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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 23, 1999
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
UNIT CORPORATION
(Exact name of registrant as specified in its charter)
1000 KENSINGTON TOWER I
7130 SOUTH LEWIS
TULSA, OKLAHOMA 74136
(918) 493-7700
DELAWARE (Name, address, including zip code, 73-1283193
(State or other and telephone number, including area code, (I.R.S. Employer
jurisdiction of of Registrant's principal executive Identification No.)
incorporation offices)
or organization)
MARK E. SCHELL
GENERAL COUNSEL
UNIT CORPORATION
1000 KENSINGTON TOWER I, 7130 SOUTH LEWIS, TULSA, OKLAHOMA 74136
(918) 493-7700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPY TO:
LYNNWOOD R. MOORE, JR.
CONNER & WINTERS,
A PROFESSIONAL CORPORATION
3700 FIRST PLACE TOWER
15 EAST 5TH STREET
TULSA, OKLAHOMA 74103-4344
(918) 586-5711
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 to be offered pursuant
to dividend or interest reinvestment plans, please check the following box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
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. [_]
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CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
TITLE OF EACH MAXIMUM MAXIMUM AMOUNT
CLASS OF OFFERING AGGREGATE OF
SECURITIES TO AMOUNT TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER UNIT(1) PRICE(1)(2) FEE
- ------------------ --------------- ----------- ------------ ------------
Debt Securities(4) (3) (3) (3) (3)
Preferred Stock(5) (3) (3) (3) (3)
Common Stock(6)(7) (3) (3) (3) (3)
Warrants(8) (3) (3) (3) (3)
Total $100,000,000(9) 100% $100,000,000 $ 27,800
=============== =========== ============ ============
(1) The proposed maximum offering price per unit will be determined from time
to time by the Registrant in connection with the issuance by the
Registrant of the securities registered hereunder.
(2) Estimated for the purpose of computing the registration fee pursuant to
Rule 457(o).
(3) Not specified as to each class of securities being registered pursuant to
General Instruction II.D. of Form S-3.
(4) Subject to note (9) below, there is being registered hereunder an
indeterminate principal amount of Debt Securities. If any Debt
Securities are issued at an original issue discount, then the offering
price shall be in such aggregate principal amount as shall result in an
aggregate initial offering price for such securities (excluding any
securities previously registered under the Securities Act) not to exceed
$100,000,000 less the dollar amount of any securities previously issued
hereunder.
(5) Subject to note (9) below, such indeterminate number of shares of
Preferred Stock, par value $1.00 per share, as may, from time to time, be
issued at indeterminate prices.
(6) Each share of Common Stock is accompanied by a preferred share purchase
right pursuant to the Rights Agreement, dated May 19, 1995, with
ChaseMellon Shareholder Services, L.L.C., as Rights Agent.
(7) Subject to note (9) below, such indeterminate number of shares of Common
Stock, par value $0.20 per share, as may, from time to time, be
issued at indeterminate prices including Common Stock issuable upon
conversion of Debt Securities or Preferred Stock.
(8) Subject to note (9) below, such indeterminate number of Warrants
representing rights to purchase Debt Securities, Preferred Stock or
Common Stock, as may from time to time, be issued at indeterminate
prices.
(9) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this registration statement, and not
previously registered under the Securities Act, exceed $100,000,000. The
securities registered hereunder may be sold separately or as units
with other securities registered hereunder.
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(CONTINUED FROM PREVIOUS PAGE)
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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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 July 23, 1999
PROSPECTUS
$100,000,000
UNIT CORPORATION
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
We may offer and sell, together or separately, from time to time in one or more
offerings:
. unsecured debt securities consisting of senior notes and debentures and
subordinated notes and debentures, and/or other unsecured evidences of
indebtedness in one or more series;
. shares of preferred stock, in one or more series, which may be
convertible into or exchangeable for common stock or debt securities;
. shares of common stock; and
. warrants to purchase debt securities, preferred stock or common stock.
We will provide the specific terms of the securities in supplements to this
prospectus. You should read this prospectus and any supplements to this
prospectus carefully before you invest in the securities.
This prospectus may not be used to sell securities unless accompanied by a
supplement to this prospectus.
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
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TABLE OF CONTENTS
Page
About This Prospectus. . . . . . . . . . . . . . . . . . . . . . . 3
Where You Can Find More Information About the Company. . . . . . . 3
The Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Forward Looking Statements . . . . . . . . . . . . . . . . . . . . 4
Ratio of Earnings to Fixed Charges . . . . . . . . . . . . . . . . 5
Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . 5
Description of Debt Securities . . . . . . . . . . . . . . . . . . 6
Description of Capital Stock . . . . . . . . . . . . . . . . . . . 21
Description of Warrants. . . . . . . . . . . . . . . . . . . . . . 25
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . 27
Legal Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Independent Accountants. . . . . . . . . . . . . . . . . . . . . . 29
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the SEC
utilizing a "shelf" registration process. Under this shelf process, we may,
from time to time, sell any combination of the securities described in this
prospectus in one or more offerings up to a total dollar amount of $100,000,000.
This prospectus provides you with a general description of the securities we may
offer. Each time we sell securities, we will provide a prospectus supplement
that will contain specific information about the terms of that offering. The
prospectus supplement also may add, update or change information contained in
this prospectus. You should read both this prospectus and any prospectus
supplement together with additional information described under the heading
below "Where You Can Find More Information About the Company."
You should rely only on the information or representations incorporated by
reference or provided in this prospectus and in the accompanying prospectus
supplement. We have not authorized anyone to provide you with different
information. You may obtain copies of the registration statement, or of any
document which we have filed as an exhibit to the registration statement or to
any other SEC filing, either from the SEC or from the corporate secretary of the
company as described below. 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 in the accompanying prospectus supplement is
accurate as of any date other than the dates printed on the front of each such
document.
WHERE YOU CAN FIND MORE
INFORMATION ABOUT THE COMPANY
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document filed by us at the
SEC's public reference rooms located at 450 Fifth Street, N.W., Judiciary Plaza,
Room 1024, Washington, D.C. 20549; at regional offices of the SEC at the
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511; and at 7 World Trade Center, New York, New York 10048. You
may call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms. Our filings are also available to the public from the SEC's
Internet web site at http://www.sec.gov. Information concerning us also may be
inspected at the New York Stock Exchange offices located at 20 Broad
Street, New York, New York 10005.
The SEC allows us to "incorporate by reference" the information we file with
them, 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 part of this prospectus and information we file later with the SEC will
automatically update and supersede the information in this prospectus. We
incorporate by reference the documents issued below and any future filings we
make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 until we sell all of the securities:
. Our Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
. Our Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1999; and
. The description of rights to purchase preferred stock contained in the
Company's registration statement on Form 8-A filed with the SEC on
May 23, 1995;
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We will provide, without charge, to each person to whom a copy of this
prospectus has been delivered, a copy of any of the documents referred to above
as being incorporated by reference. You may request a copy of these filings by
writing or telephoning Mr. Mark E. Schell, General Counsel and Corporate
Secretary, Unit Corporation, 1000 Kensington Tower I, 7130 South Lewis, Tulsa,
Oklahoma 74136 (telephone 918/493-7700).
THE COMPANY
Unit Corporation is an independent energy company engaged, through its
subsidiaries, in the exploration and production of oil and natural gas, the
acquisition of producing oil and natural gas properties and the contract
drilling of onshore oil and natural gas wells. Our operations are principally
located in the Mid-Continent region, as well as the Permian and Gulf Coast
Basins of the United States.
Our principal executive offices are located at 1000 Kensington Tower I, 7130
South Lewis, Tulsa, Oklahoma 74136, and our telephone number is (918) 493-7700.
FORWARD-LOOKING STATEMENTS
This prospectus, including the information we incorporate by reference,
information included in, or incorporated by reference from, future filings by us
with the SEC, as well as information contained in written material, press
releases and oral statements issued by or on behalf of us, contain, or may
contain, certain statements that may be deemed to be "forward-looking
statements" within the meaning of federal securities laws. All statements,
other than statements of historical facts, included or incorporated by reference
in this prospectus, which address activities, events or developments which we
expect or anticipate will or may occur in the future are forward-looking
statements. The words "believes," "intends," "expects," "anticipates,"
"projects," "estimates," "predicts" and similar expressions are also intended to
identify forward-looking statements.
These forward-looking statements include, among others, such things as:
. our Year 2000 plans;
. the amount and nature of future capital expenditures;
. wells to be drilled or reworked;
. oil and gas prices and demand;
. exploitation and exploration prospects;
. estimates of proved oil and gas reserves;
. reserve potential;
. development and infill drilling potential;
. drilling prospects;
. expansion and other development trends of the oil and gas industry;
. business strategy;
. production of oil and gas reserves;
. expansion and growth of our business and operations; and
. drilling rig utilization and drilling rig rates.
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These statements are based on certain assumptions and analyses made by us in
light of our experience and our perception of historical trends, current
conditions and expected future developments as well as other factors we believe
are appropriate in the circumstances. However, whether actual results and
developments will conform to our expectations and predictions is subject to a
number of risks and uncertainties which could cause actual results to differ
materially from our expectations, including:
. the risk factors discussed in this prospectus and in the documents we
incorporate by reference;
. general economic, market or business conditions;
. the nature or lack of business opportunities that may be presented to
and pursued by us;
. demand for land drilling services;
. changes in laws or regulations; and
. other factors, most of which are beyond our control.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges for the
periods indicated:
Three Months
Year Ended December 31, Ended March 31,
---------------------------- ---------------
1994 1995 1996 1997 1998 1998 1999
---- ---- ---- ---- ---- ---- ----
Ratio of Earnings
to Fixed Charges 3.70 1.92 5.09 6.87 1.75 2.04 N/A
Earnings were inadequate by $1,976,000 in the three months ended Mach 31, 1999
to cover fixed charges. Earnings available for fixed charges represent earnings
from continuing operations before income taxes and fixed charges. Fixed charges
represent interest incurred and guaranteed plus that portion of rental expense
deemed to be the equivalent of interest. We are a guarantor of $879,000
and $521,000 at March 31, 1999 and December 31, 1998, respectively, of debt of a
less-than-fifty-percent-owned company accounted for under the equity method.
The amount of fixed charges associated with this guarantee is $15,000 for the
three month period ended March 31, 1999 and $20,000 for the year ended December
31, 1998, which amounts are included in the computation of the ratio.
USE OF PROCEEDS
Except as otherwise described in any prospectus supplement, the net proceeds
from the sale of securities offered from time to time will be used for general
corporate purposes, which may include:
. repayment or refinancing of indebtedness;
. working capital;
. capital expenditures;
. oil and gas property or drilling rig acquisitions; and
. repurchases and redemptions of securities.
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DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the debt securities, which may consist
of senior notes and debentures and subordinated notes and debentures (the "Debt
Securities"), sets forth certain general terms and provisions of the Debt
Securities to which any prospectus supplement may relate. The particular terms
of the Debt Securities offered by any prospectus supplement and the extent, if
any, to which such general provisions may apply to the Debt Securities being
offered will be described in the prospectus supplement relating to such Debt
Securities. Accordingly, for a description of the terms of a particular issue
of Debt Securities, reference should be made to both the prospectus supplement
and to the following description.
The Debt Securities will be unsecured general obligations of the Company and may
be subordinated to our "Senior Indebtedness" (as defined below) to the extent
set forth in the applicable prospectus supplement. See "Description of Debt
Securities--Subordination" below. Debt Securities will be issued under an
indenture (the "Indenture") to be entered into between the Company and an
indenture trustee to be selected by the Company and named in a prospectus
supplement (the "Trustee"). A copy of the form of Indenture has been filed as an
exhibit to the registration statement. The following discussion of certain
provisions of the Indenture is a summary only and does not purport to be a
complete description of the terms and provisions of the Indenture. Accordingly,
the following discussion is qualified in its entirety by reference to the
provisions of the Indenture. Capitalized terms used in the following summary
but not defined have the meanings specified in the Indenture.
General
The Indenture does not limit the aggregate principal amount of Debt Securities
that may be issued. We may issue the Debt Securities from time to time in one or
more series. The Indenture does not limit the amount of other unsecured
indebtedness or securities which may be issued by the Company. Unless otherwise
indicated in the applicable prospectus supplement, the Debt Securities will not
benefit from any covenant or other provision that would afford holders of Debt
Securities special protection in the event of a highly leveraged transaction
involving the Company. Reference is made to the applicable prospectus
supplement for the following terms of the Debt Securities of the series with
respect to which the prospectus supplement is being delivered:
. the title of Debt Securities of the series;
. any limit on the aggregate principal amount of the Debt Securities of
the series;
. the date or dates on which the principal and premium, if any, with
respect to the Debt Securities of the series are payable;
. the rate or rates (which may be fixed or variable), or the method of
determination of the rate or rates, at which the Debt Securities of
the series will bear interest, the date or dates from which such
interest shall accrue, the interest payment dates on which such interest
will be payable or the method by which such date will be determined, the
record dates for the determination of holders of Debt Securities of the
series to whom such interest is payable, and the basis upon which
interest will be calculated if other than that of a 360-day year of
twelve 30-day months;
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. the place or places of payment, if any, in addition to or instead of the
corporate trust office of the Trustee where the principal, premium, if
any, and interest with respect to Debt Securities of the series will be
payable;
. the price or prices at which, the period or periods within which, and
the terms and conditions upon which Debt Securities of the series may be
redeemed, in whole or in part, at the option of the Company or
otherwise;
. the obligation, if any, of the Company to redeem, purchase, or repay
Debt Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a holder of Debt Securities of the series
and the price or prices at which, the period or periods within which,
and the terms and conditions upon which Debt Securities of the series
will be redeemed, purchased, or repaid, in whole or in part, pursuant to
such obligations;
. the terms, if any, upon which the Debt Securities of the series may be
convertible into or exchanged for securities of the Company or any other
issuer or obligor and the terms and conditions upon which such
conversion or exchange will be effected, including the initial
conversion or exchange price or rate, the conversion or exchange period
and any other provision in addition to or in lieu of those described
herein;
. if other than denominations of $1,000 or any integral multiple of
$1,000, the denominations in which Debt Securities of the series will be
issuable;
. if the amount of principal, premium, if any, or interest with respect to
the Debt Securities of the series may be determined with reference to an
index or pursuant to a formula, the manner in which such amounts will be
determined;
. if the principal amount payable at the stated maturity of Debt
Securities of the series will not be determinable as of any one or more
dates prior to such stated maturity, the amount that will be deemed to
be such principal amount as of any such date for any purpose, including
the principal amount that will be due and payable upon any maturity
other than the stated maturity or that will be deemed to be outstanding
as of any such date (or, in such case, the manner in which such deemed
principal amount is to be determined), and if necessary, the manner of
determining the equivalent principal amount in United States currency;
. any changes or additions to the provisions of the Indenture dealing with
defeasance, including the addition of additional covenants that may be
subject to the Company's covenant defeasance option;
. if other than United States dollars, the coin or currency or currencies
or units of two or more currencies in which payment of the principal,
premium, if any, and interest with respect to Debt Securities of the
series shall be payable;
. if other than the principal amount of Debt Securities of the series, the
portion of the principal amount of Debt Securities of the series which
shall be payable upon declaration of acceleration or provable in
bankruptcy;
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. the terms, if any, of the transfer, mortgage, pledge or assignment as
security for the Debt Securities of the series of any properties,
assets, moneys, proceeds, securities or other collateral, including
whether certain provisions of the Trust Indenture Act are applicable
and any corresponding changes to provisions of the Indenture as
currently in effect;
. any addition to or change in the Events of Default with respect to the
Debt Securities of the series and any change in the right of the
Trustee or the holders to declare the principal of and interest on such
Debt Securities due and payable;
. whether the Debt Securities of the series will be issued in whole or in
part in global form, the terms and conditions, if any, upon which any
global security may be exchanged in whole or in part for other
individual Debt Securities in definitive registered form and the
depositary for any such global security;
. any trustees, authenticating or paying agents, transfer agents or
registrars;
. the applicability of, and any addition to or change in the covenants and
definitions currently set forth in the Indenture or in the terms
relating to permitted consolidations, mergers, or sales of assets,
including conditioning any merger, conveyance, transfer or lease
permitted by the Indenture upon the satisfaction of an Indebtedness
coverage standard by the Company and Successor Company;
. the terms, if any, of any guarantee of the payment of principal of, and
premium, if any, and interest on, Debt Securities of the series
and any corresponding changes to the provisions of the Indenture as
currently in effect;
. the subordination, if any, of the Debt Securities of the series and any
changes or additions to the provisions of the Indenture relating
to subordination;
. if Debt Securities of the series do not bear interest, the dates for
certain required reports to the Trustee; and
. any other terms of the Debt Securities of the series (which terms shall
not be prohibited by the Indenture).
The prospectus supplement will also describe any material United States federal
income tax consequences or other special considerations applicable to the series
of Debt Securities offered, including those applicable to:
. Debt Securities with respect to which payments of principal, premium, or
interest are determined with reference to an index or formula (including
changes in prices of particular securities, currencies, or commodities);
. Debt Securities with respect to which principal, premium, or interest is
payable in a foreign or composite currency;
. Debt Securities that are issued at a discount below their stated
principal amount, bearing no interest or interest at a rate that at the
time of issuance is below market rates ("Original Issue Discount Debt
Securities"); and
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. variable rate Debt Securities that are exchangeable for fixed rate Debt
Securities.
Payments of interest on Debt Securities shall be made at the corporate trust
office of the Trustee or at the option of the Company by check mailed to the
registered holders of Debt Securities or, if so provided in the applicable
prospectus supplement, at the option of a holder by wire transfer to an account
designated by such holder.
Unless otherwise provided in the applicable prospectus supplement, Debt
Securities may be transferred or exchanged at the office of the Trustee at which
its corporate trust business is principally administered in the United States or
at the office of the Trustee or the Trustee's agent in the Borough of Manhattan,
the City and State of New York, at which its corporate agency business is
conducted, subject to the limitations provided in the Indenture, without the
payment of any service charge, other than any applicable tax or governmental
charge.
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 (a "Global Security") that will
be deposited with a depositary or its nominee identified in the prospectus
supplement relating to such series. In such case, one or more Global Securities
will be issued in a denomination or aggregate denominations equal to the portion
of the aggregate principal amount of outstanding registered Debt Securities of
the series to be represented by such Global Security or Securities. Unless and
until it is exchanged in whole or in part for Debt Securities in definitive
registered form, a Global Security may not be transferred except as a whole by
the depositary for such Global Security to a nominee of such depositary or by a
nominee of such depositary to such depositary or another nominee of such
depositary or by such depositary or any such nominee to a successor of such
depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to any portion of
a series of Debt Securities to be represented by a Global Security will be
described in the prospectus supplement relating to such series. The Company
anticipates that the following provisions will apply to all depositary
arrangements.
Upon the issuance of a Global Security, the depositary for such Global Security
will credit, on its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such Global Security to
the accounts of persons that have accounts with such depositary
("participants"). The amounts to be credited shall be designated by any
underwriters or agents participating in the distribution of such Debt
Securities. Ownership of beneficial interests in a Global Security will be
limited to participants or persons that may hold interests through participants.
Ownership of beneficial interests in such Global Security will be shown on, and
the transfer of that ownership will be effected only through, records maintained
by the depositary for such Global Security (with respect to interests of
participants) or by participants or persons that hold through participants (with
respect to interests of persons other than participants). So long as the
depositary for a Global Security, or its nominee, is the registered owner of
such Global Security, such depositary or such nominee, as the case may be, will
be considered the sole owner or holder of the Debt Securities represented by
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such Global Security for all purposes under the Indenture. Except as set forth
below, owners of beneficial interests in a Global Security will not be entitled
to have the Debt Securities represented by such Global Security registered in
their names, will not receive or be entitled to receive physical delivery of
such Debt Securities in definitive form and will not be considered the owners or
holders of such Debt Securities under the Indenture.
Principal, premium, if any, and interest payments on Debt Securities represented
by a Global Security registered in the name of a depositary or its nominee will
be made to such depositary or its nominee, as the case may be, as the registered
owner of such Global Security. None of the Company, the Trustee or any paying
agent for such Debt Securities will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests in such Global Securities or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
The Company expects that the depositary for any Debt Securities represented by a
Global Security, upon receipt of any payment of principal, premium, or interest,
will immediately credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of such Global Security as shown on the records of such depositary. The
Company also expects that payments by participants to owners of beneficial
interests in such Global Security held through such participants will be
governed by standing instructions and customary practices, as is now the case
with the securities held for the accounts of customers registered in "street
name," and will be the responsibility of such participants.
If the depositary for any Debt Securities represented by a Global Security is at
any time unwilling or unable to continue as depositary and a successor
depositary is not appointed by the Company within 90 days, the Company will
issue such Debt Securities in definitive form in exchange for such Global
Security. In addition, the Company may at any time and in its sole discretion
determine not to have any of the Debt Securities of a series represented by one
or more Global Securities and, in such event, will issue Debt Securities of
such series in definitive form in exchange for the Global Security or Securities
representing such Debt Securities.
Subordination
Debt Securities may be subordinated ("Subordinated Debt Securities") in right of
payment, to the extent and in the manner set forth in the Indenture and the
applicable prospectus supplement, to the prior payment of all Indebtedness of
the Company that is designated as "Senior Indebtedness." Senior Indebtedness,
with respect to any series of Subordinated Debt Securities, will consist of any
Indebtedness of the Company that is designated in a resolution of the Company's
Board of Directors or the supplemental Indenture establishing such series as
Senior Indebtedness with respect to such series.
Upon any payment or distribution of assets of the Company to creditors or upon a
total or partial liquidation or dissolution of the Company or in a bankruptcy,
receivership, or similar proceeding relating to the Company or its property,
holders of Senior Indebtedness shall be entitled to receive payment in full in
cash of the Senior Indebtedness before holders of Subordinated Debt Securities
shall be entitled to receive any payment of principal, premium, or interest with
respect to the Subordinated Debt Securities, and until the Senior Indebtedness
is paid in full, any distribution to which holders of Subordinated Debt
Securities would otherwise be entitled shall be made to the holders of Senior
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Indebtedness (except that such holders may receive shares of stock and any debt
securities that are subordinated to Senior Indebtedness to at least the same
extent as the Subordinated Debt Securities).
The Company may not make any payments of principal, premium, or interest with
respect to Subordinated Debt Securities, make any deposit for the purpose of
defeasance of such Subordinated Debt Securities, or repurchase, redeem, or
otherwise retire (except, in the case of Subordinated Debt Securities that
provide for a mandatory sinking fund, by the delivery of Subordinated Debt
Securities by the Company to the Trustee in satisfaction of the Company's
sinking fund obligation) any Subordinated Debt Securities if:
(a) any principal, premium, if any, or interest with respect to Senior
Indebtedness is not paid within any applicable grace period (including
at maturity), or
(b) any other default on Senior Indebtedness occurs and the maturity of
such Senior Indebtedness is accelerated in accordance with its terms,
unless, in either case,
(i) the default has been cured or waived and such acceleration
has been rescinded,
(ii) such Senior Indebtedness has been paid in full in cash, or
(iii) the Company and the Trustee receive written notice approving
such payment from the representatives of each issue of "Designated
Senior Indebtedness" (which will include any specified issue of
Senior Indebtedness).
During the continuance of any default (other than a default described in clause
(a) or (b) above) with respect to any Senior Indebtedness pursuant to which the
maturity of such Senior Indebtedness may be accelerated immediately without
further notice (except any notice required to effect the acceleration) or the
expiration of any applicable grace periods, the Company may not pay the
Subordinated Debt Securities for a period (the "Payment Blockage Period")
commencing on the receipt by the Company and the Trustee of written notice of
such default from the representative of any Designated Senior Indebtedness
specifying an election to effect a Payment Blockage Period (a "Blockage Notice")
and expiring 179 days thereafter. The Payment Blockage Period may be terminated
before its expiration by written notice to the Trustee and the Company from the
person who gave the Blockage Notice, by repayment in full in cash of the Senior
Indebtedness with respect to which the Blockage Notice was given, or because the
default giving rise to the Payment Blockage Period is no longer continuing.
Unless the holders of such Senior Indebtedness shall have accelerated the
maturity of such Senior Indebtedness, the Company may resume payments on the
Subordinated Debt Securities after the expiration of the Payment Blockage
Period. Not more than one Blockage Notice may be given in any period of 360
consecutive days unless the first Blockage Notice within such 360-day period is
given by or on behalf of holders of Designated Senior Indebtedness other than
the Bank Indebtedness, in which case the representative of the Bank Indebtedness
may give another Blockage Notice within such period. In no event, however, may
the total number of days during which any Payment Blockage Period or Periods
is in effect exceed 179 days in the aggregate during any period of 360
consecutive days. After all Senior Indebtedness is paid in full and until the
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Subordinated Debt Securities are paid in full, holders of the Subordinated Debt
Securities shall be subrogated to the rights of holders of Senior Indebtedness
to receive distributions applicable to Senior Indebtedness.
As a result of the subordination provisions, in the event of the Company's
bankruptcy or insolvency, creditors of the Company who are holders of Senior
Indebtedness, as well as certain general creditors of the Company, may recover
ratably more than the holders of the Subordinated Debt Securities.
Events of Default and Remedies
The following events are defined in the Indenture as "Events of Default" with
respect to a series of Debt Securities:
(a) default in the payment of any installment of interest on any Debt
Securities of that series when due and payable (whether or not, in the
case of Subordinated Debt Securities, such payment shall be prohibited
by reason of the subordination provision described above) and
continuance of such default for a period of 30 days;
(b) default in the payment of principal or premium, if any, with respect
to any Debt Securities of that series when due and payable, whether at
maturity, upon redemption, by declaration, upon required repurchase, or
otherwise (whether or not, in the case of Subordinated Debt Securities,
such payment shall be prohibited by reason of the subordination
provision described above);
(c) default in the payment of any sinking fund payment with respect to
any Debt Securities of that series when due and payable;
(d) the Company fails to comply with the provisions of the Indenture
relating to consolidations, mergers and sales of assets;
(e) the Company fails to observe or perform any other of its covenants
or agreements in the Debt Securities of that series, in any resolution
of the Board of Directors of the Company authorizing the issuance of
that series of Debt Securities, in the Indenture with respect to such
series, or in any supplemental Indenture with respect to such series
(other than a covenant or agreement a default in the performance of
which is otherwise specifically dealt with) for a period of 60 days
after the date on which written notice specifying such failure and
requiring the Company to remedy the same has been given to the Company
by the Trustee or to the Company and the Trustee by the holders of at
least 25% in aggregate principal amount of the Debt Securities of that
series at the time outstanding;
(f) the Company or any Subsidiary does not pay its Indebtedness within
any applicable grace period after final maturity or such Indebtedness is
accelerated by the holders of such Indebtedness because of a default,
the total amount of such Indebtedness unpaid or accelerated exceeds $40
million or the United States dollar equivalent of $40 million at the
time, and such default remains uncured or such acceleration is not
rescinded for 10 days after the date on which written notice specifying
such failure and requiring the Company to remedy such failure 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 aggregate principal amount of
the Debt Securities of that series at the time outstanding;
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(g) the Company shall
(1) voluntarily commence any proceeding or file any petition
seeking relief under the United States Bankruptcy Code or other
federal or state bankruptcy, insolvency, or similar law,
(2) consent to the institution of, or fail to controvert within the
time and in the manner prescribed by law, any such proceeding of
the filing of any such petition,
(3) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, or similar official for the Company for a
substantial part of its property,
(4) file an answer admitting the material allegations of a petition
filed against it in any such proceeding,
(5) make a general assignment for the benefit of creditors,
(6) admit in writing its inability or fail generally to pay its
debts as they become due,
(7) take corporate action for the purpose of effecting any of the
foregoing, or
(8) take any comparable action under any foreign laws relating to
insolvency;
(h) the entry of an order or decree by a court having competent
jurisdiction for
(1) relief with respect to the Company or a substantial part of its
property under the United States Bankruptcy Code or any other
federal or state bankruptcy, insolvency, or similar law,
(2) the appointment of a receiver, trustee, custodian,
sequestrator, or similar official for the Company or for a
substantial part of its property, or
(3) the winding-up or liquidation of the Company;
and such order or decree shall continue unstayed and in effect for 60
consecutive days, or any similar relief is granted under any foreign
laws and the order or decree stays in effect for 60 consecutive days; or
(i) any other Event of Default provided under the terms of the Debt
Securities of that series.
An Event of Default with respect to one series of Debt Securities is not
necessarily an Event of Default for another series.
If an Event of Default occurs and is continuing with respect to any series of
Debt Securities, unless the principal and interest with respect to all the Debt
Securities of such series shall have already become due and payable, either the
Trustee or the holders of not less than 25% in aggregate principal amount of the
Debt Securities of such series then outstanding may declare the principal of
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(or, if Original Issue Discount Debt Securities, such portion of the principal
amount as may be specified in such series) and interest on all the Debt
Securities of such series due and payable immediately.
If an Event of Default occurs and is continuing, the Trustee shall be entitled
and empowered to institute any action or proceeding for the collection of the
sums so due and unpaid or to enforce the performance of any provision of the
Debt Securities of the affected series or the Indenture, to prosecute any such
action or proceeding to judgment or final decree, and to enforce any such
judgment or final decree against the Company or any other obligor on the Debt
Securities of such series. In addition, if there shall be pending proceedings
for the bankruptcy or reorganization of the Company or any other obligor on the
Debt Securities, or if a receiver, trustee, or similar official shall have been
appointed for its property, the Trustee shall be entitled and empowered to file
and prove a claim for the whole amount of principal, premium and interest (or,
in the case of Original Issue Discount Debt Securities, such portion of the
principal amount as may be specified in the terms of such series) owing and
unpaid with respect to the Debt Securities. No holder of any Debt Securities of
any series shall have any right to institute any action or proceeding upon or
under or with respect to the Indenture, for the appointment of a receiver or
trustee, or for any other remedy, unless:
(a) such holder previously shall have given to the Trustee written
notice of an Event of Default with respect to Debt Securities of that
series and of the continuance of such Event of Default;
(b) the holders of not less than 25% in aggregate principal amount of
the outstanding Debt Securities of that series shall have made written
request to the Trustee to institute such action or proceeding with
respect to such Event of Default and shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses,
and liabilities to be incurred in connection with such action or
proceeding; and
(c) the Trustee, for 60 days after its receipt of such notice, request,
and offer of indemnity shall have failed to institute such action or
proceeding and no direction inconsistent with such written request shall
have been given to the Trustee pursuant to the provisions of the
Indenture.
Prior to the acceleration of the maturity of the Debt Securities of any series,
the holders of a majority in aggregate principal amount of the Debt Securities
of that series at the time outstanding may, on behalf of the holders of all Debt
Securities of that series, waive any past default or Event of Default and its
consequences for that series, except:
(a) a default in the payment of the principal, premium, if any, or
interest with respect to such Debt Securities; or
(b) a default with respect to a provision of the Indenture that cannot
be amended without the consent of each holder so affected.
In case of any such waiver, such default shall cease to exist, any Event of
Default arising from such default shall be deemed to have been cured for all
purposes, and the Company, the Trustee and the holders of the Debt Securities of
that series shall be restored to their former positions and rights under the
Indenture.
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The Trustee shall, within 90 days after the occurrence of a default known to it
with respect to a series of Debt Securities, give to the holders of the Debt
Securities of such series notice of all uncured defaults with respect to such
series known to it, unless such defaults shall have been cured or waived before
the giving of such notice; provided, however, that except in the case of default
in the payment of principal, premium, or interest with respect to the Debt
Securities of such series or in the making of any sinking fund payment with
respect to the Debt Securities of such series, the Trustee shall be protected in
withholding such notice if it in good faith determines that the withholding of
such notice is in the interest of the holders of such Debt Securities.
Modification of the Indenture
The Company and the Trustee may enter into supplemental Indentures without the
consent of the holders of Debt Securities issued under the Indenture for one or
more of the following purposes:
(a) to evidence the succession of another person to the Company and the
assumption by such successor of the covenants, agreements, and
obligations of the Company in the Indenture and in the Debt Securities;
(b) to surrender any right or power conferred upon the Company by the
Indenture, to add further covenants, restrictions, conditions, or
provisions for the protection of the holders of all or any series of
Debt Securities, and to make the occurrence, or the occurrence and
continuance of a default in any of such additional covenants,
restrictions, conditions, or provisions, a default or an Event of
Default under the Indenture;
(c) to cure any ambiguity or to correct or supplement any provision
contained in the Indenture, in any supplemental Indenture, or in any
Debt Securities that may be defective or inconsistent with any other
provision contained in the Indenture, in any supplemental Indenture, or
in any Debt Securities, to convey, transfer, assign, mortgage, or pledge
any property to or with the Trustee, or to make such other provisions in
regard to matters or questions arising under the Indenture as shall not
adversely affect the interests of any holders of Debt Securities of any
series;
(d) to modify or amend the Indenture in such a manner as to permit the
qualification of the Indenture or any supplemental Indenture under the
Trust Indenture Act as then in effect;
(e) to add or change any of the provisions of the Indenture to change or
eliminate any restriction on the payment of principal or premium with
respect to Debt Securities so long as any such action does not adversely
affect the interest of the holders of Debt Securities in any material
respect or permit or facilitate the issuance of Debt Securities of any
series in uncertificated form;
(f) to comply with the provisions of the Indenture relating to
consolidations, mergers, and sales of assets;
(g) in the case of Subordinated Debt Securities, to make any change in
the provisions of the Indenture relating to subordination that would
limit or terminate the benefits available to any holder of Senior
Indebtedness under such provisions (but only if such holder of Senior
Indebtedness consents to such change);
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(h) to add guarantees with respect to the Debt Securities or to secure
the Debt Securities;
(i) to add to, change, or eliminate any of the provisions of the
Indenture with respect to one or more series of Debt Securities, so long
as any such addition, change, or elimination not otherwise permitted
under the Indenture shall
(1) neither apply to any Debt Securities of any series created
prior to the execution of such supplemental Indenture and entitled
to the benefit of such provision nor modify the rights of the
holders of any such Debt Security with respect to such provision,
or
(2) become effective only when there is no such Debt Security
outstanding;
(j) to evidence and provide for the acceptance of appointment by a
successor or separate Trustee with respect to the Debt Securities of one
or more series and to add to or change any of the provisions of the
Indenture as shall be necessary to provide for or facilitate the
administration of the Indenture by more than one Trustee; and
(k) to establish the form or terms of any series of Debt Securities.
With the consent of the holders of a majority in aggregate principal amount of
the outstanding Debt Securities of each series affected, the Company and the
Trustee may from time to time and at any time enter into a supplemental
Indenture for the purpose of adding any provisions to, changing in any manner,
or eliminating any of the provisions of the Indenture or of any supplemental
Indenture or modifying in any manner the rights of the holder of the Debt
Securities of such series. However, without the consent of the holders of
each Debt Security so affected, no such supplemental Indenture may:
. reduce the percentage in principal amount of Debt Securities of any
series whose holders must consent to an amendment;
. reduce the interest rate or extend the time for payment of interest on
any Debt Security;
. reduce the principal of or extend the stated maturity of any Debt
Security;
. reduce the premium payable upon the redemption of any Debt Security or
change the time at which any Debt Security may or shall be redeemed;
. make any Debt Security payable in a currency other than that stated in
the Debt Security;
. in the case of any Subordinated Debt Security, make any change in the
provisions of the Indenture relating to subordination that adversely
affects the rights of any holder under such provisions;
. release any security that may have been granted with respect to the Debt
Securities; or
. make any change in the provisions of the Indenture relating to waivers
of defaults or amendments that require unanimous consent.
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Consolidation, Merger, and Sale of Assets
The Indenture provides that the Company may not consolidate with or merge with
or into any person, or convey, transfer, or lease all or substantially all of
its assets, unless the following conditions have been satisfied:
(a) Either
(i) the Company is the continuing person in the case of a
merger, or
(ii) the successor corporation is a corporation organized and
existing under the laws of the United States, any State, or the
District of Columbia and shall expressly assume all of the
obligations of the Company under the Debt Securities and the
Indenture;
(b) Immediately after giving effect to the transaction (and treating any
Indebtedness that becomes an obligation of the successor corporation or
any Subsidiary of the Company as a result of the transaction as having
been incurred by the successor corporation or the Subsidiary at the time
of the transaction), no default or Event of Default would occur or be
continuing; and
(c) The Company has delivered to the Trustee an officers' certificate
and an opinion of counsel, each stating that the consolidation, merger,
or transfer complies with the Indenture.
Certain Definitions
The following definitions, among others, are used in the Indenture. Many of the
definitions of terms used in the Indenture have been negotiated specifically for
the purposes of inclusion in the Indenture and may not be consistent with the
manner in which such terms are defined in other contexts. Prospective
purchasers of Debt Securities are encouraged to read each of the following
definitions carefully and to consider such definitions in the context in which
they are used in the Indenture.
"Capitalized Lease Obligation" means an obligation that is required to be
classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP, and the amount of Indebtedness represented by
such obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP, and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Disqualified Stock" of a Person means Redeemable Stock of such Person as to
which the maturity, mandatory redemption, conversion or exchange or redemption
at the option of the holder thereof occurs, or may occur, on or prior to the
first anniversary of the Stated Maturity of the Debt Securities.
"GAAP" means generally accepted accounting principles in the United States as in
effect as of the date on which the Debt Securities of the applicable series are
issued, including those set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
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Standards Board or in such other statements by such other entity as approved by
a significant segment of the accounting profession. All ratios and computations
based on GAAP contained in this Indenture shall be computed in conformity with
GAAP consistently applied.
"Indebtedness" means, with respect to any Person on any date of determination
(without duplication):
(a) the principal of Indebtedness of such Person for borrowed money;
(b) the principal of obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(c) all Capitalized Lease Obligations of such Person;
(d) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services (except Trade Payables);
(e) all obligations of such Person in respect of letters of credit,
banker's acceptances or other similar instruments or credit transactions
(including reimbursement obligations with respect thereto), other than
obligations with respect to letters of credit securing obligations
(other than obligations described in (a) through (d) above) entered into
in the ordinary course of business of such Person to the extent such
letters of credit are not drawn upon or, if and to the extent drawn
upon, such drawing is reimbursed no later than the third business day
following receipt by such Person of a demand for reimbursement following
payment on the letter of credit;
(f) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock (but
excluding, in each case, any accrued dividends);
(g) all Indebtedness of other Persons secured by a Lien on any asset of
such Person, whether or not such Indebtedness is assumed by such Person;
provided, however, that the amount of such Indebtedness shall be the
lesser of (A) the fair market value of such asset at such date of
determination or (B) the amount of such Indebtedness of such other
Persons; and
(h) all Indebtedness of other Persons to the extent Guaranteed by such
Person.
For purposes of this definition, the maximum fixed redemption, repayment or
repurchase price of any Disqualified Stock or Preferred Stock that does not have
a fixed redemption, repayment or repurchase price shall be calculated in
accordance with the terms of such Stock as if such Stock were redeemed, repaid
or repurchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture; provided, however, that if such Stock is
not then permitted to be redeemed, repaid or repurchased, the redemption,
repayment or repurchase price shall be the book value of such Stock as reflected
in the most recent financial statements of such Person. The amount of
Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and the maximum
liability, upon the occurrence of the contingency giving rise to the obligation,
of any contingent obligations at such date.
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"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Redeemable Stock" means, with respect to any Person, any Capital Stock which by
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable) or upon the happening of any event
(i) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise,
(ii) is convertible or exchangeable for Indebtedness (other than
Preferred Stock) or Disqualified Stock, or
(iii) is redeemable at the option of the holder thereof, in whole or in
part.
"Subsidiary" of any Person means any corporation, association, partnership or
other business entity of which more than 50% of the total voting power of shares
of Capital Stock entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof is at the
time owned or controlled, directly or indirectly, by
(i) such Person,
(ii) such Person and one or more Subsidiaries of such Person, or
(iii) one or more Subsidiaries of such Person.
Satisfaction and Discharge of the Indenture; Defeasance
The Indenture shall generally cease to be of any further effect with respect to
a series of Debt Securities if
(a) the Company has delivered to the Trustee for cancellation all Debt
Securities of such series (with certain limited exceptions), or
(b) all Debt Securities of such series not previously delivered to the
Trustee for cancellation shall have become due and payable, or are by
their terms to become due and payable within one year or are to be
called for redemption within one year, and the Company shall have
deposited with the Trustee as trust funds the entire amount in the
currency in which the Debt Securities are denominated sufficient to pay
at maturity or upon redemption all such Debt Securities;
and if, in either case, the Company shall also pay or cause to be paid all other
sums payable under the Indenture by the Company.
In addition, the Company shall have a "legal defeasance option" (pursuant to
which it may terminate, with respect to the Debt Securities of the particular
series, all of its obligations under such Debt Securities and the Indenture with
respect to such Debt Securities) and "covenant defeasance option" (pursuant to
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which it may terminate, with respect to the Debt Securities of a particular
series, its obligations with respect to such Debt Securities under certain
specified covenants contained in the Indenture). If the Company exercises its
legal defeasance option with respect to a series of Debt Securities, payment of
such Debt Securities may not be accelerated because of an Event of Default. If
the Company exercises its covenant defeasance option with respect to a series of
Debt Securities, payment of such Debt Securities may not be accelerated because
of an Event of Default related to the specified covenants. The Company may
exercise its legal defeasance option or its covenant defeasance option with
respect to the Debt Securities of a series only if:
(a) the Company irrevocably deposits in trust with the Trustee cash or
U.S. Government Obligations (as defined in the Indenture) for the
payment of principal, premium, and interest with respect to such Debt
Securities to maturity or redemption, as the case may be;
(b) the Company delivers to the Trustee a certificate from a nationally
recognized firm of independent accountants expressing their opinion that
the payment of principal and interest when due and without reinvestment
on the deposited U.S. Government Obligations plus any deposited money
without investment will provide cash at such times and in such amounts
as will be sufficient to pay the principal, premium, if any, and
interest when due with respect to all the Debt Securities of such series
to maturity or redemption, as the case may be;
(c) 91 days pass after the deposit is made and during the 91-day period
no default described in clause (g) or (h) under "Description of Debt
Securities Events of Default and Remedies" above with respect to the
Company occurs that is continuing at the end of such period;
(d) no default has occurred and is continuing on the date of such
deposit and after giving effect thereto;
(e) the deposit does not constitute a default under any other agreement
binding on the Company, and, in the case of Subordinated Debt
Securities, is not prohibited by the provisions of the Indenture
relating to subordination;
(f) the Company delivers to the Trustee an opinion of counsel to the
effect that the trust resulting from the deposit does not constitute, or
is qualified as, a regulated investment company under the Investment
Company Act of 1940;
(g) the Company shall have delivered to the Trustee an opinion of
counsel addressing certain federal income tax matters relating to the
defeasance; and
(h) the Company delivers to the Trustee an officers' certificate and an
opinion of counsel, each stating that all conditions precedent to the
defeasance and discharge of the Debt Securities of such series as
contemplated by the Indenture have been complied with.
The Trustee shall hold in trust cash or U.S. Government Obligations deposited
with it as described above and shall apply the deposited cash and the proceeds
from deposited U.S. Government Obligations to the payment of principal, premium,
if any, and interest with respect to the Debt Securities of the defeased series.
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In the case of Subordinated Debt Securities, the money and U.S. Government
Obligations so held in trust will not be subject to the subordination provisions
of the Indenture.
The Trustee
The Company may maintain banking and other commercial relationships with the
Trustee and its affiliates in the ordinary course of business and the Trustee
may own Debt Securities. The prospectus supplement relating to a particular
issue of Debt Securities will provide additional information with respect to any
relationship the Company may have with the Trustee for such Debt Securities.
DESCRIPTION OF CAPITAL STOCK
We have 45,000,000 authorized shares of capital stock, consisting of (a)
40,000,000 shares of common stock, having a par value of $.20 per share, and (b)
5,000,000 shares of preferred stock, having a par value of $1.00 per share.
Common Stock
As of the date of this prospectus, there were 25,740,160 shares of common stock
outstanding. All of such outstanding shares of common stock are fully paid and
nonassessable.
Holders of common stock are entitled to receive dividends, when, as and if
declared by our Board of Directors out of assets legally available for their
payment. In certain cases, we may not pay dividends to common stockholders
until our dividend obligations to the holder of any preferred stock then
outstanding have been satisfied. The provisions of our credit arrangements
subject us to certain restrictions on the payment of dividends.
In the event of our voluntary or involuntary liquidation, dissolution or winding
up, the holders of common stock will be entitled to share equally in our assets
remaining after payment of all liabilities and after holders of all series of
outstanding preferred stock have received their liquidation preferences in full.
The holders of common stock have no preemptive subscription, conversion or
redemption rights, and are not subject to further calls or assessments by us.
There are no sinking fund provisions applicable to the common stock.
Holders of common stock are entitled to one vote per share for the election of
directors and on all other matters submitted to a vote of stockholders. Holders
of common stock have no right to cumulate their votes in the election of
directors.
Preferred Stock
As of the date of this prospectus, there were no shares of preferred stock
outstanding.
Preferred stock may be issued from time to time in one or more series, and our
Board of Directors, without further approval of the stockholders, is authorized
to fix the dividend rates and terms, conversion rights, voting rights,
redemption rights and terms, liquidation preferences, sinking fund and any other
rights, preferences, privileges and restrictions applicable to each series of
preferred stock. The purpose of authorizing the Board of Directors to determine
such rights, preferences, privileges and restrictions is to eliminate delays
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associated with a stockholder vote on specific issuances. The issuance of
preferred stock, while providing flexibility in connection with possible
acquisitions and other corporate purposes, could, among other things, adversely
affect the voting power of the holders of common stock and, under certain
circumstances, make it more difficult for a third party to gain control
of us.
Stockholder Rights Agreement
Each share of common stock includes one right ("Right") entitling the registered
holder to purchase from us one one-hundredth of a share (a "Fractional Share")
of Series A Participating Cumulative Preferred Stock (the " Preferred Shares"),
at a purchase price per Fractional Share of $12.75, subject to adjustment (the
"Purchase Price").
With certain exceptions, upon the earlier of (1) 10 days following the date the
Company learns that a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding shares of common stock, or (2) 10
business days following the commencement of a tender offer or exchange offer
that would result in a person becoming an Acquiring Person, a "Distribution
Date" will occur and the Rights will be separated from the common stock. In
certain circumstances, our Board of Directors may defer the Distribution Date.
Certain inadvertent acquisitions will not result in a person becoming an
Acquiring Person if the person promptly divests itself of sufficient common
stock. Until the Distribution Date, (1) the Rights are evidenced by the
certificates representing outstanding shares of common stock and will be
transferred with and only with such certificates, which contain a notation
incorporating the Rights Agreement by reference, and (2) the surrender for
transfer of any certificate for common stock will also constitute the transfer
of the Rights associated with the common stock represented by such certificate.
The Rights are not exercisable until the Distribution Date and will expire at
the close of business 10 years after the Rights are issued, unless earlier
redeemed or exchanged by us as described below.
As soon as practicable after the Distribution Date, Rights certificates will be
mailed to holders of record of the common stock as of the close of business on
the Distribution Date and, from and after the Distribution Date, the separate
Rights certificates alone will represent the Rights. All shares of common stock
issued prior to the Distribution Date will be issued with Rights. Shares of
common stock issued after the Distribution Date in connection with certain
employee benefit plans or upon conversion of certain securities will be issued
with Rights. Except as otherwise determined by the Board of Directors, no other
shares of the common stock issued after the Distribution Date will be issued
with Rights.
In the event (a "Flip-In Event") that a person becomes an Acquiring Person
(except pursuant to a tender or exchange offer for all outstanding shares of
common stock at a price and on terms that a majority of our independent
directors determines to be fair to and otherwise in our and our stockholders
best interests (a "Permitted Offer")), each holder of a Right will thereafter
have the right to receive, upon exercise of such Right, the number of Fractional
Shares equivalent to the number of shares of common stock (or, in certain
circumstances, cash, property or other securities) having a market value equal
to two times the Purchase Price. Notwithstanding the foregoing, following the
occurrence of any Triggering Event (as defined below), all Rights that are, or
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(under certain circumstances specified in the Rights Agreement) were,
beneficially owned by or transferred to an Acquiring Person (or by certain
related parties) will be null and void in the circumstances set forth in the
Rights Agreement.
In the event (a "Flip-Over Event") that, at any time from and after the time an
Acquiring Person becomes such, (1) we are acquired in a merger or other business
combination transaction (other than certain mergers that follow a Permitted
Offer) or (2) 50% or more of our assets or earning power is sold or transferred,
each holder of a Right (except Rights that are voided as set forth above) shall
thereafter have the right to receive, upon exercise, a number of shares of
common stock of the acquiring company having a market value equal to two times
the exercise price of the Right as set by the Board of Directors. Flip-In
Events and Flip-Over Events are collectively referred to as "Triggering Events."
The number of outstanding Rights associated with a share of common stock, or the
number of Preferred Shares issuable upon exercise of a Right and the Purchase
Price, are subject to adjustment in the event of a stock dividend on, or a
subdivision, combination or reclassification of, the common stock occurring
prior to the Distribution Date. The Purchase Price payable, and the number of
Fractional Shares of Preferred Shares or other securities or property issuable,
upon exercise of the Rights are subject to adjustment from time to time to
prevent dilution in the event of certain transactions affecting the Preferred
Shares.
At any time until ten days following the first date of public announcement of
the occurrence of a Flip-In Event, we may redeem the Rights in whole, but not in
part, at a price of $0.01 per Right, payable, at our option, in cash, shares of
common stock or such other consideration as the Board of Directors may
determine. Immediately upon the effectiveness of the action of the Board of
Directors ordering redemption of the Rights, the Rights will terminate and the
only right of the holders of Rights will be to receive the $0.01
redemption price.
Until a Right is exercised, the holder thereof, as such, will have no rights as
a stockholder, including, without limitation, the right to vote or to receive
dividends.
Other than the redemption price, the Board of Directors may amend any of the
provisions of the Rights Agreement as long as the Rights are redeemable.
The Rights have certain antitakeover effects. They will cause substantial
dilution to any person or group that attempts to acquire us without the approval
of our Board of Directors. As a result, the overall effect of the Rights may be
to render more difficult or discourage any attempt to acquire us, even if such
acquisition may be favorable to the interests of our stockholders. Because the
Board of Directors can redeem the Rights or approve a Permitted Offer, the
Rights should not interfere with a merger or other business combination approved
by the Board of Directors. The Rights were issued to protect our stockholders
from coercive or abusive takeover tactics and inadequate takeover offers and to
afford our Board of Directors more negotiating leverage in dealing with
prospective acquirors.
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Certain Other Possible Anti-takeover Provisions
Our Charter and Delaware law contain certain provisions that might be
characterized as anti-takeover provisions. These provisions may make it more
difficult to acquire control of us or remove our management.
Classified Board of Directors
Our Charter provides for the Board of Directors to be divided into three classes
of directors serving staggered three-year terms, with the number of directors in
each class to be as nearly equal as possible. As a result, only one-third of
our directors are elected each year.
Issuance of Preferred Stock
As described above, our Charter authorizes a class of undesignated preferred
stock consisting of 5,000,000 shares. The issuance of preferred stock could,
among other things, make it more difficult for a third party to gain control of
us.
Fair Price Provisions
Our Charter also contains certain "fair price provisions" designated to provide
safeguards for stockholders when an "interested stockholder" (defined as a
stockholder owning 5% or more of our voting stock) attempts to effect a
"business combination" with us. The term "business combination" includes:
. any merger or consolidation of us involving the interested stockholder,
. certain dispositions of our assets,
. any issuance of our securities meeting certain threshold amounts, to the
interested stockholder,
. adoption of any plan of liquidation or dissolution of us proposed by the
interested stockholder, and
. any reclassification of our securities having the effect of increasing
the proportionate share of ownership of the interested stockholder.
In general, a business combination between us and the interested stockholder
must be approved by the affirmative vote of 80% of the outstanding voting stock
unless the transaction is approved by a majority of the members of the Board of
Directors who are not affiliated with the interested stockholder or certain
minimum price and form of consideration requirements are satisfied.
Delaware Business Combination Statute
We are incorporated under the laws of the State of Delaware. Section 203 of the
Delaware General Corporation Law prevents an "interested stockholder" (defined
as a stockholder owning 15% or more of a corporation's voting stock) from
engaging in a business combination with that corporation for a period of three
years from the date the stockholder became an interested stockholder unless:
. the corporation's board of directors had earlier approved either the
business combination or the transaction by which the stockholder
became an interested stockholder;
. upon attaining that status, the interested stockholder had acquired at
least 85% of the corporation's voting stock (not counting shares
owned by persons who are directors and also officers); or
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. the business combination is later approved by the board of directors and
authorized by a vote of two-thirds of the stockholders (not including
the shares held by the interested stockholder).
Since we have not amended our Charter or By-laws to exclude the application of
Section 203, its provisions apply to us. Accordingly, Section 203 may inhibit
an interested stockholder's ability to acquire additional shares of common stock
or otherwise engage in a business combination with us.
Transfer Agent and Registrar
The Transfer Agent and Registrar for the common stock is ChaseMellon Shareholder
Services, L.L.C.
DESCRIPTION OF WARRANTS
General
We may issue warrants (the "Warrants") to purchase Debt Securities ("Debt
Warrants") or, Warrants to purchase common stock or preferred stock ("Stock
Warrants"). Warrants may be issued independently of or together with any other
securities and may be attached to or separate from such securities. Each series
of Warrants will be issued under a separate Warrant Agreement (each a "Warrant
Agreement") to be entered into between us and a Warrant Agent ("Warrant Agent").
The Warrant Agent will act solely as an agent of the Company in connection with
any Warrant and will not assume any obligation or relationship of agency for or
with holders or beneficial owners of Warrants. The following summaries set
forth certain general terms and provisions of the Warrants. Further terms of
the Warrants and the applicable Warrant Agreement will be set forth in the
applicable prospectus supplement.
Debt Warrants
The applicable prospectus supplement will describe the terms of any Debt
Warrants, including the following:
. the title of such Debt Warrants;
. the offering price for such Debt Warrants, if any;
. the aggregate number of such Debt Warrants;
. the designation and terms of such Debt Securities purchasable upon
exercise of such Debt Warrants;
. if applicable, the designation and terms of the securities with which
such Debt Warrants are issued and the number of such Debt Warrants
issued with each such Security;
. if applicable, the date from and after which such Debt Warrants and any
securities issued therewith will be separately transferable;
. the principal amount of Debt Securities purchasable upon exercise of a
Debt Warrant and the price at which such principal amount of Debt
Securities may be purchased upon exercise;
. the date on which the right to exercise such Debt Warrants shall
commence and the date on which such right shall expire;
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. if applicable, the minimum or maximum amount of such Debt Warrants which
may be exercised at any one time;
. whether the Debt Warrants represented by the Debt Warrant certificates
or Debt Securities that may be issued upon exercise of the Debt Warrants
will be issued in registered or bearer form;
. information with respect to book-entry procedures, if any;
. the currency, currencies or currency units in which the offering price,
if any, and the exercise price are payable;
. if applicable, a discussion of certain United States federal income tax
considerations;
. the antidilution provisions of such Debt Warrants, if any;
. the redemption or call provisions, if any, applicable to such Debt
Warrants; and
. any additional terms of the Debt Warrants, including terms, procedures
and limitations relating to the exchange and exercise of such Debt
Warrants.
Stock Warrants
The applicable prospectus supplement will describe the terms of any Stock
Warrants, including the following:
. the title of such Stock Warrants;
. the offering price of such Stock Warrants, if any;
. the aggregate number of such Stock Warrants;
. the designation, number of shares and terms (including, without
limitation, liquidation, dividend, conversion and voting rights) of the
series of preferred stock purchasable upon exercise of such Stock
Warrants;
. if applicable, the date from and after which such Stock Warrants and any
securities issued therewith will be separately transferable;
. the number of shares of common stock, or preferred stock purchasable
upon exercise of a Stock Warrant and the price at which such shares may
be purchased upon exercise;
. the date on which the right to exercise such Stock Warrants shall
commence and the date on which such right shall expire;
. if applicable, the minimum or maximum amount of such Stock Warrants
which may be exercised at any one time;
. the currency, currencies or currency units in which the offering price,
if any, and the exercise price are payable;
. if applicable, a discussion of certain United States federal income tax
considerations;
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. the antidilution provisions of such Stock Warrants, if any;
. the redemption or call provisions, if any, applicable to such Stock
Warrants; and
. any additional terms of such Stock Warrants, including terms, procedures
and limitations relating to the exchange and exercise of such Stock
Warrants.
PLAN OF DISTRIBUTION
The distribution of the securities may be effected from time to time in one or
more transactions at a fixed price or prices (which may be changed from time to
time), at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices. The Company also may
offer and sell the securities in exchange for one or more of its outstanding
issues of debt or convertible debt securities, or in exchange for one or more
classes of securities of other issuers in connection with business combination
transactions. Each prospectus supplement will describe the method of
distribution of the securities offered therein.
We may sell securities in any of three ways: (1) through underwriters or
dealers; (2) through agents; or (3) directly to one or more purchasers. The
accompanying prospectus supplement with respect to a particular offering of
securities will set forth the terms of the offering of such securities,
including the name or names of any underwriters, dealers or agents, the purchase
price of such securities, the proceeds to the Company from such sale, any
delayed delivery arrangements, any underwriting discounts and other items
constituting underwriters' compensation, any initial public offering price, any
discounts or concessions allowed or reallowed or paid to dealers and any
securities exchanges on which such securities may be listed.
If underwriters are used in the sale, the securities will be acquired by the
underwriters for their own account and may be resold from time to time in one or
more transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. The securities may be
offered to the public either through underwriting syndicates represented by one
or more managing underwriters or directly by one or more firms acting as
underwriters. The underwriter or underwriters with respect to a particular
underwritten offering of the securities will be named in the prospectus
supplement relating to such offering, and if an underwriting syndicate is used,
the managing underwriter or underwriters will be set forth on the cover of such
prospectus supplement. Unless otherwise set forth in the prospectus supplement
relating thereto, the obligations of the underwriters or agents to purchase a
particular offering of securities will be subject to conditions precedent, and
the underwriters will be obligated to purchase all the particular securities
offered if any are purchased.
If dealers are utilized in the sale of a particular offering of securities with
respect to which this prospectus is delivered, the Company will sell such
securities to the dealers as principals. The dealers may then resell such
securities to the public at varying prices to be determined by such dealers at
the time of resale. The names of the dealers and the terms of the transaction
will be set forth in the prospectus supplement relating thereto. Any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
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Only underwriters named in a prospectus supplement will be deemed to be
underwriters in connection with the securities described therein. Firms not so
named will have no direct or indirect participation in the underwriting of such
securities, although such a firm may participate in the distribution of such
securities under circumstances entitling it to a dealer's commission. It is
anticipated that any underwriting agreement pertaining to any such securities
will (1) entitle the underwriters to indemnification by the Company against
certain civil liabilities under the securities Act or to contribution with
respect to payments which the underwriters may be required to make in respect
thereof, (2) provide that the obligations of the underwriters will be subject to
certain conditions precedent and (3) provide that the underwriters generally
will be obligated to purchase all such securities if any are purchased.
Securities also may be offered directly by the Company or through agents
designated by the Company from time to time at fixed prices, which may be
changed, or at varying prices determined at the time of sale. Any such agent
will be named, and the terms of any such agency (including any commissions
payable by the Company to such agent) will be set forth, in the prospectus
supplement relating thereto. Unless otherwise indicated in such prospectus
supplement, any such agent will act on a reasonable best efforts basis
for the period of its appointment. Agents named in a prospectus supplement may
be deemed to be underwriters (within the meaning of the Securities Act) of the
securities described therein and, under agreements which may be entered into
with the Company, may be entitled to indemnification by the Company against
certain civil liabilities under the Securities Act or to contribution with
respect to payments which the agents may be required to make in respect thereof.
If so indicated in a prospectus supplement, the Company will authorize
underwriters or other agents of the Company to solicit offers by certain
specified entities to purchase securities from the Company pursuant to delayed
delivery contracts providing for payment and delivery at a specified future
date. The obligations of any purchaser under any such contract will not be
subject to any conditions except those described in such prospectus supplement.
Such prospectus supplement will set forth the commissions payable for
solicitations of such contracts.
Underwriters and agents may purchase and sell the securities in the secondary
market, but are not obligated to do so. There can be no assurance that there
will be a secondary market for the securities or liquidity in the secondary
market if one develops. From time to time, underwriters and agents may make a
market in the securities. A particular offering of securities may or may not be
listed on a national securities exchange.
Underwriters and agents may engage in transactions with, or perform services
for, the Company and its subsidiaries in the ordinary course of business.
Each class or series of securities will be a new issue of securities with no
established trading market, other than the common stock, which is listed on the
New York Stock Exchange. The Company may elect to list any other class or
series of securities on any exchange, but it is not obligated to do so. Any
underwriters to whom securities are sold by the Company for public offering and
sale may make a market in such securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of the trading market for
any securities.
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Certain persons participating in any offering of securities may engage in
transactions that stabilize, maintain or otherwise affect the price of the
securities offered. In connection with any such offering, the underwriters or
agents, as the case may be, may purchase and sell securities in the open market.
These transactions may include overallotment and stabilizing transactions and
purchases to cover syndicate short positions created in connection with the
offering. Stabilizing transactions consist of certain bids or purchases for the
purpose of preventing or retarding a decline in the market price of the
securities; and syndicate short positions involve the sale by the underwriters
or agents, as the case may be, of a greater number of securities than they are
required to purchase from the Company in the offering. The underwriters may
also impose a penalty bid, whereby selling concessions allowed to syndicate
members or other broker-dealers for the securities sold for their account may be
reclaimed by the syndicate if such securities are repurchased by the syndicate
in stabilizing or covering transactions. These activities may stabilize,
maintain or otherwise affect the market price of the securities, which may be
higher than the price that might otherwise prevail in the open market, and if
commenced, may be discontinued at any time. These transactions may be effected
on the New York Stock Exchange, in the over-the-counter market or otherwise.
For a description of these activities, see "Plan of Distribution" or
"Underwriting" in the applicable prospectus supplement.
LEGAL MATTERS
The validity of the offered securities will be passed upon for us by Conner &
Winters, A Professional Corporation, Tulsa, Oklahoma, and for any underwriters,
dealers or agents by a firm named in the prospectus supplement relating to the
particular securities.
INDEPENDENT ACCOUNTANTS
The financial statements incorporated in this registration statement by
reference to the Annual Report on Form 10-K for the year ended December 31,
1998, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting. With respect to the unaudited
consolidated financial information of Unit Corporation for the three month
periods ended March 31, 1999 and 1998, incorporated by reference in this
registration statement, PricewaterhouseCoopers LLP reported that they have
applied limited procedures in accordance with professional standards for a
review of such information. However, their separate report dated April 29,
1999, incorporated by reference herein, states that they did not audit and they
do not express an opinion on that unaudited consolidated financial information.
Accordingly, the degree of reliance on their reports on such information should
be restricted in light of the limited nature of the review procedures applied.
PricewaterhouseCoopers LLP is not subject to the liability provisions of Section
11 of the Securities Act of 1933 for their report on the unaudited consolidated
financial information because that report is not a "report" or a "part" of the
registration statement prepared or certified by PricewaterhouseCoopers LLP
within the meaning of Sections 7 and 11 of the Securities Act.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses payable by us in connection with the offering described
in this registration statement (other than underwriting discounts and
commissions) are as follows:
SEC registration fee. . . . . . . . . . . . . . $27,800
Printing expenses.. . . . . . . . . . . . . . . $50,000
Accounting fees and expenses. . . . . . . . . . $50,000
Legal fees and expenses.. . . . . . . . . . . . $25,000
Blue Sky qualification fees and expenses. . . . $2,000
Trustee's fees and expenses.. . . . . . . . . . $10,000
Fees of rating agencies.. . . . . . . . . . . . $75,000
Miscellaneous.. . . . . . . . . . . . . . . . . $10,200
Total $250,000
========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 4 of the By-Laws of the Company provides for indemnification of any
person who is, or is threatened to be made, a witness in or a party to any
proceeding by reason of his position as a director, officer, or employee of the
Company, to the extent authorized by applicable law including, but not limited
to, the Delaware General Corporation Law. Pursuant to Section 145 of the
Delaware General Corporation Law a corporation generally has the power to
indemnify its present and former directors, officers, employees and agents
against expenses and liabilities incurred by them in connection with any suit to
which they are, or are threatened to be made, a party by reason of their serving
in such positions so long as they acted in good faith and in a manner they
reasonably believed to be in, or not opposed to, the best interests of the
corporation, and with respect to any criminal action, they had no reasonable
cause to believe their conduct was unlawful. With respect to suits by or in the
right of a corporation, however, indemnification is generally limited to
attorney's fees and other expenses and is not available if such person is
adjudged to be liable to the corporation unless the court determines that
indemnification is appropriate. In addition, a corporation has the power to
purchase and maintain insurance for such persons. Article 4 of the By-laws also
expressly provides that the power to indemnify authorized thereby is not
exclusive of any rights granted to present and former directors, officers,
employees and agents, under any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
Article Nine of our Charter eliminates in certain circumstances the monetary
liability of our directors for a breach of their fiduciary duty as directors.
These provisions do not eliminate the liability of a director
. for a breach of the director's duty of loyalty to us or to our
stockholders;
. for acts or omissions not in good faith or which involve intentional
misconduct or knowing violation of law;
II-1
<PAGE>
. under Section 174 of the Delaware General Corporation Law (relating to
the declaration of dividends and purchase or redemption of shares in
violation of the Delaware General Corporation Law); or
. for transactions from which the director derived an improper personal
benefit.
We have purchased directors and officers liability insurance that would
indemnify our directors and officers against damages arising out of certain
kinds of claims that might be made against them based on their negligent acts or
omissions while acting in their capacity as such.
The above discussion of our Charter, By-Laws and of Section 145 of the Delaware
General Corporation Law is not exhaustive and is qualified in its entirety by
our Charter, our By-Laws and statute.
ITEM 16. EXHIBITS.
Exhibit
Number Description of Exhibits
- ------- -----------------------
1.1 --Form of Underwriting Agreement for equity securities (to be filed by
amendment or incorporated herein by reference)
1.2 --Form of Underwriting Agreement for debt securities (to be filed by
amendment or incorporated herein by reference)
3.1 --Restated Certificate of Incorporation of Unit Corporation (filed
herewith)
3.2 --By-Laws of Unit Corporation (filed herewith)
4.1 --Form of Common Stock Certificate of Unit Corporation (filed
herewith)
4.2 --Rights Agreement between the Company and Chemical Bank,
Rights Agent (incorporated by reference to Exhibit 1 to the
Company's Form 8-A filed with the SEC on May 23, 1995)
4.3 --Form of Indenture (Debt Securities) (filed herewith)
4.4 --Form of senior debt security (to be filed by amendment or
incorporated herein by reference)
4.5 --Form of subordinated debt security (to be filed by amendment or
incorporated herein by reference)
4.6 --Form of Warrant (to be filed by amendment or incorporated herein by
reference)
5 --Opinion of Conner & Winters, Tulsa, Oklahoma relating to the
Debt Securities, Preferred Stock, Common Stock, and Warrants (filed
herewith)
12 --Computation of Ratio of Earnings to Fixed Charges (filed herewith)
15 --Letter of PricewaterhouseCoopers LLP regarding unaudited interim
financial information (filed herewith)
23.1 --Consent of PricewaterhouseCoopers LLP, independent accountants
(filed herewith)
23.2 --Consent of Conner & Winters (included in Exhibit 5)
24.1 --Power of Attorney (included on the signature page to this
registration statement)
25.1 --Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 relating to the Indenture (Debt Securities) (
to be filed by amendment or incorporated herein by reference)
II-2
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ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933 ("Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in 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 SEC
pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in
this effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement;
provided, however, that paragraphs (i) and (ii) above
do not apply if the information required to be included
in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant
pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 ("Exchange Act") that
are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the Registrant's Annual Report pursuant to section 13(a) or section
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15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of
the Exchange Act) that is incorporated by reference in this
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions
described under Item 15 above, or otherwise, the Registrant has
been advised that, in the opinion of the SEC, such indemnification
is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Registrant will, unless, in the opinion of
its counsel, the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
(d) The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to
act under subsection (a) of section 310 of Trust Indenture Act
("Act") in accordance with the rules and regulations prescribed by
the Commission under section 305(b)(2) of the Act.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tulsa, State of Oklahoma, on July 23, 1999.
Unit Corporation
By: /s/ King P. Kirchner
------------------------------
King P. Kirchner,
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears
below constitutes and appoints Mark E. Schell and King P. Kirchner, and each of
them, his true and lawful attorneys-in-fact and agents with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this registration statement, and to file the same, with all exhibits thereto,
and all documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or his or their substitutes, may lawfully do or
cause to be done by virtue hereof.
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 July 23, 1999.
Name Title
/s/ King P. Kirchner Chief Executive Officer
- ----------------------------- Chairman of the Board
King P. Kirchner
/s/ John G. Nikkel President and
- ----------------------------- Director
John G. Nikkel
/s/ Earle Lamborn Vice President and
- ----------------------------- Director
Earle Lamborn
Vice President, Treasurer
/s/ Larry D. Pinkston and Chief Financial Officer
- ----------------------------- (Principal Financial Officer)
Larry D. Pinkston
II-5
<PAGE>
Controller
/s/ Stanley W. Belitz (Principal Accounting Officer)
- -----------------------------
Stanley W. Belitz
/s/ William B. Morgan Director
- -----------------------------
William B. Morgan
/s/ Don Cook Director
- -----------------------------
Don Cook
/s/ J. Michael Adcock Director
- -----------------------------
J. Michael Adcock
Director
- -----------------------------
John S. Zink
/s/ John H. Williams Director
- -----------------------------
John H. Williams
II-6
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibits
-----------------------
1.1 --Form of Underwriting Agreement for equity securities (to be filed by
amendment or incorporated herein by reference)
1.3 --Form of Underwriting Agreement for debt securities (to be filed by
amendment or incorporated herein by reference)
3.1 --Restated Certificate of Incorporation of Unit Corporation (filed
herewith)
3.2 --By-Laws of Unit Corporation (filed herewith)
4.1 --Form of Common Stock Certificate of Unit Corporation (filed
herewith)
4.2 --Rights Agreement between the Company and Chemical Bank, Rights Agent
(incorporated by reference to Exhibit 1 to the Company's Form 8-A
filed with the SEC on May 23, 1995)
4.3 --Form of Indenture (Debt Securities) (filed herewith)
4.4 --Form of senior debt security (to be filed by amendment or
incorporated herein by reference)
4.5 --Form of subordinate debt security (to be filed by amendment or
incorporated herein by reference)
4.6 --Form of Warrant (to be filed by amendment or incorporated herein by
reference)
5 --Opinion of Conner & Winters, Tulsa, Oklahoma relating to the
Debt Securities, Preferred Stock, Common Stock, and Warrants (filed
herewith)
12 --Computation of Ratio of Earnings to Fixed Charges (filed herewith)
15 --Letter of PricewaterhouseCoopers LLP regarding unaudited interim
financial information (filed herewith)
23.1 --Consent of PricewaterhouseCoopers LLP, independent accountants
(filed herewith)
23.2 --Consent of Conner & Winters (included in Exhibit 5)
24.1 --Power of Attorney (included on the signature page to this
registration statement)
25.1 --Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 relating to the Indenture (Debt Securities)(to
be filed by amendment or incorporated herein by reference)
<PAGE>
EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
UNIT CORPORATION
----------------
The undersigned corporation (hereinafter the "Corporation") a Delaware
corporation, for the purpose of adopting a Restated Certificate of Incorporation
pursuant to section 245 of the General Corporation Law of the State of Delaware
(the "Act"), hereby certifies:
1. The present name of the Corporation is Unit Corporation, which is the
name under which the Corporation was originally incorporated; and the date of
filing the original certificate of incorporation of the Corporation with the
Secretary of State of the State of Delaware is July 28, 1986.
2. The provisions of the certificate of incorporation of the Corporation as
heretofore amended and/or supplemented, are hereby restated and integrated into
the single instrument which is hereinafter set forth, and which is entitled
Restated Certificate of Incorporation of Unit Corporation, without further
amendment and without any discrepancy between the provisions of the certificate
of incorporation as heretofore amended and supplemented and the provisions of
the said single instrument hereinafter set forth.
3. The Board of Directors of the Corporation has duly adopted this Restated
Certificate of Incorporation pursuant to the provisions of Section 245 of the
General Corporation Law of the State of Delaware in the form set forth as
follows:
RESTATED
CERTIFICATE OF INCORPORATION
OF
UNIT CORPORATION
----------------
ARTICLE ONE
-----------
The name of the corporation (hereinafter called the "Corporation") is
UNIT CORPORATION
ARTICLE TWO
-----------
The address of the Corporation's registered office in the State of
Delaware is 32 Loockerman Square, Suite L-100, City of Dover 19901, County of
Kent. The name of its registered agent at such address is The Prentice-Hall
Corporation System, Inc.
ARTICLE THREE
-------------
The nature of the business or purposes to be conducted or promoted by
the Corporation are to engage in any lawful act or activity for which
corporations may be organized under The General Corporation Law of the State of
Delaware, including but not limited to:
a) To enter into lawful arrangement for sharing profits,
union of interest, reciprocal association or cooperative association
1
<PAGE>
with any corporation, association, partnership, individual or other
legal entity, for the carrying on of any business and to enter into any
general or limited partnership for the carrying on of any business;
b) To engage in an oil, gas and mineral business including,
but not limited to, exploration for, extraction and development of, and
gathering, transporting, processing and marketing of, oil, gas and other
minerals, and products thereof, and the acquisition and disposition, in
any manner, of oil and gas and mineral properties, rights and interest;
and
c) To engage in contract drilling services for third
parties, whether affiliated or unaffiliated with the Corporation, and
to provide other services and to supply materials, equipment, labor and
supplies in connection with the drilling, testing, completing and
equipping of oil and gas wells.
ARTICLE FOUR
------------
The aggregate number of shares of all classes of stock which the
corporation shall have authority to issue is 45,000,000, 40,000,000 of which
shall be Common Stock of the par value of $.20 per share (hereinafter called
"Common Stock") and 5,000,000 of which shall be Preferred Stock of the par value
of $1.00 per share (hereinafter called "Preferred Stock"). The powers,
preferences, privileges, voting and other special or relative rights, and the
qualifications, limitations or restrictions thereof, granted to or imposed upon
the shares of Common Stock and Preferred Stock shall be as fixed below:
1. Common Stock. (a) The Common Stock shall not be subject to
classification or reclassification by the Board of Directors, and shall
have the rights and terms hereinafter specified, subject to the terms of
any other stock provided in the charter pursuant to classification or
reclassification by the Board of Directors or otherwise in accordance
with law.
(b) Common Stock shall be entitled to one vote per share. No
holder of any Common Stock of this Corporation shall have cumulative
voting rights.
(c) There shall be no preemptive rights in the holders of
shares of Common Stock with respect to subscribing for or purchasing any
part of any new or additional issue or sale or reservation of stock or
securities of any class or kind whatsoever.
(d) Subject to the provisions of law, dividends may be paid
on the Common Stock of the Corporation at such time and in such amounts
as the Board of Directors may deem advisable.
2. Preferred Stock. The Board of Directors of the Corporation
shall be authorized, without action by the shareholders, to issue such
Preferred Stock from time to time in one or more series. The Board may
also fix for each series the number of shares, designation, liquidation
and dividend rights, preferences, voting rights, redemption rights and
any other rights, restrictions and qualifications or sinking fund
provisions.
2
<PAGE>
(a) The authority of the Board of Directors with respect to
each series shall include, but not be limited to, determination of the
following:
(i) the number of shares constituting that series and
the distinctive designation of that series;
(ii) the dividend rate on the shares of that series,
whether the dividend shall be cumulative, and if so, from
which date or dates and the terms and conditions on which
dividends shall be paid;
(iii) whether that series shall have voting rights, in
addition to the voting rights provided by law, and if so, the
terms of such voting rights;
(iv) whether that series shall have conversion
privileges, and if so, the terms and conditions of such
conversion, including provisions for adjustment of the
conversion rate in such event as the Board of Directors shall
determine;
(v) whether or not the shares of that series shall be
redeemable, and if so, the terms and conditions of such
redemption, including the date or dates upon or after which they
shall be redeemable, and the amount per share payable in case of
redemption, which amount may vary under difference conditions
and at different redemption dates and the terms of the sinking
fund or redemption or purchase account, if any;
(vi) the rights of the shares of that series in the
event of voluntary of involuntary liquidation, dissolution or
winding up or merger, consolidation, distribution or sale of the
assets of the Corporation;
(vii) provisions, if any, for the vote or consent of the
holders of a stated percentage of the outstanding shares of
Preferred Stock of such series with respect to changes in the
rights, preferences or limitations of the shares of such series,
or the designation or issuance of series of the Preferred Stock
by the Board of Directors, or the authorization or issuance of
other classes or series of preferred stock; and
(viii) any other relative rights, preferences and
limitations of that series.
(b) Dividends on outstanding shares of Preferred Stock shall
be declared and paid, or set apart for payment, before any dividends
shall be declared and paid or set apart for payment on the shares of
Common Stock with respect to the same dividend period.
(c) No holder of shares of Preferred Stock shall be entitled
to any preemptive rights with respect to subscribing for or purchasing
any part of any new or additional issue or sale or reservation of stock
or securities of any class or kind whatsoever.
3
<PAGE>
ARTICLE FIVE
------------
The name and mailing address of the incorporator is Judith A. Jensen,
2400 First National Tower, Tulsa, Oklahoma 74103.
ARTICLE SIX
-----------
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors of the Corporation is expressly authorized:
(a) To make, alter or repeal the By-Laws of the Corporation.
(b) To authorize and cause to be executed mortgages and liens
upon the real and personal property of the Corporation.
(c) To set apart out of any of the funds of the Corporation
available for dividends a reserve or reserves for any proper purpose and
to abolish any such reserve in the manner in which it was created.
(d) To designate one or more committees. Any such committee,
to the extent provided in the resolution of the Board of Directors, or
in the By-Laws of the Corporation, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of
the Corporation to be affixed to all papers which may require it, all to
the extent permitted by law.
ARTICLE SEVEN
-------------
The number of Directors which constitute the whole Board shall not be
less than three persons nor more than ten persons. The exact number of
Directors shall be determined from time to time by the Board of Directors
pursuant to a resolution adopted by a majority of the entire Board of Directors.
Notwithstanding anything contained in this Certificate of Incorporation
or the Bylaws of the Corporation to the contrary (and notwithstanding the fact
that a lesser percentage may be specified by law, in this Certificate of
Incorporation or the Bylaws of the Corporation), the affirmative vote of the
holders of at least eighty percent (80%) of the outstanding shares of capital
stock entitled to vote for the election of Directors, voting together as a
single class, shall be required to amend, modify or repeal the provisions set
forth in the first paragraph of this Article Seven.
ARTICLE EIGHT
-------------
The rights of indemnification of directors, officers, employees or
agents of the Corporation shall extend to the fullest extent permitted by The
General Corporation Law of the State of Delaware, in its current form or as
hereafter amended, or any successor law, as more particularly described in the
By-Laws of the Corporation.
4
<PAGE>
ARTICLE NINE
------------
A Director shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a Director,
provided however that the Director's liability shall not be eliminated or
limited: (i) for any breach of the Director's duty of loyalty to the Corporation
or its stockholders; (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; (iii) under
section 174 of The General Corporation Law of Delaware; and (iv) for any
transaction from which the Director derived an improper personal benefit.
ARTICLE TEN
-----------
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
ARTICLE ELEVEN
--------------
SECTION 1. Vote Required for Certain Business Combinations.
A. Higher Vote for Certain Business Combinations. In
addition to any affirmative vote required by law or this
Certificate of Incorporation, and except as otherwise expressly
provided in section 2 of this Article Eleven:
(i) any merger or consolidation of the
Corporation or any Subsidiary (as hereinafter defined)
with (a) any Interested Stockholder (as hereinafter
defined) or (b) any other corporation (whether or not
itself an Interested Stockholder) which is, or after such
merger or consolidation would be, an Affiliate (as
hereinafter defined) of an Interested Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or
series of transactions) to or with any Interested
Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value (as
hereinafter defined) of $10,000,000 or more; or
(iii) the issuance or transfer by the Corporation
or any Subsidiary (in one transaction or a series of
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate
of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof)
having an aggregate Fair Market Value of $10,000,000
or more; or
(iv) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by
or on behalf of an Interested Stockholder or any
Affiliate of any Interested Stockholder; or
5
<PAGE>
(v) any reclassification of securities (including
any reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the
effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any
class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or
indirectly owned by any Interested Stockholder or any
Affiliate of any Interested Stockholder;
shall require the affirmative vote of the holders of at least
80% of the voting power of the then outstanding shares of
capital stock of the Corporation entitled to vote generally in
the election of directors, excluding any Preferred Stock issued
after May 18, 1988 which the Board of Directors determines to
exclude from the operation of this Article (the "voting stock"),
voting together as a single class (it being understood that
for purposes of this Article Eleven, each share of voting stock
shall have the number of votes granted to it pursuant to Article
Four of this Certificate of Incorporation). Such affirmative
vote shall be required notwithstanding the fact that no vote may
be required, or that a lesser percentage may be specified, by
law or in any agreement with any national securities exchange or
otherwise.
B. Definition of "Business Combination". The term
"Business Combination" as used in this Article Eleven shall mean
any transaction which is referred to in any one or more of
clauses (i) through (v) of paragraph A of this Section 1.
SECTION 2. When Higher Vote is Not Required. The provisions
of Section 1 of this Article Eleven shall not be applicable to any
particular Business Combination, and such Business Combination shall
require only such affirmative vote as is required by law and any other
provision of this Certificate of Incorporation, if all of the conditions
specified in either of the following paragraphs A or B are met.
A. Approval by Continuing Directors. The Business
Combination shall have been approved by a majority of the
Continuing Directors (as hereinafter defined).
B. Price, Form of Consideration and Procedure
Requirements: All of the following conditions shall have
been met:
(i) The aggregate amount of the cash and the fair
market value (as hereinafter defined) as of the date of
the consummation of the Business Combination (the
"Consummation Date") of the consideration other than cash
to be received per share by holders of Common stock in
such Business Combination shall be an amount at least
equal to the higher of the following (it being intended
that the requirements of this paragraph B (i) shall be
6
<PAGE>
required to be met with respect to all shares of Common
Stock outstanding, whether or not the Interested
Stockholder has previously acquired any shares of the
Common Stock):
(a) (if applicable) the highest per
share price (including any brokerage commissions,
transfer taxes and soliciting dealer's fees) paid
by the Interested Stockholder for any shares of
Common Stock acquired by it (1) within the two-
year period immediately prior to the first public
announcement of the proposal of the Business
Combination (the "Announcement Date") or (2) in
the transaction in which it became an Interested
Stockholder, whichever is higher, plus interest
compounded annually from the date on which the
Interested Stockholder became an Interested
Stockholder (the "Determination Date") through the
Consummation Date at the prime rate of interest of
Manufacturers Hanover Bank and Trust (or other
major bank headquartered in New York City selected
by a majority of the Continuing Directors) from
time to time in effect in New York City, less the
aggregate amount of any cash dividends paid, and
the Fair Market Value of any dividends paid in
other than cash, on each share of Common Stock
from the Determination Date through the
Consummation Date in an amount up to but not
exceeding the amount of such interest payable per
share of Common stock; or
(b) the fair market value per share of
Common Stock on the first trading day after the
Announcement Date.
(ii) The aggregate amount of the cash and the
fair market value as of the Consummation Date of the
consideration other than cash to be received per share by
holders of shares of any class of outstanding voting
stock, other than the Common Stock, in such Business
Combination shall be an amount at least equal to the
higher of the following (it being intended that the
requirements of this paragraph B(ii) shall be required to
be met with respect to every such other class of
outstanding voting stock (excluding any Preferred Stock
issued after May 18, 1988 which the Board of Directors
determines to exclude from the operation of this
Article), whether or not the Interested Stockholder has
previously acquired any shares of a particular class of
Voting Stock):
(a) (if applicable) the highest per
share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid
by the Interested Stockholder for any shares of
such class of voting stock acquired by it (1)
within the two-year period immediately prior to
7
<PAGE>
the Announcement Date or (2) in the transaction in
which it became an Interested Stockholder,
whichever is higher, plus interest compounded
annually from the Determination Date through the
Consummation Date at the prime rate of interest of
Manufacturers Hanover Bank and Trust (or other
major bank headquartered in New York City selected
by a majority of the Continuing Directors) from
time to time in effect in New York City, less the
aggregate amount of any cash dividends paid, and
the Fair Market Value of any dividends paid in
other than cash, on each share of such class of
voting stock from the Determination Date through
the Consummation Date in an amount up to but not
exceeding the amount of such interest payable per
share of such class of voting stock; or
(b) the fair market value per share of
such class of Voting Stock on the First trading
day after the Announcement Date; or
(c) (if applicable) the highest
preferential amount per share to which the holders
of shares of such class of voting stock are
entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up
of the Corporation, whichever is higher.
(iii) The consideration to be received by holders
of a particular class of outstanding voting stock shall
be in cash or in the same form as the Interested
Stockholder has previously paid for shares of such class
of voting stock. If the Interested Stockholder has paid
for shares of any class of voting stock with varying
forms of consideration, the form of consideration for
such class of voting stock shall be either cash or the
form used to acquire the largest number of shares of such
class of voting stock previously acquired by it.
(iv) After such Interested Stockholder has become
an Interested Stockholder and prior to the consummation
of such Business Combination: (a) except as approved by a
majority of the Continuing Directors, there shall have
been no failure to declare and pay at the regular date
therefor any full quarterly dividends (whether or not
cumulative) on the outstanding Preferred Stock: (b) there
shall have been (1) no reduction in the annual rate of
dividends paid on the Common Stock (except as necessary
to reflect any subdivision of the Common stock), except
as approved by a majority of the Continuing Directors,
and (2) an increase in such annual rate of dividends as
necessary to reflect any reclassification (including any
reverse stock split), recapitalization, reorganization or
any similar transaction which has the effect of reducing
the number of outstanding shares of the Common Stock,
unless the failure so to increase such annual rate is
approved by a majority of the Continuing Directors; and
8
<PAGE>
(c) such Interested Stockholder shall have not become the
beneficial owner of any additional shares of voting stock
except as part of the transaction which result in such
Interested Stockholder becoming an Interested
Stockholder.
(v) After such Interested Stockholder has become
an Interested Stockholder, such Interested Stockholder
shall not have received the benefit, directly or
indirectly (except proportionately as a stockholder) of
any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax
advantages provided by the Corporation, whether in
anticipation of or in connection with such Business
Combination or otherwise.
(vi) A proxy or information statement describing
the proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934 and
the rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulation)
shall be mailed to public stockholders of the Corporation
at least 30 days prior to the consummation of such
Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant
to such Act or subsequent provisions).
SECTION 3. Certain Definitions. For the purposes of this
Article Eleven:
A. A "person" shall mean any individual, firm,
corporation or other entity.
B. "Interested Stockholder" shall mean any person
(other than the Corporation or any Subsidiary (as hereinafter
defined) and other than any profit sharing, thrift, employee
stock ownership, retirement or other employee benefit plan of
the Corporation or any Subsidiary or any trustee of , or the
fiduciary with respect to any such plan when acting in such
capacity) who or which:
(i) is the beneficial owner (as hereinafter
defined), directly or indirectly, of more than five
percent (5%) or more of the voting stock; or
(ii) is an Affiliate (as hereinafter defined) of
the Corporation and at any time within the two-year
period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of five percent
(5%) or more of the voting stock; or
(iii) is an assignee of or has otherwise
succeeded to any shares of voting stock which were at
any time within the two-year period immediately prior to
the date in question beneficially owned by any Interested
Stockholder, if such assignment or succession shall have
9
<PAGE>
occurred in the course of a transaction or series of
transactions not involving a public offering within the
meaning of the Securities Act of 1933.
C. A person shall be a "beneficial owner" of any
voting stock:
(i) which such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially owns,
directly or indirectly; or
(ii) which such person or any of its Affiliates
or Associates has (a) the right to acquire (whether such
right is exercisable immediately or only after the
passage of time), pursuant to any agreement, arrangement
or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or
otherwise, or (b) the right to vote pursuant to any
agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly or
indirectly, by any other person with which such person or
any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of
voting stock.
D. For the purposes of determining whether a person
is an Interested Stockholder pursuant to paragraph B of this
Section 3, the number of shares of voting stock deemed to be
outstanding shall include shares deemed owned through
application of paragraph C of this Section 3 but shall not
include any other shares of voting stock which may be issuable
pursuant to any agreement, arrangement or understanding or upon
exercise of conversion rights, warrants or options, or
otherwise.
E. "Affiliate" or "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act
of 1934, as in effect on March 1, 1988.
F. "Subsidiary" means any corporation of which a
majority of any class of equity security is owned, directly
or indirectly, by the Corporation; provided, however, that for
the purposes of the definition of Interested Stockholder set
forth in paragraph B of this section 3, the term "Subsidiary"
shall mean only a corporation of which a majority of each class
of equity security is owned, directly, or indirectly, by the
Corporation.
G. "Continuing Director" means any member of the
Board of Directors of the Corporation (the "Board") who is
unaffiliated with the Interested Stockholder and was a member of
the Board prior to the time that the Interested Stockholder
became an Interested Stockholder, and any successor of a
Continuing Director who is unaffiliated with the Interested
10
<PAGE>
Stockholder and is recommended or elected to succeed a
Continuing Director by a majority of the Continuing Directors
then on the Board.
H. "Fair market value" means (i) in the case of
stock, the highest closing sale price during the 30-day period
immediately preceding the date in question of a share of such
stock on the Composite Tape for New York Stock Exchange-Listed
Stocks, or if such stock is not quoted on the Composite Tape on
the New York Stock Exchange, or, if such stock is not listed on
such Exchange, on the principal United States securities
exchange registered under the Securities Exchange Act of 1934 on
which such stock is listed, or if such stock is not listed on
any such exchange, the highest closing bid quotation with
respect to a share of such stock during the 30-day period
preceding the date in question on the National Association of
Securities Dealers, Inc. Automated Quotations System or any
system then in use, or if no such quotations are available, the
fair market value on the date in question of a share of such
stock as determined by the Board in good faith; and (ii) in the
case of property other than cash or stock, the fair market value
of such property on the date in question as determined by a
majority of the Continuing Directors in good faith.
I. In the event of an Business Combination in which
the Corporation survives, the phrase "consideration other than
cash to be receive" as used in paragraphs B(i) and (ii) of
Section 2 of this Article Eleven shall include the shares of
Common Stock and/or the shares of any other class of outstanding
voting stock retained by the holders of such shares.
SECTION 4. Certain Determinations. The Continuing Directors of
the Corporation shall have the power and duty to determine for the
purposes of this Article Eleven, on the basis of information known to
them after reasonable inquiry, (A) whether a person is an Interested
Stockholder, (B) the number of shares of voting stock beneficially owned
by any person, (C) whether a person is an Affiliate or Associate of
another, and (D) whether the assets which are the subject of any
Business Combination have, or the consideration to be received for the
issuance or transfer of securities by the Corporation or any Subsidiary
in any Business Combination has, an aggregate fair market value of
$10,000,000 or more.
SECTION 5. No Effect on Fiduciary Obligations of Interested
Stockholders. Nothing contained in this Article Eleven shall be
construed to relieve any Interested Stockholder from any fiduciary
obligation imposed by law.
SECTION 6. Amendment, Repeal, etc. Notwithstanding any other
provisions of this Certificate of Incorporation or the By-laws of the
Corporation (and notwithstanding the fact that a lesser percentage may
be specified by law, this Certificate of Incorporation or the By-laws of
the Corporation), the affirmative vote of the holders of eighty percent
(80%) or more of the voting power of the shares of the then outstanding
voting stock, voting together as a single class, shall be required to
amend, modify or repeal this Article Eleven of this Certificate of
Incorporation.
11
<PAGE>
IN WITNESS WHEREOF, Unit Corporation has caused its corporate seal to be
hereunder affixed and this RESTATED CERTIFICATE OF INCORPORATION to be signed by
John G. Nikkel, its President, and Mark E. Schell, its Secretary, this 2nd day
of February 1994.
UNIT CORPORATION
[Corporate Seal]
By: /s/ John G. Nikkel
---------------------------
John G. Nikkel
President
ATTEST:
By: /s/ Mark E. Schell
-----------------------
Mark E. Schell
Secretary
12
<PAGE>
EXHIBIT 3.2
BY-LAWS
OF
--
UNIT CORPORATION
a Delaware Corporation
----------------------
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. Annual Meeting. The annual meeting of stockholders shall be held on
the first Wednesday of the fifth month after the conclusion of the fiscal year,
at such hour as may be designated by the Board of Directors. If the date is a
legal holiday, then the meeting shall be held on the next succeeding business
day. The purpose of the meeting shall be to elect directors. Any business may
be transacted at the annual meeting, except as otherwise provided by law or by
these By-laws.
Section 2. Special Meeting. A special meeting of stockholders may be called at
any time by the Board of Directors or by the President. Only such business
shall be transacted at a special meeting as may be stated or indicated in the
Notice of such meeting.
Section 3. Place. The annual meeting of stockholders may be held at any place
within or without the State of Delaware designated by the Board of Directors.
Special meetings of stockholders may be held at any place within or without the
State of Delaware designated by the Chairman of the Board, if he shall call the
meeting, or by the Board of Directors, if they shall call the meeting. Any
meeting may be held at any place within or without the State of Delaware
designated in a waiver of notice of such meeting signed by all stockholders.
Meeting of Stockholders shall be held at the principal office of the corporation
unless another place is designated for meetings in the manner provided herein.
Section 4. Notice. Written or printed notice stating the place, day and hour
of each meeting of stockholders and, in case of a special meeting, the purpose
or purposes for which the meeting is called, shall be delivered not less than
ten (10) days nor more than fifty (50) days before the date of the meeting,
either personally or by mail to each stockholder of record entitled to vote at
such meeting.
Section 5. Quorum. The holders of at least a majority of the outstanding stock
entitled to vote thereat and present in person or by proxy, shall constitute a
quorum, or as shall be specified in any of the charter documents of the
corporation specifying voting rights. Except as otherwise required by law, the
Certificate of Incorporation or these By-laws, the act of a majority of the
stockholders at any meeting at which a quorum is present shall be the act of the
stockholders' meeting. The stockholders present at any meeting, though less
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than a quorum, may adjourn the meeting and any business may be transacted at the
adjournment that could be transacted at the original meeting. No notices of
adjournment other than the announcement at the meeting, need be given.
Section 6. Proxies. At all meetings of stockholders, a stockholder may vote
either in person or by proxy executed in writing by the stockholder or by his
duly authorized attorney-in-fact. Such proxies shall be filed with the
Secretary of the corporation before or at the time of the meeting. No proxy
shall be valid after eleven (11) months from the date of its execution unless
otherwise provided in the proxy. Each proxy shall be revocable unless expressly
provided therein to be irrevocable, and in no event shall it remain irrevocable
for a period of more than eleven (11) months.
Section 7. Voting of Shares. Each outstanding share of common stock shall be
entitled to one vote upon each matter submitted to a vote at a meeting of the
stockholders.
Section 8. Officers. The Chairman of the Board shall preside at and the
Secretary shall keep the records of each meeting of stockholders, and in the
absence of either such officer, his duties shall be performed by some person
appointed at the meeting.
Section 9. List of Stockholders. A complete list of stockholders entitled to
vote at each stockholders' meeting, arranged in alphabetical order, with the
address of and showing the number of shares held by each, shall be prepared by
the Secretary and filed at the registered office of the corporation, and shall
be subject to inspection by any stockholder during usual business hours for a
period of ten (10) days prior to such meeting and shall be produced at such
meeting and at all times during such meeting shall be subject to inspection by
any stockholder.
ARTICLE II
BOARD OF DIRECTORS
Section 1. Number and Term of Office. The business and property of the
corporation shall be managed and controlled by the Board of Directors, and
subject to the restrictions imposed by Law, by the Articles of Incorporation, or
by these By-Laws, they may exercise all powers of the corporation.
Commencing at the Annual Meeting of Stockholders held in 1987, the Board
of Directors shall be divided into three classes, Class I, Class II, and Class
III, with respect to their terms of office. All classes shall be as nearly
equal in number as possible. Subject to such limitations, when the number of
Directors is changed, any newly - created directorships or any
decrease in directorships shall be apportioned among the classes by action of
the Board of Directors or the Stockholders.
The terms of office of the Directors initially classified shall be as
follows: that of Class I shall expire at the annual meeting of Stockholders to
be held in 1988; that of Class II shall expire at the annual meeting of
Stockholders to be held in 1989; that of Class III shall expire at the annual
meeting of Stockholders to be held in 1990. At each annual meeting of
Stockholders after such initial classification, Directors to replace those whose
terms expire at such annual meeting shall be elected to hold office until the
third succeeding Annual Meeting.
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Each Director shall hold office for the term of which he is elected and
until his successor shall have been elected and qualified.
Any vacancy occurring in the Board of Directors may be filled by the
affirmative vote of a majority of the remaining Directors, though less than a
quorum of the Board of Directors. A Director elected to fill a vacancy shall be
elected for the unexpired term of his predecessor in office.
Section 2. Meeting of Directors. The directors may hold their meetings and may
have an office and keep the books of the corporation, except as otherwise
provided by statute, in such place or places in the State of Delaware, or
outside the State of Delaware as the Board of Directors may from time to time
determine.
Section 3. First Meeting. Each newly elected Board of Directors may hold its
first meeting for the purpose of organization and the transaction of business,
if a quorum is present, immediately after and at the same place as the annual
meeting of the stockholders, and no notice of such meeting shall be necessary.
Section 4. Election of Officers. At the first meeting of the Board of
Directors in each year at which a quorum shall be present, held next after the
annual meeting of stockholders, the Board of Directors shall proceed to the
election of the officers of the corporation.
Section 5. Regular Meetings. Regular meetings of the Board of Directors shall
be held at such time and place as shall be designated, from time to time, by
resolution of the Board of Directors. Notice of such regular meetings shall not
be required.
Such meetings may be conducted by use of long distance conference calls.
Section 6. Special Meetings. Special meetings of the Board of Directors shall
be held whenever called by the Chairman of the Board or by a majority of the
directors at the time being in office.
Section 7. Notice. The Secretary shall give notice of each special meeting in
person, or by mail or telegraph at least five (5) days before the meeting, to
each director. The attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends a meeting for
the express purpose of objecting to the transaction of any business on the
grounds that the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the Board of Directors need be specified in the notice or waiver of notice of
such meeting.
At any such meeting at which every director shall be present, even
though without any notice, any business may be transacted.
Section 8. Quorum. A majority of the directors fixed by these By-laws shall
constitute a quorum for the transaction of business, but if at any meeting of
the Board of Directors, there be less than a quorum present, a majority of those
present or any director solely present may adjourn the meeting from time to time
without further notice. The act of a majority of the directors present at a
meeting at which a quorum is in attendance shall be the act of the Board of
Directors, unless the act of a greater number is required by the Certificate of
Incorporation or by these By-laws. However, if the Board of Directors consists
of only three members, all three members of the Board shall constitute a quorum.
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Section 9. Order of Business. At meetings of the Board of Directors, business
shall be transacted in such order as from time to time the Board may determine.
At all meetings of the Board of Directors, the Chairman of the Board
shall preside as Chairman, and in the absence of the Chairman of the Board, a
Chairman shall be chosen by the Board from among the directors present.
The Secretary of the Company shall act as Secretary of all meetings of
the Board of Directors, but in the absence of the Secretary, the presiding
officer may appoint any person to act as Secretary of the meeting. If the
Secretary is not present at the meeting, the Chairman of the Board may appoint a
member of the Board to act as Secretary of that particular meeting.
Section 10. Compensation. Directors as such shall not receive any stated
salary for their service, but by resolution of the Board a fixed sum and expense
of attendance, if any, may be allowed for attendance at such regular or special
meetings of the Board; provided that nothing contained herein shall be construed
to preclude any director from serving the corporation in any other capacity or
receiving compensation therefor.
Section 11. Presumption of Assent. A director of the corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action unless his
dissent shall be entered in the minutes of the meeting or unless he shall file
his written dissent to such action with the person acting as Secretary of the
meeting before the adjournment thereof or shall forward such dissent by
registered mail to the Secretary of the corporation immediately after the
adjournment of the meeting. Such right of dissent shall not apply to a director
who voted in favor of such action.
ARTICLE III
OFFICERS
Section 1. Number, Titles and Term of Office. The officers of the corporation
shall be a Chairman of the Board, a President, one or more Vice Presidents, a
Secretary, a Treasurer, and such other officers as the Board of Directors may
from time to time elect or appoint. Each officer shall hold office until his
successor shall have been duly elected and qualified or until his death or until
he shall resign or shall have been removed in the manner hereinafter provided.
One person may hold more than one office, except that the President shall not
hold the office of Secretary. None of the officers need be a director.
Section 2. Removal. Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever in its judgment the
best interests of the corporation will be served thereby, but such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself create
contract rights.
Section 3. Vacancies. A vacancy in the office of any officer may be filled by
vote of a majority of the directors for the unexpired portion of the term.
Section 4. Powers and Duties of the Chairman of the Board. The Chairman of the
Board shall be the chief executive officer of the corporation and, subject to
the Board of Directors, he shall have general executive charge, management and
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control of the properties and operations as may be reasonably incident to such
responsibilities, he shall preside at all meetings of the stockholders and of
the Board of Directors; he may agree upon and execute all division and transfer
orders, bonds, contracts and other obligations in the name of the corporation;
he may sign all certificates for shares of capital stock of the corporation.
Section 5. Powers and Duties of the President. The President shall be the
chief operating officer of the corporation. He shall preside at all meetings of
the stockholders and of the Board of Directors when the Chairman of the Board is
absent or does not preside at said meetings. The President shall have such
powers and duties as generally pertain to his office, except as modified herein
or by the Board of Directors, as well as such powers and duties as from time to
time may be conferred by the Board of Directors.
Section 6. Vice Presidents. Each Vice President shall have such powers and
duties as may be assigned to him by the Board of Directors and shall exercise
the powers of the President during that officer's absence or inability to act.
Any action taken by a Vice President in the performance of the duties of the
President shall be conclusive evidence of the absence or inability to act of the
President at the time such action was taken.
Section 7. Treasurer. The Treasurer shall have custody of all the funds and
securities of the corporation which come into his hands. When necessary or
proper, he may endorse, on behalf of the corporation, for collection, checks,
notes and other obligations and shall deposit the same to the credit of the
corporation in such bank or banks or depositories as shall be designated in the
manner prescribed by the Board of Directors; he may sign all receipts and
vouchers for payments made to the corporation, either alone or jointly with such
other officer as is designated by the Board of Directors. Whenever required
by the Board of Directors, he shall render a statement of his cash account; he
shall enter or cause to be entered regularly in the books of the corporation to
be kept by him for that purpose, full and accurate accounts of all moneys
received and paid out on account of the corporation; he shall perform all acts
incident to the position of Treasurer subject to the control of the Board of
Directors; he shall, if required by the Board of Directors, give such bond for
the faithful discharge of his duties in such form as the Board of Directors may
require.
Section 8. Assistant Treasurer. Each Assistant Treasurer, if any, shall have
the usual powers and duties pertaining to his office, together with such other
powers and duties as may be assigned to him by the Board of Directors. The
Assistant Treasurers shall exercise the powers of the Treasurer during that
officer's absence or inability to act.
Section 9. Secretary. The Secretary shall keep the minutes of all meetings of
the stockholders, in books provided for that purpose; he shall attend to the
giving and serving of all notices; he may sign with the President in the name of
the corporation, all contracts of the corporation and affix the seal of the
corporation thereto; he may sign with the Chairman of the Board or the President
all certificates for shares of the capital stock of the corporation; he shall
have charge of the certificate books, transfer books, and stock ledgers, and
such other books and papers as the Board of Directors may direct, all of which
shall at all reasonable times be open to the inspection of any director upon
application at the office of the corporation during business hours, and he shall
in general perform all duties incident to the office of Secretary subject to the
control of the Board of Directors.
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Section 10. Assistant Secretaries. Each Assistance Secretary, if any, shall
have the usual powers and duties pertaining to his office, together with such
other powers and duties as may be assigned to him by the Board of Directors or
the Secretary. The Assistant Secretary shall exercise the powers of the
Secretary during that officer's absence or inability to act.
ARTICLE IV
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Indemnification.
(a) The corporation shall indemnify any person who has 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 he is or was the
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 him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe
his 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 he 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 his conduct was
unlawful.
(b) The corporation shall 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 he 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 him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a
manner he reasonable 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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(c) To the extent that a director, officer, employee or agent of
the corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections (a)
and (b), or a defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) (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
director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth
in subsections (a) and (b). Such determination shall be made (1) by the
Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or
(2) if such a quorum is not obtainable, or, even if obtainable a quorum
of disinterested directors so directs, by independent legal counsel
in a written opinion, or (3) by the stockholders.
(e) Expenses incurred by an officer or director in defending a
civil or criminal action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors 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 he is not entitled to
be indemnified by the corporation as authorized in this Section. Such
expenses incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the Board of Directors 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 by-
law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office.
(g) The corporation may 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 him and incurred by him in any such capacity,
or arising out of his status as such, whether or not the corporation
would have the power to indemnify him against such liability under the
provisions of 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,
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officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position
under the provisions of this Section with respect to the resulting or
surviving corporation as he 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 an
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 person
who acted in good faith and in a manner he reasonably believed to be in
the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed to
the best interests of the corporation" as referred to in this Section.
(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) Notwithstanding the foregoing, the rights of indemnification
shall be deemed to extend to the fullest limits allowed by the General
Corporation Law of the State of Delaware, in its current form or as
hereinafter amended, or any successor law.
Section 2. General. The foregoing rights shall not be exclusive of other
rights to which any director or officer may otherwise be entitled, and in the
event of his death, shall extend to his legal representatives. The foregoing
rights shall be available whether or not the director or officer continues to be
a director or officer at the time of incurring or becoming subject to such loss,
expenses, costs and counsel fees, and whether or not the claim asserted against
him is a matter which antedates the adoption of this Article IV.
ARTICLE V
CAPITAL STOCK
Section 1. Certificates of Shares. The certificates for shares of the capital
stock of the corporation shall be in such form as shall be approved by the Board
of Directors and, if more than one class of capital stock of the corporation
shall be authorized, shall set forth a statement as to the designations,
preferences, limitations, and relative rights of the shares of each class
authorized to be issued. The certificates shall be signed by the Chairman of
the Board, President or a Vice President, and also by the Secretary or an
Assistant Secretary and may be sealed by the seal of this corporation or a
facsimile thereof. Where any such certificate is countersigned by a transfer
agent, or registered by a registrar, either of which is other than the
corporation itself or an employee of the corporation, the signatures of such
Chairman of the Board, President or Vice President and Secretary or Assistant
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Secretary, may be facsimiles. They shall be consecutively numbered and shall be
entered in the books of the corporation as they are issued and shall exhibit the
holder's name and the number of shares.
Section 2. Transfer of Shares. The shares of stock of the corporation shall be
transferable only on the books of the corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives upon
surrender and cancellation of certificates for a like number of shares.
Section 3. Closing of Transfer Books. For the purpose of determining
stockholders entitled to notice of or to vote at any meeting of the
stockholders, or any adjournment thereof, or entitled to receive payment of any
dividend, or in order to make a determination of stockholders for any other
proper purpose, the Board of Directors of the corporation may provide that the
stock transfer books shall be closed for a stated period but not to exceed, in
any case, fifty (50) days. If the stock transfer books shall be closed for the
purpose of determining stockholders entitled to notice of or to vote at a
meeting of the stockholders, such books shall be closed for a least ten (10)
days immediately preceding such meeting. In lieu of closing the stock transfer
books, the Board of Directors may fix in advance a date as the record date for
any such determination of stockholders, such date in any case to be not more
than fifty (50) days, and in case of a meeting of stockholders, not less than
ten (10) days prior to the date on which the particular action requiring such
determination of stockholders is to be taken. If the stock transfer books are
not closed and no record date is fixed for the determination of stockholders
entitled to receive payment of a dividend, the date on which the notice of the
meeting is mailed or the date on which the resolution of the Board of Directors
declaring such dividend is adopted, as the case may be, shall be the record date
for such determination of stockholders.
Section 4. Regulations. The Board of Directors shall have power and authority
to make all such rules and regulations as they may deem expedient concerning the
issue, transfer and registration or the replacement of certificates for shares
of the capital stock of the corporation.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 1. Offices. The registered office of the corporation required by the
General Corporation Law of the State of Delaware shall be maintained in the
State of Delaware, but the Board of Directors may, from time to time, designate
the principal office and place of business of the corporation, which may be out
of the State of Delaware.
Section 2. Fiscal Year. The fiscal year of the corporation shall be such as
the Board of Directors shall, by resolution, establish.
Section 3. Seal. The seal of the corporation shall be such as from time to
time may be approved by the Board of Directors.
Section 4. Notice and Waiver of Notice. Whenever any notice whatever is
required to be given under the provisions of these By-laws, said notice shall be
deemed to be sufficient if given by depositing the same in a post office in a
sealed postpaid wrapper addressed to the persons entitled thereto at his post
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office address, as it appears on the books of the corporation, and such notice
shall be deemed to have been given on the day of such mailing. A waiver of
notice, signed by the person or persons entitled to said notice, whether before
or after the time stated therein, shall be deemed equivalent thereto.
Section 5. Resignations. Any director or officer may resign at any time. Such
resignations shall be made in writing and shall take effect at the time
specified therein, or, if no time be specified, at the time of its receipt by
the President or Secretary. The acceptance of a resignation shall not be
necessary to make it effective, unless expressly so provided in the resignation.
Section 6. Interested Directors: Quorum:
(a) No contract or transaction between the corporation and one or
more of its directors or officers, or between the corporation and any
other corporation, partnership, association, or other organization in
which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely
for this reason, or solely because the director or officer is present at
or participates in the meeting of the board or committee thereof which
authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose, if:
(1) The material facts as to his relationship or
interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the
board or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors
be less than a quorum; or
(2) The material facts as to his relationship or
interest and as to the contract or transaction are disclosed or
are know to the shareholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by
vote of the stockholders; or
(3) The contract or transaction is fair as to the
corporation as of the time it is authorized, approved or ratified
by the Board of Directors, a committee thereof, or the
stockholders.
(b) Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
ARTICLE VII
AMENDMENTS
These By-laws may be altered, amended, or repealed by the affirmative
vote of the holders of a majority of the outstanding stock at any annual
meeting, or at any special meeting if notice of the proposed amendment be
contained in the notice of said special meeting, or by the affirmative vote of a
majority of the full Board of Directors at any regular or special meeting,
provided notice of said proposed amendment be contained in the notice of the
meeting.
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EXHIBIT 4.1
INCORPORATED UNDER THE LAWS COMMON STOCK
OF THE STATE OF DELAWARE PAR VALUE $.20
SHARES
THIS CERTIFICATE IS TRANSFERABLE
IN NEW YORK, NEW YORK CUSIP 909218 10 9
SEE REVERSE FOR
CERTAIN DEFINITIONS
UNIT CORPORATION
THIS CERTIFIES THAT
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
UNIT CORPORATION, transferable on the books of said corporation by the holder
hereof in person or by duly authorized attorney upon surrender of this
certificate properly endorsed. This certificate and the Shares represented
hereby are issued and shall be held subject to all the provisions of the
Certificate of Incorporation of the corporation, and amendments thereto (copies
of which are on file at the office of said corporation), to all of which the
holder of this certificate assents by acceptance hereof. This certificate is
not valid until countersigned by the Transfer Agent and Registrar.
Witness, the facsimile seal of said corporation and the facsimile
signatures of its duly authorized officers.
DATED
Countersigned and Registered:
ChaseMellon Shareholder Services, L.L.C.
Transfer Agent and Registrar
Chairman of the Board By:____________________________
and Chief Executive Officer Secretary Authorized Signature
<PAGE>
UNIT CORPORATION
This Corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights. Such statement may be obtained by a request to the officer of the
transfer agent.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -as tenants in common UNIF GIFT MIN ACT -________Custodian_________
(Cust) (Minor)
TEN ENT -as tenants by the entities
JT TEN -as joint tenants with right of Under Uniform Gifts to Minors
survivorship and not as Act_______________________
tenants in common (State)
Additional abbreviations may also be used though not on the above list.
For Value Received, _________________________________________ hereby sell,
assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
[______________]________________________________________________________________
_______________________________________________________________________________.
Please print or typewrite name and address including postal zip code of assignee
__________________________________________________________________________Shares
of the capital stock represented by the within certificate and do hereby
constitute and appoint
________________________________________________________________________Attorney
to transfer the said stock on the books of the within-named Corporation with
full power of substitution in the premises.
Dated_____________________
____________________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
the Certificate in every particular, without
alteration or enlargement or any change whatever
This certificate also evidences and entitles the holder hereof to certain Rights
as set forth in a Rights Agreement dated as of May 19, 1995, as it may be
amended from time to time (the "Rights Agreement"), between Unit
Corporation (the "Company") and Chemical Bank, as Rights Agent (the "Rights
Agent"), the terms of which are hereby incorporated herein by reference and a
<PAGE>
copy of which is on file at the principal executive offices of the Company.
Under certain circumstances, as set forth in the Rights Agreement, such Rights
will be evidenced by separate certificates and will no longer be evidenced by
this certificate. The Rights Agent will mail to the holder of this certificate
a copy of the Rights Agreement without charge after receipt of a written request
therefor. Rights beneficially owned by Acquiring Persons or their Affiliates or
Associates (as such terms are defined in the Rights Agreement) and by any
subsequent holder of such Rights are null and void and nontransferable.
<PAGE>
EXHIBIT 4.3
UNIT CORPORATION
and
[________________________________]
as Trustee
Indenture
Dated as of _____ __, ____
Debt Securities
<PAGE>
TABLE OF CONTENTS
ARTICLE I Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01. Certain Terms Defined.. . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act . . . . 9
SECTION 1.03. Rules of Construction . . . . . . . . . . . . . . . . . . 9
ARTICLE II Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.01. Forms Generally . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.02. Form of Trustee's Certificate of Authentication . . . . . 10
SECTION 2.03. Principal Amount; Issuable in Series. . . . . . . . . . . 10
SECTION 2.04. Execution of Debt Securities. . . . . . . . . . . . . . . 13
SECTION 2.05. Authentication and Delivery of Debt Securities. . . . . . 14
SECTION 2.06. Denomination of Debt Securities . . . . . . . . . . . . . 15
SECTION 2.07. Registration of Transfer and Exchange.. . . . . . . . . . 15
SECTION 2.08. Temporary Debt Securities . . . . . . . . . . . . . . . . 17
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities. . . 17
SECTION 2.10. Cancellation of Surrendered Debt Securities . . . . . . . 18
SECTION 2.11. Provisions of the Indenture and Debt Securities for the
Sole Benefit of the Parties and the Holders . . . . . . 18
SECTION 2.12. Payment of Interest; Rights Preserved . . . . . . . . . . 18
SECTION 2.13. Securities Denominated in Foreign Currencies. . . . . . . 19
SECTION 2.14. Wire Transfers. . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.15. Securities Issuable in the Form of a Global Security. . . 20
SECTION 2.16. Medium Term Securities. . . . . . . . . . . . . . . . . . 22
SECTION 2.17. Defaulted Interest. . . . . . . . . . . . . . . . . . . . 22
SECTION 2.18. Judgments . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE III Redemption of Debt Securities. . . . . . . . . . . . . . . . . 23
SECTION 3.01. Applicability of Article. . . . . . . . . . . . . . . . . 23
SECTION 3.02. Notice of Redemption; Selection of Debt Securities. . . . 23
SECTION 3.03. Payment of Debt Securities Called for Redemption. . . . . 25
SECTION 3.04. Mandatory and Optional Sinking Funds. . . . . . . . . . . 25
SECTION 3.05. Redemption of Debt Securities for Sinking Fund. . . . . . 26
ARTICLE IV Particular Covenants of the Company . . . . . . . . . . . . . . 27
SECTION 4.01. Payment of Principal of, and Premium If Any, and
Interest on, Debt Securities. . . . . . . . . . . . . . 27
SECTION 4.02. Maintenance of Offices or Agencies for Registration of
Transfer, Exchange and Payment of Debt Securities . . . 28
SECTION 4.03. Appointment to Fill a Vacancy in the Office of Trustee. . 28
SECTION 4.04. Duties of Paying Agents, etc. . . . . . . . . . . . . . . 28
SECTION 4.05. Statement by Officers as to Default . . . . . . . . . . . 29
SECTION 4.06. Further Instruments and Acts. . . . . . . . . . . . . . . 30
SECTION 4.07. Existence . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.08. Maintenance of Properties . . . . . . . . . . . . . . . . 30
SECTION 4.09. Payment of Taxes and Other Claims . . . . . . . . . . . . 30
ARTICLE V Holders' Lists and Reports by the Company and the Trustee. . . . 30
SECTION 5.01. Company to Furnish Trustee Information as to Names and
Addresses of Holders; Preservation of Information . . . 30
SECTION 5.02. Communications to Holders . . . . . . . . . . . . . . . . 31
SECTION 5.03. Reports by Company. . . . . . . . . . . . . . . . . . . . 31
SECTION 5.04. Reports by Trustee. . . . . . . . . . . . . . . . . . . . 31
SECTION 5.05. Record Dates for Action by Holders. . . . . . . . . . . . 32
ARTICLE VI Remedies of the Trustee and Holders in Event of Default . . . . 32
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.02. Collection of Indebtedness by Trustee, etc. . . . . . . . 34
SECTION 6.03. Application of Moneys Collected by Trustee. . . . . . . . 35
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SECTION 6.04. Limitation on Suits by Holders. . . . . . . . . . . . . . 36
SECTION 6.05. Remedies Cumulative; Delay or Omission in Exercise of
Rights Not a Waiver of Default. . . . . . . . . . . . . 37
SECTION 6.06. Rights of Holders of Majority in Principal Amount of Debt
Securities to Direct Trustee and to Waive Default . . . 37
SECTION 6.07. Trustee to Give Notice of Defaults Known to It, but May
Withhold Such Notice in Certain Circumstances . . . . . 38
SECTION 6.08. Requirement of an Undertaking to Pay Costs in Certain
Suits under the Indenture or Against the Trustee. . . . 38
ARTICLE VII Concerning the Trustee . . . . . . . . . . . . . . . . . . . . 38
SECTION 7.01. Certain Duties and Responsibilities . . . . . . . . . . . 38
SECTION 7.02. Certain Rights of Trustee . . . . . . . . . . . . . . . . 40
SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in Debt
Securities. . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.04. Trustee, Paying Agent or Registrar May Own Debt
Securities. . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.05. Moneys Received by Trustee to Be Held in Trust. . . . . . 41
SECTION 7.06. Compensation and Reimbursement. . . . . . . . . . . . . . 41
SECTION 7.07. Right of Trustee to Rely on an Officers' Certificate
Where No Other Evidence Specifically Prescribed . . . . 42
SECTION 7.08. Separate Trustee; Replacement of Trustee. . . . . . . . . 42
SECTION 7.09. Successor Trustee by Merger . . . . . . . . . . . . . . . 43
SECTION 7.10. Eligibility; Disqualification . . . . . . . . . . . . . . 44
SECTION 7.11. Preferential Collection of Claims Against Company . . . . 44
SECTION 7.12. Compliance with Tax Laws. . . . . . . . . . . . . . . . . 44
ARTICLE VIII Concerning the Holders. . . . . . . . . . . . . . . . . . . . 44
SECTION 8.01. Evidence of Action by Holders . . . . . . . . . . . . . . 44
SECTION 8.02. Proof of Execution of Instruments and of Holding of Debt
Securities. . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 8.03. Who May Be Deemed Owner of Debt Securities. . . . . . . . 45
SECTION 8.04. Instruments Executed by Holders Bind Future Holders . . . 45
ARTICLE IX Supplemental Indentures . . . . . . . . . . . . . . . . . . . . 46
SECTION 9.01. Purposes for Which Supplemental Indenture May Be Entered
into Without Consent of Holders . . . . . . . . . . . . 46
SECTION 9.02. Modification of Indenture with Consent of Holders of Debt
Securities. . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 9.03. Effect of Supplemental Indentures . . . . . . . . . . . . 49
SECTION 9.04. Debt Securities May Bear Notation of Changes by
Supplemental Indentures . . . . . . . . . . . . . . . . 49
SECTION 9.05. Payment for Consent . . . . . . . . . . . . . . . . . . . 49
ARTICLE X Consolidation, Merger, Sale or Conveyance. . . . . . . . . . . . 49
SECTION 10.01. Consolidations and Mergers of the Company. . . . . . . . 49
SECTION 10.02. Rights and Duties of Successor Corporation . . . . . . . 50
ARTICLE XI Satisfaction and Discharge of Indenture; Defeasance;
Unclaimed Moneys. . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 11.01. Applicability of Article . . . . . . . . . . . . . . . . 50
SECTION 11.02. Satisfaction and Discharge of Indenture: Defeasance. . . 50
SECTION 11.03. Conditions of Defeasance . . . . . . . . . . . . . . . . 51
SECTION 11.04. Application of Trust Money . . . . . . . . . . . . . . . 52
SECTION 11.05. Repayment to Company . . . . . . . . . . . . . . . . . . 53
SECTION 11.06. Indemnity for U.S. Government Obligations. . . . . . . . 53
SECTION 11.07. Reinstatement. . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE XII Subordination of Debt Securities . . . . . . . . . . . . . . . 53
SECTION 12.01. Applicability of Article; Agreement to Subordinate . . . 53
SECTION 12.02. Liquidation, Dissolution, Bankruptcy . . . . . . . . . . 54
SECTION 12.03. Default on Senior Indebtedness . . . . . . . . . . . . . 54
SECTION 12.04. Acceleration of Payment of Debt Securities . . . . . . . 55
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SECTION 12.05. When Distribution Must Be Paid Over. . . . . . . . . . . 55
SECTION 12.06. Subrogation. . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 12.07. Relative Rights. . . . . . . . . . . . . . . . . . . . . 55
SECTION 12.08. Subordination May Not Be Impaired by Company . . . . . . 56
SECTION 12.09. Rights of Trustee and Paying Agent . . . . . . . . . . . 56
SECTION 12.10. Distribution or Notice to Representative . . . . . . . . 56
SECTION 12.11. Article XII Not to Prevent Defaults or Limit Right to
Accelerate . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 12.12. Trust Moneys Not Subordinated. . . . . . . . . . . . . . 56
SECTION 12.13. Trustee Entitled to Rely . . . . . . . . . . . . . . . . 56
SECTION 12.14. Trustee to Effectuate Subordination. . . . . . . . . . . 57
SECTION 12.15. Trustee Not Fiduciary for Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . 57
SECTION 12.16. Reliance by Holders of Senior Indebtedness on
Subordination Provisions . . . . . . . . . . . . . . . 57
ARTICLE XIII Miscellaneous Provisions. . . . . . . . . . . . . . . . . . . 57
SECTION 13.01. Successors and Assigns of Company Bound by Indenture . . 57
SECTION 13.02. Acts of Board, Committee or Officer of Successor
Company Valid. . . . . . . . . . . . . . . . . . . . . 58
SECTION 13.03. Required Notices or Demands. . . . . . . . . . . . . . . 58
SECTION 13.04. Indenture and Debt Securities to Be Construed in
Accordance with the Laws of the State of New York. . . 58
SECTION 13.05. Officers' Certificate and Opinion of Counsel to Be
Furnished upon Application or Demand by the Company. . 58
SECTION 13.06. Payments Due on Legal Holidays . . . . . . . . . . . . . 59
SECTION 13.07. Provisions Required by Trust Indenture Act to Control. . 59
SECTION 13.08. Computation of Interest on Debt Securities . . . . . . . 59
SECTION 13.09. Rules by Trustee, Paying Agent and Registrar . . . . . . 59
SECTION 13.10. No Recourse Against Others . . . . . . . . . . . . . . . 59
SECTION 13.11. Severability . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 13.12. Effect of Headings . . . . . . . . . . . . . . . . . . . 60
SECTION 13.13. Indenture May Be Executed in Counterparts. . . . . . . . 60
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<PAGE>
UNIT CORPORATION
Debt Securities
CROSS REFERENCE SHEET*
This Cross Reference Sheet shows the location in the Indenture of the provisions
inserted pursuant to Sections 310-318(a), inclusive of the Trust Indenture Act
of 1939.
TIA Section Indenture Section
----------- -----------------
310(a)(1) 7.10
310(a)(2) 7.10
310(a)(3) 7.10
310(a)(5) 7.10
310(b) 7.10
310(c) N.A.**
311(a) 7.11
311(b) 7.11
311(c) N.A.
312(a) 5.01
312(b) 5.02
312(c) 5.02
313(a) 5.04
313(b)(1) 5.04
313(b)(2) 5.04
313(c) 12.03
313(d) 5.04
314(a)(1) 5.03(a)
314(a)(2) 5.03(b)
314(a)(3) 5.03(a)&(b) & 12.03
314(a)(4) 5.04
314(b) N.A.
4
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314(c)(1) 12.05
314(c)(2) 12.05
314(c)(3) N.A.
314(d) N.A.
314(e) 12.05
314(f) 4.06
315(a) 7.01(a)
315(b) 6.07 & 12.03
315(c) 7.01
315(d) 7.01
315(e) 6.08
316(a)(last sentence). 1.01
316(a)(1)(A) 6.06
316(a)(1)(B) 6.06
316(a)(2) 9.01(d)
316(b) 6.04
316(c) 5.05
317(a)(1) 6.02
317(a)(2) 6.02
317(b) 4.04
318(a) 12.07
* The Cross Reference Sheet is not part of the Indenture.
** N.A. means "Not Applicable."
5
<PAGE>
INDENTURE dated as of [_______________________] between UNIT CORPORATION, a
corporation duly organized and existing under the laws of the State of Delaware
(hereinafter sometimes called the "Company"), and [__________________________],
a [____________] corporation (hereinafter sometimes called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of its debentures, notes, bonds or
other evidences of indebtedness to be issued in one or more series unlimited as
to principal amount (herein called the "Debt Securities"), as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH
That in order to declare the terms and conditions upon which the Debt Securities
are authenticated, issued and delivered, and in consideration of the premises,
and of the purchase and acceptance of the Debt Securities by the holders
thereof, the Company and the Trustee covenant and agree with each other, for the
benefit of the respective Holders from time to time of the Debt Securities or
any series thereof, as follows:
ARTICLE I
Definitions
SECTION 1.01. Certain Terms Defined. The terms defined in this Section 1.01
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any Indenture supplemental
hereto shall have the respective meanings specified in this Section 1.01. All
other terms used in this Indenture which are defined in the Trust Indenture Act
or which are by reference therein defined in the Securities Act (except as
herein otherwise expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in the Trust Indenture Act and in
the Securities Act as in force as of the date of original execution of this
Indenture.
"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 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.
"Bank Indebtedness" means any and all amounts payable under or in respect of (i)
the Credit Agreement, as supplemented, amended, modified, refinanced or replaced
at any time from time to time, and (ii) any lines of credit and letters of
credit of the Company, in each case, including principal, premium (if any),
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not a claim
for post-filing interest is allowed in such proceedings), fees, charges,
expenses, reimbursement obligations, guarantees and all other amounts payable
thereunder or in respect thereof.
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<PAGE>
"Banks" has the meaning specified in the Credit Agreement.
"Board of Directors" means either the Board of Directors of the Company or any
duly authorized committee or subcommittee of such Board, except as the context
may otherwise require.
"business day" means any day that is not a Saturday, a Sunday or legal holiday
and, with respect to any Place of Payment specified pursuant to Section 2.03,
any other day on which banking institutions or trust companies in such Place of
Payment are authorized or obligated by law or executive order to close.
"Capitalized Lease Obligation" means an obligation that is required to be
classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP; and the amount of Indebtedness represented by
such obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" of any Person means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or interests
(including partnership interests) in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into such equity.
"Common Stock" means the common stock ($0.20 par value), of the Company, which
stock is currently listed on the New York Stock Exchange.
"Company" means Unit Corporation a Delaware corporation, and, subject to the
provisions of Article X, shall also include its successors and assigns.
"Company Order" means a written order of the Company, signed by its Chairman of
the Board, President or any Vice President and by its Treasurer, Secretary, any
Assistant Treasurer or any Assistant Secretary.
"corporate trust office of the Trustee" or other similar term means the office
of the Trustee at which the corporate trust business of the Trustee shall, at
any particular time, be principally administered in the United States of
America, except that with respect to the presentation of Debt Securities for
payment or for registration of transfer and exchange, such term shall also mean
the office of the Trustee or the Trustee's agent in the Borough of Manhattan,
the City and State of New York, at which at any particular time its corporate
agency business shall be conducted.
"Credit Agreement" means the Loan Agreement dated as of April 30, 1998, as may
be amended from time to time, among the Company and certain of its subsidiaries,
each as a Borrower, and the Banks party thereto, as supplemented, amended,
modified, refinanced or replaced at any time from time to time.
"Currency" means Dollars or Foreign Currency.
"Debt Security" or "Debt Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any debt security or debt
securities, as the case may be, of any series authenticated and delivered under
this Indenture.
2
<PAGE>
"Debt Security Register" has the meaning specified in Section 2.07(a).
"Default" means any event which is, or after notice or passage of time or both
would be, an Event of Default.
"Depositary" means, unless otherwise specified by the Company pursuant to either
Section 2.03 or 2.15, with respect to registered Debt Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, The Depository Trust Company, New York, New York, or any successor
thereto registered as a clearing agency under the Exchange Act or other
applicable statute or regulations.
"Designated Senior Indebtedness" means (i) the Bank Indebtedness and (ii) any
other Senior Indebtedness.
"Disqualified Stock" of a Person means Redeemable Stock of such Person as to
which the maturity, mandatory redemption, conversion or exchange or redemption
at the option of the holder thereof occurs, or may occur, on or prior to the
first anniversary of the Stated Maturity of the Debt Securities of the
applicable series.
"Dollar" or "$" means such currency of the United States as at the time of
payment is legal tender for the payment of public and private debts.
"Dollar Equivalent" means, with respect to any monetary amount in a Foreign
Currency, at any time for the determination thereof, the amount of Dollars
obtained by converting such Foreign Currency involved in such computation into
Dollars at the spot rate for the purchase of Dollars with the applicable Foreign
Currency as quoted by The Chase Manhattan Bank (unless another comparable
financial institution is designated by the Company) in New York, New York at
approximately 11:00 a.m. (New York time) on the date two business
days prior to such determination.
"Event of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Floating Rate Security" means a Debt Security that provides for the payment of
interest at a variable rate determined periodically by reference to an interest
rate index or formula specified pursuant to Section 2.03.
"Foreign Currency" means a currency issued or adopted by the government of any
country other than the United States or a composite currency the value of which
is determined by reference to the values of the currencies of any group of
countries.
"GAAP" means generally accepted accounting principles in the United States as in
effect as of the date on which the Debt Securities of the applicable series are
issued, including those set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as approved by
a significant segment of the accounting profession. All ratios and
computations based on GAAP contained in this Indenture shall be computed in
conformity with GAAP consistently applied.
3
<PAGE>
"Global Security" means, with respect to any series of Debt Securities issued
hereunder, a Debt Security which is executed by the Company and authenticated
and delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and any Indentures
supplemental hereto, or resolution of the Board of Directors and set forth in an
officers' Certificate, which shall be registered in the name of the Depositary
or its nominee and which shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, all the Outstanding Debt Securities
of such series or any portion thereof, in either case having the same terms,
including, without limitation, the same original issue date, date or dates
on which principal is due and interest rate or method of determining interest.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness or other obligation of any
other Person and any obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation of such other Person or
(ii) entered into for purposes of assuring in any other manner the obligee of
such Indebtedness or other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part); provided,
however, that the term "Guarantee" shall not include endorsements for collection
or deposit in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
"Holder," "Holder of Debt Securities" or other similar terms mean,with respect
to a Registered Security, the Registered Holder.
"Incur" means issue, assume, Guarantee, incur or otherwise become liable for;
provided, however, that any Indebtedness or Capital Stock of a Person existing
at the time such Person becomes a Subsidiary (whether by merger, consolidation,
acquisition or otherwise) shall be deemed to be incurred by such Subsidiary at
the time it becomes a Subsidiary. The terms "Incurred", "Incurrence" and
"Incurring" shall each have a correlative meaning.
"Indebtedness" means, with respect to any Person on any date of determination
(without duplication),
(i) the principal of Indebtedness of such Person for borrowed money;
(ii) the principal of obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(iii) all Capitalized Lease Obligations of such Person;
(iv) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services (except Trade Payables);
(v) all obligations of such Person in respect of letters of credit,
banker's acceptances or other similar instruments or credit
transactions (including reimbursement obligations with respect
thereto), other than obligations with respect to letters of credit
securing obligations (other than obligations described in (i) through
(iv) above) entered into in the ordinary course of business of such
Person to the extent such letters of credit are not drawn upon or, if
and to the extent drawn upon, such drawing is reimbursed no later than
the third business day following receipt by such Person of a demand for
reimbursement following payment on the letter of credit;
4
<PAGE>
(vi) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock
(but excluding, in each case, any accrued dividends);
(vii) all Indebtedness of other Persons secured by a Lien on any asset
of such Person, whether or not such Indebtedness is assumed by such
Person; provided, however, that the amount of such Indebtedness shall
be the lesser of (A) the fair market value of such asset at such date
of determination or (B) the amount of such Indebtedness of such other
Persons; and
(viii) all Indebtedness of other Persons to the extent Guaranteed by
such Person.
For purposes of this definition, the maximum fixed redemption, repayment or
repurchase price of any Disqualified Stock or Preferred Stock that does not have
a fixed redemption, repayment or repurchase price shall be calculated in
accordance with the terms of such Stock as if such Stock were redeemed, repaid
or repurchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture; provided, however, that if such Stock is
not then permitted to be redeemed, repaid or repurchased, the redemption,
repayment or repurchase price shall be the book value of such Stock as reflected
in the most recent financial statements of such Person. The amount of
Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and the maximum
liability, upon the occurrence of the contingency giving rise to the obligation,
of any contingent obligations at such date.
"Indenture" means this instrument as originally executed, or, if amended or
supplemented as herein provided, as so amended or supplemented and shall include
the form and terms of particular series of Debt Securities as contemplated
hereunder, whether or not a supplemental Indenture is entered into with respect
thereto.
"Issue Date" means, with respect to any series of Debt Securities, the date upon
which such Debt Securities first were issued and authenticated under this
Indenture and any Indenture supplemental hereto.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Officers' Certificate" means a certificate signed by the Chairman of the Board,
the President or any Vice President and by the Treasurer, chief accounting
officer, the Secretary or any Assistant Treasurer or Assistant Secretary of the
Company. Each such certificate shall include the statements provided for in
Section 13.05, if applicable.
"Opinion of Counsel" means an opinion in writing signed by legal counsel for the
Company (which counsel may be an employee of the Company), or outside counsel
for the Company. Each such opinion shall include the statements provided for in
Section 13.05, if applicable.
"Original Issue Discount Debt Security" means any Debt Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration or acceleration of the maturity thereof pursuant to Section 6.01.
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"Outstanding" when used with respect to any series of Debt Securities, means, as
of the date of determination, all Debt Securities of that series theretofore
authenticated and delivered under this Indenture, except:
(i) Debt Securities of that series theretofore canceled by the Trustee
or delivered to the Trustee for cancelation;
(ii) Debt Securities of that series for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any paying agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act
as its own paying agent) for the holders of such Debt Securities;
provided, that, if such Debt 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) Debt Securities of that series which have been paid pursuant to
Section 2.09 or in exchange for or in lieu of which other Debt
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Debt Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it
that such Debt Securities are held by a bona fide purchaser in whose
hands such Debt Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Debt Securities of any series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Debt Securities owned by the Company or any other obligor upon the Debt
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Debt Securities which
the Trustee knows to be so owned shall be so disregarded. Debt Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Debt Securities and that the pledgee is not the
Company or any other obligor upon the Debt Securities or an Affiliate of the
Company or of such other obligor.
In determining whether the Holders of the requisite principal amount of
outstanding Debt Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of an
Original Issue Discount Debt 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 a declaration of acceleration
of the maturity thereof pursuant to Section 6.01. In determining whether the
Holders of the requisite principal amount of the Outstanding Debt Securities of
any series have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of a Debt Security denominated
in one or more Foreign Currencies that shall be deemed to be Outstanding for
such purposes shall be the Dollar Equivalent, determined in the manner provided
as contemplated by Section 2.03 on the date of original issuance of such Debt
Security, of the principal amount (or, in the case of any Original Issue
Discount Security, the Dollar Equivalent on the date of original issuance of
such Debt Security of the amount determined as provided in the preceding
sentence above) of such Debt Security.
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"pari passu", as applied to the ranking of any Indebtedness of a Person in
relation to other Indebtedness of such Person, means that each such Indebtedness
either (i) is not subordinate in right of payment to any Indebtedness or (ii) is
subordinate in right of payment to the same Indebtedness as is the other, and is
so subordinate to the same extent, and is not subordinate in right of payment to
each other or to any Indebtedness as to which the other is not so subordinate.
"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Place of Payment" means, when used with respect to the Debt Securities of any
series, the place or places where the principal of, and premium, if any, and
interest on, the Debt Securities of that series are payable as specified
pursuant to Section 2.03.
"Preferred Stock" as applied to the Capital Stock of any corporation, means
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such corporation, over
shares of Capital Stock of any other class of such corporation.
"Redeemable Stock" means, with respect to any Person, any Capital Stock which by
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable) or upon the happening of any event (i) matures or is
mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (ii)
is convertible or exchangeable for Indebtedness (other than Preferred Stock) or
Disqualified Stock or (iii) is redeemable at the option of the holder thereof,
in whole or in part.
"Registered Holder" means the Person in whose name a Registered Security is
registered in the Debt Security Register (as defined in Section 2.07(a)).
"Registered Security" means any Debt Security registered as to principal and
interest in the Debt Security Register (as defined in Section 2.07(a)).
"Registrar" has the meaning set forth in Section 2.07(a).
"Representative" means the trustee, agent or representative (if any) for an
issue of Indebtedness.
"responsible officer" means, when used with respect to the Trustee, any officer
within the corporate trust office of the Trustee, including, the President, any
Vice President, any Second Vice President, any Assistant Vice President, the
Secretary, any senior trust officer, any trust officer or any other officer of
the Trustee performing functions similar to those performed by the persons who
at the time shall be such officers, and any other officer of the Trustee to whom
corporate trust matters are referred because of his knowledge of and familiarity
with the particular subject.
"Secured Indebtedness" means any Indebtedness of the Company secured by a Lien.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means, as to any series of Debt Securities subordinated
pursuant to the provisions of Article XII, the Indebtedness of the Company
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identified as Senior Indebtedness in the resolution of the Board of Directors
and accompanying Officers' Certificate or supplemental Indenture setting forth
the terms, including as to subordination, of such series.
"Stated Maturity" means, with respect to any security, the date specified in
such security as the fixed date on which the payment of principal of such
security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has
occurred).
"Subsidiary" of any Person means any corporation, association, partnership or
other business entity of which more than 50% of the total voting power of shares
of Capital Stock entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof is at the
time owned or controlled, directly or indirectly, by (i) such Person, (ii) such
Person and one or more Subsidiaries of such Person or (iii) one or more
Subsidiaries of such Person.
"Temporary Cash Investments" means any of the following: (i) investments in U.S.
Government Obligations maturing within 90 days of the date of acquisition
thereof, (ii) investments in time deposit accounts, certificates of deposit and
money market deposits maturing within 90 days of the date of acquisition thereof
issued by a bank or trust company which is organized under the laws of the
United States, any State thereof or any foreign country recognized by the United
States having capital, surplus and undivided profits aggregating in excess
of $500,000,000 (or the Dollar Equivalent thereof) and whose long-term debt is
rated "A" or higher according to Moody's Investors Service, Inc. (or such
similar equivalent rating by at least one "nationally recognized statistical
rating organization" (as defined in Rule 436 under the Securities Act)), (iii)
repurchase obligations with a term of not more than 7 days for underlying
securities of the types described in clause (i) above entered into with a bank
meeting the qualifications described in clause (ii) above and (iv) investments
in commercial paper, maturing not more than 90 days after the date of
acquisition, issued by a corporation (other than an Affiliate of the Company)
organized and in existence under the laws of the United States or any foreign
country recognized by the United States with a rating at the time as of which
any investment therein is made of "P-1" (or higher) according to Moody's
Investors Service, Inc. or "A-1" (or higher) according to Standard
and Poor's Corporation.
"Trade Payables" means, with respect to any Person, any accounts payable or any
indebtedness or monetary obligation to trade creditors created, assumed or
Guaranteed by such Person arising in the ordinary course of business of such
Person in connection with the acquisition of goods or services.
"Trustee" initially means [_________________] and any other Person or Persons
appointed as such from time to time pursuant to Section 7.08, and, subject to
the provisions of Article VII, includes its or their successors and assigns. If
at any time there is more than one such Person, "Trustee" as used with respect
to the Debt Securities of any series shall mean the Trustee with respect to the
Debt Securities of that series.
"Trust Indenture Act" (except as herein otherwise expressly provided) means the
Trust Indenture Act of 1939 as in force at the date of this indenture as
originally executed and, to the extent required by law, as amended.
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"United States" means the United States of America (including the States and the
District of Columbia), its territories, its possessions and other areas subject
to its jurisdiction.
"U.S. Government Obligations" means securities that are (x) direct obligations
of the United States for the payment of which its full faith and credit is
pledged or (y) obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States, which, in either case, are not callable or redeemable at the option of
the issuer thereof.
"Yield to Maturity" means the yield to maturity calculated at the time of
issuance of a series of Debt Securities, or, if applicable, at the most recent
redetermination of interest on such series and calculated in accordance with
accepted financial practice.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the Trust Indenture Act
which are incorporated by reference in and made a part of this indenture. The
following Trust Indenture Act terms have the following meanings:
"indenture securities" means the Debt Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any other obligor on
the Debt Securities.
All other Trust Indenture Act terms used in this Indenture that are defined by
the Trust indenture Act, reference to another statute or defined by rules of the
Securities and Exchange Commission have the meanings assigned to them by such
definitions.
SECTION 1.03. Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) if the applicable series of Debt Securities are subordinated
pursuant to Article XII, unsecured indebtedness shall not be deemed to
be subordinate or junior to Secured Indebtedness merely by
virtue of its nature as unsecured indebtedness;
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(7) except as otherwise provided in the definition of "Outstanding"
contained in Section 1.01 hereunder, the principal amount of any
noninterest bearing or other discount security at any date shall be the
principal amount thereof that would be shown on a balance sheet of the
issuer dated such date prepared in accordance with GAAP; and
(8) the principal amount of any Preferred Stock shall be the greater
of (i) the maximum liquidation value of such Preferred Stock or (ii)
the maximum mandatory redemption or mandatory repurchase price with
respect to such Preferred Stock.
ARTICLE II
Debt Securities
SECTION 2.01. Forms Generally. The Debt Securities of each series shall be in
substantially the form established without the approval of any Holder by or
pursuant to a resolution of the Board of Directors or in one or more Indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
or designation and such legends or endorsements placed thereon as the Company
may deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required or appropriate to comply with any law or with
any rules made pursuant thereto or with any rules of any securities exchange on
which such series of Debt Securities may be listed, or to conform to general
usage, or as may, consistently herewith, be determined by the officers executing
such Debt Securities as evidenced by their execution of the Debt Securities.
The definitive Debt Securities of each series shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Debt Securities, as evidenced by
their execution of such Debt Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication. The Trustee's
Certificate of Authentication on all Debt Securities authenticated by the
Trustee shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein referred to
in the within-mentioned Indenture.
___________________________________
As Trustee
By ________________________________
Authorized Officer
SECTION 2.03. Principal Amount; Issuable in Series. The aggregate principal
amount of Debt Securities which may be issued, executed, authenticated,
delivered and outstanding under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be
established, without the approval of any Holders, in or pursuant to a resolution
of the Board of Directors and set forth in an Officers' Certificate, or
established in one or more Indentures supplemental hereto, prior to the issuance
of Debt Securities of any series any or all of the following:
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(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt
Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Debt Securities of the series pursuant to this Article
II);
(3) the date or dates on which the principal and premium, if any, of
the Debt Securities of the series are payable;
(4) the rate or rates (which may be fixed or variable) at which the
Debt Securities of the series shall bear interest, if any, or the
method of determining such rate or rates, the date or dates from
which such interest shall accrue, the interest payment dates on which
such interest shall be payable, or the method by which such date will
be determined, in the case of Registered Securities, the record dates
for the determination of Holders thereof to whom such interest is
payable; and the basis upon which interest will be calculated if other
than that of a 360-day year of twelve thirty- day months;
(5) the Place or Places of Payment, if any, in addition to or instead
of the corporate trust office of the Trustee where the principal of,
and interest on, Debt Securities of the series shall be payable;
(6) the price or prices at which, the period or periods within which
and the terms and conditions upon which Debt Securities of the series
may be redeemed, in whole or in part, at the option of the Company or
otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or repay
Debt Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, and the price or
prices at which and the period or periods within which and the terms
and conditions upon which Debt Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligations;
(8) the terms, if any, upon which the Debt Securities of the series may
be convertible into or exchanged for Common Stock, Preferred Stock
(which may be represented by depositary shares), other Debt Securities
or warrants for Common Stock, Preferred Stock or Indebtedness or other
securities of any kind of the Company or any other obligor or issuer
and the terms and conditions upon which such conversion or exchange
shall be effected, including the initial conversion or exchange price
or rate, the conversion or exchange period and any other provision in
addition to or in lieu of those described herein;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Debt Securities of the series shall
be issuable;
(10) if the amount of principal of or any premium or interest on Debt
Securities of the series may be determined with reference to an index
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or pursuant to a formula, the manner in which such amounts will be
determined;
(11) if the principal amount payable at the Stated Maturity of Debt
Securities of the series will not be determinable as of any one or more
dates prior to such Stated Maturity, the amount which will be deemed to
be such principal amount as of any such date for any purpose, including
the principal amount thereof which will be due and payable upon any
maturity other than the Stated Maturity or which will be deemed to be
Outstanding as of any such date (or, in any such case, the manner in
which such deemed principal amount is to be determined); and the manner
of determining the equivalent thereof in the currency of the United
States of America for purposes of the definition of Dollar Equivalent;
(12) any changes or additions to Article XI, including the addition of
additional covenants that may be subject to the covenant defeasance
option pursuant to Section 11.02(b)(ii);
(13) if other than such coin or Currency of the United States as at the
time of payment is legal tender for payment of public and private
debts, the coin or Currency or Currencies or units of two or more
Currencies in which payment of the principal of and premium, if any,
and interest on, Debt Securities of the series shall be payable;
(14) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.01 or provable in bankruptcy pursuant to Section
6.02;
(15) the terms, if any, of the transfer, mortgage, pledge or assignment
as security for the Debt Securities of the series of any properties,
assets, moneys, proceeds, securities or other collateral, including
whether certain provisions of the Trust Indenture Act are applicable
and any corresponding changes to provisions of this Indenture as
currently in effect;
(16) any addition to or change in the Events of Default with respect to
the Debt Securities of the series and any change in the right of the
Trustee or the Holders to declare the principal of and interest on,
such Debt Securities due and payable;
(17) if the Debt Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities, the terms and
conditions, if any, in addition to or in lieu of the terms and
conditions set forth in Section 2.15(c), upon which such Global
Security or Securities may be exchanged in whole or in part for other
individual Debt Securities in definitive registered form; and the
Depositary for such Global Security or Securities and the form of any
legend or legends to be borne by any such Global Security or Securities
in addition to or in lieu of the legend referred to in Section 2.15;
(18) any trustees, authenticating or paying agents, transfer agents or
registrars;
(19) the applicability of, and any addition to or change in the
covenants and definitions currently set forth in this Indenture or in
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the terms currently set forth in Article X, including conditioning
any merger, conveyance, transfer or lease permitted by Article X upon
the satisfaction of an Indebtedness coverage standard by the Company
and Successor Company (as defined in Article X);
(20) the terms, if any, of any Guarantee of the payment of principal
of, and premium, if any, and interest on, Debt Securities of the series
and any corresponding changes to the provisions of this Indenture as
currently in effect;
(21) the subordination, if any, of the Debt Securities of the series
pursuant to Article XII and any changes or additions to Article XII
with respect to such Debt Securities;
(22) with regard to Debt Securities of the series that do not bear
interest, the dates for certain required reports to the Trustee; and
(23) any other terms of the Debt Securities of the series (which terms
shall not be prohibited by the provisions of this Indenture).
All Debt Securities of any one series appertaining thereto shall be
substantially identical except as to denomination and except as may otherwise be
provided in or pursuant to such resolution of the Board of Directors and as set
forth in such Officers' Certificate or in any such Indenture supplemental
hereto.
Unless otherwise expressly provided with respect to a series of Debt Securities,
the aggregate principal amount of a series of Debt Securities may be increased
by or pursuant to a resolution of the Board of Directors and additional Debt
Securities of such series may be issued up to the increased maximum aggregate
principal amount so authorized.
SECTION 2.04. Execution of Debt Securities. The Debt Securities shall be
signed on behalf of the Company by its Chairman of the Board, its Vice Chairman,
its President or a Vice President and by its Secretary, an Assistant Secretary,
a Treasurer or an Assistant Treasurer. Such signatures upon the Debt Securities
may be the manual or facsimile signatures of the present or any future such
authorized officers and may be imprinted or otherwise reproduced on the Debt
Securities. The seal of the Company, if any, may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Debt Securities.
Only such Debt Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, signed manually by an authorized
officer of the Trustee, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. Such certificate by the Trustee upon any
Debt Security executed by the Company shall be conclusive evidence that the Debt
Security so authenticated has been duly authenticated and delivered hereunder.
In case any officer of the Company who shall have signed any of the Debt
Securities shall cease to be such officer before the Debt Securities so signed
shall have been authenticated and delivered by the Trustee, or disposed of by
the Company, such Debt Securities nevertheless may be authenticated and
delivered or disposed of as though the Person who signed such Debt Securities
had not ceased to be such officer of the Company; and any Debt Security may be
signed on behalf of the Company by such Persons as, at the actual date of the
execution of such Debt Security, shall be the proper officers of the Company,
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although at the date of such Debt Security or of the execution of this Indenture
any such Person was not such officer.
SECTION 2.05. Authentication and Delivery of Debt Securities. At any time and
from time to time after the execution and delivery of this Indenture, the
Company may deliver Debt Securities of any series executed by the Company to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver said Debt Securities pursuant to a Company Order. In authenticating such
Debt Securities and accepting the additional responsibilities under this
Indenture in relation to such Debt Securities, the Trustee shall be entitled
to receive, and (subject to Section 7.01.) shall be fully protected in relying
upon:
(1) a copy of any resolution or resolutions of the Board of Directors,
certified by the Secretary or Assistant Secretary of the Company,
authorizing the terms of issuance of the series of Debt
Securities;
(2) an executed supplemental Indenture, if any;
(3) an Officers' Certificate prepared pursuant to Section 13.05 and, if
applicable, pursuant to Sections 2.03 and 9.03; and
(4) an opinion of Counsel prepared in accordance with Section 13.05
which shall also state:
(a) that the form of such Debt Securities has been established by or
pursuant to a resolution of the Board of Directors or by a supplemental
Indenture as permitted by Section 2.01 in conformity with the
provisions of this Indenture;
(b) that the terms of such Debt Securities have been established by or
pursuant to a resolution of the Board of Directors or by a supplemental
Indenture as permitted by Section 2.03 in conformity with the
provisions of this Indenture, and, in the case of the issuance of Debt
Securities pursuant to Section 2.16, the terms of such Debt Securities
that have been established by or pursuant to a resolution of the Board
of Directors or by a supplemental Indenture have been established as
permitted by Section 2.03 in conformity with the provisions of the
Indenture and, when such other terms as are to be established pursuant
to procedures set forth in a Company Order or pursuant to such other
procedures as shall have been provided for with respect to such Debt
Securities shall have been established, all such terms will have been
established in conformity with the provisions of this Indenture ;
(c) that such Debt 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 except as the enforceability thereof may be
limited by (i) bankruptcy, insolvency, reorganization or similar laws
affecting the enforcement of creditors' rights generally and (ii)
general principles of equity, whether such principles are considered in
a proceeding at law or in equity;
(d) that the Company has the corporate power to issue such Debt
Securities and has duly taken all necessary corporate action with
respect to such issuance;
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(e) that the issuance of such Debt Securities will not contravene the
charter or by-laws of the Company or result in any material violation
of any of the terms or provisions of any law or regulation or of any
indenture, mortgage or other agreement known to such counsel by which
the Company is bound;
(f) that authentication and delivery of such Debt Securities and the
execution and delivery of any supplemental Indenture will not violate
the terms of this Indenture; and
(g) such other matters as the Trustee may reasonably request.
Such Opinion of Counsel need express no opinion as to whether a court in the
United States would render a money judgment in a currency other than that of the
United States.
The Trustee shall have the right to decline to authenticate and deliver any Debt
Securities under this Section 2.05 if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in good
faith by its board of directors or trustees, executive committee or a trust
committee of directors or trustees and/or vice presidents shall determine that
such action would expose the Trustee to personal liability to existing Holders
or would adversely affect the Trustee's rights, duties, obligations or
immunities under this Indenture in a manner which is not reasonably acceptable
to the Trustee.
The Trustee may appoint an authenticating agent reasonably acceptable to the
Company to authenticate Debt Securities of any series. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Debt
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, paying agent or agent
for service of notices and demands.
Unless otherwise provided in the form of Debt Security for any series, each Debt
Security shall be dated the date of its authentication.
SECTION 2.06. Denomination of Debt Securities. Unless otherwise provided in the
form of Debt Security for any series, the Debt Securities of each series shall
be issuable only as Registered Securities in such denominations as shall be
specified or contemplated by Section 2.03. In the absence of any such
specification with respect to the Debt Securities of any series, the Debt
Securities of such series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
SECTION 2.07. Registration of Transfer and Exchange.
(a) The Company shall keep or cause to be kept a register for each
series of Registered Securities issued hereunder (hereinafter collectively
referred to as the "Debt Security Register"), in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfer or
exchange of Registered Securities as in this Article II provided. At all
reasonable times the Debt Security Register shall be open for inspection by the
Trustee. Subject to Section 2.15, upon due presentment for registration of
transfer of any Registered Security at any office or agency to be maintained by
the Company in accordance with the provisions of Section 4.02, the Company
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shall execute and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Registered Security or Registered Securities of
the same series, for a like aggregate principal amount and tenor, in authorized
denominations.
Unless and until otherwise determined by the Company by resolution of the Board
of Directors, the register of the Company for the purpose of registration,
exchange or registration of transfer of the Registered Securities shall be kept
at the corporate trust office of the Trustee and, for this purpose, the Trustee
shall be designated "Registrar".
Registered Securities of any series (other than a Global Security) may be
exchanged for a like aggregate principal amount and tenor of Registered
Securities of the same series of other authorized denominations.
Subject to Section 2.15, Registered Securities to be exchanged shall be
surrendered at the office or agency to be maintained by the Company as provided
in Section 4.02, and the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor the Registered Security or
Registered Securities which the Holder making the exchange shall be entitled to
receive.
(b) All Registered Securities presented or surrendered for
registration of transfer, exchange or payment shall (if so required by the
Company, the Trustee or the Registrar) be duly endorsed or be accompanied by a
written instrument or instruments of transfer, in form satisfactory to the
Company, the Trustee and the Registrar, duly executed by the Registered Holder
or his attorney duly authorized in writing.
All Debt Securities issued in exchange for or upon transfer of Debt Securities
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture as the Debt Securities
surrendered for such exchange or transfer.
No service charge shall be made for any exchange or registration of transfer of
Debt Securities (except as provided by Section 2.09), but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto, other than those expressly
provided in this Indenture to be made at the Company's own expense or without
expense or without charge to the Holders.
The Company shall not be required (a) to issue, register the transfer of or
exchange any Debt Securities for a period of 15 days next preceding any mailing
of notice of redemption of Debt Securities of such series or (b) to register the
transfer of or exchange any Debt Securities selected, called or being called for
redemption in whole or in part, except, in the case of Debt Securities to be
redeemed in part, the portion thereof not to be so redeemed.
Prior to the due presentation for registration of transfer of any Debt Security,
the Company, the Trustee, any paying agent or any Registrar may deem and treat
the Person in whose name a Debt Security is registered as the absolute owner of
such Debt Security for the purpose of receiving payment of principal of, and
premium, if any, and (subject to Section 2.12(a)) interest on, such Debt
Security and for all other purposes whatsoever, whether or not such Debt
Security is overdue, and none of the Company, the Trustee, any paying agent or
Registrar shall be affected by notice to the contrary.
None of the Company, the Trustee, any agent of the Trustee, any paying agent or
any Registrar will have any responsibility or liability for any aspect of the
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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 2.08. Temporary Debt Securities. Pending the preparation of definitive
Debt Securities of any series, the Company may execute and the Trustee shall
authenticate and deliver temporary Debt Securities (printed, lithographed,
photocopied, typewritten or otherwise produced) of any authorized denomination,
and substantially in the form of the definitive Debt Securities in lieu of which
they are issued, in registered form and with such omissions, insertions and
variations as may be appropriate for temporary Debt Securities, all as may be
determined by the Company with the concurrence of the Trustee. Temporary Debt
Securities may contain such reference to any provisions of this Indenture as may
be appropriate. Every temporary Debt Security shall be executed by the Company
and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive Debt
Securities.
If temporary Debt Securities of any series are issued, the Company will cause
definitive Debt Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Debt Securities of such series, the
temporary Debt Securities of such series shall be exchangeable for definitive
Debt Securities of such series upon surrender of the temporary Debt Securities
of such series at the office or agency of the Company at a Place of Payment for
such series, without charge to the Holder thereof, except as provided in Section
2.07 in connection with a transfer, and upon surrender for cancellation of any
one or more temporary Debt Securities of any series, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Debt Securities of the same series of authorized
denominations and of like tenor. Until so exchanged, temporary Debt Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Debt Securities of such series, except as otherwise
specified as contemplated by Section 2.03(17) with respect to the payment of
interest on Global Securities in temporary form.
Upon any exchange of a portion of a temporary Global Security for a definitive
Global Security or for the individual Debt Securities represented thereby
pursuant to Section 2.07 or this Section 2.08, the temporary Global Security
shall be endorsed by the Trustee to reflect the reduction of the principal
amount evidenced thereby, whereupon the principal amount of such temporary
Global Security shall be reduced for all purposes by the amount so exchanged and
endorsed.
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities. If (i) any
mutilated Debt Security is surrendered to the Trustee at its corporate trust
office or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debt Security, 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 paying agent harmless, and neither
the Company nor the Trustee receives notice that such Debt Security has been
acquired by a bona fide purchaser, then the Company shall execute and, upon a
Company Order, the Trustee shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Debt Security, a new Debt
Security of the same series of like tenor, form, terms and principal amount,
bearing a number not contemporaneously Outstanding. Upon the issuance of any
substituted Debt Security, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
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relation thereto and any other expenses connected therewith. In case any Debt
Security which has matured or is about to mature or which has been called for
redemption shall become mutilated or be destroyed, lost or stolen, the Company
may, instead of issuing a substituted Debt Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
Debt Security) if the applicant for such payment shall furnish the Company and
the Trustee with such security or indemnity as either may require to save it
harmless from all risk, however remote, and, in case of destruction, loss or
theft, evidence to the satisfaction of the Company and the Trustee of the
destruction, loss or theft of such Debt Security and of the ownership thereof.
Every substituted Debt Security of any series issued pursuant to the provisions
of this Section 2.09 by virtue of the fact that any Debt Security is destroyed,
lost or stolen shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Debt Security shall be
found at any time, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Debt Securities of that
series duly issued hereunder. All Debt Securities shall be held and owned upon
the express condition that the foregoing provisions are exclusive with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Debt
Securities, and shall preclude any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION 2.10. Cancellation of Surrendered Debt Securities. All Debt Securities
surrendered for payment, redemption, registration of transfer or exchange shall,
if surrendered to the Company or any paying agent or a Registrar, be delivered
to the Trustee for cancellation by it, or if surrendered to the Trustee, shall
be canceled by it, and no Debt Securities shall be issued in lieu thereof except
as expressly permitted by any of the provisions of this Indenture. All canceled
Debt Securities held by the Trustee shall be disposed of by the Trustee in
accordance with its customary procedures, and certification by the Trustee of
their disposition shall be delivered to the Company, unless otherwise directed.
On request of the Company, the Trustee shall deliver to the Company canceled
Debt Securities held by the Trustee. If the Company shall acquire any of the
Debt Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented thereby unless and until the same
are delivered or surrendered to the Trustee for cancellation. The Company may
not issue new Debt Securities to replace Debt Securities it has redeemed, paid
or delivered to the Trustee for cancellation.
SECTION 2.11. Provisions of the Indenture and Debt Securities for the Sole
Benefit of the Parties and the Holders. Nothing in this Indenture or in the
Debt Securities, expressed or implied, shall give or be construed to give to any
Person, other than the parties hereto, the Holders or any Registrar or paying
agent or the holders of Senior Indebtedness, if any, any legal or equitable
right, remedy or claim under or in respect of this Indenture, or under any
covenant, condition or provision herein contained; all its covenants, conditions
and provisions being for the sole benefit of the parties hereto, the Holders and
any Registrar and paying agents and the holders of Senior Indebtedness, if any.
SECTION 2.12. Payment of Interest; Rights Preserved.
(a) Interest on any Registered Security that 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 is registered at the close
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of business on the regular record date for such interest notwithstanding the
cancellation of such Registered Security upon any transfer or exchange
subsequent to the regular record date. Payment of interest on Registered
Securities shall be made at the corporate trust office of the Trustee (except as
otherwise specified pursuant to Section 2.03), or at the option of the Company,
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Debt Security Register or, if provided pursuant to Section
2.03 and in accordance with arrangements satisfactory to the Trustee, at the
option of the Registered Holder by wire transfer to an account designated by the
Registered Holder.
(b) Subject to the foregoing provisions of this Section 2.12 and
Section 2.17, each Debt Security of a particular series delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any
other Debt Security of the same series shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debt
Security.
SECTION 2.13. Securities Denominated in Foreign Currencies.
(a) Except as otherwise specified pursuant to Section 2.03 for
Registered Securities of any series, payment of the principal of, and premium,
if any, and interest on, Registered Securities of such series will be made in
Dollars.
(b) For the purposes of calculating the principal amount of Debt
Securities of any series denominated in a Foreign Currency or in units of two or
more Foreign Currencies for any purpose under this Indenture, the principal
amount of such Debt Securities at any time Outstanding shall be deemed to be the
Dollar Equivalent of such principal amount as of the date of any such
calculation.
In the event any Foreign Currency or currencies or units of two or more
Currencies in which any payment with respect to any series of Debt Securities
may be made ceases to be a freely convertible Currency on United States Currency
markets, for any date thereafter on which payment of principal of, or premium,
if any, or interest on, the Debt Securities of a series is due, the Company
shall select the Currency of payment for use on such date, all as provided in
the Debt Securities of such series. In such event, the Company shall, as
provided in the Debt Securities of such series, notify the Trustee of the
Currency which it has selected to constitute the funds necessary to meet the
Company's obligations on such payment date and of the amount of such Currency to
be paid. Such amount shall be determined as provided in the Debt Securities of
such series. The payment to the Trustee with respect to such payment date shall
be made by the Company solely in the Currency so selected.
SECTION 2.14. Wire Transfers. Notwithstanding any other provision to the
contrary in this Indenture, the Company may make any payment of monies required
to be deposited with the Trustee on account of principal of, or premium, if any,
or interest on, the Debt Securities (whether pursuant to optional or mandatory
redemption payments, interest payments or otherwise) by wire transfer of
immediately available funds to an account designated by the Trustee on or before
the date such moneys are to be paid to the Holders of the Debt Securities in
accordance with the terms hereof.
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SECTION 2.15. Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to Sections 2.01 and 2.03
that the Debt Securities of a particular series are to be issued in whole or in
part in the form of one or more Global Securities, then the Company shall
execute and the Trustee or its agent shall, in accordance with Section 2.05,
authenticate and deliver, such Global Security or Securities, which (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, the Outstanding Debt Securities of such series to be
represented by such Global Security or Securities, or such portion thereof as
the Company shall specify in an Officers' Certificate or Company Order, (ii)
shall be registered in the name of the Depositary for such Global Security
or securities or its nominee, (iii) shall be delivered by the Trustee or its
agent to the Depositary or pursuant to the Depositary's instruction and (iv)
shall bear a legend substantially to the following effect: "Unless and until
it is exchanged in whole or in part for the individual Debt Securities
represented hereby, this Global Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary", or such other legend as may then be required by the
Depositary for such Global Security or Securities.
(b) Notwithstanding any other provision of this Section 2.15 or of
Section 2.07 to the contrary, and subject to the provisions of paragraph (c)
below, unless the terms of a Global Security expressly permit such Global
Security to be exchanged in whole or in part for definitive Debt Securities in
registered form, a Global Security may be transferred, in whole but not in part
and in the manner provided in Section 2.07, only by the Depositary to a nominee
of the Depositary for such Global Security, or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary, or by the Depositary or a
nominee of the Depositary to a successor Depositary for such Global Security
selected or approved by the Company, or to a nominee of such successor
Depositary.
(c) (i) If at any time the Depositary for a Global Security or
Securities notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or Securities or if at any time the
Depositary for the Debt Securities for such series shall no longer be eligible
or in good standing under the Exchange Act or other applicable statute, rule or
regulation, the Company shall appoint a successor Depositary with respect to
such Global Security or Securities. If a successor Depositary for such Global
Security or Securities is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company
shall execute, and the Trustee or its agent, upon receipt of a Company Order for
the authentication and delivery of such individual Debt Securities of such
series in exchange for such Global Security, will authenticate and deliver,
individual Debt Securities of such series of like tenor and terms in definitive
form in an aggregate principal amount equal to the principal amount of the
Global Security in exchange for such Global Security or Securities. (ii) The
Company may at any time and in its sole discretion determine that the Debt
Securities of any series or portion thereof issued or issuable in the form of
one or more Global Securities shall no longer be represented by such Global
Security or Securities. In such event the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery
of individual Debt Securities of such series in exchange in whole or in part for
such Global Security, will authenticate and deliver individual Debt Securities
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of such series of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of such series or portion thereof
in exchange for such Global Security or Securities. (iii) If specified by the
Company pursuant to Sections 2.01 and 2.03 with respect to Debt Securities
issued or issuable in the form of a Global Security, the Depositary for such
Global Security may surrender such Global Security in exchange in whole or in
part for individual Debt Securities of such series of like tenor and terms in
definitive form on such terms as are acceptable to the Company, the Trustee and
such Depositary. Thereupon the Company shall execute, and the Trustee or its
agent upon receipt of a Company Order for the authentication and delivery of
definitive Debt Securities of such series shall authenticate and deliver,
without service charge, (1) to each Person specified by such Depositary a new
Debt Security or Securities of the same series of like tenor and terms 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; and (2) to such Depositary a new Global Security of like tenor
and terms and in an authorized denomination equal to the difference, if any,
between the principal amount of the surrendered Global Security and the
aggregate principal amount of Debt Securities delivered to Holders thereof. (iv)
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee or its agent will authenticate and deliver
individual Debt Securities. Upon the exchange of the entire principal amount of
a Global Security for individual Debt Securities, such Global Security shall be
canceled by the Trustee or its agent. Except as provided in the preceding
paragraph, Registered Securities issued in exchange for a Global Security
pursuant to this Section 2.15 shall be registered in such names and in such
authorized denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or the Registrar. The Trustee or the Registrar shall
deliver such Registered Securities to the Persons in whose names such Registered
Securities are so registered. (v) Payments in respect of the principal of and
interest on any Debt Securities registered in the name of the Depositary or its
nominee will be payable to the Depositary or such nominee in its capacity as the
registered owner of such Global Security. The Company and the Trustee may treat
the Person in whose name the Debt Securities, including the Global Security, are
registered as the owner thereof for the purpose of receiving such payments and
for any and all other purposes whatsoever. None of the Company, the Trustee, any
Registrar, the paying agent or any agent of the Company or the Trustee will have
any responsibility or liability for (a) any aspect of the records relating to or
payments made on account of the beneficial ownership interests of the Global
Security by the Depositary or its nominee or any of the Depositary's direct or
indirect participants, or for maintaining, supervising or reviewing any records
of the Depositary, its nominee or any of its direct or indirect participants
relating to the beneficial ownership interests of the Global Security, (b) the
payments to the beneficial owners of the Global Security of amounts paid to the
Depositary or its nominee, or (c) any other matter relating to the actions and
practices of the Depositary, its nominee or any of its direct or indirect
participants. None of the Company, the Trustee or any such agent will be liable
for any delay by the Depositary, its nominee, or any of its direct or indirect
participants in identifying the beneficial owners of the Debt Securities, and
the Company and the Trustee may conclusively rely on, and will be protected in
relying on, instructions from the Depositary or its nominee for all purposes
(including with respect to the registration and delivery, and the respective
principal amounts, of the Debt Securities to be issued).
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SECTION 2.16. Medium Term Securities. Notwithstanding any contrary provision
herein, if all Debt Securities of a series are not to be originally issued at
one time, it shall not be necessary for the Company to deliver to the Trustee an
Officers' Certificate, resolutions of the Board of Directors, supplemental
Indenture, Opinion of Counsel or written order or any other document otherwise
required pursuant to Section 2.01, 2.03, 2.05 or 13.05 at or prior to the time
of authentication of each Debt Security of such series if such documents are
delivered to the Trustee or its agent at or prior to the authentication upon
original issuance of the first such Debt Security of such series to be issued;
provided, that any subsequent request by the Company to the Trustee to
authenticate Debt Securities of such series upon original issuance shall
constitute a representation and warranty by the Company that, as of the date of
such request, the statements made in the Officers' Certificate delivered
pursuant to Section 2.05 or 13.05 shall be true and correct as if made on such
date and that the Opinion of Counsel delivered at or prior to such time of
authentication upon original issuance of Debt Securities shall specifically
state that it shall relate to all subsequent issuances of Debt Securities of
such series that are identical to the Debt Securities issued in the first
issuance of Debt Securities of such series.
A Company Order delivered by the Company to the Trustee in the circumstances set
forth in the preceding paragraph, may provide that Debt Securities which are the
subject thereof will be authenticated and delivered by the Trustee or its agent
on original issue from time to time upon the telephonic, electronic or written
order of Persons designated in such written order (any such telephonic or
electronic instructions to be promptly confirmed in writing by such Person) and
that such Persons are authorized to determine, consistent with the Officers'
Certificate, supplemental Indenture or resolution of the Board of Directors
relating to such written order, such terms and conditions of such Debt
Securities as are specified in such Officers' Certificate, supplemental
Indenture or such resolution.
SECTION 2.17. Defaulted Interest. Any interest on any Debt Security of a
particular series which is payable, but is not punctually paid or duly provided
for, on the dates and in the manner provided in the Debt Securities of such
series and in this Indenture (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Registered Holder thereof on the relevant
record date by virtue of having been such Registered Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered 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 such
Registered Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special record
date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the
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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
thereof at its address as it appears in the Debt Security Register, not
less than 10 days prior to such special record date. Notice of the
proposed payment of such Defaulted Interest and the special record date
therefor having been so mailed, such Defaulted interest shall be paid
to the Persons in whose names the Registered Securities of such series
are registered at the close of business on such special record date.
(ii) The Company may make payment of any Defaulted Interest on the
Registered Securities of such series 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
clause, such manner of payment shall be deemed practicable by the
Trustee.
SECTION 2.18. Judgments. The Company may provide pursuant to Section 2.03 for
Debt Securities of any series that (a) the obligation, if any, of the Company to
pay the principal of, and premium, if any, and interest on, the Debt Securities
of any series in a Foreign Currency or Dollars (the "Designated Currency") as
may be specified pursuant to Section 2.03 is of the essence and agrees that, to
the fullest extent possible under applicable law, judgments in respect of Debt
Securities of such series shall be given in the Designated Currency; (b) the
obligation of the Company to make payments in the Designated Currency of the
principal of, and premium, if any, and interest on, such Debt Securities shall,
notwithstanding any payment in any other Currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in the
Designated Currency that the Holder receiving such payment may, in accordance
with normal banking procedures, purchase with the sum paid in such other
Currency (after any premium and cost exchange) on the business day in the
country of issue of the Designated Currency or in the international banking
community (in the case of a composite currency) immediately following the day on
which such Holder receives such payment; (c) if the amount in the Designated
Currency that may be so purchased for any reason falls short of the amount
originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
ARTICLE III
Redemption of Debt Securities
SECTION 3.01. Applicability of Article. The provisions of this Article shall
be applicable to the Debt Securities of any series which are redeemable before
their Stated Maturity except as otherwise specified as contemplated by Section
2.03 for Debt Securities of such series.
SECTION 3.02. Notice of Redemption; Selection of Debt Securities. In case the
Company shall desire to exercise the right to redeem all or any part of the Debt
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Securities of any series, as the case may be, in accordance with their terms,
the Company shall fix a date for redemption and shall give notice of such
redemption at least 30 and not more than 60 days prior to the date fixed for
redemption to the Holders of Debt Securities of such series so to be redeemed as
a whole or in part, in the manner provided in Section 13.03. The notice if
given in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder receives such notice. In any case,
failure to give such notice or any defect in the notice to the Holder of any
Debt Security of a series designated for redemption as a whole or in part shall
not affect the validity of the proceedings for the redemption of any other Debt
Security of such series.
Each such notice of redemption shall specify the date fixed for redemption, the
redemption price at which Debt Securities of such series are to be redeemed, the
Place or Places of Payment that payment will be made upon presentation and
surrender of such Debt Securities, that any interest accrued to the date fixed
for redemption will be paid as specified in said notice, that the redemption is
for a sinking fund payment (if applicable), that, if the Company defaults on
making such redemption payment or if the Debt Securities of that series are
subordinated pursuant to the terms of Article XII the paying agent is prohibited
from making such payment pursuant to the terms of this Indenture, that on and
after said date any interest thereon or on the portions thereof to be redeemed
will cease to accrue, that in the case of Original Issue Discount Securities
original issue discount accrued after the date fixed for redemption will cease
to accrue, the provision of the Debt Securities of that series pursuant to which
the Debt Securities of that series are being redeemed, the CUSIP numbers of
the Debt Securities of that series being redeemed and that no representation is
made as to the correctness or accuracy of the CUSIP number listed in such notice
or printed on the Debt Securities of that series. In case any Debt Security of a
series is to be redeemed in part only, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such Debt Security, a
new Debt Security or Debt Securities of that series in principal amount equal
to the unredeemed portion thereof will be authenticated and delivered in
exchange for the unredeemed portion of the principal of the Debt Security so
surrendered.
At least 60 days before the redemption date unless the Trustee consents to a
shorter period, the Company shall give notice to the Trustee of the redemption
date, the principal amount of Debt Securities to be redeemed and the series and
terms of the Debt Securities pursuant to which such redemption will occur. Such
notice shall be accompanied by an Officers' Certificate and an Opinion of
Counsel from the Company to the effect that such redemption will comply with the
conditions herein.
On or prior to the redemption date for any Registered Securities, the Company
shall deposit with the Trustee or with a paying agent (or, if the Company is
acting as its own paying agent, segregate and hold in trust) an amount of money
in the Currency in which such Debt Securities are denominated (except as
provided pursuant to Section 2.03) sufficient to pay the redemption price of
such Registered Securities or any portions thereof that are to be redeemed on
that date.
If less than all the Debt Securities of like tenor and terms of a series are to
be redeemed (other than pursuant to mandatory sinking fund redemptions), the
Trustee shall select, in such manner as in its sole discretion it shall deem
appropriate and fair, the Debt Securities of that series or portions thereof (in
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authorized denominations) to be redeemed. In any case where more than one
Registered Security of such series is registered in the same name, the Trustee
in its discretion may treat the aggregate principal amount so registered as if
it were represented by one Registered Security of such series. The Trustee shall
promptly notify the Company in writing of the Debt Securities selected for
redemption and, in the case of any Debt Securities selected for partial
redemption, the principal amount thereof to be redeemed. If any Debt Security
called for redemption shall not be so paid upon surrender thereof on such
redemption date, the principal, premium, if any, and interest shall bear
interest until paid from the redemption date at the rate borne by the Debt
Securities of that series. If less than all the Debt Securities of unlike tenor
and terms of a series are to be redeemed, the particular Debt Securities to be
redeemed shall be selected by the Company. Provisions of this Indenture that
apply to Debt Securities called for redemption also apply to portions of Debt
Securities called for redemption.
SECTION 3.03. Payment of Debt Securities Called for Redemption. If notice of
redemption has been given as provided in Section 3.02, the Debt Securities or
portions of Debt Securities of the series with respect to which such notice has
been given shall become due and payable on the date and at the Place or Places
of Payment stated in such notice at the applicable redemption price, together
with any interest accrued to the date fixed for redemption, and on and after
said date (unless the Company shall default in the payment of such Debt
Securities at the applicable redemption price, together with any interest
accrued to said date) any interest on the Debt Securities or portions of Debt
Securities of any series so called for redemption shall cease to accrue
and any original issue discount in the case of Original Issue Discount
Securities shall cease to accrue. On presentation and surrender of such Debt
Securities at the Place or Places of Payment in said notice specified,
the said Debt Securities or the specified portions thereof shall be paid and
redeemed by the Company at the applicable redemption price, together with any
interest accrued thereon to the date fixed for redemption.
Any Debt Security that is to be redeemed only in part shall be surrendered at
the corporate trust office of the Trustee or such other office or agency of the
Company as is specified pursuant to Section 2.03, with, if the Company, the
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Registrar 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 Debt Security without service charge, a new
Debt Security or Debt Securities of the same series, of like tenor and form, of
any authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Debt Security so surrendered; except that if a Global Security is so
surrendered, the Company shall execute, and the Trustee shall authenticate and
deliver to the Depositary for such Global Security, without service charge, a
new Global Security in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Global Security so surrendered. In
the case of a Debt Security providing appropriate space for such notation, at
the option of the Holder thereof, the Trustee, in lieu of delivering a new Debt
Security or Debt Securities as aforesaid, may make a notation on such Debt
Security of the payment of the redeemed portion thereof.
SECTION 3.04. Mandatory and Optional Sinking Funds. The minimum amount of any
sinking fund payment provided for by the terms of Debt Securities of any series,
resolution of the Board of Directors or a supplemental Indenture is herein
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referred to as a "mandatory sinking fund payment", and any payment in excess of
such minimum amount provided for by the terms of Debt Securities of any series,
resolution of the Board of Directors or a supplemental Indenture is herein
referred to as an "optional sinking fund payment".
In lieu of making all or any part of any mandatory sinking fund payment with
respect to any Debt Securities of a series in cash, the Company may at its
option (a) deliver to the Trustee Debt Securities of that series theretofore
purchased or otherwise acquired by the Company or (b) receive credit for the
principal amount of Debt Securities of that series which have been redeemed
either at the election of the Company pursuant to the terms of such Debt
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Debt Securities, resolution or
supplemental Indenture; provided, that such Debt Securities have not been
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee at the redemption price specified in such Debt
Securities, resolution or supplemental Indenture for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 3.05. Redemption of Debt Securities for Sinking Fund. Not less than 60
days prior to each sinking fund payment date for any series of Debt Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash in the Currency in which the Debt Securities of such series are
denominated (except as provided pursuant to Section 2.03) and the portion
thereof, if any, which is to be satisfied by delivering and crediting Debt
Securities of that series pursuant to this Section 3.05 (which Debt Securities,
if not previously redeemed, will accompany such certificate), the basis for such
credit and that such Debt Securities have not been previously so credited and
whether the Company intends to exercise its right to make any permitted optional
sinking fund payment with respect to such series. Such certificate shall also
state that no Event of Default has occurred and is continuing with respect to
such series. Such certificate shall be irrevocable and upon its delivery the
Company shall be obligated to make the cash payment or payments therein referred
to, if any, on or before the next succeeding sinking fund payment date. Failure
of the Company to deliver such certificate (or to deliver the Debt Securities
specified in this paragraph) shall not constitute a Default, but such failure
shall require that the sinking fund payment due on the next succeeding sinking
fund payment date for that series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of such Debt Securities subject to a
mandatory sinking fund payment without the option to deliver or credit Debt
Securities as provided in this Section 3.05 and without the right to make any
optional sinking fund payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in cash plus
any unused balance of any preceding sinking fund payments made in cash which
shall equal or exceed $100,000 (or a lesser sum if the Company shall so request)
with respect to the Debt Securities of any particular series shall be applied by
the Trustee on the sinking fund payment date on which such payment is made (or,
if such payment is made before a sinking fund payment date, on the sinking fund
payment date following the date of such payment) to the redemption of such Debt
Securities at the redemption price specified in such Debt Securities, resolution
or supplemental Indenture for operation of the sinking fund together with any
accrued interest to the date fixed for redemption. Any sinking fund moneys not
so applied or allocated by the Trustee to the redemption of Debt Securities
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shall be added to the next cash sinking fund payment received by the Trustee for
such series and, together with such payment, shall be applied in accordance with
the provisions of this Section 3.05. Any and all sinking fund moneys with
respect to the Debt Securities of any particular series held by the Trustee on
the last sinking fund payment date with respect to Debt Securities of such
series and not held for the payment or redemption of particular Debt Securities
shall be applied by the Trustee, together with other moneys, if necessary, to be
deposited sufficient for the purpose, to the payment of the principal of the
Debt Securities of that series at its Stated Maturity.
The Trustee shall select the Debt Securities to be redeemed upon such sinking
fund payment date in the manner specified in the last paragraph of Section 3.02
and the Company shall cause notice of the redemption thereof to be given in the
manner provided in Section 3.02 except that the notice of redemption shall also
state that the Debt Securities are being redeemed by operation of the sinking
fund. Such notice having been duly given, the redemption of such Debt
Securities shall be made upon the terms and in the manner stated in Section
3.03.
At least one business day before each sinking fund payment date, the Company
shall pay to the Trustee (or, if the Company is acting as its own paying agent,
the Company shall segregate and hold in trust) in cash a sum in the Currency in
which the Debt Securities of such series are denominated (except as provided
pursuant to Section 2.03) equal to any interest accrued to the date fixed for
redemption of Debt Securities or portions thereof to be redeemed on such sinking
fund payment date pursuant to this Section 3.05.
The Trustee shall not redeem any Debt Securities of a series with sinking fund
moneys or mail any notice of redemption of such Debt Securities by operation of
the sinking fund for such series during the continuance of a Default in payment
of interest on such Debt Securities or of any Event of Default (other than an
Event of Default occurring as a consequence of this paragraph) with respect to
such Debt Securities, except that if the notice of redemption of any such Debt
Securities shall theretofore have been mailed in accordance with the provisions
hereof, the Trustee shall redeem such Debt Securities if cash sufficient for
that purpose shall be deposited with the Trustee for that purpose in accordance
with the terms of this Article III. Except as aforesaid, any moneys in the
sinking fund for such series at the time when any such Default or Event of
Default shall occur and any moneys thereafter paid into such sinking fund shall,
during the continuance of such Default or Event of Default, be held as security
for the payment of the Debt Securities of such series; provided, however, that
in case such Event of Default or Default shall have been cured or waived as
provided herein, such moneys shall thereafter be applied on the next sinking
fund payment date for such Debt Securities on which such moneys may be applied
pursuant to the provisions of this Section 3.05.
ARTICLE IV
Particular Covenants of the Company
SECTION 4.01. Payment of Principal of, and Premium If Any, and Interest on,
Debt Securities. The Company, for the benefit of each series of Debt
Securities, will duly and punctually pay or cause to be paid the principal of,
and premium, if any, and interest on, each of the Debt Securities at the place,
at the respective times and in the manner provided herein and in the Debt
Securities. Each installment of interest on the Debt Securities may at the
Company's option be paid by mailing checks for such interest payable to the
Person entitled thereto to the address of such Person as it appears on the Debt
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Security Register maintained pursuant to Section 2.07(a) or, if provided
pursuant to Section 2.03 and in accordance with arrangements satisfactory
to the Trustee, at the option of the Registered Holder by wire transfer to an
account designated by the Registered Holder.
Principal, premium and interest of Debt Securities of any series shall be
considered paid on the date due if on such date the Trustee or any paying agent
holds in accordance with this Indenture money sufficient to pay in the Currency
in which the Debt Securities of such series are denominated (except as provided
pursuant to Section 2.03) all principal, premium and interest then due and, in
the case of Debt Securities subordinated pursuant to the terms of Article XII,
the Trustee or such paying agent, as the case may be, is not prohibited from
paying such money to the Holders on that date pursuant to the terms of the
Indenture.
The Company shall pay interest on overdue principal at the rate specified
therefor in the Debt Securities and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. Maintenance of Offices or Agencies for Registration of Transfer,
Exchange and Payment of Debt Securities. The Company will maintain in each
Place of Payment for any series of Debt Securities, an office or agency where
Debt Securities of such series may be presented or surrendered for payment,
where Debt Securities of such series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Debt Securities of such series and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the corporate trust office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
presentations, surrenders, notices and demands.
The Company may also from time to time designate different or additional offices
or agencies to be maintained for such purposes (in or outside of such Place of
Payment), and may from time to time rescind any such designation; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligations described in the preceding paragraph. The company
will give prompt written notice to the Trustee of any such additional
designation or rescission of designation and any change in the location of any
such different or additional office or agency.
SECTION 4.03. Appointment to Fill a Vacancy in the Office of Trustee. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 7.08, a Trustee, so that there
shall at all times be a Trustee hereunder with respect to each series of Debt
Securities.
SECTION 4.04. Duties of Paying Agents, etc.
(a) The Company shall cause each paying agent, if any, other than the
Trustee, to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 4.04,
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(i) that it will hold all sums held by it as such agent for the
payment of the principal of, and premium, if any, or interest on,
the Debt Securities of any series (whether such sums have been
paid to it by the Company or by any other obligor on the Debt
Securities of such series) in trust for the benefit of the Holders
of the Debt Securities of such series;
(ii) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Debt Securities of such
series) to make any payment of the principal of and premium, if any,
or interest on, the Debt Securities of such series when the same
shall be due and payable; and
(iii) that it will at any time during the continuance of an Event of
Default, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held by it as such agent.
(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of, and premium, if any, or interest, if
any, on, the Debt Securities of any series, set aside, segregate and hold in
trust for the benefit of the Holders of the Debt Securities of such series a sum
sufficient to pay such principal, premium, if any, or interest so becoming due.
The Company will promptly notify the Trustee of any failure by the Company to
take such action or the failure by any other obligor on such Debt Securities to
make any payment of the principal of, and premium, if any, or interest on, such
Debt Securities when the same shall be due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it or any paying agent, as required by
this Section 4.04, 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.
(d) Whenever the Company shall have one or more paying agents with
respect to any series of Debt Securities, it will, prior to each due date of the
principal of, and premium, if any, or interest on, any Debt Securities of such
series, deposit with any such paying agent a sum sufficient to pay the
principal, premium or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled thereto, and (unless any such paying agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
(e) Anything in this Section 4.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 4.04 is subject to
the provisions of Section 11.05.
SECTION 4.05. Statement by Officers as to Default. The Company will deliver to
the Trustee, on or before a date not more than four months after the end of each
fiscal year of the Company (currently on a calendar year basis) ending after the
date hereof, an Officers' Certificate, one of the signatories of which shall be
the Company's principal executive officer, principal accounting officer or
principal financial officer, stating, as to each officer signing such
certificate, that (i) in the course of his performance of his duties as an
officer of the Company he would normally have knowledge of any Default, (ii)
whether or not to the best of his knowledge any Default occurred during such
year and (iii) if to the best of his knowledge the Company is in Default,
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specifying all such Defaults and what action the Company is taking or proposes
to take with respect thereto. The Company also shall comply with Section
314(a)(4) of the Trust Indenture Act.
SECTION 4.06. Further Instruments and Acts. The Company will, upon request of
the Trustee, execute and deliver such further instruments and do such further
acts as may reasonably be necessary or proper to carry out more effectually the
purposes of this Indenture.
SECTION 4.07. Existence. Subject to Article X, the Company will do or cause to
be done all things necessary to preserve and keep in full force and effect its
existence and rights (charter and statutory); provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 4.08. Maintenance of Properties. The Company will cause all properties
used or useful in the conduct of its business or the business of any Subsidiary
to be maintained and kept in good condition, repair and working order in all
material respects and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on by the Company and
its subsidiaries may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company or a
Subsidiary from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, not
materially detrimental to the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and not disadvantageous in any material respect
to the Holders.
SECTION 4.09. Payment of Taxes and Other Claims. The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a Lien upon the
property of the Company or any Subsidiary, provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
ARTICLE V
Holders' Lists and Reports
by the Company and the Trustee
SECTION 5.01. Company to Furnish Trustee Information as to Names and Addresses
of Holders; Preservation of Information. The Company covenants and agrees that
it will furnish or cause to be furnished to the Trustee with respect to the
Registered Securities of each series:
(a) not more than 15 days after each record date with respect to the
payment of interest, if any, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Registered
Holders as of such record date, and
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(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list 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 shall be the Registrar, such
lists shall not be required to be furnished.
The Trustee shall preserve, in as current a form as is reasonably practicable,
all information as to the names and addresses of the Holders (1) contained in
the most recent list furnished to it as provided in this Section 5.01 or (2)
received by it in the capacity of paying agent or Registrar (if so acting)
hereunder.
The Trustee may destroy any list furnished to it as provided in this Section
5.01 upon receipt of a new list so furnished.
SECTION 5.02. Communications to Holders. Holders may communicate pursuant to
Section 312(b) of the Trust Indenture Act with other Holders with respect to
their rights under this Indenture or the Debt Securities. The Company, the
Trustee, the Registrar and anyone else shall have the protection of Section
312(c) of the Trust Indenture Act.
SECTION 5.03. Reports by Company.
(a) The Company covenants and agrees, and any obligor hereunder shall
covenant and agree, to file with the Trustee, within 15 days after the Company
or such obligor, as the case may be, is required to file the same with the
Securities and Exchange 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 said Commission may from time to time by rules and regulations
prescribe) which the Company or such obligor, as the case may be, may be
required to file with said Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act; or, if the Company or such obligor, as the case may be, is not
required to file information, documents or reports pursuant to either of such
Sections, then to file with the Trustee and said Commission, in accordance with
rules and regulations prescribed from time to time by said Commission, such of
the supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act 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.
(b) The Company covenants and agrees, and any obligor hereunder shall
covenant and agree, to file with the Trustee and the Securities and Exchange
Commission, in accordance with the rules and regulations prescribed from time to
time by said Commission, such additional information, documents, and reports
with respect to compliance by the Company or such obligor, as the case may be,
with the conditions and covenants provided for in this Indenture as may be
required from time to time by such rules and regulations.
SECTION 5.04. Reports by Trustee. Within 60 days after May 15 of each year
commencing with the first May 15 after the first issuance of Debt Securities
pursuant to this Indenture, the Trustee shall transmit to the Holders, in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
a brief report dated as of such May 15 if required by Section 313(a) of the
Trust Indenture Act.
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The Trustee shall comply with Sections 313(b) and 313(c) of the Trust Indenture
Act.
A copy of each report at the time of its mailing to Holders shall be filed with
the Securities and Exchange Commission and each stock exchange (if any) on which
the Debt Securities of any series are listed. The Company agrees to notify
promptly the Trustee whenever the Debt Securities of any series become listed on
any stock exchange and of any delisting thereof.
SECTION 5.05. Record Dates for Action by Holders. If the Company shall solicit
from the Holders of Debt Securities of any series any action (including the
making of any demand or request, the giving of any direction, notice, consent or
waiver or the taking of any other action), the Company may, at its option, by
resolution of the Board of Directors, fix in advance a record date for the
determination of Holders of Debt Securities entitled to take such action, but
the Company shall have no obligation to do so. Any such record date shall be
fixed at the Company's discretion. If such a record date is fixed, such action
may be sought or given before or after the record date, but only the Holders of
Debt Securities of record at the close of business on such record date shall be
deemed to be Holders of Debt Securities for the purpose of determining whether
Holders of the requisite proportion of Debt Securities of such series
Outstanding have authorized or agreed or consented to such action, and for that
purpose the Debt Securities of such series Outstanding shall be computed as of
such record date.
ARTICLE VI
Remedies of the Trustee and Holders in Event of Default
SECTION 6.01. Events of Default. If any one or more of the following shall
have occurred and be continuing with respect to Debt Securities of any series
(each of the following, an "Event of Default"):
(a) default in the payment of any installment of interest upon any Debt
Securities of that series as and when the same shall become due and
payable, whether or not such payment shall be prohibited by Article
XII, if applicable, and continuance of such default for a period of 30
days; or
(b) default in the payment of the principal of or premium, if any, on
any Debt Securities of that series as and when the same shall become
due and payable, whether at maturity, upon redemption, by declaration,
upon required repurchase or otherwise, whether or not such payment
shall be prohibited by Article XII, if applicable; or
(c) default in the payment of any sinking fund payment with respect to
any Debt Securities of that series as and when the same shall become
due and payable; or
(d) failure on the part of the Company to comply with Article X; or
(e) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in the
Debt Securities of that series, in any resolution of the Board of
Directors authorizing the issuance of that series of Debt Securities,
in this Indenture with respect to such series or in any supplemental
Indenture with respect to such series (other than a covenant a default
in the performance of which is elsewhere in this Section specifically
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dealt with), continuing for a period of 60 days after the date on which
written notice, specifying such failure, requiring the Company to
remedy the same and stating that such written notice is a "Notice of
Default" hereunder, shall have been given by registered or certified
mail to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in aggregate principal amount of the Debt
Securities of that series at the time Outstanding; or
(f) Indebtedness of the Company or any Subsidiary of the Company is not
paid within any applicable grace period after final maturity or is
accelerated by the holders thereof because of a default, the total
amount of such Indebtedness unpaid or accelerated exceeds
$[______________] or its Dollar Equivalent at the time and such default
remains uncured or such acceleration is not rescinded for 10 days after
the date on which written notice specifying such failure and requiring
the Company to remedy the same shall have been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of
the Debt Securities of that series at the time Outstanding; or
(g) the Company shall (i) voluntarily commence any proceeding or file
any petition seeking relief under Title 11 of the United States Code or
any other Federal or State bankruptcy, insolvency or similar law, (ii)
consent to the institution of, or fail to controvert within the time
and in the manner prescribed by law, any such proceeding or the filing
of any such petition, (iii) apply for or consent to the appointment of
a receiver, trustee, custodian, sequestrator or similar official for
the Company or for a substantial part of its property, (iv) file an
answer admitting the material allegations of a petition filed against
it in any such proceeding, (v) make a general assignment for the
benefit of creditors, (vi) admit in writing its inability or fail
generally to pay its debts as they become due, (vii) take corporate
action for the purpose of effecting any of the foregoing, or (viii)
take any comparable action under any foreign laws relating to
insolvency; or
(h) the entry of an order or decree by a court having competent
jurisdiction in the premises for (i) relief in respect of the Company
or a substantial part of its property under Title 11 or the United
States Code or any other Federal or State bankruptcy, insolvency or
similar law, (ii) the appointment of a receiver, trustee, custodian,
sequestrator or similar official for the Company or for a substantial
part of its property, or (iii) the winding-up or liquidation of the
Company; and such order or decree shall continue unstayed and in effect
for 60 consecutive days; or any similar relief is granted under any
foreign laws and the order or decree stays in effect for 60 consecutive
days; or
(i) any other Event of Default provided under the terms of the Debt
Securities of that series;
then and in each and every case that an Event of Default with respect to Debt
Securities of that series at the time outstanding occurs and is continuing,
unless the principal of and interest on all the Debt Securities of that series
shall have already become due and payable, either the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Debt Securities of that
series then Outstanding hereunder, by notice in writing to the Company (and to
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the Trustee if given by Holders), may declare the principal of (or, if the
Debt Securities of that series are Original Issue Discount Debt Securities, such
portion of the principal amount as may be specified in the terms of that series)
and interest on all the Debt Securities of that series to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture or in the Debt
Securities of that series contained to the contrary notwithstanding.
The Holders of a majority in principal amount of the Debt Securities of a
particular series by notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
already rendered and if all existing Events of Default have been cured or waived
except nonpayment of principal or interest that has become due solely because of
acceleration and if the Company shall have paid or deposited with the Trustee a
sum sufficient to pay all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel. Upon any such rescission, the parties hereto shall be
restored respectively to their several positions and rights hereunder, and all
rights, remedies and powers of the parties hereto shall continue as though no
proceeding had been taken.
In case the Trustee or any Holder shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee or such Holder, then and in
every such case the parties hereto shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of
the parties hereto shall continue as though no such proceeding had been taken.
The foregoing Events of Default shall constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is 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.
The Company shall deliver to the Trustee, within 30 days after the occurrence
thereof, written notice in the form of an Officers' Certificate of any event
which with the giving of notice and the lapse of time would become an Event of
Default under clause (c), (d), (e), (f), (g), (h) or (i), its status and what
action the Company is taking or proposes to take with respect thereto.
SECTION 6.02. Collection of Indebtedness by Trustee, etc. If an Event of
Default occurs and is continuing, the Trustee, in its own name and as trustee of
an express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and unpaid
or enforce the performance of any provision of the Debt Securities of the
affected series or this Indenture, and may prosecute any such action or
proceedings to judgment or final decree, and may enforce any such judgment or
final decree against the Company or any other obligor upon the Debt Securities
of such series (and collect in the manner provided by law out of the property of
the Company or any other obligor upon the Debt Securities of such series
wherever situated the moneys adjudged or decreed to be payable).
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor upon the Debt Securities of
any series under Title 11 of the United States Code or any other Federal or
State bankruptcy, insolvency or similar law, or in case a receiver, trustee or
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other similar official shall have been appointed for its property, or in case of
any other similar judicial proceedings relative to the Company or any other
obligor upon the Debt Securities of any series, its creditors or its property,
the Trustee, irrespective of whether the principal of Debt Securities of any
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
pursuant to the provisions of this Section 6.02, shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the whole amount of principal, premium, if any, and interest
(or, if the Debt Securities of such series are Original Issue Discount Debt
Securities, such portion of the principal amount as may be specified in the
terms of such series) owing and unpaid in respect of the Debt Securities of such
series, 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
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities Incurred, and all advances
made, by the Trustee except as a result of its negligence or bad faith) and of
the Holders thereof allowed in any such judicial proceedings relative to the
Company, or any other obligor upon the Debt Securities of such series, its
creditors or its property, and to collect and receive any moneys or other
property payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of such Holders and of the Trustee
on their behalf, and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of such Holders to make payments to
the Trustee, and, in the event that the Trustee shall consent to the making of
payments directly to such Holders, to pay to the Trustee such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other reasonable expenses and liabilities
Incurred, and all advances made, by the Trustee except as a result of its
negligence or bad faith.
All rights of action and of asserting claims under this Indenture, or under any
of the Debt Securities, of any series, may be enforced by the Trustee without
the possession of any such Debt Securities or the production thereof in any
trial or other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment (except for any amounts payable to
the Trustee pursuant to Section 7.06) shall be for the ratable benefit of the
Holders of all the Debt Securities in respect of which such action was taken.
In case of an Event of Default hereunder the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 6.03. Application of Moneys Collected by Trustee. Any moneys or other
property collected by the Trustee pursuant to Section 6.02 with respect to Debt
Securities of any series shall be applied in the order following, at the date or
dates fixed by the Trustee for the distribution of such moneys or other
property, upon presentation of the several Debt Securities of such series in
respect of which moneys or other property have been collected, and the notation
thereon of the payment, if only partially paid, and upon surrender thereof if
fully paid:
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First: To the payment of all money due the Trustee pursuant to Section
7.06;
Second: As provided in Article XII, if applicable;
Third: In case the principal of the Outstanding Debt Securities in
respect of which such moneys have been collected shall not have become due, to
the payment of interest on the Debt Securities of such series in the order of
the maturity of the installments of such interest, with interest (to the extent
that such interest has been collected by the Trustee) upon the overdue
installments of interest at the rate or Yield to Maturity (in the case of
Original Issue Discount Debt Securities) borne by the Debt Securities of such
series, such payments to be made ratably to the Persons entitled thereto,
without discrimination or preference;
Fourth: In case the principal of the Outstanding Debt Securities in
respect of which such moneys have been collected shall have become due, by
declaration or otherwise, to the payment of the whole amount then owing and
unpaid upon the Debt Securities of such series for principal and premium, if
any, and interest, with interest on the overdue principal and premium, if any,
and (to the extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the rate or Yield to Maturity (in the case
of Original Issue Discount Debt Securities) borne by the Debt Securities of such
series; and, in case such moneys shall be insufficient to pay in full the whole
amount so due and unpaid upon the Debt Securities of such series, then to the
payment of such principal and premium, if any, and interest, without preference
or priority of principal and premium, if any, over interest, or of interest over
principal and premium, if any, or of any installment of interest over any other
installment of interest, or of any Debt Security of such series over any Debt
Security of such series, ratably to the aggregate of such principal and premium,
if any, and interest; and
Fifth: The remainder, if any, shall be paid to the Company, its
successors or assigns, or to whomsoever may be lawfully entitled to receive the
same, or as a court of competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 6.03. At least 15 days before such record date, the
Company shall mail to each Holder and the Trustee a notice that states the
record date, the payment date and amount to be paid.
SECTION 6.04. Limitation on Suits by Holders. No Holder of any Debt Security
of any series shall have any right by virtue or by availing of any provision of
this Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise, upon or under or with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless such Holder previously shall have given to the Trustee written notice of
an Event of Default with respect to Debt Securities of that same series and of
the continuance thereof and unless the Holders of not less than 25% in aggregate
principal amount of the Outstanding Debt Securities of that series shall have
made written request upon the Trustee to institute such action or proceedings in
respect of such Event of Default in its own name as Trustee hereunder and shall
have offered to the Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be Incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceedings and no
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direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 6.06; it being understood and intended, and being
expressly covenanted by the Holder of every Debt Security with every other
Holder and the Trustee, that no one or more Holders shall have any right in any
manner whatever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any Holders, or to obtain or seek to
obtain priority over or preference to any other such Holder, or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all such Holders. For the protection and
enforcement of the provisions of this Section 6.04, each and every Holder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Notwithstanding any other provision in this Indenture, however, the right of any
Holder of any Debt Security to receive payment of the principal of, and premium,
if any, and (subject to Section 2.12) interest on, such Debt Security on or
after the respective due dates expressed in such Debt Security, and to institute
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or effected without the consent of such Holder.
SECTION 6.05. Remedies Cumulative; Delay or Omission in Exercise of Rights Not
a Waiver of Default. All powers and remedies given by this Article VI to the
Trustee or to the Holders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or the Holders, by judicial proceedings or otherwise,
to enforce the performance or observance of the covenants and agreements
contained in this Indenture, and no delay or omission of the Trustee or of any
Holder to exercise any right or power accruing upon any Default occurring and
continuing as aforesaid, shall impair any such right or power, or shall be
construed to be a waiver of any such Default or an acquiescence therein; and,
subject to the provisions of Section 6.04, every power and remedy given by this
Article VI or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as shall be deemed expedient, by the Trustee or by the
Holders.
SECTION 6.06. Rights of Holders of Majority in Principal Amount of Debt
Securities to Direct Trustee and to Waive Default. The Holders of a majority in
aggregate principal amount of the Debt Securities of any series at the time
Outstanding 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 Debt Securities
of such series; provided, however, that such direction shall not be otherwise
than in accordance with law and the provisions of this Indenture, and that
subject to the provisions of Section 7.01, the Trustee shall have the right to
decline to follow any such direction if the Trustee being advised by counsel
shall determine that the action so directed may not lawfully be taken, or if the
Trustee shall by a responsible officer or officers determine that the action so
directed would involve it in personal liability or would be unjustly prejudicial
to Holders of Debt Securities of such series not taking part in such direction;
and provided further, however, that nothing in this Indenture contained shall
impair the right of the Trustee to take any action deemed proper by the Trustee
and which is not inconsistent with such direction by such Holders. The Holders
of a majority in aggregate principal amount of the Debt Securities of that
series at the time Outstanding may on behalf of the Holders of all the Debt
Securities of that series waive any past Default or Event of Default and its
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consequences for that series specified in the terms thereof as contemplated by
Section 2.03, except (i) a Default in the payment of the principal of, and
premium, if any, or interest on, any of the Debt Securities and (ii) a Default
in respect of a provision that under Section 9.02 cannot be amended without the
consent of each Holder affected thereby. In case of any such waiver, such
Default shall cease to exist, any Event of Default arising there from shall be
deemed to have been cured for every purpose of this Indenture, and the Company,
the Trustee and the Holders of the Debt Securities of that series shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
SECTION 6.07. Trustee to Give Notice of Defaults Known to It, but May Withhold
Such Notice in Certain Circumstances. The Trustee shall, within 90 days after
the occurrence of a Default known to it with respect to a series of Debt
Securities give to the Holders thereof, in the manner provided in Section 13.03,
notice of all Defaults with respect to such series known to the Trustee, unless
such Defaults shall have been cured or waived before the giving of such notice;
provided that, except in the case of Default in the payment of the principal of,
or premium, if any, or interest on, any of the Debt Securities of such series or
in the making of any sinking fund payment with respect to the Debt Securities of
such series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a committee of
directors or responsible officers of the Trustee in good faith determine that
the withholding of such notice is in the interests of the Holders thereof.
SECTION 6.08. Requirement of an Undertaking to Pay Costs in Certain Suits under
the Indenture or Against the Trustee. All parties to this Indenture agree, and
each Holder of any Debt Security 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 in
the manner and to the extent provided in the Trust Indenture Act, 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 6.08 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 ten percent in principal amount of
the Outstanding Debt Securities of that series or to any suit instituted by any
Holder for the enforcement of the payment of the principal of, or premium, if
any, or interest on, any Debt Security on or after the due date for such payment
expressed in such Debt Security.
ARTICLE VII
Concerning the Trustee
SECTION 7.01. Certain Duties and Responsibilities. The Trustee, prior to the
occurrence of an Event of Default and after the curing or waiving of all Events
of Default which may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture. In case an Event
of Default has occurred (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
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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 wilful misconduct, except that:
(a) this subsection shall not be construed to limit the effect of the
first paragraph of this Section 7.01;
(b) prior to the occurrence of an Event of Default with respect to the
Debt Securities of a series and after the curing or waiving of all
Events of Default with respect to such series which may have
occurred:
(1) the duties and obligations of the Trustee with respect to Debt
Securities of such series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations with respect
to such series as are specifically set forth in this Indenture, and no
implied covenants or obligations with respect to such series shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any 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; but the Trustee shall examine the evidence furnished to it
pursuant to Section 5.03 to determine whether or not such evidence
conforms to the requirement of this Indenture;
(c) the Trustee shall not be liable for an 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;
(d) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it with respect to Debt Securities of any series
in good faith in accordance with the direction of the Holders of not
less than a majority in aggregate principal amount of the Outstanding
Debt Securities of that series relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to Debt Securities of such series; and
(e) none of the provisions of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any personal
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if there shall be
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
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.
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SECTION 7.02. Certain Rights of Trustee. Except as otherwise provided in
Section 7.01:
(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, note or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Company Order (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by the Secretary or an Assistant Secretary of
the Company;
(c) the Trustee may consult with counsel, and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders of Debt Securities of any series
pursuant to the provisions of this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which may be Incurred therein or
thereby;
(e) the Trustee shall not be liable for any action taken or omitted 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;
(f) prior to the occurrence of an Event of Default and after the curing
or waiving of all Events of Default which may have occurred, 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, approval
or other paper or document, unless requested in writing to do so by the
Holders of a majority in aggregate principal amount of the then
outstanding Debt Securities of a series affected by such matter;
provided, however, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be Incurred by
it in the making of such investigation is not, in the opinion of the
Trustee, reasonably assured to the Trustee by the security afforded to
it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such costs, expenses or liabilities as a condition to
so proceeding. The reasonable expense of every such investigation shall
be paid by the Company or, if paid by the Trustee, shall be repaid by
the Company upon demand;
(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 by it with
due care hereunder; and
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(h) if any property other then cash shall at any time be subject to a
Lien in favor of the Holders, the Trustee, if and to the extent
authorized by a receivership or bankruptcy court of competent
jurisdiction or by the supplemental instrument subjecting such property
to such Lien, shall be entitled to make advances for the purpose of
preserving such property or of discharging tax Liens or other prior
Liens or encumbrances thereon.
SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in Debt
Securities. The recitals contained herein and in the Debt Securities (except the
Trustee's certificate of authentication) shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Debt Securities of any series, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Debt Securities and perform its obligations hereunder, and that
the statements made by it or to be made by it in a Statement of Eligibility and
Qualification on Form T-1 supplied to the Company are true and accurate. The
Trustee shall not be accountable for the use or application by the Company of
any of the Debt Securities or of the proceeds thereof. The Trustee shall not be
charged with knowledge of any Default or Event of Default hereunder unless an
officer of the Trustee assigned to and working in its corporate trust office
shall have actual knowledge thereof or unless notice thereof shall have been
given to the Trustee in accordance with Section 13.03 by the Company or any
Holder.
SECTION 7.04. Trustee, Paying Agent or Registrar May Own Debt Securities. The
Trustee or any paying agent or Registrar, in its individual or any other
capacity, may become the owner or pledgee of Debt Securities and subject to the
provisions of the Trust Indenture Act relating to conflicts of interest and
preferential claims may otherwise deal with the Company with the same rights it
would have if it were not Trustee, paying agent or Registrar.
SECTION 7.05. Moneys Received by Trustee to Be Held in Trust. Subject to the
provisions of Section 11.05, all moneys received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to the
extent required by law. The Trustee shall be under no liability for interest on
any moneys received by it hereunder. So long as no Event of Default shall have
occurred and be continuing, all interest allowed on any such moneys shall be
paid from time to time to the Company upon a Company Order.
SECTION 7.06. Compensation and Reimbursement. The Company covenants and agrees
to pay in Dollars to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation for all services rendered by it hereunder
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and, except as otherwise
expressly provided herein, the Company will pay or reimburse in Dollars the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents, attorneys and counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advances as
may arise from its negligence or bad faith. The Company also covenants to
indemnify in Dollars the Trustee for, and to hold it harmless against, any loss,
liability or expense Incurred without negligence, wilful misconduct or bad faith
on the part of the Trustee, arising out of or in connection with the acceptance
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or administration of the trust or trusts hereunder, including the reasonable
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligations of the Company under this Section 7.06 to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. The Company
and the Holders agree that such additional indebtedness shall be secured by a
Lien prior to that of the Debt Securities upon all property and funds held
or collected by the Trustee, as such, except funds held in trust for the payment
of principal of, and premium, if any, or interest on, particular Debt
Securities.
Without prejudice to any other rights available to the Trustee under applicable
law, when the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(g) or (h) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency, reorganization or other similar
law.
SECTION 7.07. Right of Trustee to Rely on an Officers' Certificate Where No
Other Evidence Specifically Prescribed. Except as otherwise provided in Section
7.01, whenever in the administration of the provisions of this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted by it under the provisions of
this Indenture upon the faith thereof.
SECTION 7.08. Separate Trustee; Replacement of Trustee. The Company may, but
need not, appoint a separate Trustee for any one or more series of Debt
Securities. The Trustee may resign with respect to one or more or all series of
Debt Securities at any time by giving notice to the Company. The Holders of a
majority in principal amount of the Debt Securities of a particular series may
remove the Trustee for such series and only such series by so notifying the
Trustee and may appoint a successor Trustee. The Company shall remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders of a
majority in principal amount of the Debt Securities of a particular series and
(where so removed by such Holders) such Holders do not reasonably promptly
appoint a successor Trustee, or if a vacancy exists in the office of Trustee for
any reason (the Trustee in such event being referred to herein as the retiring
Trustee), the Company shall promptly appoint a successor Trustee. No resignation
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or removal of the Trustee and no appointment of a successor Trustee shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of this Section 7.08.
A successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Thereupon the resignation or removal of
the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders of Debt
Securities of each applicable series. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject
to the Lien provided for in Section 7.06.
If a successor Trustee does not take office within 60 days after the retiring
Trustee gives notice of resignation or is removed, the retiring Trustee or the
Holders of 25% in principal amount of the Debt Securities of any applicable
series may petition any court of competent jurisdiction for the appointment of a
successor Trustee for the Debt Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of Debt Securities
of any applicable series who has been a bona fide Holder of such Debt Securities
for at least six months may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee for the Debt
Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.08,
the Company's obligations under Section 7.06 shall continue for the benefit of
the retiring Trustee.
In the case of the appointment hereunder of a separate or successor trustee with
respect to the Debt Securities of one or more but not all series, the Company,
any retiring Trustee and each successor or separate Trustee with respect to the
Debt Securities of any applicable series shall execute and deliver an Indenture
supplemental hereto (1) which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of any retiring Trustee with respect to the Debt Securities of any series as to
which any such retiring Trustee is not retiring shall continue to be vested in
such retiring Trustee and (2) that shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental Indenture shall
constitute such Trustees co-trustees of the same trust and that each such
separate, retiring or successor 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.
SECTION 7.09. Successor Trustee by Merger. If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all of its corporate
trust business or assets to, another corporation or banking association, the
resulting, surviving or transferee corporation or banking association without
any further act shall be the successor Trustee; provided, that it is qualified
and eligible hereunder.
In case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Debt Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
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authentication of any predecessor trustee, and deliver such Debt Securities so
authenticated; and in case at that time any of the Debt Securities shall not
have been authenticated, any successor to the Trustee may authenticate such Debt
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Debt Securities or in this Indenture
provided that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all times
satisfy the requirements of Section 310(a) of the Trust Indenture Act. The
Trustee shall have a combined capital and surplus of at least $50,000,000, as
set forth in its most recent published annual report of condition. No obligor
upon the Debt Securities of a particular series or Person directly or indirectly
controlling, controlled by or under common control with such obligor shall serve
as Trustee upon the Debt Securities of such series. The Trustee shall comply
with Section 310(b) of the Trust Indenture Act, subject to the penultimate
paragraph thereof; provided, however, that there shall be excluded from the
operation of Section 310(b)(1) of the Trust Indenture Act this Indenture or any
indenture or indentures under which other securities or certificates of interest
or participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in Section 310(b)(1) of the Trust
Indenture Act are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The Trustee
shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship listed in Section 311(b) of the Trust Indenture Act. A
Trustee who had resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
SECTION 7.12. Compliance with Tax Laws. The Trustee hereby agrees to comply
with all U.S. Federal income tax information reporting and withholding
requirements applicable to it with respect to payments of premium (if any) and
interest on the Debt Securities, whether acting as Trustee, Security Registrar,
paying agent or otherwise with respect to the Debt Securities.
ARTICLE VIII
Concerning the Holders
SECTION 8.01. Evidence of Action by Holders. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Debt Securities of any or all series may take action (including
the making of any demand or request, the giving of any direction, notice,
consent or waiver or the taking of any other action) the fact that at the time
of taking any such action the Holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by Holders in person or by agent or proxy appointed in
writing, (b) by the record of the Holders voting in favor thereof at any meeting
of Holders duly called and held in accordance with the provisions of Section
13.09 or (c) by a combination of such instrument or instruments and any such
record of such a meeting of Holders.
SECTION 8.02. Proof of Execution of Instruments and of Holding of Debt
Securities. Subject to the provisions of Sections 7.01, 7.02 and 13.09, proof
of the execution of any instrument by a Holder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee.
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The ownership of Registered Securities of any series shall be proved by the Debt
Security Register or by a certificate of the Registrar for such series.
The Trustee may require such additional proof of any matter referred to in this
Section 8.02 as it shall deem necessary.
SECTION 8.03. Who May Be Deemed Owner of Debt Securities. Prior to due
presentment for registration of transfer of any Registered Security, the
Company, the Trustee, any paying agent and any Registrar may deem and treat the
Person in whose name any Registered Security shall be registered upon the books
of the Company as the absolute owner of such Registered Security (whether or not
such Registered Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or
on account of the principal of and premium, if any, and (subject to Sections
2.12 and 2.17) interest on such Registered Security and for all other purposes,
and neither the Company nor the Trustee nor any paying agent nor any Registrar
shall be affected by any notice to the contrary; and all such payments so made
to any such Holder for the time being, or upon his order, shall be valid and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Registered Security.
None of the Company, the Trustee, any paying agent or the Registrar will have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
SECTION 8.04. Instruments Executed by Holders Bind Future Holders. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
8.01, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Debt Securities of any series specified in this
Indenture in connection with such action and subject to the following paragraph,
any Holder of a Debt Security which is shown by the evidence to be included in
the Debt Securities the Holders of which have consented to such action may, by
filing written notice with the Trustee at its corporate trust office and upon
proof of holding as provided in Section 8.02, revoke such action so far as
concerns such Debt Security. Except as aforesaid any such action taken by the
Holder of any Debt Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Debt Security and of any Debt
Security issued upon registration of transfer thereof or in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon such Debt Security or such other Debt Securities. Any
action taken by the Holders of the percentage in aggregate principal amount of
the Debt Securities of any series specified in this Indenture in connection with
such action shall be conclusively binding upon the Company, the Trustee and the
Holders of all the Debt Securities of such series.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders of Registered Securities entitled to give
their consent or take any other action required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders of Registered
Securities at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders of Registered Securities after such record date. No such
consent shall be valid or effective for more than 120 days after such record
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date unless the consent of the Holders of the percentage in aggregate principal
amount of the Debt Securities of such series specified in this Indenture shall
have been received within such 120-day period.
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Purposes for Which Supplemental Indenture May Be Entered into
Without Consent of Holders. The Company, when authorized by a resolution of the
Board of Directors, and the Trustee may from time to time and at any time,
without the consent of Holders, enter into an Indenture or Indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as in force at the date of the execution thereof) for one or more
of the following purposes:
(a) to evidence the succession pursuant to Article X of another Person
to the Company, or successive successions, and the assumption by the
Successor Company (as defined in Section 10.01) of the covenants,
agreements and obligations of the Company in this Indenture and in the
Debt Securities;
(b) to surrender any right or power herein conferred upon the Company,
to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the
Holders of all or any series of Debt Securities (and if such covenants
are to be for the benefit of less than all series of Debt Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) as the Board of Directors shall consider to be
for the protection of the Holders of such Debt Securities, and to make
the occurrence, or the occurrence and continuance, of a default in any
of such additional covenants, restrictions, conditions or provisions a
Default or an Event of Default permitting the enforcement of all or any
of the several remedies provided in this Indenture; provided, that in
respect of any such additional covenant, restriction, condition or
provision such supplemental Indenture may provide for a particular
period of grace after Default (which period may be shorter or longer
than that allowed in the case of other Defaults) or may provide for an
immediate enforcement upon such Default or may limit the remedies
available to the Trustee upon such Default or may limit the right of
the Holders of a majority in aggregate principal amount of any or all
series of Debt Securities to waive such
default;
(c) to cure any ambiguity or to correct or supplement any provision
contained herein, in any supplemental Indenture or in any Debt
Securities of any series that may be defective or inconsistent with any
other provision contained herein, in any supplemental Indenture or in
the Debt Securities of such series; to convey, transfer, assign,
mortgage or pledge any property to or with the Trustee, or to make such
other provisions in regard to matters or questions arising under this
Indenture as shall not adversely affect the interests of any Holders of
Debt Securities of any series;
(d) to modify or amend this Indenture in such a manner as to permit the
qualification of this Indenture or any Indenture supplemental hereto
under the Trust Indenture Act as then in effect, except that nothing
herein contained shall permit or authorize the inclusion in any
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Indenture supplemental hereto of the provisions referred to in Section
316(a)(2) of the Trust Indenture Act;
(e) to add to or change any of the provisions of this Indenture to
change or eliminate any restrictions on the payment of principal of, or
premium, if any, or interest on, Registered Securities; provided, that
any such action shall not adversely affect the interests of the Holders
of Debt Securities of any series in any material respect; or permit or
facilitate the issuance of Debt Securities of any series in
uncertificated form;
(f) in the case of any Debt Securities, if any, subordinated pursuant
to Article XII, to make any change in Article XII that would limit or
terminate the benefits applicable to any holder of Senior Indebtedness
(or Representatives therefor) under Article XII;
(g) to add Guarantees with respect to the Debt Securities or to secure
the Debt Securities;
(h) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Debt Securities;
provided, however, that any such addition, change or elimination not
otherwise permitted under this Section 9.01 shall (i) neither (A) apply
to any Debt Security of any series created prior to the execution of
such supplemental Indenture and entitled to the benefit of such
provision nor (B) modify the rights of the Holder of any such Debt
Security with respect to such provision or (ii) shall become effective
only when there is no such Debt Security outstanding;
(i) to evidence and provide for the acceptance of appointment hereunder
by a successor or separate Trustee with respect to the Debt Securities
of one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; and
(j) to establish the form or terms of Debt Securities of any series as
permitted by Sections 2.01 and 2.03.
The Trustee is hereby authorized to join with the Company in the execution of
any such supplemental Indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee 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.
Any supplemental Indenture authorized by the provisions of this Section 9.01 may
be executed by the Company and the Trustee without the consent of the Holders of
any of the Debt Securities at the time outstanding, notwithstanding any of the
provisions of Section 9.02.
In the case of any Debt Securities subordinated pursuant to Article XII, an
amendment under this Section 9.01 may not make any change that adversely affects
the rights under Article XII of any holder of Senior Indebtedness then
outstanding unless the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consent to such change.
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After an amendment under this Section 9.01 becomes effective, the Company shall
mail to Holders of Debt Securities of each series affected thereby a notice
briefly describing such amendment. The failure to give such notice to all such
Holders, or any defect therein, shall not impair or affect the validity of an
amendment under this Section 9.01.
SECTION 9.02. Modification of Indenture with Consent of Holders of Debt
Securities. Without notice to any Holder but with the consent (evidenced as
provided in Section 8.01) of the Holders of not less than a majority in
aggregate principal amount of the outstanding Debt Securities of each series
affected by such supplemental Indenture, the Company, when authorized by a
resolution of the Board of Directors, and the Trustee may from time to time and
at any time enter into an Indenture or Indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act as in force at the
date of execution thereof) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental Indenture or of modifying in any manner the rights of the
Holders of the Debt Securities of such series; provided, that no such
supplemental Indenture, without the consent of the Holders of each Debt Security
so affected, shall (i) reduce the percentage in principal amount of Debt
Securities of any series whose Holders must consent to an amendment; (ii) reduce
the rate of or extend the time for payment of interest on any Debt Security;
(iii) reduce the principal of or extend the Stated Maturity of any Debt
Security; (iv) reduce the premium payable upon the redemption of any Debt
Security or change the time at which any Debt Security may or shall be redeemed
in accordance with Article III; (v) make any Debt Security payable in Currency
other than that stated in the Debt Security; (vi) in the case of any Debt
Security subordinated pursuant to Article XII, make any change in Article XII
that adversely affects the rights of any Holder under Article XII; (vii) release
any security that may have been granted in respect of the Debt Securities; or
(viii) make any change in Section 6.06 or this Section 9.02.
A supplemental Indenture which changes or eliminates any covenant or other
provision of this Indenture which has been expressly included solely for the
benefit of one or more particular series of Debt Securities or which modifies
the rights of the Holders of Debt 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 Debt Securities of any other series.
Upon the request of the Company, accompanied by a copy of a resolution of the
Board of Directors authorizing the execution of any such supplemental Indenture,
and upon the filing with the Trustee of evidence of the consent of Holders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental Indenture unless such supplemental Indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion but shall not be obligated to enter into
such supplemental Indenture.
It shall not be necessary for the consent of the Holders under this Section 9.02
to approve the particular form of any proposed supplemental Indenture, but it
shall be sufficient if such consent shall approve the substance thereof.
In the case of any Debt Securities subordinated pursuant to Article XII, an
amendment under this Section 9.02 may not make any change that adversely affects
the rights under Article XII of any holder of Senior Indebtedness then
outstanding unless the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consent to such change.
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After an amendment under this Section 9.02 becomes effective, the Company shall
mail to Holders of Debt Securities of each series affected thereby a notice
briefly describing such amendment. The failure to give such notice to all such
Holders, or any defect therein, shall not impair or affect the validity of an
amendment under this Section 9.02.
SECTION 9.03. Effect of Supplemental Indentures. Upon the execution of any
supplemental Indenture pursuant to the provisions of this Article IX, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental Indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, may receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
such supplemental Indenture complies with the provisions of this Article IX.
SECTION 9.04. Debt Securities May Bear Notation of Changes by Supplemental
Indentures. Debt Securities of any series authenticated and delivered after the
execution of any supplemental Indenture pursuant to the provisions of this
Article IX may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
Indenture. New Debt Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any modification of this
Indenture contained in any such supplemental Indenture may be prepared and
executed by the Company, authenticated by the Trustee and delivered in exchange
for the Debt Securities of such series then outstanding. Failure to make the
appropriate notation or to issue a new Debt Security of such series shall not
affect the validity of such amendment.
SECTION 9.05. Payment for Consent. Neither the Company nor any Affiliate of
the Company shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest fee or otherwise, to any Holder for or
as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Debt Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE X
Consolidation, Merger, Sale or Conveyance
SECTION 10.01. Consolidations and Mergers of the Company. The Company shall
not consolidate with or merge with or into any Person, or convey, transfer or
lease all or substantially all its assets to any Person, unless: (i) either (a)
the Company shall be the continuing Person in the case of a merger or (b) the
resulting, surviving or transferee Person if other than the Company (the
"Successor Company") shall be a corporation organized and existing under the
laws of the United States, any State thereof or the District of Columbia and
the Successor Company shall expressly assume, by an Indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Company under the Debt Securities according
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to their tenor, and this Indenture; (ii) immediately after giving effect to such
transaction (and treating any Indebtedness which becomes an obligation of the
Successor Company or any Subsidiary of the Company as a result of such
transaction as having been Incurred by the Successor Company or such Subsidiary
at the time of such transaction), no Default or Event of Default would occur or
be continuing; and (iii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such supplemental
Indenture (if any) comply with this Indenture.
SECTION 10.02. Rights and Duties of Successor Corporation. In case of any
consolidation, merger, conveyance, transfer or lease of the assets of the
Company in accordance with Section 10.01, the Successor Company shall succeed to
and be substituted for the Company, with the same effect as if it had been named
herein as the party of the first part, and the predecessor corporation (except
in the case of a lease) shall be relieved of any further obligation under the
Indenture and the Debt Securities. The Successor Company thereupon may cause to
be signed, and may issue either in its own name or in the name of the Company,
any or all the Debt Securities issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee; and, upon the
order of the Successor Company, instead of the Company, and subject to all the
terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Debt Securities which previously shall
have been signed and delivered by the officers of the Company to the Trustee for
authentication, and any Debt Securities which the Successor Company thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All the
Debt Securities so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Debt Securities theretofore or thereafter
issued in accordance with the terms of this Indenture as though all such Debt
Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, conveyance, transfer or lease, such
changes in phraseology and form (but not in substance) may be made in the Debt
Securities appertaining thereto thereafter to be issued as may be appropriate.
ARTICLE XI
Satisfaction and Discharge of Indenture;
Defeasance; Unclaimed Moneys
SECTION 11.01. Applicability of Article. The provisions of this Article XI
relating to defeasance of Debt Securities shall be applicable to the Debt
Securities of a series except as otherwise specified pursuant to Section 2.03
for the Debt Securities of such series.
SECTION 11.02. Satisfaction and Discharge of Indenture; Defeasance.
(a) If at any time (i) the Company shall have delivered to the Trustee
for cancellation all Debt Securities of any series theretofore authenticated and
delivered (other than (1) any Debt Securities of such series which shall have
been destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.09 and (2) Debt Securities for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Company as
provided in Section 11.05) or (ii) all Debt Securities of such series not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and the Company shall
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deposit with the Trustee as trust funds the entire amount in the Currency in
which such Debt Securities are denominated (except as otherwise provided
pursuant to Section 2.03) sufficient to pay at maturity or upon redemption all
Debt Securities of such series not theretofore delivered to the Trustee for
cancellation, including principal and premium, if any, and interest due or to
become due on such date of maturity or redemption date, as the case may be, and
if in either case the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company, then this Indenture shall cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of such Debt Securities herein expressly provided for and rights to
receive payments of principal of, and premium, if any, and interest on, such
Debt Securities) with respect to the Debt Securities of such series, and the
Trustee, on demand of the Company accompanied by an Officers' Certificate and an
Opinion of Counsel complying with Section 13.05 and at the cost and expense of
the Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture.
(b) Subject to Sections 11.02(c), 11.03 and 11.07, the Company at any
time may terminate, with respect to Debt Securities of a particular series, (i)
all its obligations under the Debt Securities of such series and this Indenture
with respect to the Debt Securities of such series ("legal defeasance option")
or (ii) its obligations with respect to the Debt Securities of such series under
clause (ii) of Section 10.01 and the related operation of Section 6.01(d), any
obligations with respect to the Debt Securities of such series which, in
accordance with Section 2.03(12), are subject to the covenant defeasance option,
and the related operation of Section 6.01(e), and the operation of Sections 6.01
(f) and (i) ("covenant defeasance option"). The Company may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant defeasance
option.
If the Company exercises its legal defeasance option, payment of the Debt
Securities of the defeased series may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance option, payment of the
Debt Securities of the defeased series may not be accelerated because of an
Event of Default specified in Sections 6.01(d), (e), (f) and (i) (except to the
extent covenants or agreements referenced in such Sections remain applicable).
Upon satisfaction of the conditions set forth herein and upon request of the
Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b)(i) above, the Company's
obligations in Sections 2.07, 2.09, 4.02, 4.03, 4.04, 5.01, 7.06, 11.06 and
11.07 shall survive until the Debt Securities of the defeased series have
been paid in full. Thereafter, the Company's obligations in Sections 7.06 and
11.06 shall survive.
SECTION 11.03. Conditions of Defeasance. The Company may exercise its legal
defeasance option or its covenant defeasance option with respect to Debt
Securities of a particular series only if:
(1) the Company irrevocably deposits in trust with the Trustee money or
U.S. Government Obligations for the payment of principal of, and
premium, if any, and interest on, the Debt Securities of such series to
maturity or redemption, as the case may be;
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(2) the Company delivers to the Trustee a certificate from a nationally
recognized firm of independent accountants expressing their opinion
that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and
in such amounts as will be sufficient to pay the principal, premium and
interest when due on all the Debt Securities of such series to maturity
or redemption, as the case may be;
(3) 91 days pass after the deposit is made and during the 91-day period
no Default specified in Section 6.01(g) or (h) with respect to the
Company occurs which is continuing at the end of the period;
(4) no Default has occurred and is continuing on the date of such
deposit and after giving effect thereto;
(5) the deposit does not constitute a default under any other agreement
binding on the Company and, if the Debt Securities of such series are
subordinated pursuant to Article XII, is not prohibited by Article XII;
(6) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute,
or is qualified as, a regulated investment company under the
Investment Company Act of 1940;
(7) in the event of the legal defeasance option, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from the Internal Revenue Service a ruling, or
(ii) since the date of this Indenture there has been a change in the
applicable Federal income tax law, in either case of the effect that,
and based thereon such Opinion of Counsel shall confirm that, the
Holders of Debt Securities of such series will not recognize income,
gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred;
(8) in the event of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of Debt Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of
such covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred;
and
(9) the Company delivers to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Debt Securities of such series as
contemplated by this Article XI have been complied with.
Before or after a deposit, the Company may make arrangements satisfactory to the
Trustee for the redemption of Debt Securities of such series at a future date in
accordance with Article III.
SECTION 11.04. Application of Trust Money. The Trustee shall hold in trust
money or U.S. Government Obligations deposited with it pursuant to this Article
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XI. It shall apply the deposited money and the money from U.S. Government
Obligations through any paying agent and in accordance with this Indenture to
the payment of principal of, and premium, if any, and interest on, the Debt
Securities of the defeased series. In the event the Debt Securities of the
defeased series or the Debt Securities of a series with respect to which the
Indenture has been discharged are subordinated pursuant to Article XII, money
and securities so held in trust are not subject to Article XII.
SECTION 11.05. Repayment to Company. The Trustee and any paying agent shall
promptly turn over to the Company upon request any excess money or securities
held by them at any time; provided, that, if such excess money or securities are
held by the Trustee in connection with the exercise by the Company of the legal
defeasance option or the covenant defeasance option, the Trustee shall not turn
over such excess money or securities unless it shall have received a certificate
from a nationally recognized firm of independent accountants to the effect that
such money and securities are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance in accordance
with Section 11.03.
Subject to any applicable abandoned property law, the Trustee and any paying
agent shall pay to the Company upon request any money held by them for the
payment of principal, premium or interest that remains unclaimed for two years,
and, thereupon, all liability of the Trustee and any such paying agent with
respect to such money shall cease, and, thereafter, Holders entitled to such
money must look to the Company for payment as general creditors.
SECTION 11.06. Indemnity for U.S. Government Obligations. The Company shall
pay and shall indemnify the Trustee and the Holders against any tax, fee or
other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
SECTION 11.07. Reinstatement. If the Trustee or any paying agent is unable to
apply any money or U.S. Government Obligations in accordance with this Article
XI by reason of any legal proceeding or by reason of any order or judgment of
any court or government authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture and
the Debt Securities of the defeased series shall be revived and reinstated as
though no deposit had occurred pursuant to this Article XI until such time
as the Trustee or any paying agent is permitted to apply all such money or U.S.
Government Obligations in accordance with this Article XI; provided, however,
that if the Company makes any payment of principal of, premium, if any, or
interest on any such Debt Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Debt Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or such paying agent.
ARTICLE XII
Subordination of Debt Securities
SECTION 12.01. Applicability of Article; Agreement to Subordinate. The
provisions of this Article XII shall be applicable to the Debt Securities of any
series (Debt Securities of such series referred to in this Article XII as
"Subordinated Debt Securities") designated, pursuant to Section 2.03, as
subordinated to Senior Indebtedness. Each Holder by accepting a Subordinated
Debt Security agrees that the Indebtedness evidenced by such Subordinated Debt
Security is subordinated in right of payment, to the extent and in the manner
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provided in this Article XII, to the prior payment of all Senior Indebtedness
and that the subordination is for the benefit of and enforceable by the holders
of Senior Indebtedness. All provisions of this Article XII shall
be subject to Section 12.12.
SECTION 12.02. Liquidation, Dissolution, Bankruptcy. Upon any payment or
distribution of the assets of the Company to creditors upon a total or partial
liquidation or a total or partial dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its property:
(1) holders of Senior Indebtedness shall be entitled to receive payment
in full in cash of the Senior Indebtedness (including interest (if
any), accruing on or after the commencement of a proceeding in
bankruptcy, whether or not allowed as a claim against the Company in
such bankruptcy proceeding) before Holders of Subordinated Debt
Securities shall be entitled to receive any payment of principal of, or
premium, if any, or interest on, the Subordinated Debt Securities; and
(2) until the Senior Indebtedness is paid in full, any distribution to
which Holders of Subordinated Debt Securities would be entitled but for
this Article XII shall be made to holders of Senior Indebtedness as
their interests may appear, except that such Holders may receive shares
of stock and any debt securities that are subordinated to Senior
Indebtedness to at least the same extent as the Subordinated Debt
Securities.
SECTION 12.03. Default on Senior Indebtedness. The Company may not pay the
principal of, or premium, if any, or interest on, the Subordinated Debt
Securities or make any deposit pursuant to Article XI and may not repurchase,
redeem or otherwise retire (except, in the case of Subordinated Debt Securities
that provide for a mandatory sinking fund pursuant to Section 3.04, by the
delivery of Subordinated Debt Securities by the Company to the Trustee pursuant
to the first paragraph of Section 3.05) any Debt Securities (collectively, "pay
the Subordinated Debt Securities") if (i) any principal, premium or interest in
respect of Senior Indebtedness is not paid within any applicable grace period
(including at maturity) or (ii) any other default on Senior Indebtedness occurs
and the maturity of such Senior Indebtedness is accelerated in accordance with
its terms unless, in either case, (x) the default has been cured or waived and
any such acceleration has been rescinded or (y) such Senior Indebtedness has
been paid in full in cash; provided, however, that the Company may pay the
Subordinated Debt Securities without regard to the foregoing if the Company and
the Trustee receive written notice approving such payment from the
Representative of each issue of Designated Senior Indebtedness. During the
continuance of any default (other than a default described in clause (i) or (ii)
of the preceding sentence) with respect to any Senior Indebtedness pursuant to
which the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods, the Company may not pay the
Subordinated Debt Securities for a period (a "Payment Blockage Period")
commencing upon the receipt by the Company and the Trustee of written notice of
such default from the Representative of any Designated Senior Indebtedness
specifying an election to effect a Payment Blockage Period (a "Blockage Notice")
and ending 179 days thereafter (or earlier if such Payment Blockage Period is
terminated (i) by written notice to the Trustee and the Company from the Person
or Persons who gave such Blockage Notice, (ii) by repayment in full in cash of
such Designated Senior Indebtedness or (iii) because the default giving rise to
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such Blockage Notice is no longer continuing). Notwithstanding the provisions
described in the immediately preceding sentence (but subject to the provisions
contained in the first sentence of this Section 12.03), unless the holders of
such Designated Senior Indebtedness or the Representative of such holders shall
have accelerated the maturity of such Designated Senior Indebtedness, the
Company may resume payments on the Subordinated Debt Securities after such
Payment Blockage Period. Not more than one Blockage Notice may be given in any
consecutive 360-day period, irrespective of the number of defaults with respect
to any number of issues of Senior Indebtedness during such period; provided,
however, that if any Blockage Notice within such 360-day period is given by or
on behalf of any holders of Designated Senior Indebtedness (other than the Bank
Indebtedness), the Representative of the Bank Indebtedness may give another
Blockage Notice within such period; provided further, however, that in no event
may the total number of days during which any Payment Blockage Period or Periods
is in effect exceed 179 days in the aggregate during any 360 consecutive day
period. For purposes of this Section 12.03, no default or event of default which
existed or was continuing on the date of the commencement of any Payment
Blockage Period with respect to the Senior Indebtedness initiating such Payment
Blockage Period shall be, or be made, the basis of the commencement of a
subsequent Payment Blockage Period by the Representative of such Senior
Indebtedness, whether or not within a period of 360 consecutive days, unless
such default or event of default shall have been cured or waived for a period
of not less than 90 consecutive days.
SECTION 12.04. Acceleration of Payment of Debt Securities. If payment of the
Subordinated Debt Securities is accelerated because of an Event of Default, the
Company or the Trustee shall promptly notify the holders of the Designated
Senior Indebtedness (or their Representatives) of the acceleration.
SECTION 12.05. When Distribution Must Be Paid Over. If a distribution is made
to Holders of Subordinated Debt Securities that because of this Article XII
should not have been made to them, the Holders who receive such distribution
shall hold it in trust for holders of Senior Indebtedness and pay it over to
them as their interests may appear.
SECTION 12.06. Subrogation. After all Senior Indebtedness is paid in full and
until the Subordinated Debt Securities are paid in full, Holders thereof shall
be subrogated to the rights of holders of Senior Indebtedness to receive
distributions applicable to Senior Indebtedness. A distribution made under this
Article XII to holders of Senior Indebtedness which otherwise would have been
made to Holders of Subordinated Debt Securities is not, as between the Company
and such Holders, a payment by the Company on Senior Indebtedness.
SECTION 12.07. Relative Rights. This Article XII defines the relative rights
of Holders of Subordinated Debt Securities and holders of Senior Indebtedness.
Nothing in this Indenture shall:
(1) impair, as between the Company, its creditors (other than the
holders of Senior Indebtedness), and Holders of either Subordinated
Debt Securities or Debt Securities, the obligation of the Company,
which is absolute and unconditional, to pay principal of, and premium,
if any, and interest on, the Subordinated Debt Securities and the Debt
Securities in accordance with their terms; or
(2) prevent the Trustee or any Holder of either Subordinated Debt
Securities or Debt Securities from exercising its available remedies
upon a Default, subject to the rights of holders of Senior Indebtedness
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to receive distributions otherwise payable to Holders of Subordinated
Debt Securities.
SECTION 12.08. Subordination May Not Be Impaired by Company. No right of any
holder of Senior Indebtedness to enforce the subordination of the Indebtedness
evidenced by the Subordinated Debt Securities shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.
SECTION 12.09. Rights of Trustee and Paying Agent. Notwithstanding Section
12.03, the Trustee or any paying agent may continue to make payments on
Subordinated Debt Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two business days prior to the date of such payment, a responsible
officer of the Trustee receives notice satisfactory to it that payments may not
be made under this Article XII. The Company, the Registrar, any paying agent, a
Representative or a holder of Senior Indebtedness may give the notice; provided,
however, that, if an issue of Senior Indebtedness has a Representative, only the
Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior Indebtedness
with the same rights it would have if it were not Trustee. The Registrar and
any paying agent may do the same with like rights. The Trustee shall be
entitled to all the rights set forth in this Article XII with respect to any
Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness; and nothing in Article VII shall
deprive the Trustee of any of its rights as such holder. Nothing in this
Article XII shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.06.
SECTION 12.10. Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Senior Indebtedness,
the distribution may be made and the notice given to their Representative (if
any).
SECTION 12.11. Article XII Not to Prevent Defaults or Limit Right to
Accelerate. The failure to make a payment pursuant to the Debt Securities by
reason of any provision in this Article XII shall not be construed as preventing
the occurrence of a Default. Nothing in this Article XII shall have any effect
on the right of the Holders or the Trustee to accelerate the maturity of either
the Subordinated Debt Securities or the Debt Securities, as the case may be.
SECTION 12.12. Trust Moneys Not Subordinated. Notwithstanding anything
contained herein to the contrary, payments from money or the proceeds of U.S.
Government Obligations held in trust under Article XI by the Trustee for the
payment of principal of, and premium, if any, and interest on, the Subordinated
Debt Securities or the Debt Securities shall not be subordinated to the prior
payment of any Senior Indebtedness or subject to the restrictions set forth in
this Article XII, and none of the Holders thereof shall be obligated to pay over
any such amount to the Company or any holder of Senior Indebtedness of the
Company or any other creditor of the Company.
SECTION 12.13. Trustee Entitled to Rely. Upon any payment or distribution
pursuant to this Article XII, the Trustee and the Holders shall be entitled to
rely (i) upon any order or decree of a court of competent jurisdiction in which
any proceedings of the nature referred to in Section 12.02 are pending, (ii)
upon a certificate of the liquidating trustee or agent or other Person making
such payment or distribution to the Trustee or to such Holders or (iii) upon the
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Representatives for the holders of Senior Indebtedness for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
XII. The Trustee shall be entitled to conclusively rely on the delivery to it of
a written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a Representative on behalf of such holder), to establish that
such notice has been given by a holder of such Senior Indebtedness or
Representative on behalf of any such holder or holders. In the event that the
Trustee determines, in good faith, that evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article XII, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and other
facts pertinent to the rights of such Person under this Article XII, and, if
such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment. The provisions of Sections 7.01 and 7.02 shall be applicable to all
actions or omissions of actions by the Trustee pursuant to this Article XII.
SECTION 12.14. Trustee to Effectuate Subordination. Each Holder by accepting a
Subordinated Debt Security authorizes and directs the Trustee on his behalf to
take such action as may be necessary or appropriate to acknowledge or effectuate
the subordination between the Holders of Subordinated Debt Securities and the
holders of Senior Indebtedness as provided in this Article XII and appoints the
Trustee as attorney-in-fact for any and all such purposes.
SECTION 12.15. Trustee Not Fiduciary for Holders of Senior Indebtedness. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or observe only such of its covenants and obligations as are specifically set
forth in this Article XII, and no implied covenants or obligations with respect
to the holders of Senior Indebtedness shall be read into this Indenture against
the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Holders of Subordinated Debt
Securities or the Company or any other Person, money or assets to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article XII
or otherwise.
SECTION 12.16. Reliance by Holders of Senior Indebtedness on Subordination
Provisions. Each Holder by accepting a Subordinated Debt Security acknowledges
and agrees that the foregoing subordination provisions are, and are intended to
be, an inducement and a consideration to each holder of any Senior Indebtedness,
whether such Senior Indebtedness was created or acquired before or after the
issuance of the Subordinated Debt Securities, to acquire and continue to hold,
or to continue to hold, such Senior Indebtedness and such holder of Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness.
ARTICLE XIII
Miscellaneous Provisions
SECTION 13.01. Successors and Assigns of Company Bound by Indenture. All the
covenant's stipulations, promises and agreements in this Indenture contained by
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or in behalf of the Company or the Trustee shall bind its successors and
assigns, whether so expressed or not.
SECTION 13.02. Acts of Board, Committee or Officer of Successor Company Valid.
Any act or proceeding by any provision of this Indenture authorized or required
to be done or performed by any board, committee or officer of the Company shall
and may be done and performed with like force and effect by the like board,
committee or officer of any Successor Company.
SECTION 13.03. Required Notices or Demands. Except as otherwise expressly
provided in this Indenture, any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders to or on the Company may be given or served by being deposited first
class mail, postage prepaid, in a post office letter box in the United States
addressed (until another address is filed by the Company with the Trustee) as
follows: Unit Corporation, 7130 South Lewis, Tulsa, Oklahoma 74136,
Attention: Chief Financial Officer.
Except as otherwise expressly provided in this Indenture, any notice, direction,
request or demand by the Company or by any Holder to or upon the Trustee may be
given or made, for all purposes, by being deposited first class mail, postage
prepaid, in a post office letter box in the United States addressed to the
corporate trust office of the Trustee initially at [__________________________].
The Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any notice required or permitted to a Registered Holder by the Company or the
Trustee pursuant to the provisions of this Indenture shall be deemed to be
properly mailed by being deposited first class mail, postage prepaid, in a post
office letter box in the United States addressed to such Holder at the address
of such Holder as shown on the Debt Security Register. Any report pursuant to
Section 313 of the Trust Indenture Act shall be transmitted in compliance with
subsection (c) therein.
In the event of suspension of regular mail service or by reason of any other
cause it shall be impracticable to give notice by mail, then such notification
as shall be given with the approval of the Trustee shall constitute sufficient
notice for every purpose thereunder.
Failure to mail a notice or communication to a Holder or any defect in it or any
defect in any notice by publication as to a Holder shall not affect the
sufficiency of such notice with respect to other Holders. If a notice or
communication is mailed or published in the manner provided above, it is
conclusively presumed duly given.
SECTION 13.04. Indenture and Debt Securities to Be Construed in Accordance with
the Laws of the State of New York. This Indenture and each Debt Security shall
be deemed to be New York contracts, and for all purposes shall be construed in
accordance with the laws of said State (without reference to principles of
conflicts of law).
SECTION 13.05. Officers' Certificate and Opinion of Counsel to Be Furnished
upon Application or Demand by the Company. Upon any application or demand by
the Company to the Trustee to take any action under any of the provisions of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent provided for in this Indenture
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<PAGE>
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 have been complied with, except that in the case of any such
application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate (other than an Officers' Certificate provided pursuant to
Section 4.05) or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant provided
for in this Indenture shall include (1) a statement that the Person making such
certificate or opinion has read such covenant or condition, (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 such Person, 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 or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 13.06. Payments Due on Legal Holidays. In any case where the date of
maturity of interest on or principal of and premium, if any, on the Debt
Securities of a series or the date fixed for redemption or repayment of any Debt
Security or the making of any sinking fund payment shall not be a business day
at any Place of Payment for the Debt Securities of such series, then payment of
interest or principal and premium, if any, or the making of such sinking fund
payment need not be made on such date at such Place of Payment, but may be made
on the next succeeding business day at such Place of Payment with the same force
and effect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date. If a record date is
not a business day, the record date shall not be affected.
SECTION 13.07. Provisions Required by Trust Indenture Act to Control. If and
to the extent that any provision of this Indenture limits, qualifies or
conflicts with another provision included in this Indenture which is required or
deemed to be included herein by operation of the Trust Indenture Act, such
required or deemed provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act which may be so
modified or excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or excluded, as the case may be.
SECTION 13.08. Computation of Interest on Debt Securities. Interest, if any,
on the Debt Securities shall be computed on the basis of a 360-day year of
twelve 30-day months, except as may otherwise be provided pursuant to Section
2.03.
SECTION 13.09. Rules by Trustee, Paying Agent and Registrar. The Trustee may
make reasonable rules for action by or a meeting of Holders. The Registrar and
any paying agent may make reasonable rules for their functions.
SECTION 13.10. No Recourse Against Others. An incorporator or any past,
present or future director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Debt Securities or this Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a Debt
Security, each Holder shall waive and release all such liability. The waiver
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<PAGE>
and release shall be part of the consideration for the issue of the Debt
Securities.
SECTION 13.11. Severability. In case any provision in this Indenture or the
Debt Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any
way be affected or impaired thereby.
SECTION 13.12. Effect of Headings. The article and section headings herein and
in the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 13.13. Indenture May Be Executed in Counterparts. This Indenture may
be executed in any number of counterparts, each of which shall be an original;
but such counterparts shall together constitute but one and the same instrument.
The Trustee hereby accepts the trusts in this Indenture upon the terms and
conditions herein set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
signed as of the date first written above.
UNIT CORPORATION
by _________________________
Name:
Title:
[________________________________]
by _________________________
Name:
Title:
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EXHIBIT 5
[Conner & Winters Letterhead]
July 23, 1999
Unit Corporation
1000 Galleria Tower I
7130 South Lewis
Tulsa, Oklahoma 74170
Re: Unit Corporation
Registration Statement on Form S-3
Gentlemen:
We have acted as counsel for Unit Corporation, a Delaware corporation
(the "Company"), in connection with the filing of a registration statement on
Form S-3 (the "Registration Statement") with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended (the "Securities
Act"), for the registration of the sale from time to time of up to $100,000,000
aggregate offering price of (i) unsecured debt securities of the Company, which
may be either senior or subordinated (collectively, the "Debt Securities"),
(ii) shares of the Company's preferred stock, par value $1.00 per share (the
"Preferred Stock"), (iii) shares of the Company's common stock, par value $0.20
per share (the "Common Stock"), and (iv) Warrants representing rights to
purchase Debt Securities, Preferred Stock or Common Stock of the Company
("Warrants," and, together with the Debt Securities, Preferred Stock and Common
Stock, the "Securities"). The Securities will be sold or delivered from time to
time as set forth in the Registration Statement, any amendment thereto, the
prospectus contained therein (the "Prospectus") and supplements to the
Prospectus (the "Prospectus Supplements").
We have examined (i) the Registration Statement, and (ii) the form of
Indenture relating to the Debt Securities (the "Indenture") to be executed by
the Company and an indenture trustee to be selected by the Company (the
"Trustee") filed as an exhibit to the Registration Statement. In addition, we
have (a) examined such certificates of public officials and of corporate
officers and directors and such other documents and matters as we have deemed
necessary or appropriate, (b) relied upon the accuracy of facts and information
set forth in all such documents, and (c) assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as copies, and
the authenticity of the originals from which all such copies were made.
We have also assumed that (i) prior to the issuance of any shares of any
Securities, there will exist under the Restated Certificate of Incorporation of
the Company (the "Certificate of Incorporation") the requisite number of
authorized but unissued shares of Common Stock and/or Preferred Stock, as the
case may be, and (ii) with respect to the issuance of shares of each series of
Preferred Stock offered from time to time under the Registration Statement, the
Board of Directors of the Company shall have approved and adopted and filed with
the Delaware Secretary of State a Certificate of Designation of Preferences,
Rights, Privileges and Restrictions of Preferred Stock with respect to such
series.
<PAGE>
Further, with respect to Warrants issued from time to time pursuant to
any warrant agreement(s) as shall be entered into by the Company (individually,
a "Warrant Agreement" and, collectively, the "Warrant Agreements"), to the
extent that the obligation of the Company under any such Warrant Agreement may
be dependent upon such matters, we assume for purposes of this opinion that
(a) any warrant agent named therein ("Warrant Agent") is duly qualified to
engage in the activities contemplated by the Warrant Agreement, (b) the Warrant
Agreement has been duly authorized, executed and delivered by the Warrant Agent
and constitutes the legally valid and binding obligation of the Warrant Agent
enforceable against the Warrant Agent in accordance with its terms, (c) the
Warrant Agent is in compliance, generally, with respect to acting as Warrant
Agent under the Warrant Agreement with all applicable laws and regulations,
and (d) the Warrant Agent has the requisite organizational and legal power and
authority to perform its obligations under the Warrant Agreement.
We have further assumed that the Securities will be offered and sold
pursuant to and in accordance with the terms and conditions set forth in one or
more underwriting agreements (collectively, the "Underwriting Agreement")
between the Company and an investment banking firm to be selected by the Company
as the Representative of the Underwriters for the Offering (the "Underwriters"),
covering the sale by the Company and the purchase by the Underwriters of up to
such number of Securities as shall have been authorized by the Board of
Directors of the Company, and providing, among other things, for payment to the
Company of such consideration for such purchase and sale as shall constitute
sufficient and valid consideration pursuant to the Certificate of Incorporation,
and the Bylaws of the Company, as amended, and the laws of the State of
Delaware.
Based on the foregoing and subject to the qualifications and limitations
stated herein, we are of the opinion that:
1. The Debt Securities proposed to be sold by the Company, when
(i) duly authorized by appropriate corporate action; (ii) the Trustee has been
selected and qualified pursuant to the Trust Indenture Act of 1939, as amended;
(iii) the Indenture and any supplemental indenture in respect of the Debt
Securities have been duly executed and delivered, (iv) the terms of the Debt
Securities have been duly established in accordance with the Indenture and any
applicable supplemental indenture relating to the Debt Securities, and (v) the
Debt Securities have been duly executed and authenticated in accordance with the
Indenture and any related supplemental indenture in respect of the Debt
Securities and duly issued and delivered by the Company upon payment of the
consideration therefor in the manner contemplated in the Registration Statement
and any Prospectus Supplement relating thereto, will constitute valid and
binding obligations of the Company, enforceable in accordance with their terms.
2. The shares of Preferred Stock proposed to be sold by the Company,
when all necessary corporate action on the part of the Company has been taken to
authorize the issuance and sale of such series of Preferred Stock and such
shares of Preferred Stock are issued and delivered upon payment of the
consideration therefor in the manner contemplated in the Registration Statement
and any Prospectus Supplement relating thereto, will be validly issued, fully
paid and non-assessable.
<PAGE>
3. The shares of Common Stock proposed to be sold by the Company, when
all necessary corporate action on the part of the Company has been taken to
authorize the issuance and sale of such shares of Common Stock and such shares
of Common Stock are issued and delivered upon payment of the consideration
therefor in the manner contemplated in the Registration Statement and any
Prospectus Supplement relating thereto will be validly issued, fully paid and
nonassessable.
4. The Warrants proposed to be sold by the Company when all necessary
corporate action has been taken to authorize the issuance and sale of the
Warrants and the issuance and sale of the Securities issuable upon the exercise
thereof, and the Warrants have been (a) duly established by the related Warrant
Agreement, (b) duly authenticated by the Warrant Agent, and (c) are issued and
delivered upon payment of the consideration therefor in the manner contemplated
in the Registration Statement and any Prospectus Supplement relating thereto
will be validly issued, fully paid and nonassessable, and the Warrants will be
duly authorized and will constitute valid and binding obligations of the
Company.
Our opinions set forth in paragraphs 1 and 4 above are subject to the
effects of bankruptcy, insolvency, reorganization, fraudulent transfer or
conveyance, moratorium or other similar laws now or hereinafter in effect
relating to or affecting the enforcement of creditors' rights generally and by
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
Our opinion expressed above is limited to the laws of the State of
Oklahoma, the corporate laws of the State of Delaware, and the federal laws of
the United States of America, and we do not express any opinion herein
concerning the laws of any other jurisdiction. To the extent that the opinion
expressed herein relates to matters governed by the laws of the State of New
York, we have assumed that the applicable law of the State of New York is the
same as the applicable law of the State of Oklahoma of all relevant respects.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in the Prospectus
constituting a part of the Registration Statement under the caption "Legal
Matters." In giving this consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act.
Yours very truly,
CONNER & WINTERS,
A Professional Corporation
/s/ Conner & Winters
<PAGE>
EXHIBIT 12
Unit Corporation
Ratio of Earning to Fixed Charges
The tables below set forth the ratios of earnings to fixed charges of the
Company and its consolidated subsidiaries for the periods indicated. The ratios
have been computed using the amounts for the Company and, its consolidated
subsidiaries. Earnings available for fixed charges represent earnings from
continuing operations before income taxes and fixed charges. Fixed charges
represent interest incurred and guaranteed plus that portion of rental expense
deemed to be the equivalent of interest.
RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS EXCEPT RATIOS)
THREE MONTHS ENDED
3/31/99 3/31/98
-------- --------
Earnings (Losses):
Income (loss) from continuing operations
before income taxes. . . . . . . . . . . $(1,976) $ 1,163
-------- --------
Fixed Charges:
Interest expense . . . . . . . . . . . . . 1,211 1,083
Interest inherent in rental expense. . . . 34 35
Guaranteed Interest. . . . . . . . . . . . 15 0
-------- --------
Fixed charges, as Defined. . . . . . . . . . . 1,260 1,118
-------- --------
Earnings, as Defined . . . . . . . . . . . . . (716) 2,281
======== ========
RATIO OF EARNINGS TO FIXED CHARGES . . . . . . * 2.04
*Earnings were not adequate in the three months ended March 31, 1999 to cover
fixed charges. The coverage deficiency was $1,976.
YEAR ENDED DECEMBER 31,
--------------------------------------------
1998 1997 1996 1995 1994
-------- -------- -------- -------- --------
Earnings:
Income from continuing
operations before
income taxes. . . . . . $ 3,739 $17,861 $13,367 $ 3,083 $ 4,648
-------- -------- -------- -------- --------
Fixed Charges:
Interest expense. . . . . 4,815 2,921 3,162 3,235 1,654
Interest inherent in
rental expense. . . . . 137 124 108 102 70
Guaranteed Interest . . . 20 0 0 0 0
-------- -------- -------- -------- --------
Fixed charges, as Defined . . 4,972 3,045 3,270 3,337 1,724
-------- -------- -------- -------- --------
Earnings, as Defined. . . . . 8,711 20,906 16,637 6,420 6,372
======== ======== ======== ======== ========
RATIO OF EARNINGS TO
FIXED CHARGES . . . . . . . . 1.75 6.87 5.09 1.92 3.70
<PAGE>
EXHIBIT 15
July 23, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Commissioners:
We are aware that our report dated April 27, 1999 on our review of the interim
financial information of Unit Corporation for the periods ended March 31, 1999
and 1998 and included in the Company's quarterly report on Form 10-Q for the
quarter ended March 31, 1999 is incorporated by reference in Unit Corporation's
Registration Statement dated July 23, 1999.
Yours Very Truly,
PricewaterhouseCoopers LLP
/s/ PricewaterhouseCoopers LLP
<PAGE>
EXHIBIT 23.1
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 23, 1999 relating to the
financial statements and financial statement schedule, which appears in Unit
Corporation's Annual Report on Form 10-K for the year ended December 31, 1998.
We also consent to the reference to us under the heading "Independent
Accountants" in such Registration Statement.
PricewaterhouseCoopers LLP
/s/ PricewaterhouseCoopers LLP
Tulsa, Oklahoma
July 23, 1999
