfer] [in immediately available funds,] the Warrant Price for each
Warrant exercised (plus accrued interest, if any, on the Warrant Securities to
be issued upon exercise of such Warrant from and including the Interest Payment
Date (as defined in the Indenture), if any, in respect of such Warrant
Securities immediately preceding the Exercise Date to and including the Exercise
Date (unless the Exercise Date is after the Regular Record Date (as defined in
the Indenture), if any, for such Interest Payment Date, but on or before the
immediately succeeding Interest Payment Date for such Warrant Securities, in
which event no such accrued interest shall be payable)) to the Warrant Agent at
its corporate trust office at [address] [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 evidencing each
Warrant exercised with the form of election to purchase Warrant Securities set
forth on the reverse side of the Warrant Certificate properly completed and duly
executed.
6
<PAGE>
[With respect to Warrants evidenced by the Global Warrant Certificate,
during the period specified in Section 2.02, any whole number of Warrants may be
exercised by the Holder by presentation to the Warrant Agent at its office at
[address located outside the United States [and the United Kingdom]], at or
prior to [time], on any day on which the Warrants are exercisable, of (i) the
Global Warrant Certificate (or written confirmation reasonably satisfactory to
the Warrant Agent that the Global Warrant Certificate is held by the Euro-clear
Operator and CEDEL and will be duly endorsed to reflect the exercise of Warrants
by the Euro-clear Operator and CEDEL), (ii) a duly executed certification from
the Euro-clear Operator or CEDEL, as the case may be, substantially in the form
set forth in Exhibit C hereto and (iii) payment in full [in lawful money of the
United States of America] [in applicable currency] [in cash] [by certified check
or official bank check or by bank wire transfer, in each case,] [by bank wire
transfer] [in immediately available funds,] of the Warrant Price for each
Warrant exercised (plus accrued interest, if any, on the Warrant Securities to
be issued upon exercise of such Warrant from and including the Interest Payment
Date, if any, in respect of such Warrant Securities immediately preceding the
Exercise Date to and including the Exercise Date (unless the Exercise Date is
after the Regular Record Date, if any, for such Interest Payment Date, but on or
before the immediately succeeding Interest Payment Date for such Warrant
Securities, in which event no such accrued interest shall be payable in respect
of Warrant Securities to be issued in registered form)). Notwithstanding the
foregoing, the Holder may exercise Warrants as aforesaid on the Expiration Date
at any time prior to [time] in [city of Warrant Agent's office]. Any Warrants
exercised as set forth in this paragraph shall be deemed exercised at the
[country] office of the Warrant Agent.]
[The Warrant Agent shall retain each certificate received by it from
the Euro-clear Operator or CEDEL through the Expiration Date (or such earlier
date by which all of the Warrants may have been exercised or cancelled) and
thereafter shall dispose of them or deliver them to the Company pursuant to the
instructions of the Company.]
[The delivery to the Warrant Agent by the Euro-clear Operator or CEDEL
of any certification referred to above may be relied upon by the Company, the
Warrant Agent and the Trustee as conclusive evidence that a corresponding
certificate or certificates substantially in the form of
7
<PAGE>
Exhibit D hereto has or have been delivered to the Euro-clear Operator or CEDEL,
as the case may be.]
[The Company will maintain in [location] (or in such other city [in
western Europe] as the Company may deem advisable), until the right to exercise
the Warrants shall expire or be earlier cancelled as hereinafter provided, an
agency where the Global Warrant Certificate may be presented for exercise of the
Warrants represented thereby and notices and demands to or upon the Company in
respect of the Warrants or of this Agreement may be made.]
The date on which payment in full of the Warrant Price (plus any such
accrued interest) is received by the Warrant Agent shall, subject to receipt of
the Warrant Certificate [in registered form or, as the case may be, the Global
Warrant Certificate and the certification of the Euro-clear Operator or CEDEL]
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 for the exercise
of Warrants in an account of the Company maintained with it (or in such other
account as may be designated by the Company) and shall advise the Company, by
telephone or by facsimile transmission or other form of electronic communication
available to both parties, at the end of each day on which a payment for the
exercise of Warrants is received of the amount so deposited to its account. The
Warrant Agent shall promptly confirm such advice to the Company in writing.
If a day on which Warrants may be exercised in the city in which such
Warrants are to be exercised shall be a Saturday or Sunday or a day on which
banking institutions in such city are authorized or required to be closed, then,
notwithstanding any other provision of this Agreement or the Warrant Certificate
evidencing such Warrants, but subject to the limitation that no Warrant may be
exercised after the Expiration Date, the Warrants shall be exercisable on the
next succeeding day which in such city is not a Saturday or Sunday or a day on
which banking institutions in such city are authorized or required to be closed.
The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company [and][,] the Trustee [and the Common Depositary
at [both] its London [and location] office[s]] in writing [(which, in the case
of exercised Warrants represented by the Global Warrant Certificate, shall be
tested telex with appropriate
8
<PAGE>
answerback received,)] of (i) the number of Warrants exercised, (ii) the
instructions of each Holder of the Warrant Certificates [in registered form]
evidencing such Warrants [or of the Euro-clear Operator or CEDEL, as the case
may be,] with respect to delivery of the Warrant Securities to be issued upon
such exercise, (iii) delivery of any Warrant Certificates [in registered form]
evidencing the balance, if any, of the Warrants remaining after such exercise,
and (iv) such other information as the Company or the Trustee shall reasonably
require. [In addition, in the case of exercised Warrants evidenced by the Global
Warrant Certificate, the Warrant Agent shall, as promptly as practicable,
endorse, or cause the Common Depositary, [location] office, or one of the
Warrant Agent's agents to endorse, Schedule A annexed to the Global Warrant
Certificate to reflect the exercise of such Warrants and, if applicable, return
the Global Warrant Certificate to the Common Depositary or to its order.]
As soon as practicable after the exercise of any Warrant [evidenced by
a Warrant Certificate in registered form], but subject to receipt by the Warrant
Agent of the Warrant Certificate evidencing such Warrant as provided in this
Section, the Company shall issue, pursuant to the Indenture, in authorized
denominations to or upon the order of the Holder of the Warrant Certificate
evidencing each 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 [in registered form] evidencing the number of such Warrants
remaining unexercised.
[As soon as practicable after the exercise of any Warrant evidenced by
the Global Warrant Certificate, but, in the case of any Warrant Securities to be
issued in bearer form as provided in this sentence, on the date of the
applicable certification of the Euro-clear Operator or CEDEL referred to in the
second paragraph of this Section 2.03, the Company shall issue, pursuant to the
Indenture, the Warrant Securities issuable upon such exercise, in authorized
denominations (i) in fully registered form, registered in such name or names as
may be directed by the Euro-clear Operator or CEDEL, as the case may
9
<PAGE>
be, to or upon order of the Euro-clear Operator or CEDEL, as the case may be, or
(ii) in bearer form to the Common Depositary to be held for the account of the
Euro-clear Operator or CEDEL, as the case may be; provided, however, that no
-------- -------
Warrant Security in bearer form shall be mailed or otherwise delivered to any
location in the United States of America, its territories or possessions or
areas subject to its jurisdiction or the Commonwealth of Puerto Rico.]
The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issuance of the Warrant Securities, and in the event that any
such transfer is involved, the Company shall not be required to issue or deliver
any Warrant 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 Certificate or Warrant evidenced
- --------------------------------
thereby shall entitle the Holder or any beneficial owner thereof to any of the
rights of a holder or beneficial owner of Warrant Securities, including, without
limitation, the right to receive the payment of principal of (premium, if any)
or interest, if any, on Warrant Securities or to enforce any of the covenants in
the Indenture.
SECTION 3.02. Lost, Mutilated, Stolen 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, mutilation,
theft or destruction of any Warrant Certificate and of such security or
indemnity as may be required by the Company and the Warrant Agent to hold each
of them and any agent of them harmless and, in the case of mutilation of a
Warrant Certificate, 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
10
<PAGE>
in lieu of the lost, mutilated, stolen or destroyed Warrant Certificate, a new
Warrant Certificate of the same tenor and evidencing a like number of Warrants[;
provided, however, that any Global Warrant Certificate shall be so delivered
- -------- -------
only to the Common Depositary]. Upon the issuance of any new Warrant Certificate
under this Section, the Company may require the payment of a sum sufficient to
cover any stamp or other 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, mutilated,
stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the lost, stolen or
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
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 lost, mutilated, stolen or destroyed Warrant Certificates.
SECTION 3.03. Enforcement of Rights. Notwithstanding any of the
---------------------
provisions of this Agreement, any Holder of a Warrant Certificate [in registered
form or the beneficial owner of any Warrant evidenced by the Global Warrant
Certificate], without the consent of [the Common Depositary,] the Warrant Agent,
the Trustee, the holder of any Offered Securities or the Holder of any other
Warrant Certificate, may, in its own behalf and for its own benefit, enforce,
and may institute and maintain any suit, action or proceeding against the
Company suitable to enforce, or otherwise in respect of, its right to exercise
its Warrants in the manner provided in its Warrant Certificate [or the Global
Warrant Certificate, as the case may be,] and in this Agreement. [Neither the
Company nor the Warrant Agent shall be required to treat any person as a
beneficial owner of any Warrant evidenced by the Global Warrant Certificate
unless such person is so certified as such a beneficial owner by the Euro-clear
Operator or CEDEL.]
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer. (a) If
---------------------------------------------
at any time there shall be a merger or consolidation of the Company or a
conveyance or transfer of its property and assets substantially as an entirety
as permitted under the Indenture, then in any such event the
11
<PAGE>
successor or assuming corporation referred to therein shall succeed to and be
substituted for the Company, with the same effect, subject to the Indenture, as
if it had been named herein and in the Warrant Certificates as the Company; the
Company shall thereupon, except in the case of a transfer by way of lease, be
relieved of any further obligation hereunder and under the Warrants and the
Warrant Certificates, and the Company as the predecessor corporation, except in
the case of a transfer by way of lease, may thereupon or at any time thereafter
be dissolved, wound up or liquidated. Such successor or assuming corporation may
thereupon cause to be signed, and may issue either in its own name or in the
name of the Company, Warrant Certificates evidencing any or all of the Warrants
issuable hereunder which theretofore shall not have been signed by the Company,
and may execute and deliver Warrant Securities in its own name pursuant to the
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 merger, consolidation, conveyance or transfer, such changes in
phraseology and form (but not in substance) may be made in the Warrant
Certificates representing the warrants thereafter to be issued as may be
appropriate.
(b) The Warrant Agent may receive a written opinion of legal counsel
(who shall be acceptable to the Warrant Agent) as conclusive evidence that any
such merger, consolidation, conveyance or transfer complies with the provisions
of this Section and the Indenture.
ARTICLE IV
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer. (a) Upon surrender at the
---------------------
corporate trust office of the Warrant Agent at [address] [or __________],
Warrant Certificates [in registered form] evidencing Warrants may be exchanged
for Warrant Certificates [in registered form] in other authorized denominations
evidencing such Warrants or the transfer thereof may be registered in whole or
in part; provided, however, that such other Warrant Certificates
-------- -------
12
<PAGE>
shall evidence the same aggregate number of Warrants as the Warrant Certificates
so surrendered.
(b) The Warrant Agent shall keep, at its corporate trust office at
[address] [and at ______________], books in which, subject to such reasonable
regulations as it may prescribe, it shall register Warrant Certificates [in
registered form] and exchanges and transfers of outstanding Warrant Certificates
[in registered form] upon surrender of such Warrant Certificates to the Warrant
Agent at its corporate trust office at [address] 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.]
(c) No service charge shall be made for any exchange or registration
of transfer of Warrant Certificates [in registered form], 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.
(d) Whenever any Warrant Certificates [in registered form], 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 [in
registered form], duly authorized and executed by the Company, as so requested.
The Warrant Agent shall not effect any exchange or registration of transfer
which will result in the issuance of a Warrant Certificate [in registered form],
evidencing a fraction of a Warrant or a number of full Warrants and a fraction
of a Warrant.
(e) All Warrant Certificates [in registered form], issued upon any
exchange or registration of transfer of Warrant Certificates shall be the valid
obligations of the Company, evidencing the same obligations, and entitled to the
same benefits under this Agreement, as the Warrant Certificates surrendered for
such exchange or registration or transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates. [With
--------------------------------------------
respect to the Global Warrant Certificate, the Holder thereof may be treated by
the Company, the Warrant Agent and all other persons dealing
13
<PAGE>
with such Holder 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.] [With respect to Warrant
Certificates in registered form, each] [Each] Holder of a Warrant Certificate,
by accepting the same, consents and agrees with the Company, the Warrant Agent
and every subsequent Holder of such Warrant Certificate that until the transfer
of such Warrant Certificate is registered on the books of such Warrant Agent,
the Company and the Warrant Agent may treat the registered Holder of such
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. (a) Any Warrant
------------------------------------
Certificate surrendered for exchange or 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 cancelled 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 therefor or in lieu
thereof. The Warrant Agent shall cause all cancelled Warrant Certificates to be
destroyed and shall deliver a certificate of such destruction to the Company.
(b) If the Company notifies the Trustee of its election to redeem [,
as a whole but not in part,] the Warrant Securities pursuant to the Indenture or
the terms thereof, the Company may elect, and shall give notice to the Warrant
Agent of its election, to cancel the unexercised Warrants, the Warrant
Certificates and the rights evidenced thereby. Promptly after receipt of such
notice by the Warrant Agent, the Company shall, or, at the Company's request,
the Warrant Agent shall in the name of and at the expense of the Company, give
notice of such cancellation to the Holders of the Warrant Certificates [in
registered form and to the beneficial owners of the Global Warrant Certificate
(except that such notice shall be required to be published only once)], such
notice to be so given not less than 30 nor more than 60 days prior to the date
fixed for the redemption of the Warrant Securities pursuant to Indenture or the
terms thereof. The unexercised Warrants, the Warrant Certificates and the
rights evidenced thereby
14
<PAGE>
shall be cancelled and become void on the 15th day prior to such date fixed for
redemption.
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints __________
-------------
as Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein and in the
Warrant Certificates 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 herein 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 to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
for reasonable out-of-pocket expenses (including reasonable attorneys' fees)
incurred by the Warrant Agent without negligence, bad faith or breach of this
Agreement on its part 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 Warrants and the Warrant Certificates, the Warrant Agent is
acting solely as
15
<PAGE>
agent of the Company and does not assume any obligation 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 in its reasonable judgment, and the advice of such counsel shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in 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 Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee
under the Indenture.
(f) No Liability for Interest. 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 not be
---------------------------
under any responsibility with respect to the validity or sufficiency of this
Agreement or the execution and delivery hereof (except the due authorization to
execute this Agreement and the due execution and delivery hereof by the Warrant
Agent) or with respect to the validity or execution of any Warrant Certificates
(except its countersignature thereof).
16
<PAGE>
(h) No Liability for Recitals. The recitals contained herein shall
-------------------------
be taken as the statements of the Company and the Warrant Agent assumes no
liability for the correctness of the same.
(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 under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates countersigned 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 the receipt of any written
demand from a Holder of a Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.02, to make any demand upon the
Company.
SECTION 5.03. Resignation 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 by giving
written notice of its resignation to the Company, specifying the desired date on
which its resignation shall become effective; provided, however, that such date
-------- -------
shall be not less than 90 days after the date on which such notice is given
unless the Company agrees to accept shorter notice. Upon receiving such notice
of resignation, the Company shall promptly appoint a successor Warrant Agent
(which shall be a bank or trust company in good standing, authorized under the
laws of the jurisdiction
17
<PAGE>
of its organization to exercise corporate trust powers) by written instrument in
duplicate signed on behalf of the Company, one copy of which shall be delivered
to the resigning Warrant Agent and one copy to the successor Warrant Agent. The
Company may, at any time and for any reason, remove the Warrant Agent and
appoint a successor Warrant Agent (qualified as aforesaid) by written instrument
in duplicate signed on behalf of the Company and specifying such removal and the
date when it is intended to become effective, one copy of which shall be
delivered to the Warrant Agent being removed and one copy to the successor
Warrant Agent. Any resignation or removal of the Warrant Agent and any
appointment of a successor Warrant Agent shall become effective upon acceptance
of appointment by the successor Warrant Agent as provided in this subsection
(b). In the event a successor Warrant Agent has not been appointed and accepted
its duties within 90 days of the Warrant Agent's notice of resignation, the
Warrant Agent may apply to any court of competent jurisdiction for the
designation of a successor Warrant Agent. Upon its resignation or removal, the
Warrant Agent shall be entitled to the payment by the Company of the
compensation and to the reimbursement of all reasonable out-of-pocket expenses
(including reasonable attorneys' fees) incurred by it hereunder as agreed to in
Section 5.02(a).
(c) The Company shall remove the Warrant Agent and appoint a
successor Warrant Agent if the Warrant Agent (i) shall become incapable of
acting, (ii) shall be adjudged bankrupt or insolvent, (iii) shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, (iv) shall consent to, or shall have had
entered against it a court order for, any such relief or to the appointment of
or taking possession by any such official in any involuntary case or other
proceedings commenced against it, (v) shall make a general assignment for the
benefit of creditors or (vi) shall fail generally to pay its debts as they
become due. Upon the appointment as aforesaid of a successor Warrant Agent and
acceptance by it of such appointment, the predecessor Warrant Agent shall, if
not previously disqualified by operation of law, cease to be Warrant Agent
hereunder.
18
<PAGE>
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and 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, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor 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
MISCELLANEOUS
SECTION 6.01. Amendment. This Agreement and the terms of the
---------
Warrants and the Warrant Certificates may be amended by the parties hereto,
without the consent of the Holder of any Warrant Certificate or the beneficial
owner of any Warrant, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective or inconsistent provision contained
herein or in the Warrant Certificates, 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 that such action
--------
shall not affect adversely the interests of the Holders of the Warrant
Certificates or the beneficial owners of Warrants in any material respect.
19
<PAGE>
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. Addresses. Any communication from the Company to the
---------
Warrant Agent with respect to this Agreement shall be addressed to
__________________, Attention: ________________, and any communication from the
Warrant Agent to the Company with respect to this Agreement shall be addressed
to Fortune Brands, Inc., 1700 East Putnam Avenue, Old Greenwich, Connecticut
06870-0811, Attention: Treasurer (or such other address as shall be specified
in writing by the Warrant Agent or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation and
--------------
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions hereof and thereof shall be governed by,
and construed in accordance with, the laws of the State of New York.
SECTION 6.05. Delivery of Prospectus. The Company will furnish to
----------------------
the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver 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, a Prospectus. The Warrant Agent shall not, by reason of any such
delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 6.06. Obtaining of Governmental Approval. The Company will
----------------------------------
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States federal and
state laws (including without limitation a registration statement in respect of
the Warrants and Warrant Securities under the Securities Act of 1933), which may
be or become requisite in connection with the issuance, sale, transfer and
delivery of the Warrant Certificates, the exercise of the Warrants, the
issuance, sale, transfer and
20
<PAGE>
delivery of the Warrant Securities issued upon exercise of the Warrants or upon
the expiration of the period during which the Warrants are exercisable.
SECTION 6.07. Persons Having Rights Under Warrant Agreement. [Except
---------------------------------------------
as otherwise provided in Section 3.03, nothing] [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 6.08. Headings. The descriptive headings of the several
--------
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 6.09. Counterparts. This Agreement may be executed in any
------------
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.10. Inspection of Agreement. A copy of this Agreement
-----------------------
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent 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 6.11. Notices to Holders of Warrants. Any notice to Holders
------------------------------
of Warrants evidenced by Warrant Certificates [in registered form] which by any
provisions of this Warrant Agreement is required or permitted to be given shall
be given by first class mail prepaid at such Holder's address as it appears on
the books of the Warrant Agent. [Any notice to beneficial owners of Warrants
evidenced by the Global Warrant Certificate which by any provisions of this
Warrant Agreement is required or permitted to be given shall be given in the
manner provided with respect to Warrant Securities in bearer form in Section
1.06 of the Indenture].
21
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the date first above written.
FORTUNE BRANDS, INC.
[SEAL] By________________________
Name:
Title:
Attest:
__________________________________
Name:
Title:
[WARRANT AGENT]
[SEAL] By________________________
Name:
Title:
Attest:
__________________________________
Name:
Title:
22
<PAGE>
Exhibit A
---------
FORM OF WARRANT CERTIFICATE [IN REGISTERED FORM]
[Face of Warrant Certificate]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
FORTUNE BRANDS, INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5:00 P.M., NEW YORK CITY TIME, ON , 19
No.___ _______ Warrants
This certifies that or registered assigns
(the "Registered Holder") is the registered owner of the above indicated number
of Warrants, each Warrant entitling such owner to purchase, at any time [after
5:00 P.M., New York City time, on , 19 and] on or before 5:00 P.M.,
New York City time, on , 19 , principal amount of [Title
of Warrant Securities] (the "Warrant Securities") of Fortune Brands, Inc. (the
"Company") issued and to be issued under the Indenture (as hereinafter defined),
on the following basis: [on , 19 the exercise price of each Warrant
will be ; during the period from , 19 through and
including ,19 , the exercise price of each Warrant will be plus
[accrued amortization of the original issue discount] [accrued interest] from
, 19 ; on , 19 the exercise price of each Warrant will be
; during the period from 19 through and including , 19 , the
exercise price of each Warrant will be plus [accrued amortization of the
original issue discount] [accrued interest] from 19 [; in each case, the
original issue discount will be amortized at a % 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 Registered
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 applicable currency] [in cash] [by
certified check or official bank check or by bank wire transfer, in each case,]
[by bank wire transfer] [in immediately available funds,] the Warrant Price for
each Warrant exercised (plus accrued interest, if any, on the
<PAGE>
Warrant Securities to be issued upon exercise of such Warrant from and including
the Interest Payment Date (as defined in the Indenture), if any, in respect of
such Warrant Securities immediately preceding the Exercise Date to and including
the Exercise Date (unless the Exercise Date is after the Regular Record Date (as
defined in the Indenture), if any, for such Interest Payment Date, but on or
before the immediately succeeding Interest Payment Date for such Warrant
Securities, in which event no such accrued interest shall be payable)) to the
Warrant Agent (as hereinafter defined) and by surrendering this Warrant
Certificate, with the form of election to purchase on the reverse hereof
completed and duly executed, at the corporate trust office of [name of Warrant
Agent], or its successor, as warrant agent (the "Warrant Agent"), [or ]
currently 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).
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in fully registered 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 Registered Holder hereof a new Warrant Certificate in
registered form evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _______________ 19__ (the "Warrant Agreement")
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the Registered Holder consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at ].
The Warrant Securities to be issued and delivered upon the exercise of
the Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an Indenture dated as of [ ], 1999, as amended (the
"Indenture"), between the Company and [The Chase Manhattan Bank], as Trustee
(the "Trustee"), and will be subject to the terms and provisions contained in
the Indenture. Copies of the Indenture and the form of the Warrant Securities
are
A-2
<PAGE>
on file at the corporate trust office of the Trustee [and at ].
This Warrant Certificate may be transferred when surrendered at the
corporate trust office of the Warrant Agent [or ] by the Registered
Holder or its assigns, in person or by an attorney duly authorized in writing,
in the manner and subject to the limitations provided in the Warrant Agreement.
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 in registered form representing the same aggregate
number of Warrants.
This Warrant Certificate shall not entitle the Registered 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>
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of , 19 .
FORTUNE BRANDS, INC.
[SEAL] By_____________________________
Name:
Title:
Attest:
__________________________
Countersigned:
__________________________
As Warrant Agent
By________________________
Authorized Signature
A-4
<PAGE>
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the Registered Holder must
pay in full [in lawful money of the United States of America] [in applicable
currency] [in cash] [by certified check or official bank check or by bank wire
transfer, in each case,] [by bank wire transfer] [in immediately available
funds,] the Warrant Price for Warrants exercised (plus any accrued interest as
specified in this Warrant Certificate) 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
Registered Holder and the number of Warrants exercised by such Registered
Holder. In addition, the Registered 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 principal amount of
the [Title of Warrant Securities] (the "Warrant Securities") of Fortune Brands,
Inc. and represents that he has tendered payment for such Warrant Securities [in
lawful money of the United States of America) [in applicable currency] [in cash]
[by certified check or official bank check or by bank wire transfer, in each
case,] [by bank wire transfer] [in immediately available funds] to the order of
Fortune Brands, Inc., 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 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 fewer than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued in registered
A-5
<PAGE>
form and delivered either to the undersigned or as otherwise specified in the
instructions below.
Dated_____________________ Name _____________________
(Please Print)
__________________________
(Insert Social Security Address __________________
or Other Identifying
Number of Holder) __________________
Signature ________________
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at _____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
By mail at _____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
[Instructions as to delivery of Warrant Securities and, if applicable,
Warrant Certificates evidencing unexercised Warrants - complete as appropriate.]
A-6
<PAGE>
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 insert social security
or other identifying number
-------------------------------
________________________________
___________________________________________________________________
(Please print name and address including zip code)
___________________________________________________________________________
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and
appoint ______________________ Attorney, to transfer said Warrant Certificate on
the books of the Warrant Agent with full power of substitution in the premises.
Dated: _________________________________
Signature
(Signature must conform in all respects
to name of Registered Holder as
specified on the face of this Warrant
Certificate and must bear a signature
guarantee by a bank, trust company or
member broker of the New York, Midwest
or Pacific Stock Exchange).
Signature Guaranteed
_________________________
A-7
<PAGE>
Exhibit B
---------
[alone]
[DELETE THIS EXHIBIT IF WARRANT CERTIFICATES
IN ONLY REGISTERED FORM ARE TO BE ISSUED]
[FORM OF GLOBAL WARRANT CERTIFICATE IN BEARER FORM]
[Face of Global Warrant Certificate]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
FORTUNE BRANDS, INC.
GLOBAL WARRANT CERTIFICATE REPRESENTING _________
WARRANTS TO PURCHASE OF UP TO ________
PRINCIPAL AMOUNT OF [Title of Warrant Securities]
VOID AFTER [TIME], ON , 19 .
This Global Warrant Certificate evidences warrants (the "Warrants")
representing the right to purchase, subject to the terms and conditions hereof
and of the Debt Warrant Agreement referred to below, at any time [after [time]
on ___________ 19___, and] on or before the [time] in [location] on __________,
19___, up to _________ aggregate principal amount of [Title of Warrant
Securities] (the "Warrant Securities") of Fortune Brands, Inc. (the "Company")
issued and to be issued under the Indenture (as hereinafter defined), on the
following basis: on _________, 19__ the exercise price of each Warrant will be
__________; during the period from ___________, 19___ through and including
_______, 19___, the exercise price of each Warrant will be _____ plus [accrued
amortization of the original issue discount] [accrued interest] from
_____________, 19___; on _____________, 19___ the exercise price of each Warrant
will be _____________; during the period from ___________, 19___ through and
including ___________, 19___, the exercise price of each Warrant will be
___________ plus [accrued amortization of the original issue discount] [accrued
interest] from ____________, 19___ [; in each case, the original issue discount
will be amortized at a ___% 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 ____________.] Beneficial owners of Warrants
<PAGE>
represented by this Global Warrant Certificate may cause such Warrants to be
exercised only by transmitting by tested telex or by delivering or causing to be
delivered to Morgan Guaranty Trust Company of New York, Brussels office (or any
successor), as operator of the Euro-clear System (the "Euro-clear Operator"), in
Brussels, Belgium, or to Centrale de Livraison de Valeurs Mobilieres S.A.
("CEDEL") in Luxembourg, a warrant exercise notice, substantially in the form
attached as Exhibit D to the Debt Warrant Agreement referred to below (the
"Warrant Exercise Notice"), copies of which will be available from the Euro-
clear Operator or CEDEL or from [name of Warrant Agent], or its successor as
warrant agent (the "Warrant Agent") under the Debt Warrant Agreement (the "Debt
Warrant Agreement") dated as of __________, 19___ between the Company and the
Warrant Agent. The Warrant Exercise Notice shall specify, among other things,
the aggregate principal amount of Warrant Securities to be purchased on exercise
of the Warrants, the account number or numbers on the records of the Euro-clear
Operator or CEDEL to which the Warrants being exercised are credited, the
account number to be debited for the Warrant Price of each Warrant being
exercised (plus accrued interest, if any, on the Warrant Securities to be issued
upon exercise of such Warrant from and including the Interest Payment Date (as
defined in the Indenture), if any, in respect of such Warrant Securities
immediately preceding the Exercise Date to and including the Exercise Date
(unless the Exercise Date is after the Regular Record Date (as defined in the
Indenture), if any, for such Interest Payment Date, but on or before the
immediately succeeding Interest Payment Date for such Warrant Securities, in
which event no such accrued interest shall be payable in respect of Warrant
Securities to be issued in registered form)) the account number to which the
Warrant Securities issued on exercise of the Warrants are to be credited and the
form in which Warrant Securities are to be issued. A Warrant Exercise Notice
must be received by the Euro-clear Operator or CEDEL prior to [time] (Brussels
or Luxembourg time, as the case may be) on the business day next preceding the
Exercise Date (as defined in such Warrant Exercise Notice). The delivery to the
Euro-clear Operator or CEDEL, as the case may be, of a Warrant Exercise Notice
shall constitute an irrevocable election to purchase the aggregate principal
amount of Warrant Securities specified therein.
Any whole number of Warrants evidenced by this Global Warrant
Certificate may be exercised to purchase Warrant Securities in bearer or
registered form in
B-2
<PAGE>
denominations of [____ or ____], in the case of Warrant Securities in bearer
form, and of _______ and any integral multiple thereof, in the case of Warrant
Securities in registered form; provided, however, that no Warrant Security in
-------- -------
bearer form shall be mailed or otherwise delivered to any location in the United
States of America, its territories or possessions or areas subject to its
jurisdiction or the Commonwealth of Puerto Rico (the "United States").
The Warrants evidenced by this Global Warrant Certificate, this Global
Warrant Certificate and the rights evidenced hereby may be cancelled in the
manner and under the circumstances described in the Debt Warrant Agreement.
Notice of cancellation of the Warrants evidenced by this Global Warrant
Certificate, this Global Warrant Certificate and the rights evidenced hereby
shall be given by publication in the manner described in the Debt Warrant
Agreement.
This Global Warrant Certificate is issued under and in accordance with
the Debt Warrant Agreement between the Company and the Warrant Agent and is
subject to the terms and provisions contained in the Debt Warrant Agreement, to
all of which terms and provisions the holder hereof consents by acceptance
hereof. Copies of the Debt Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at ___________].
The Warrant Securities to be issued and delivered upon the exercise of
the Warrants evidenced by this Global Warrant Certificate will be issued under
and in accordance with an Indenture dated as of [ ], 1999, as amended
(the "Indenture"), between the Company and [The Chase Manhattan Bank], as
Trustee (the "Trustee"), and will be subject to the terms and provisions
contained in the Indenture. Copies of the Indenture and the form of the Warrant
Securities are on file at the corporate trust office of the Trustee [and at
____________].
The Global Warrant Certificate, and all rights hereunder, may be
transferred by delivery, and the Company and the Warrant Agent may treat the
holder hereof as the owner for all purposes.
The Global 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
B-3
<PAGE>
interest, if any, on the Warrant Securities or to enforce any of the covenants
of the Indenture.
This Global Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of ____________, 19__.
FORTUNE BRANDS, INC.
By
Attest:
__________________________
Countersigned:
__________________________
As Warrant Agent
By________________________
Authorized Signature
B-4
<PAGE>
Schedule A
(additional continuation sheets may be attached
if required)
Exercises of Warrants
The following exercises of a portion of this Global Warrant Certificate for
Warrant Securities have been made:
<TABLE>
<CAPTION>
Number of Warrants Remaining Number of
Date of Exercised for Warrants Following Notation
Exercise Warrant Securities Such Exercise Made By:
- -------- ------------------ ------------------- --------
<S> <C> <C> <C>
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
</TABLE>
B-5
<PAGE>
<TABLE>
<CAPTION>
Number of Warrants Remaining Number of
Date of Exercised for Warrants Following Notation
Exercise Warrant Securities Such Exercise Made By:
- -------- ------------------ ------------------- --------
<S> <C> <C> <C>
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
- -------- ------------------ ------------------- --------
</TABLE>
B-6
<PAGE>
EXHIBIT C
[alone]
[DELETE THIS EXHIBIT IF WARRANT CERTIFICATES
IN ONLY REGISTERED FORM ARE TO BE ISSUED]
[FORM OF CERTIFICATE TO BE DELIVERED TO WARRANT AGENT
BY THE EURO-CLEAR OPERATOR OR CEDEL]
FORTUNE BRANDS, INC.
Warrants (the "Warrants") to Purchase
[Title of Warrant Securities]
[Name of Warrant Agent]
[Address]
Dear Sirs:
The undersigned hereby irrevocably elects to exercise
__________________ Warrants to purchase as of _____________________ (the
"Exercise Date") ______ principal amount of the [Title of Warrant Securities]
(the "Warrant Securities") of Fortune Brands, Inc. and represents that it has
tendered payment for such Warrant Securities [in lawful money of the United
States of America] [in applicable currency] [in cash] [by certified check or
official bank check or by bank wire transfer, in each case,] [by bank wire
transfer] [in immediately available funds] to the order of Fortune Brands, Inc.,
c/o [insert name and address of Warrant Agent], in the amount of ______ in
accordance with the terms hereof and the Debt Warrant Agreement dated as of
_________, 19__ between Fortune Brands, Inc. and you (the "Debt Warrant
Agreement").
In connection with the Undersigned's request that you deliver to us
any Warrant Securities in bearer form, the undersigned hereby certifies that as
of the date hereof, and except as set forth below, the Warrant Securities in
bearer form which are to be delivered to the Common Depositary referred to below
for our account (i) are being acquired by a person that is not a citizen or
resident of the United States, a domestic partnership, a domestic corporation or
an estate or trust the income of which is subject to United States Federal
income taxation regardless of its source (a "United States person"), (ii) are
being acquired by a United States person that is (A) the foreign branch of a
United States financial institution (as defined in U.S. Treasury Regulations
Section l.165-12(c)(l)(v)(a "financial
<PAGE>
institution"), purchasing for its own account or for resale, or (B) a United
States person acquiring the Warrant Securities through the foreign branch of a
financial institution on the date hereof (and in either case (A) or (B), the
financial institution hereby agrees to 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 being acquired by a financial
institution 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 such financial
institution is not acquiring the Warrant Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As a clearing organization within the meaning of Section 1.163-
5(c)(2)(i)(D)(8) of the regulations promulgated under the Internal Revenue Code
of 1986, as amended, the undersigned further certifies that (a) the above
certification is based solely on statements received from member organizations
appearing in our records (our "Account Holders") in certificates in the form set
forth in Exhibit D to the Debt Warrant Agreement and (b) as of the date hereof
we have not received any notification from any of our Account Holders to the
effect that the statements made by such Account Holders in such certificates are
no longer true.
"United States" means the United States of America, its territories
and possessions and areas subject to its jurisdiction and the Commonwealth of
Puerto Rico.
We hereby undertake to notify you immediately by telex if any of the
statements of our Account Holders referred to above is not correct at any time
on or before the Warrant Securities in bearer form are delivered. We further
agree to cause [a confirmation substantially in the form of Exhibit E to the
Debt Warrant Agreement and] a copy of the prospectus relating to the Warrant
Securities delivered to us as contemplated by Section 6.05 of the Debt Warrant
Agreement to be delivered to our Account Holders entitled to such warrant
Securities prior to or contemporaneously with our transfer of such Warrant
Securities to or to the account of such Account Holders.
We understand that this Certificate is required in connection with
United States laws, tax laws and regulations. We irrevocably authorize you to
produce this
C-2
<PAGE>
Certificate or a copy hereof to any interested party in any administrative or
legal proceedings with respect to the matters covered by this Certificate.
The undersigned requests that said principal amount of Warrant
Securities be [in registered form in the authorized denominations, registered in
such names and delivered all as specified in accordance with the instructions
set forth below] [bearer form in the authorized denominations and delivered to
_______, as Common Depositary under the Debt Warrant Agreement, to be held for
our account]* [Instructions as to delivery of Warrant Securities to be issued in
registered form].
Dated: _______________, 19__/**/
Very truly yours,
[MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
Brussels Office, as operator of the Euro-clear
System]/*/
By_____________________________________________
Title:
[CENTRALE DE LIVRAISONS DE VALEURS MOBILIERES
S.A.]*
By_____________________________________________
Title:
___________________
* Delete inapplicable reference.
** To be dated no earlier than the fifteenth day prior to the certification
date.
C-3
<PAGE>
Exhibit D
[alone]
[DELETE THIS EXHIBIT IF WARRANT CERTIFICATES
IN ONLY REGISTERED FORM ARE TO BE ISSUED]
[FORM OF WARRANT EXERCISE NOTICE]
Morgan Guaranty Trust Company
of New York, Brussels Office,
as operator of the Euro-clear
System*
[Address]
Centrale de Livraison de
Valeurs Mobilieres S.A./*/
[Address]
FORTUNE BRANDS, INC.
WARRANTS (THE "WARRANTS") TO PURCHASE
[Title of Warrant Securities]
(the "Warrant Securities")
Dear Sirs:
We hereby irrevocably elect to exercise ____________ Warrants to
purchase _____ (being _____ or an integral multiple thereof) aggregate principal
amount of Warrant Securities of Fortune Brands, Inc. (the "Company") on
_____________________, 19__ (the "Exercise Date"). The account number(s) on
your books in which the Warrants being exercised [and the [Title of Offered
Securities] to which such Warrants are attached]/**//*/ are held is (are)
_______ __________________. The Warrant Securities to be issued to us on
exercise of the Warrants are to be credited to such account, unless otherwise
indicated below and shall be in [registered] [bearer]* form in the following
authorized denominations: ________________.
We hereby request that you complete a certification in the form
required by the Debt Warrant Agreement hereinafter referred to make payment
directly to [ ], as Warrant Agent (the "Warrant Agent",
/*/ Delete inapplicable reference.
/**/ Delete if dated on or after , 19 .
<PAGE>
which term shall include its successors as such Warrant Agent), under the Debt
Warrant Agreement dated as of [ ] between the Company and the Warrant Agent (the
"Debt Warrant Agreement") at or prior to [time] on the Exercise Date, or if the
Exercise Date is the last day on which Warrants may be exercised under the Debt
Warrant Agreement, prior to [time] in [location] on the Exercise Date, [in
lawful money of the United States of America] [in applicable currency] [in cash]
[by certified check or official bank check or by bank wire transfer, in each
case,] [by bank wire transfer] [in immediately available funds] of
_____________, such amount being the Warrant Price (as defined in the Global
Warrant Certificate representing the Warrants, as provided in Section 1.02 of
the Debt Warrant Agreement) for Warrants exercised (plus any accrued interest as
specified in such Global Warrant Certificate) on the Exercise Date, and debit
account number ____________ for said amount.
The undersigned hereby certifies that as of the date hereof, and
except as set forth below, the Warrant Securities held by you for our account
are being acquired by a person that is not a citizen or resident of the United
States, a domestic partnership, a domestic corporation or an estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source (a "United States person"), (ii) are being acquired by a United
States person that is (A) the foreign branch of a United States financial
institution (as defined in U.S. Treasury Regulations Section l.165-
12(c)(l)(v))(a "financial institution"), purchasing for its own account or for
resale, or (B) a United States person who is acquiring the Warrant Securities
through the foreign branch of a financial institution on the date hereof (and in
either case (A) or (B), the financial institution hereby agrees to 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 being
acquired by a financial institution 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 such financial institution is not acquiring the Warrant 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 this Certificate is
being provided by a clearing organization, it is based on statements provided to
it by its member organizations. As used herein, a "clearing organization" is an
entity which is in the business of holding obligations for member organizations
and transferring obligations among such members by credit or
D-2
<PAGE>
debit to the account of a member without the necessity of physical delivery of
the obligation.
We undertake to advise you immediately by telex if the foregoing
statement as to beneficial ownership is not correct on or before the date of
delivery of such Warrant Securities as to the entire principal amount of the
Warrant Securities to be issuable upon exercise then appearing on your books as
being held for our account, and in the absence of any such notification it may
be assumed that this Certificate applies as of such date.
[This Certificate excepts and does not relate to [ ] of such
interest in the above Warrants in respect of which we are not able to certify
and as to which we understand exchange and delivery of Warrant Securities cannot
be made until we do so certify.]
We understand that this Certificate is required in connection with
certain tax regulations in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
Certificate is or would be relevant, we irrevocably authorize you to produce
this Certificate or a copy thereof to any interested party in such proceedings.
"United States" means the United States of America, its territories and
possessions and areas subject to its jurisdiction and the Commonwealth of Puerto
Rico.
Dated: ______________, l9__/*/
Very truly yours,
[Name and, if appropriate, title]
As, or as agent for, the
beneficial owner(s) of the
interest in the Warrants to which
this Warrant Exercise Notice
relates.
By______________________________
Title:
_____________
/*/ To be dated no earlier than the fifteenth day prior to the certification
date.
D-3
<PAGE>
EXHIBIT 5
LETTERHEAD OF CHADBOURNE & PARKE LLP
30 ROCKEFELLER PLAZA
NEW YORK, NEW YORK 10112
(212) 408-5100
April 15, 1999
Fortune Brands, Inc.
1700 East Putnam Avenue
Old Greenwich, Connecticut 06870-0811
Dear Sirs:
In connection with the registration under the Securities Act of 1933,
as amended (the "Act"), by Fortune Brands, Inc. (the "Company") of its debt
securities in an aggregate principal amount (or net proceeds, in the case of
debt securities issued at an original issue discount) of up to $550,000,000 and
warrants to purchase such debt securities (the debt securities in such principal
amount and the warrants to purchase such debt securities, together with the
remaining unissued $450,000,000 aggregate principal amount of such debt
securities and warrants to purchase such debt securities presently registered
under the Act under the Company's Registration Statement on Form S-3 bearing
<PAGE>
Fortune Brands, Inc. -2- April 15, 1999
Registration No. 33-50832, being herein referred to as the "Debt Securities" and
the "Debt Warrants", respectively) to be offered and sold by the Company from
time to time in accordance with Rule 415 under the Act, and the shares of Common
Stock, par value $3.125 per share, of the Company ("Common Stock") and any
accompanying Preferred Share Purchase Rights of the Company ("Rights") issuable
or deliverable upon conversion of any convertible Debt Securities, we advise as
follows:
We are familiar with the Restated Certificate of Incorporation and By-
laws of the Company as amended to the date hereof, and we have reviewed (i) the
Registration Statement on Form S-3 to be filed by the Company under the Act with
respect to the Debt Securities, the Debt Warrants and the shares of Common Stock
and any Rights issuable or deliverable upon conversion of any convertible Debt
Securities (the "Registration Statement"), (ii) the form of Indenture to be
dated as of April 15, 1999 between the Company and The Chase Manhattan Bank, as
Trustee, under which Debt Securities may be issued (the "Indenture") and (iii)
the forms of Debt Warrant Agreements (the "Debt Warrant Agreements") between the
Company and each debt warrant agent to be named therein under which Debt
Warrants may be issued. We are familiar with the various corporate proceedings
<PAGE>
Fortune Brands, Inc. -3- April 15, 1999
heretofore taken and additional proceedings proposed to be taken by the Company
in connection with the authorization, registration, issuance and sale of the
Debt Securities, the Debt Warrants and the shares of Common Stock and any
accompanying Rights issuable or deliverable upon conversion of any convertible
Debt Securities. We have also examined originals, or copies certified to our
satisfaction, of such corporate records of the Company and other instruments,
certificates of public officials and representatives of the Company and other
documents as we have deemed necessary as a basis for the opinion hereinafter
expressed. In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity with the originals of all documents submitted to us as copies. As
to questions of fact material to this opinion, we have, when relevant facts were
not independently established, relied upon certificates of officers of the
Company and appropriate public officials.
On the basis of the foregoing, and having regard for such legal
considerations as we deem relevant and subject to (1) the terms of the Debt
Securities and the Debt Warrants being otherwise in compliance with applicable
law at the time of issuance thereof, (2) the authorization by the Trustee of the
Indenture under which the Debt Securities
<PAGE>
Fortune Brands, Inc. -4- April 15, 1999
of each series are issued and the due execution and delivery thereof by the
Company and the Trustee, and (3) the authorization by the relevant debt warrant
agents of the Debt Warrant Agreements under which the Debt Warrants are issued
and the due execution and delivery thereof by the Company and the relevant debt
warrant agents, we are of the opinion that when (i) the Registration Statement
has become effective under the Act, (ii) the Indenture has been qualified under
the Trust Indenture Act of 1939, as amended, (iii) the Debt Securities have been
duly authorized, executed and authenticated as provided in the Indenture and
delivered against payment therefor, and (iv) the Debt Warrants have been duly
authorized and executed as provided in the Debt Warrant Agreements and delivered
against payment therefor:
A. The Debt Securities will be legally and validly issued and will
constitute the valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the enforcement of creditors' rights in general
and general principles of equity (regardless of whether such
<PAGE>
Fortune Brands, Inc. -5- April 15, 1999
enforceability is considered in a proceeding in equity or at law).
B. The Debt Warrants will be legally and validly issued and will
constitute the valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the enforcement of creditors' rights in general
and general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
C. The shares of Common Stock issuable or deliverable upon conversion
of any convertible Debt Securities, when and if issued or delivered in
accordance with the Indenture and the terms of such Debt Securities and in
accordance with resolutions of the Board of Directors of the Company or the
Executive Committee thereof, will be legally and validly issued, fully paid and
nonassessable and any accompanying Rights issuable or deliverable with such
shares of Common Stock upon conversion of any convertible Debt Securities, when
and if issued or delivered in accordance with resolutions of the Board of
Directors of the
<PAGE>
Fortune Brands, Inc. -6- April 15, 1999
Company or the Executive Committee thereof, will be legally and validly issued.
We express no opinion herein as to any laws other than the laws of the
State of New York, the General Corporation Law of the State of Delaware and the
Federal laws of the United States.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, to the reference to this firm under the captions "Legal
Opinion" in each of the Prospectus constituting a part of the Registration
Statement and the form of Prospectus Supplement to be filed therewith.
Very truly yours,
CHADBOURNE & PARKE LLP
<PAGE>
Exhibit 23a
-----------
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated February 3, 1999 relating to the
consolidated financial statements, appearing in the 1998 Annual Report to
Stockholders of Fortune Brands, Inc. (the "Company"), which is incorporated by
reference in the Company's Annual Report on Form 10-K for the year ended
December 31, 1998. We also consent to the incorporation by reference in this
Registration Statement on Form S-3 of our report on the financial statement
schedule, which appears in such Annual Report on Form 10-K. We also consent to
the references to us under the heading "Experts" in such Registration Statement.
PricewaterhouseCoopers LLP
11 Madison Avenue
New York, New York 10010
April 15, 1999
<PAGE>
Exhibit 24
----------
POWER OF ATTORNEY
The undersigned, acting in the capacity or capacities stated with their
respective names below, hereby constitute and appoint MARK A. ROCHE, EDWARD P.
SMITH and A. ROBERT COLBY, and each of them severally, the attorneys-in-fact of
the undersigned with full power to them and each of them to do any and all acts
and things and to execute any and all instruments which said attorneys-in-fact
may deem necessary or advisable to comply with the Securities Act of 1933, as
amended, and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof in connection with the filing under the
Securities Act of 1933, as amended, of (a) all such registration statements,
amendments, post-effective amendments or supplements thereto, or any new or
revised prospectuses relating thereto or supplements thereto, as may be
necessary or desirable in connection with the registration by Fortune Brands,
Inc. of (i) its debt securities ("Debt Securities") in an aggregate principal
amount of up to $550,000,000 in aggregate net proceeds (or the equivalent
thereof if any Debt Securities are denominated in a foreign currency or
currencies or a composite currency), (ii) its warrants to purchase Debt
Securities in such aggregate principal amount and (iii) such number of shares of
its Common Stock, par value $3.125 per share, and accompanying Preferred Share
Purchase Rights as may be issuable from time to time upon conversion of any Debt
Securities in such aggregate principal amount, or any Debt Securities in the
aggregate principal amount of $450,000,000 remaining registered under the
registration statements referred to in clause (b), which are convertible into
such Common Stock and (b) all such post-effective amendments to the Registration
Statement on Form S-3 (Registration No. 33-50832) of Fortune Brands, Inc., and
all amendments or supplements thereto, or any new or revised prospectuses
relating thereto or supplements thereto, as may be necessary or desirable,
including specifically in each case, but without limiting the generality of the
foregoing, the power and authority to sign the name of Fortune Brands, Inc. and
the names of the undersigned directors and officers in the capacities indicated
below to all such registration statements, amendments, post-effective amendments
or supplements thereto:
Signature Title Date
Thomas C. Hays
---------------------- Chairman of the Board April 9, 1999
Thomas C. Hays and Chief Executive
Officer (principal
executive officer) and
Director
Norman H. Wesley
---------------------- President and Chief April 9, 1999
Norman H. Wesley Operating Officer and
Director
<PAGE>
John T. Ludes
---------------------- Vice Chairman and April 9, 1999
John T. Ludes Director
Gilbert L. Klemann, II
---------------------- Executive Vice April 9, 1999
Gilbert L. Klemann, II President - Corporate
and Director
Dudley L. Bauerlein, Jr.
---------------------- Senior Vice President April 9, 1999
Dudley L. Bauerlein, Jr. and Chief Financial
Officer (principal
financial officer)
Craig P. Omtvedt
---------------------- Senior Vice President April 12, 1999
Craig P. Omtvedt and Chief Accounting
Officer (principal
accounting officer)
Eugene R. Anderson
---------------------- Director April 10, 1999
Eugene R. Anderson
Patricia O. Ewers
---------------------- Director April 10, 1999
Patricia O. Ewers
John W. Johnstone, Jr.
---------------------- Director April 9, 1999
John W. Johnstone, Jr.
Sidney Kirschner
---------------------- Director April 10, 1999
Sidney Kirschner
PAGE 2 OF 3
<PAGE>
Gordon R. Lohman
---------------------- Director April 10, 1999
Gordon R. Lohman
---------------------- Director April , 1999
Charles H. Pistor, Jr.
Eugene A. Renna
---------------------- Director April 12, 1999
Eugene A. Renna
Anne M. Tatlock
---------------------- Director April 11, 1999
Anne M. Tatlock
John W. Thompson
---------------------- Director April 10, 1999
John W. Thompson
Peter M. Wilson
---------------------- Director April 12, 1999
Peter M. Wilson
PAGE 3 OF 3
<PAGE>
EXHIBIT 25
________________________________________________________________
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 CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
FORTUNE BRANDS, INC.
(Exact name of obligor as specified in its charter)
DELAWARE 13-3295276
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1700 EAST PUTNAM AVENUE
OLD GREENWICH, CONNECTICUT 06870-0811
(Address of principal executive offices) (Zip Code)
____________________________________________
DEBT SECURITIES
(Title of the indenture securities)
______________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 14th day of April, 1999.
THE CHASE MANHATTAN BANK
By /s/ Wanda Eiland
---------------------------------
Assistant Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin................................ $ 13,915
Interest-bearing balances........................ 7,805
Securities:.........................................
Held to maturity securities......................... 1,429
Available for sale securities....................... 56,327
Federal funds sold and securities purchased under
agreements to resell............................. 21,733
Loans and lease financing receivables:
Loans and leases, net of unearned income......... $131,095
Less: Allowance for loan and lease losses........ 2,711
Less: Allocated transfer risk reserve............ 0
--------
Loans and leases, net of unearned income,
allowance, and reserve........................... 128,384
Trading Assets...................................... 48,949
Premises and fixed assets (including capitalized
leases).......................................... 3,095
Other real estate owned............................. 239
Investments in unconsolidated subsidiaries and
associated companies............................ 199
Customers' liability to this bank on acceptances
outstanding..................................... 1,209
Intangible assets................................... 2,081
Other assets........................................ 11,352
--------
TOTAL ASSETS........................................ $296,717
========
-4-
<PAGE>
LIABILITIES
Deposits
In domestic offices................................... $105,879
Noninterest-bearing .................................. $39,175
Interest-bearing ..................................... 66,704
In foreign offices, Edge and Agreement, ------
subsidiaries and IBF's................................ 79,294
Noninterest-bearing .................................. $ 4,082
Interest-bearing ..................................... 75,212
Federal funds purchased and securities sold under agree-
ments to repurchase...................................... 32,546
Demand notes issued to the U.S. Treasury................. 629
Trading liabilities...................................... 36,807
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less.......... 4,478
With a remaining maturity of more than one year .
through three years................................. 213
With a remaining maturity of more than three years.. 115
Bank's liability on acceptances executed and outstanding 1,209
Subordinated notes and debentures........................ 5,408
Other liabilities........................................ 10,855
TOTAL LIABILITIES........................................ 277,433
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock............................................... 1,211
Surplus (exclude all surplus related to preferred stock).. 11,016
Undivided profits and capital reserves..................... 6,762
Net unrealized holding gains (losses)
on available-for-sale securities........................... 279
Cumulative foreign currency translation adjustments........ 16
TOTAL EQUITY CAPITAL....................................... 19,284
--------
TOTAL LIABILITIES AND EQUITY CAPITAL....................... $296,717
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
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 appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
