SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
X Annual Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 [Fee Required]
For the fiscal year ended December 28, 1996
OR
Transition Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 [No Fee Required]
For the Transition period from to
Commission file number 1-9256
PREMARK INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3461320
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1717 Deerfield Road, Deerfield, Illinois 60015
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (847) 405-6000
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange
on Which Registered
Common Stock, $1.00 par value New York Stock Exchange
Pacific Stock Exchange
Preferred Stock Purchase Rights New York Stock Exchange
Pacific Stock Exchange
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes X No
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to
the best of Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. X
Aggregate market value of the Registrant's voting stock held by
non-affiliates, based upon the closing price of said stock on the New York
Stock Exchange-Composite Transaction Listing on March 3, 1997 ($22.875 per
share): $1,436,528,132.
As of March 3, 1997, 62,799,044 shares of the Common Stock, $1.00 par
value, of the Registrant were outstanding.
Documents Incorporated by Reference:
Portions of the Proxy Statement relating to the Annual Meeting of
Shareholders to be held May 7, 1997, are incorporated by reference into Part
III of this Report.
PART I
Item 1. Business
(a) General Development of Business
Premark International, Inc. (the "Registrant") is a multinational
commercial and consumer products company. The Registrant is a Delaware
corporation that was organized on August 29, 1986, in connection with the
corporate reorganization of Kraft, Inc. ("Kraft"). In the reorganization,
the businesses of the Registrant and certain other assets and liabilities of
Kraft and its subsidiaries were transferred to the Registrant. On October
31, 1986, the Registrant became a publicly held company through the pro-rata
distribution by Kraft to its shareholders of all of the outstanding shares
of common stock of the Registrant. On May 31, 1996, the Registrant
distributed on a pro-rata basis to its shareholders all of the stock of
Tupperware Corporation ("Tupperware"), a direct seller of consumer products.
On June 28, 1996, the Registrant sold all its stock in Hartco Flooring
Company to Triangle Pacific Corp.
The Registrant's principal operating subsidiaries are Hobart
Corporation ("Hobart"); Wilsonart International, Inc. ("Wilsonart"); The
West Bend Company ("West Bend"); Florida Tile Industries, Inc. ("Florida
Tile"); and Precor Incorporated ("Precor"). Hobart, organized in Delaware
in 1989, is a successor to a business originally incorporated in 1897.
Hobart's predecessor was acquired in 1981 by a predecessor of the
Registrant. Wilsonart and West Bend were organized in Delaware in 1988 as
separate corporations owned directly by the Registrant, having been acquired
as operating divisions by a predecessor of the Registrant in 1966 and 1968,
respectively. Wilsonart changed its name from Ralph Wilson Plastics Company
in 1995. Florida Tile, a Florida corporation organized in 1954, was
acquired in 1990. Precor, a Delaware corporation, was organized as a
Washington corporation in 1981, and was acquired in 1984 by a predecessor of
the Registrant.
(b) Financial Information About Industry Segments
For certain financial information concerning the Registrant's business
segments, see Note 10 ("Segments of the Business") of the Notes to the
Consolidated Financial Statements of this Report.
(c) Narrative Description of Business
The Registrant conducts its business through its three business
segments: the Food Equipment Group; the Decorative Products Group; and the
Consumer Products Group. All year-to-year comparisons have been restated to
exclude Tupperware. A discussion of the three business segments follows.
FOOD EQUIPMENT GROUP
Principal Products, Markets and Distribution
The Food Equipment Group (the "Group") is composed primarily of Hobart
Corporation and other subsidiaries of the Registrant engaged in the design,
manufacture, distribution and service of commercial food preparation,
cooking, storage and cleaning equipment. For the fiscal years 1996, 1995
and 1994, sales by the Group contributed approximately 55 percent, 56
percent and 54 percent, respectively, of the sales of the Registrant's
businesses. Revenues from foreign operations constituted approximately 41
percent of the Group's 1996 sales.
The Group's core products include warewashing equipment; food
preparation machines, such as mixers, slicers, cutters, meat saws and
grinders; weighing and wrapping equipment and related systems; baking and
cooking equipment, such as ovens, ranges, fryers, griddles and broilers; and
refrigeration equipment. Products are marketed under the trademarks Hobart,
Stero, Vulcan, Vulcan-Hart, Wolf, Tasselli, Adamatic, Still, Foster,
Inoxyform and Ungermann. The Hobart brand represents about 79 percent of
the Group's sales.
Food equipment products are sold to the retail food industry, including
supermarket chains, independent grocers, delicatessens, bakeries,
convenience and other food stores, and to the foodservice industry,
including independent restaurants, fast-food chains, hospitals, correctional
facilities, schools, hotels, resorts and airlines.
Food equipment products are distributed in more than 100 countries,
either through company-owned operations or through distributors, dealers or
licensing arrangements. The Group is the only major food equipment
manufacturer in the United States with its own nationwide service network
for the markets in which it sells, providing not only an important source of
income but also an important source for developing new sales. The Group
also has a substantial service network outside the United States. The Group
directly services its food machines, warewashers, weigh/wrap equipment and
cooking equipment, while authorized independent agents service refrigeration
units and some cooking equipment. For financial information regarding
service revenues, see Note 10 ("Segments of the Business") of this Report.
Major new products introduced by the Group in the United States in
1996 included a new line of Hobart waste equipment systems; a Medalist by
Hobart mixer; and a Vulcan-Hart induction cooktop. In Europe, the Group
introduced a line of Hobart utensil washers.
Raw Materials and Facilities
The Group uses stainless and carbon steel, aluminum and plastics in the
manufacture of its products. These materials are readily available from
several sources, and no difficulties have been experienced with respect to
their availability, although costs have increased somewhat. In addition to
manufacturing certain component parts, the Group also purchases many
component parts, such as electrical and electronic components, castings,
hardware, fasteners and bearings. Certain manufacturers use tooling
provided by the Group for such components.
The Group owns its headquarters building and a major manufacturing
complex consisting of four plants in Troy, Ohio. In addition, the Group
operates nine manufacturing plants in California, Georgia, Kansas, Kentucky,
Maryland, New Jersey, Ohio and Virginia, and ten manufacturing plants in
Canada, France, Italy, the United Kingdom, Germany, Brazil and Australia.
Most of these plants are owned. In 1996, the Group sold its Ohio grey iron
foundry, obtaining a long-term supply arrangement as part of the sale.
Construction of a new Kentucky warewashing plant was completed in 1996. The
Group is building a warewashing plant in China, with anticipated startup in
the first half of 1997.
Competition
The Group competes in a growing worldwide market that is highly
fragmented. No single manufacturer competes with respect to all of the
Group's products, and the degree of competition varies among different
customer segments and products. In some instances the company faces strong
competition from manufacturers that specialize in particular products.
Because of the longevity of the company's products and the premium prices
they frequently command, the company faces competition from used equipment
and lower-priced products, especially during periods of weak economic
conditions.
The commercial food equipment industry is mature, with growth
primarily a function of new construction and replacement sales to existing
locations, as well as menu and format changes. The extensiveness of the
Group's brand acceptance across a broad range of products is deemed by the
Registrant to be an important competitive advantage. Another important
competitive advantage is the Group's extensive service network throughout
North America and Europe, as well as in major markets in the Far East and
Latin America. Competition is also based on numerous other factors,
including product quality, performance and reliability, price, labor savings
and energy conservation.
Miscellaneous
The Group had approximately $136 million of backlog orders at the end
of 1996 and $127 million at the end of 1995, after restatement of 1995 for
foreign exchange rate effects. The Group considers such orders to be firm,
though changes or cancellations of insignificant amounts may occur, and
expects that the 1996 backlog orders will be filled in 1997.
DECORATIVE PRODUCTS GROUP
Principal Products, Markets and Distribution
Wilsonart, Florida Tile and Hartco make up the Decorative Products
Group. Hartco was sold in June 1996. The Decorative Products Group
contributed 32 percent, 31 percent and 32 percent of the sales of the
Registrant's businesses for the fiscal years 1996, 1995 and 1994,
respectively.
Wilsonart designs, manufactures and distributes decorative surfacing
products. Its primary surfacing product is high pressure decorative plastic
laminate, which is produced using heated, high pressure presses. Decorative
surfacing products, sold principally under the Wilsonart trademark in more
than 1,000 colors, designs, and finishes, are used for numerous interior
surfacing applications, including cabinetry, countertops, vanities, store
fixtures, flooring and furniture. Approximately 45 percent of the Wilsonart
decorative laminate sold is used in residential applications, primarily for
surfacing kitchen and bathroom countertops and cabinetry. Decorative
laminate applications in the commercial market include office furniture,
retail store fixtures, restaurant and hotel furniture, and doors. Wilsonart
also manufactures specialty-grade laminates, including chemical-resistant,
wear-resistant, and fire-retardant types. Among the specialized
applications for Wilsonart laminate are those in laboratory work surfaces,
jetways and naval vessels. For financial information regarding decorative
laminate revenues, see Note 10 ("Segments of the Business") of this Report.
In 1996, Wilsonart introduced a high pressure laminate flooring product in
woodgrain plank and stone-look tile formats and a solid surfacing veneer
product.
In addition to laminate products, Wilsonart sells solid surfacing and
solid surfacing veneer products, including panels and solid surfacing sinks.
The company also sells contact adhesives, as well as decorative metals
surfacings and decorative edge moldings for countertops and furniture.
Virtually all products are sold under the Wilsonart trademark. Some
products, such as Lokweld adhesives, also employ various other trademarks.
Wilsonart decorative products are sold throughout the United States
through wholesale building material distributors and directly to original
equipment manufacturers. The company sells products outside the United
States through independent distributorships and foreign subsidiaries.
Products are sold in over 50 countries, including Mexico, Japan, Canada, the
United Kingdom, Poland, Russia, Central and South America, Australia, New
Zealand, Hong Kong, Taiwan, China, Korea and Singapore.
Florida Tile manufactures glazed ceramic wall and floor tile products
in a wide variety of sizes, shapes, colors and finishes, which are suitable
for residential and commercial uses. Tile products are marketed under the
Florida Tile trademark through company-owned and independent distributors.
Florida Tile also manufactures private label products for others. Exports
comprise a small portion of Florida Tile's sales. Florida Tile also imports
foreign-produced tile products to supplement its line of manufactured
products.
Raw Materials and Facilities
The manufacture of decorative laminates requires various raw materials,
including kraft and decorative paper, overlays, and melamine and phenolic
resins. Each of these items is available from a limited number of
manufacturers, but Wilsonart has not experienced difficulties in obtaining
sufficient quantities. Costs of paper and resin raw materials did not
increase substantially over the past year, but fluctuated somewhat,
especially for decorative paper. The principal raw materials used in
Florida Tile products are clay, talc, stains and frit (ground glass), all of
which are available to Florida Tile in sufficient quantities. Costs of
Florida Tile's raw materials have been relatively stable.
Wilsonart owns and operates three manufacturing facilities in Texas and
North Carolina, giving it the largest decorative laminate production
capacity in North America and one of the largest capacities in the world.
Adhesives are produced at two plants located in Texas and Louisiana. The
high pressure laminate flooring product is manufactured in a facility in
Texas. Some of the company's solid surfacing sinks are manufactured in a
facility in Texas. Other solid surfacing and solid surfacing veneer
products are purchased under a supply agreement. The company believes the
source of supply is reliable. Wilsonart has 16 regional distribution
centers that are geographically dispersed throughout North America. These
facilities can deliver stock items within 24 hours. Non-stock items can be
produced and delivered within 10 working days. Florida Tile manufactures
products in three owned manufacturing plants located in Florida, Georgia and
Kentucky. It owns and leases clay mines in Georgia. Florida Tile products
are distributed through a network of company-owned and independent
distribution outlets.
Competition
Wilsonart products are sold in highly competitive markets throughout
the world. The company's laminate and solid surfacing and solid surfacing
veneer products compete with a broad variety of surfacing and flooring
materials. Wilsonart estimates that it has approximately 49 percent of
United States sales of high pressure decorative laminates, about 20 percent
of United States sales of laminate flooring, and relatively small portions
of adhesives and solid surfacing sales. The major competitor in solid
surfacing products accounts for about 75 percent of total sales. Wilsonart
successfully competes with other companies by providing fast product
delivery, offering a broad choice of colors, designs and finishes, and
emphasizing design, quality, service and product development.
Florida Tile competes with a number of other domestic and foreign tile
manufacturers, as well as sellers of marble, stone, cast products,
carpeting, resilient flooring and other types of wall and floor covering
materials, in a highly fragmented market. The Registrant believes Florida
Tile is the second largest U.S. ceramic tile manufacturer, with sales
substantially lower than the largest U.S. tile manufacturer.
Foreign-manufactured products account for approximately 55 percent of
ceramic tile sales in the United States. The United States represents only
about 5 percent of the worldwide market for ceramic tile. Important
competitive factors in Florida Tile's business include price, style,
quality, breadth of product line and service.
Miscellaneous
The Decorative Products Group maintains a continuing program of product
development. Its efforts focus on product design, quality, performance and
durability, product enhancement, and product applications, as well as on
manufacturing processes. Development of component materials for laminate,
solid surfacing, solid surfacing veneer, and ceramic tile products is
generally performed by the companies providing those materials.
The Group's products are sold for new construction and remodeling, in
both the residential and commercial markets. As a consequence, the Group's
sales are affected by the seasonality of the new construction and remodeling
industries.
CONSUMER PRODUCTS GROUP
Principal Products, Markets and Distribution
The Consumer Products Group consists of West Bend and Precor. It
contributed 13 percent, 13 percent and 14 percent of the sales of the
Registrant's business for the fiscal years 1996, 1995 and 1994,
respectively.
West Bend designs, manufactures and sells small electric appliances
such as bread makers, electric skillets, slow cookers, woks, corn poppers,
beverage makers and electronic timers, under the West Bend trademark. West
Bend also manufactures and sells high-quality stainless steel cookware, and
a line of household water distillers. During 1996, West Bend continued to
expand its bread maker and drip coffeemaker lines and introduced a stand
mixer. Precor manufactures aerobic physical fitness equipment such as
treadmills, cross-training machines, low-impact climbers and exercise
cycles, as well as hand-held remote control weights, all of which are
marketed under the Precor trademark. In 1996, Precor announced the
introduction in 1997 of a stretching device to enhance performance of all
daily activities, and a home version of its commercial EFX cross-training
machine.
West Bend small appliances are sold primarily in the United States and
Canada, directly to mass merchandisers, department stores, hardware stores,
warehouse clubs and catalog showrooms. West Bend's stainless steel cookware
is sold to consumers by independent distributors through dinner parties and
by other direct sales methods. Cookware is sold in 31 countries under 23
separate brand names. Precor equipment is sold primarily through specialty
fitness equipment retail stores and high-end sporting goods and bicycle
stores in the United States and Canada. A small portion of Precor products
is sold outside the United States, in Asia, Europe, Latin America and the
Middle East. Those products are sold primarily through select independent
distributors. Precor products continue to be primarily for home use.
However, Precor now derives a significant portion of its revenue through
sales to fitness clubs.
Raw Materials and Facilities
West Bend uses aluminum, stainless steel, plastic resins and other
materials in the manufacture of its products. Precor uses carbon steel,
stainless steel, aluminum, electronic components and other materials in the
manufacture of its products. Generally, neither West Bend nor Precor has
experienced any significant difficulties in obtaining any of these raw
materials or products. The costs of aluminum and packaging have declined
somewhat, while other raw material costs have remained flat. West Bend owns
and operates two manufacturing plants in Wisconsin and Mexico. Precor
maintains two leased plants in the state of Washington.
Competition
Products sold by West Bend and Precor compete with products sold by
numerous other companies of varying sizes in highly competitive markets.
The small appliance business is a mature industry, with growth dependent in
large measure on developing new products, entering new product categories
and satisfying the needs of large mass merchandisers. Low-priced imports
remain a factor in the business. Many product life cycles in the household
fitness business are relatively short, creating a continuing need for
product development. Important competitive factors in this segment include
price, development of new products and product features, quality, name
recognition, innovative design, product performance, just-in-time delivery,
warranties and service.
Miscellaneous
The small appliance industry is dependent on gift-giving for a
substantial portion of its sales. West Bend's housewares sales in the
fourth quarter typically are significantly higher due to the gift-giving
season. Precor's business is significantly higher in the first and fourth
quarters, when winter weather forces more people to exercise indoors. The
Consumer Products Group is dependent on two customers for approximately one-
third of its revenues.
OTHER INFORMATION RELATING TO THE BUSINESS
Trademarks and Patents. The Registrant considers trademarks and
patents to be of importance to its businesses. The Registrant's trademarks
are among the leading brand names for many of its product lines. Its
businesses have followed the practice of applying for patents with respect
to most of the significant patentable developments, and now own a number of
patents relating to their products. In certain cases the Registrant has
elected common law trade secret protection in lieu of obtaining patent
protection. In addition, exclusive and nonexclusive licenses under patents
owned by others are held. No business is dependent to any material extent
upon any single patent or trade secret or group of patents or trade secrets.
Research and Development. For fiscal years ended 1996, 1995 and 1994,
the Registrant spent approximately $39 million, $38 million, and $35
million, respectively, on research and development activities.
Environmental Laws. Compliance by the Registrant's businesses with
federal, state and local environmental protection laws has not in the past
had, and is not expected to have in the future, a material effect upon its
capital expenditures, liquidity, earnings or competitive position. The
Registrant expects to expend less than $100 thousand through 1998 on capital
expenditures related to environmental facilities. In 1996, the Registrant
had approximately $350 thousand of capital expenditures for environmental
facilities, and approximately $3 million of remedial expenditures for
environmental sites. See Item 3 for a further discussion of environmental
matters.
Employees. The Registrant and its subsidiaries employ approximately
16,300 people. Approximately 25 percent of the Registrant's employees are
affiliated with one of the several unions with which the Registrant's
subsidiaries have collective bargaining agreements. In recent years there
has been no major effort to organize additional persons working for the
Registrant's businesses, and there have been no significant work stoppages.
The Registrant considers its relations with its employees to be good.
Properties. The principal executive offices of the Registrant are
located in Illinois and are leased. Most of the principal properties of the
Registrant and its subsidiaries are owned, and none of the owned principal
properties is subject to any encumbrance material to the consolidated
operations of the Registrant. The Registrant considers the condition and
extent of utilization of the plants, warehouses and other properties in its
respective businesses to be generally good, and the capacity of its plants
and warehouses generally to be adequate for the needs of its businesses.
Miscellaneous. Except as disclosed above in the narrative descriptions
of the Registrant's business segments, none of the Registrant's businesses
is seasonal, has working capital practices or backlog conditions material to
an understanding of its businesses, is dependent on a small number of
customers, or is subject to renegotiation of profits or termination of
contracts or subcontracts at the election of the federal government. Since
the Registrant has substantial sales outside the United States, changes in
currency exchange rates can affect the business.
(d) Financial Information about Foreign and Domestic Operations and Export
Sales
For information concerning foreign and domestic operations and export
sales, see Note 7 ("Income Taxes") and Note 10 ("Segments of the Business")
of this Report. For information concerning Registrant's discontinued
Tupperware operation, see Note 2 ("Distribution of Tupperware to
Shareholders and Hartco Disposition") of this Report.
Executive Officers of the Registrant. Following is a list of the names
and ages of all the Executive Officers of the Registrant, indicating all
positions and offices with the Registrant held by each such person, and each
such person's principal occupations or employment during the past five
years. Each such person has been elected to serve until the next annual
election of officers of the Registrant (expected to occur on May 7, 1997),
except that Mr. Coleman has announced his retirement effective April 1,
1997.
Name and Age Positions and Offices Held
and Principal Occupations
or Employment During Past
Five Years
Warren L. Batts (64) Chairman of the Board of
Directors since May 1996, and
prior thereto Chairman of the
Board and Chief Executive
Officer.
James M. Ringler (51) President and Chief Executive
Officer since May 1996, after
having served as President and
Chief Operating Officer since
June 1992, and as President,
Food Equipment Group prior
thereto.
Joseph W. Deering (56) Group Vice President of
Premark and President of
Premark's Food Equipment
Group since June 1992, after
serving as President of
Leucadia National's
Manufacturing group.
Thomas W. Kieckhafer (58) Corporate Vice President and
President of The West Bend
Company.
William R. Reeb (49) Corporate Vice President
since November 1994, and
President and Chief Operating
Officer of Wilsonart since
August 1993. Prior thereto,
Mr. Reeb served as Vice
President, Marketing, for the
Decorative Products Group and
Executive Vice President for
Wilsonart.
James C. Coleman (57) Senior Vice President, Human
Resources.
John M. Costigan (54) Senior Vice President,
General Counsel and
Secretary.
Lawrence B. Skatoff (57) Senior Vice President and
Chief Financial Officer.
Raymond Barbosa (42) Vice President, Taxes and Tax
Counsel since May 1996,
prior to which Mr. Barbosa was
Tax Counsel.
L. John Fletcher (53) Vice President, Assistant
General Counsel, and Assistant
Secretary since May 1996,
prior to which Mr. Fletcher
was Vice President and
Assistant General Counsel.
Isabelle C. Goossen (45) Vice President and Treasurer
since August 1996, after
having served as Vice
President, Financial
Relations since January
1996, Vice President, Planning
since June 1994, Director of
Financial Relations since
1992, and prior thereto as
Director in the Planning
Department.
Robert W. Hoaglund (58) Vice President and
Controller since January
1996. Prior thereto Mr.
Hoaglund was Vice President,
Control & Information Systems.
Anthony C. Scolaro (48) Vice President, Planning and
Business Development since
January 1996. Mr. Scolaro
was Corporate Development
Vice President at Ecolab,
Inc. from 1994 to 1996 and
was Assistant to the President
at Rykoff-Sexton, Inc. prior
thereto.
Item 2. Properties
For information concerning material properties of the Registrant and
its subsidiaries, see the information in Section (c) ("Narrative Description
of Business") of Item 1 above, particularly the information in the paragraph
titled "Properties" under the caption "Other Information Relating To The
Business."
Item 3. Legal Proceedings
The Registrant and its subsidiaries have pending against them a number
of legal and administrative proceedings. Among such proceedings are those
involving the discharge of materials into or otherwise relating to the
protection of the environment. Certain of such proceedings involve federal
environmental laws such as the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as well as state and local laws.
The Registrant establishes reserves with respect to certain of such matters.
Because of the involvement of other parties and the uncertainty of potential
environmental impacts, the eventual outcomes of such actions and the cost
and timing of expenditures cannot be estimated with certainty. It is not
expected that the outcome of such proceedings, either individually or in the
aggregate, will have a materially adverse effect upon the Registrant's
consolidated financial position or operations.
Item 4. Submission of Matters to a Vote of Security Holders
None.
PART II
Item 5. Market for Registrant's Common Equity and Related
Stockholder Matters
Stock price information is set forth in Note 12 ("Quarterly Summary
(unaudited)") of this Report. Other matters are set forth in Note 13
("Shareholders' Rights Plan") of this Report. As of March 3, 1997, the
Registrant had 21,395 shareholders of record.
Item 6. Selected Financial Data
The information under the caption "Selected Financial Data" appears on
pages 30 to 33 of this Report.
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations
In November 1995, the company's Board of Directors authorized management to
proceed with a plan to establish Tupperware Corporation ("Tupperware") as an
independent company through a stock distribution to Premark's shareholders.
The distribution was effected on May 31, 1996. Tupperware has been reported
as a discontinued operation in these financial statements. The information
contained in this financial review should be read in conjunction with the
consolidated financial information on pages 36 to 51 of this Report.
RESULTS OF OPERATIONS
Net Sales and Income from Continuing Operations
Sales increased by 2 percent to a record $2.3 billion in 1996, from $2.2
billion in 1995, reflecting increases at Wilsonart, Precor, the non-European
operations of the Food Equipment Group and Florida Tile. These increases
were partially offset by a decline at West Bend and Food Equipment Group's
European sector and the absence of sales at Hartco Flooring, which was sold
in the second quarter of 1996. In 1995, sales increased by 5 percent over
1994, reflecting improvement in the Food Equipment Group's domestic
operations and the inclusion of international acquisitions. Income from
continuing operations declined 28 percent to $56.7 million in 1996, from
$78.9 million in 1995, due to the loss on the sale of Hartco. Excluding
that loss, income from operations would have been $95.4 million, an increase
of 21 percent over 1995, as a result of a significant improvement at
Wilsonart and Precor, coupled with lower net interest and corporate staff
expenses. In 1995, income from continuing operations rose by 12 percent to
$78.9 million from $70.8 million in 1994. The improvement was led by strong
domestic Food Equipment Group operations and the absence of the 1994
adhesive provision at Wilsonart. In 1996 and 1995, respectively, 24 percent
and 25 percent of net sales and 9 percent and 13 percent of segment profit,
respectively, were generated outside of the United States.
Costs and Expenses
The cost of products sold in relation to sales was 63.7 percent, 64.2
percent and 64.6 percent in 1996, 1995 and 1994, respectively. The improved
ratio in 1996 compared with 1995 was the result of lower manufacturing costs
at Wilsonart and a favorable product mix at Precor. These factors were
somewhat offset by manufacturing inefficiencies at the Food Equipment
Group's domestic operations as production was being shifted between plants,
and lower production levels in its European operations. Delivery, sales and
administrative expenses as a percentage of sales were 29.1 percent, 29.3
percent and 29.2 percent in 1996, 1995 and 1994, respectively.
Tax Rate
The effective tax rates for 1996, 1995 and 1994 were 49.8 percent, 34.4
percent and 36.1 percent, respectively. The 1996 increase reflects the
company's potential inability to realize the full tax benefit associated
with the loss on the sale of Hartco as well as the inability to realize the
tax benefit of losses in certain foreign countries. Excluding the Hartco
loss, the 1996 effective tax rate was 38.9 percent. The 1995 decrease from
1994 reflects a change in the estimate of the cost of repatriating foreign
earnings to the United States.
Net deferred tax assets, net of valuation allowances, were $90.1 million at
December 28, 1996, a decrease of $8.2 million from net deferred tax assets
of $98.3 million in 1995. The valuation allowance is recorded primarily as
reserves for foreign operating losses and capital loss carryforwards.
Net Interest Expense
Interest expense, net of interest income, was $9.3 million in 1996, $24.6
million in 1995 and $18.2 million in 1994. Net interest expense reflects
interest accrued and earned on all of Premark's borrowings and invested
cash, excluding amounts that were owed or held by Tupperware. The lower net
interest expense in 1996 reflects substantially lower debt levels as a
result of the special dividend paid to Premark by Tupperware on May 24,
1996, cash received from the sale of Hartco, as well as less debt required
to finance working capital needs. The increase in 1995 net interest expense
compared with 1994 reflects both increased average borrowings and a higher
average interest rate.
SEGMENTS
FOOD EQUIPMENT GROUP
Sales and Segment Profit 1996 versus 1995
The Food Equipment Group's 1996 sales of $1.2 billion were even with 1995
sales. Growth in international operations other than Europe and slightly
higher domestic sales were offset by declines in most European countries as
well as by the unfavorable impact of foreign exchange. Segment profit fell
15 percent to $77.9 million in 1996 from $91.9 million in 1995, as a result
of higher domestic operating costs and lower European results. For 1996 and
1995, respectively, the Food Equipment Group accounted for 55 percent and 56
percent of sales, and 56 percent and 55 percent of segment profit.
Regional Results
Sales in the United States rose by 2 percent in 1996 to $728.1 million,
primarily reflecting increased service revenues. Segment profit decreased
10 percent to $63.8 million in 1996 from $71.1 million in 1995 as a result
of a $3.3 million second quarter provision for plant closings, unfavorable
product mix, lower production volume reflecting transfer of production among
plants and spending on future products and technologies.
European sales declined by $27.9 million in 1996 to $414.3 million, a 6-
percent shortfall from 1995, as a result of difficult economies in most
markets as well as the impact of unfavorable foreign exchange rates.
Excluding the impact of foreign exchange, sales declined 3 percent. Segment
profit decreased by 59 percent to $6.2 million from $15.5 million in 1995,
reflecting lower sales and production volumes as well as a $1.9 million
provision for a reduction in force in the first quarter.
Sales by the Group's other international operations were $96.0 million, an
increase of 13 percent from $84.8 million in 1995. Inclusion of Brazil,
which was acquired during 1995, and Argentina, acquired in 1996, as well as
higher volume in Mexico, Japan and Australia, more than offset lower volume
in Canada and unfavorable foreign exchange rates. Segment profit increased
by 48 percent to $7.9 million from $5.3 million in 1995, due to favorable
manufacturing costs in Canada as well as sales-related gains in Mexico,
which more than offset startup costs associated with the acquisition of
Brazil and Argentina.
1995 versus 1994
Sales by the Food Equipment Group increased by 9 percent in 1995 to $1.2
billion from $1.1 billion in 1994. The increase reflects the favorable
impact of foreign exchange, the inclusion of international acquisitions and
slightly higher domestic sales. Segment profit rose 14 percent to $91.9
million from $80.6 million in 1994, primarily due to improved U.S. results.
DECORATIVE PRODUCTS GROUP
Sales and Segment Profit 1996 versus 1995
The Decorative Products Group's 1996 sales of $730.4 million were 6 percent
above 1995 sales of $686.6 million. Excluding Hartco, which was sold at
mid-year, sales of the remaining businesses grew 12 percent. Segment profit
of $28.5 million in 1996 declined 43 percent from $50.4 million in 1995, as
a result of the $43.1 million pretax loss on the sale of Hartco. Excluding
that loss, segment profit would have been $71.6 million, an increase of 42
percent. For 1996 and 1995, respectively, the Decorative Products Group
accounted for 32 percent and 31 percent of sales, and 21 percent and 30
percent of segment profit.
Wilsonart's sales in 1996 rose 13 percent over 1995, reflecting higher
volume, improved pricing and the introduction of a new laminate flooring
product. Wilsonart had a significant increase in segment profit on higher
volume and favorable margins, despite marketing expenses associated with new
product introductions and expansion overseas.
Florida Tile's sales increased 7 percent over 1995. Higher volume,
especially of new products, more than offset competitive pricing pressures.
Segment profit also increased substantially, as a result of higher volume
and operating margins.
Hartco's 1996 sales were $40.4 million, substantially below last year due to
the sale of the company in June 1996. Segment profit, excluding the loss on
the sale, was up significantly over last year.
1995 versus 1994
The Decorative Products Group had 1995 sales of $686.6 million, slightly
below 1994 sales of $690.0 million. Florida Tile and Hartco were both
slightly below 1994 sales, while Wilsonart's sales were even with 1994.
Segment profit rose 38 percent to $50.4 million in 1995 from $36.5 million
in 1994 due to the absence of Wilsonart's 1994 provision for adhesive
claims.
CONSUMER PRODUCTS GROUP
Sales and Segment Profit 1996 versus 1995
Sales of the Consumer Products Group in 1996 were $298.8 million compared
with $289.0 million in 1995, as lower sales at West Bend were more than
offset by higher volume at Precor. Segment profit in 1996 increased by 29
percent to $32.6 million from $25.3 million in 1995, due to the absence of
1995's $8 million charge for a bread maker recall by West Bend and higher
sales volume at Precor. The Consumer Products Group accounted for 13
percent of sales for both 1996 and 1995 and 23 percent and 15 percent of
segment profit for 1996 and 1995, respectively.
West Bend sales dropped 5 percent from 1995 as a substantial increase in
direct-to-the-home cookware was offset by Housewares' soft retail
environment and competitive pricing on bread makers. Segment profit
increased strongly due to the absence of the $8 million recall provision
made in 1995. Excluding that charge, profits fell substantially from last
year on lower Housewares sales.
Precor sales for 1996 rose 37 percent over last year. Increases in both the
retail and commercial markets as well as the introduction of a new product
led to the improvement. The higher sales volume and improved margins led to
a record segment profit.
1995 versus 1994
Consumer Products Group sales of $289.0 million in 1995 were slightly below
1994 sales of $292.8 million. West Bend's sales were slightly ahead of
1994, on a modest increase of direct-to-the-home cookware sales and a slight
increase at Housewares. Precor had a double digit percentage point decline
in sales in 1995 compared with 1994 as a result of lower volume due to weak
industry conditions. Segment profit decreased by 36 percent to $25.3
million in 1995 from $39.4 million in 1994 due to the bread maker recall
provision by West Bend and lower sales volume at Precor.
FINANCIAL CONDITION
Liquidity and Capital Resources
Under the Distribution Agreement, Premark received a special dividend of
$284.9 million on May 24, 1996, which was used to substantially reduce the
company's outstanding debt. On June 28, 1996, the company completed the
sale of its Hartco subsidiary for $35.8 million and assumption of debt.
The total debt-to-capital ratio at the end of 1996 was 12.0 percent compared
with 25.1 percent at the end of 1995. The year-end 1995 ratio included debt
of discontinued operations. The lower ratio compared with last year
reflects the repayment of debt with cash from the special Tupperware
dividend plus the effect of a reduction of equity due to the spin-off of
Tupperware and the loss on Hartco. As of December 28, 1996, unused lines of
credit were approximately $511.8 million, including $250 million under a
revolving credit agreement that expires in May 2001. Future cash flows,
lines of credit and other short-term financing are expected to be adequate
to fund operating and investing activities.
Working capital was $594.4 million at the end of 1996, compared with $276.6
million and $281.1 million at the end of 1995 and 1994, respectively. The
current ratio was 2.3-to-1 at the end of 1996, compared with 1.5-to-1 at the
end of 1995 and 1994. The major differences in the components of working
capital in 1996 versus 1995 were higher cash and cash equivalents as well as
short-term investments, along with significantly lower short-term
borrowings, both as a result of the cash received in connection with the
spin-off of Tupperware and the sale of Hartco. The primary components of
the decrease in working capital in 1995 compared with 1994 were higher
accounts receivable reflecting higher sales levels as well as increased
inventories and deferred tax benefits, which were more than offset by much
higher short-term borrowings required to fund share repurchases during the
year.
Operating Activities
Cash provided by operating activities was $162.4 million in 1996, compared
with $53.4 million in 1995 and $184.0 million in 1994. The 1996 increase
was the result of the timing of payments for raw material and sourced
product, as compared with 1995, along with a much smaller growth in deferred
income taxes. The decrease in 1995 compared with 1994 reflects a shift in
the timing of accounts payable payments along with payments made in
connection with a tax planning transaction, partially offset by lower
incremental investments in accounts receivable and inventories compared with
1994.
Investing Activities
For 1996, 1995 and 1994, respectively, capital expenditures amounted to
$84.1 million, $85.7 million and $69.5 million. The slight decrease in 1996
compared with 1995 reflects lower spending at Wilsonart for laminate
flooring plant equipment, mostly offset by additions at Florida Tile and
West Bend. The most important factors in the 1995 increase over 1994 were
expenditures by the Food Equipment Group, Wilsonart and Florida Tile.
Capital expenditures are expected to be approximately $80 to $85 million in
1997.
Dividends
Dividends declared per common share were 73 cents in 1996, $1.01 in 1995 and
74 cents in 1994. Quarterly dividends increased to 30 cents and 27 cents in
the second quarters of 1996 and 1995, respectively. The quarterly dividend
was adjusted to 8 cents in the third quarter of 1996 as a result of the
spin-off of Tupperware.
Share Repurchases
In August 1996, the company announced the authorization by its Board of
Directors for the repurchase of 6 million of its shares of common stock,
with volume and timing to depend on market conditions. Purchases will be
made in the open market or through other transactions and will be financed
through available cash, cash flow from operations or issuance of additional
debt. Under this plan, through December 28, 1996, and March 3, 1997,
respectively, the company had repurchased 130,000 shares and 250,000 shares
at an average cost of $21 and $22, respectively. The company's previous
stock repurchase plan, announced in August 1995, was terminated prior to
June 1996. Under that plan, the company had repurchased 588,000 shares at
an average cost of $51 per share, including repurchases in 1996 of 92,000
shares at an average cost of $50 per share.
The company's other previous stock repurchase plan was announced in May
1993, and was completed in March 1995. Under this plan, the company
repurchased a total of 6 million of its shares of common stock at an average
cost of $41 per share.
New Accounting Standard
In 1996, the company adopted Statement of Financial Accounting Standards No.
123, "Accounting for Stock-Based Compensation." This statement encourages,
but does not require companies to record compensation cost for stock-based
employee compensation plans at fair value. The company has chosen to
continue to account for stock-based compensation under the intrinsic value
method prescribed in Accounting Principles Board Opinion No. 25, "Accounting
for Stock Issued to Employees," and related Interpretations.
Impact of Inflation
Inflation as measured by the Consumer Price Index has continued at a low
level in the United States. The company did not experience any significant
cost increases during 1996. However, the company did experience cost
increases for many of its raw materials during the early part of 1995. A
portion of these increased costs was absorbed through increased operating
and production efficiencies and price increases by certain of the company's
operating units. A portion remained unrecovered, resulting in lower margins
in certain units.
Item 8. Financial Statements and Supplementary Data
(a) The required information is included in Item 14(a)(1) and (2) of
this Report.
Item 9. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure
On March 6, 1997, the company, upon the approval of the Audit and
Corporate Responsibility Committee of its Board of Directors, dismissed
Price Waterhouse LLP as its independent accountants. The information
contained in the company's Current Report on Form 8-K dated March 6, 1997,
is incorporated by reference into this Report.
PART III
Item 10. Directors and Executive Officers of the Registrant
Information regarding the Directors of the Registrant is set forth
under the sub-caption "Board of Directors" appearing under the caption
"Election of Directors" in the Proxy Statement relating to the Annual
Meeting of Shareholders to be held on May 7, 1997, and is incorporated by
reference into this Report. Information regarding the Executive Officers of
the Registrant is included in Part I hereof under the caption "Executive
Officers of the Registrant," in reliance upon General Instruction G to Form
10-K and Instruction 3 to Item 401(b) of Regulation S-K.
Item 11. Executive Compensation
Information regarding this item is set forth under the caption
"Compensation of Directors" in the Proxy Statement relating to the Annual
Meeting of Shareholders to be held on May 7, 1997, and is incorporated by
reference into this Report. The information relating to executive officers'
compensation under the headings "Summary Compensation Table," "Stock
Options," "Aggregated Option Exercises in Last Fiscal Year and FY-End Option
Values," "Long-Term Incentive Plan Awards" and "Pension Plans" of such Proxy
Statement is incorporated by reference into this Report.
Item 12. Security Ownership of Certain Beneficial Owners and
Management
Information regarding this item is set forth under the captions
"Security Ownership of Certain Beneficial Owners" and "Security Ownership of
Management" in the Proxy Statement relating to the Annual Meeting of
Shareholders to be held on May 7, 1997, and is incorporated by reference
into this Report.
Item 13. Certain Relationships and Related Transactions
None
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports On
Form 8-K
(a)(1) and (a)(2)
Information regarding this requirement is set forth in the index on
page 34 of this Report under the heading "Financial Statements."
(a)(3) List of Exhibits:
(numbered in accordance with Item 601 of Regulation S-K)
Exhibit
Number Description
* 3.1 Restated Certificate of Incorporation (Exhibit 3A
to the Registrant's Annual Report on Form 10-K for
the year ended December 30, 1991)
3.2 Amended By-Laws
* 4.1 Rights Agreement and Exhibits dated November 6,
1996 (Exhibit 1 to the Registrant's Current Report
on Form 8-K dated November 22, 1996)
4.2 Form of Indenture (Revised) in connection with the
Registrant's Form S-3 Registration Statement No.
33-35137
*10.1 $250,000,000 Credit Agreement dated as of May 17,
1996 (Exhibit 10 to the Registrant's Quarterly
Report on Form 10-Q for the 26 weeks ended
June 29, 1996)
*10.2 Form of Distribution Agreement by and among Premark
International, Inc., Tupperware Corporation and
Dart Industries Inc. (Exhibit 10.5 to the Registrant's
Annual Report on Form 10-K for the year ended December 30,
1995)
*10.3 Form of Tax Sharing Agreement by and between Premark
International, Inc. and Tupperware Corporation
(Exhibit 10.6 to the Registrant's Annual Report on
Form 10-K for the year ended December 30, 1995)
Compensatory Plans or Arrangements [10.4-10.10]
*10.4 Form of Employee Benefits and Compensation
Allocation Agreement by and between Premark
International, Inc. and Tupperware Corporation
(Exhibit 10.7 to the Registrant's Annual Report on
Form 10-K for the year ended December 30, 1995)
*10.5 Premark International, Inc. 1994 Incentive Plan
(Exhibit 4.1 to the Registrant's Form S-8
Registration Statement No. 33-53561 dated
May 4, 1994)
*10.6 Premark International, Inc. Supplemental Benefits
Plan (Exhibit 10L to the Registrant's Annual
Report on Form 10-K for the year ended December
28, 1991)
10.7 Premark International, Inc. Change of Control
Policy, as amended in 1989 and further amended in
1996
*10.8 Form of Employment Agreement entered into between
the Registrant and certain executive officers
(Exhibit 5 to the Registrant's Current Report
on Form 8-K dated November 22, 1996)
*10.9 Employment Agreement entered into on June 2, 1992,
between the Registrant and Joseph W. Deering
(Exhibit 10M to the Registrant's Annual Report on
Form 10-K for the year ended December 26, 1992)
*10.10 Premark International, Inc. Director Stock Plan,
as amended 1993 (Exhibit 10O to the Registrant's
Annual Report on Form 10-K for the year ended
December 25, 1993)
11 A statement of computation of 1996 per share
earnings
21 Subsidiaries of the Registrant as of March 10,
1997
23 Manually signed Consent of Independent Accountants
to the incorporation of their report by reference
into the prospectuses contained in specified
registration statements on Form S-8 and Form S-3
24 Powers of Attorney
27 Financial Data Schedule
*Document has heretofore been filed with the Commission and is incorporated
by reference and made a part of this Report.
The Registrant agrees to furnish, upon request of the Commission, a
copy of all constituent instruments defining the rights of holders of
long-term debt of the Registrant and its consolidated subsidiaries.
(b) Reports on Form 8-K
During the quarter ended December 28, 1996, the Registrant filed a
Current Report on Form 8-K dated November 22, 1996 reporting the November 6,
1996, Rights Agreement and the Employment Agreement for executive officers
of the Registrant; and November 27, 1996, reporting the November 22, 1996,
completion of the sale by the trustee of the Registrant's 401(k) plan of
Tupperware Corporation common stock, and the November 25, 1996, completion
by the trustee of use of the proceeds thereof to purchase the Registrant's
common stock.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this Report to be
signed on its behalf by the undersigned, thereunto duly authorized.
Premark International, Inc.
(Registrant)
By JAMES M. RINGLER
____________________
James M. Ringler
President and Chief
Executive Officer
March 20, 1997
Pursuant to the requirements of the Securities Exchange Act of 1934,
this Report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the date indicated.
Signature Title
JAMES M. RINGLER President, Chief Executive Officer and
James M. Ringler Director (Principal Executive Officer)
LAWRENCE B. SKATOFF Senior Vice President and Chief
Lawrence B. Skatoff Financial Officer (Principal
Financial Officer)
ROBERT W. HOAGLUND Vice President and Controller
Robert W. Hoaglund (Principal Accounting Officer)
* Director
Warren L. Batts
* Director
William O. Bourke
* Director
Harry W. Bowman
* Director
Dr. Ruth M. Davis
* Director
Lloyd C. Elam, M.D.
* Director
W. James Farrell
* Director
Richard S. Friedland
* Director
Joseph E. Luecke
* Director
John B. McKinnon
* Director
David R. Parker
* Director
Janice D. Stoney
*By JOHN M. COSTIGAN
John M. Costigan
Attorney-in-fact
March 20, 1997
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
3.2 Amended By-Laws
4.2 Form of Indenture (Revised) in connection
with the Registrant's Form S-3 Registration
Statement No. 33-35137
10.7 Premark International, Inc. Change
of Control Policy, as amended in
1989 and further amended in 1996
11 A statement of computation of 1996
per share earnings
21 Subsidiaries of the Registrant as of
March 10, 1997
23 Manually signed Consent of Independent
Accountants to the incorporation of their
report by reference into the prospectuses
contained in specified registration
statements on Form S-8 and Form S-3
24 Powers of Attorney
27 Financial Data Schedule
<PAGE>
<TABLE>
SELECTED FINANCIAL DATA
<CAPTION>
(Dollars in millions,
except per share 1996 1995 1994 1993 1992 1991 1990 1989 1988 1987
amounts) --------- --------- --------- --------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Operating results
Net sales:
Food Equipment Group:
United States $ 728.1 $ 710.8 $ 687.8 $ 610.3 $ 586.5 $ 568.3 $ 581.7 $ 567.4 $ 554.3 $ 541.5
Europe 414.3 442.2 369.2 344.0 412.9 384.2 359.7 304.1 264.7 216.4
Other
International 96.0 84.8 78.5 55.6 54.9 57.9 57.6 60.3 55.0 51.0
--------- --------- --------- --------- --------- --------- --------- --------- --------- ---------
Total 1,238.4 1,237.8 1,135.5 1,009.9 1,054.3 1,010.4 999.0 931.8 874.0 808.9
Decorative Products
Group 730.4 686.6 690.0 618.3 573.1 522.6 499.6 430.1 352.8 309.7
Consumer Products
Group 298.8 289.0 292.8 239.4 206.3 206.4 203.6 204.8 203.0 179.6
--------- --------- --------- --------- --------- --------- --------- --------- --------- ---------
Total net sales $2,267.6 $2,213.4 $2,118.3 $1,867.6 $1,833.7 $1,739.4 $1,702.2 $1,566.7 $1,429.8 $1,298.2
========= ========= ========= ========= ========= ========= ========= ========= ========= =========
Segment profit:
Food Equipment Group:
United States $ 63.8 $ 71.1 $ 61.8 $ 40.7 $ 32.5 $ 12.0 $ (4.2) $ (13.0) $ 22.3 $ 27.5
Europe 6.2 15.5 15.8 7.6 15.7 23.8 26.6 28.4 27.3 18.9
Other
International 7.9 5.3 3.0 3.0 1.4 5.3 4.5 6.4 8.2 6.9
--------- --------- --------- --------- --------- --------- --------- --------- --------- ---------
Total 77.9 91.9 80.6 51.3 49.6 41.1 26.9 21.8 57.8 53.3
Decorative Products
Group 28.5<F1> 50.4 36.5 33.4 35.0 38.3 46.9 42.1 42.3 37.1
Consumer Products
Group 32.6 25.3 39.4 22.8 20.9 22.6 19.2 17.3 15.8 13.6
--------- --------- --------- --------- --------- --------- --------- --------- --------- ---------
Total segment
profit $ 139.0 $ 167.6 $ 156.5 $ 107.5 $ 105.5 $ 102.0 $ 93.0 $ 81.2 $ 115.9 $ 104.0
========= ========= ========= ========= ========= ========= ========= ========= ========= =========
Income from continuing
operations $ 56.7<F2>$ 78.9 $ 70.8 $ 50.5 $ 44.6 $ 38.1 $ 19.4 $ 31.5 $ 47.8 $ 50.0
Income (loss) from
discontinued
operations 62.2 158.7 154.7 122.0 (40.0) 64.2 32.6 46.9 73.4 21.5
Cumulative effect of
accounting changes - - - - (83.9) - - - (15.9) -
--------- --------- --------- --------- --------- --------- --------- --------- --------- ---------
Net income (loss) $ 118.9 $ 237.6 $ 225.5 $ 172.5 $ (79.3) $ 102.3 $ 52.0 $ 78.4 $ 105.3 $ 71.5
========= ========= ========= ========= ========= ========= ========= ========= ========= =========
Per common and common
equivalent share:
Income from
continuing
operations $ 1.47 $ 1.24 $ 1.06 $ 0.75 $ 0.68 $ 0.60 $ 0.31 $ 0.45 $ 0.69 $ 0.73
Loss on sale of
Hartco (0.60) - - - - - - - - -
--------- --------- --------- --------- --------- --------- --------- --------- --------- ---------
Total income
from
continuing
operations $ 0.87 $ 1.24 $ 1.06 $ 0.75 $ 0.68 $ 0.60 $ 0.31 $ 0.45 $ 0.69 $ 0.73
========= ========= ========= ========= ========= ========= ========= ========= ========= =========
Income (loss) from
discontinued
operations $ 0.96 $ 2.48 $ 2.33 $ 1.82 $ (0.61) $ 1.02 $ 0.51 $ 0.67 $ 1.06 $ 0.31
========= ========= ========= ========= ========= ========= ========= ========= ========= =========
Net income (loss) $ 1.83 $ 3.72 $ 3.39 $ 2.57 $ (1.20) $ 1.62 $ 0.82 $ 1.12 $ 1.52 $ 1.04
========= ========= ========= ========= ========= ========= ========= ========= ========= =========
Profitability ratios
Segment profit as a
percent of sales:
Food Equipment
Group 6.3% 7.4% 7.1% 5.1% 4.7% 4.1% 2.7% 2.3% 6.6% 6.6%
Decorative
Products
Group 3.9<F1> 7.3 5.3 5.4 6.1 7.3 9.4 9.8 12.0 12.0
Consumer
Products
Group 10.9 8.8 13.5 9.5 10.1 11.0 9.4 8.5 7.8 7.6
Total 6.1 7.6 7.4 5.8 5.8 5.9 5.5 5.2 8.1 8.0
Income from continuing
operations as a
percent of sales 2.5 3.6 3.3 2.7 2.4 2.2 1.1 2.0 3.3 3.9
Return on average
equity <F3> 11.5 9.7 NM NM NM NM NM NM NM NM
Return on average
invested capital <F4> 10.9 9.3 NM NM NM NM NM NM NM NM
_____________
<FN>
<F1> Includes pretax loss from the sale of Hartco of $43.1 million.
<F2> Includes loss from the sale of Hartco of $38.6 million.
<F3> Excludes Tupperware and loss on sale of Hartco.
<F4> Net income plus after-tax long-term interest expense divided by average long-term debt and equity of continuing
operations and excluding loss on sale of Hartco.
NM - Not Meaningful
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
(Dollars in millions,
except per share 1996 1995 1994 1993 1992 1991 1990 1989 1988 1987
amounts) --------- --------- --------- --------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Financial condition
Working capital $ 594.4 $ 276.6 $ 281.1 $ 301.2 $ 262.2 $ 171.6 $ 253.2 $ 280.2 $ 254.4 $ 299.2
Property, plant
and equipment, net 416.4 424.7 401.6 394.4 403.8 409.8 425.6 280.8 275.4 253.3
Total assets 1,660.8 1,546.1 1,475.8 1,332.4 1,297.7 1,294.3 1,288.2 1,077.8 995.7 926.2
Short-term
borrowings
and current
portion of
long-term debt 3.5 133.0 25.3 3.4 5.3 102.4 33.4 45.6 69.6 5.6
Long-term debt 115.9 121.7 121.9 122.3 120.9 122.2 322.2 95.4 85.3 81.7
Shareholders'
equity<F1> 875.9 1,008.8 972.3 811.9 710.3 836.4 757.9 800.6 754.4 663.1
Current ratio 2.3 1.5 1.5 1.8 1.7 1.4 1.7 1.8 1.8 2.0
Long-term
debt-to-equity<F1> 13.2% 12.1% 12.6% 20.7% 38.6% 33.3% 65.4% 31.7% 31.5% 35.5%
Total
debt-to-capital<F1> 12.0% 25.1% 17.5% 27.7% 29.6% 32.4% 42.9% 29.3% 30.2% 30.3%
Other data
Net cash provided
by operating
activities $ 162.4 $ 53.4 $ 184.0 $ 144.5 $ 39.1 $ 157.2 $ 115.0 $ 99.2 $ 45.7 $ 114.1
Capital expenditures 84.1 85.7 69.5 60.5 56.7 46.7 78.6 49.8 49.3 37.8
Depreciation and
amortization 68.1 71.4 73.8 67.2 68.1 69.4 62.0 53.0 42.5 40.3
Advertising 42.0 42.4 39.4 31.2 28.4 27.2 25.2 23.6 25.1 22.5
Research and
development 39.0 38.1 35.1 31.2 31.3 26.5 27.5 25.4 22.4 18.4
Number of employees
(thousands) 16.3 17.4 16.6 15.9 16.2 15.8 16.8 15.3 15.4 13.9
Common stock data
Average common and
common equivalent
shares outstanding
(thousands) 65,007 63,830 66,528 67,043 65,828 63,022 63,649 70,156 69,442 68,627
Year-end book value
per share<F1> $ 13.96 $ 16.50 $ 15.22 $ 12.72 $ 11.17 $ 13.43 $ 12.34 $ 11.76 $ 11.14 $ 9.84
Dividends declared
per share 0.73 1.01 0.74 0.545 0.48 0.42 0.42 0.39 0.265 0.145
Year-end price/earnings
ratio<F1> 12.50 13.61 13.20 15.58 (17.43) 12.50 10.59 13.73 10.40 10.76
Year-end
market/book ratio<F1> 1.64 3.07 2.94 3.15 1.88 1.51 0.70 1.31 1.41 1.14
Year-end shareholders
(thousands) 21.7 23.3 25.3 26.9 29.0 31.3 33.7 36.3 39.3 43.5
_____________
<FN>
<F1> Includes discontinued operations, except for 1996.
</TABLE>
<PAGE>
REPORT OF MANAGEMENT AND INDEX TO FINANCIAL STATEMENTS
Page
Report of Management 35
Report of Independent Accountants 35
Financial Statements:
Consolidated Statement of Income 36
Consolidated Statement of Cash Flows 37
Consolidated Balance Sheet 38
Consolidated Statement of Shareholders' Equity 39
Notes to the Consolidated Financial Statements 40
Schedule II - Valuation and Qualifying Accounts 51
All other schedules for which provision is made in the applicable
accounting regulations of the Securities and Exchange Commission are
omitted because they are not applicable, not required, or the required
information is shown in the financial statements or notes thereto.
<PAGE>
REPORT OF MANAGEMENT
The management of Premark is responsible for the preparation of the
financial statements and other information contained in this Annual Report.
The financial statements were prepared in accordance with generally accepted
accounting principles and include amounts that are based upon management's
best estimates and judgments, as appropriate. Price Waterhouse LLP has
audited these financial statements and has expressed an independent opinion
thereon.
The company maintains internal control systems, policies and procedures
designed to provide reasonable assurances that assets are safeguarded, that
transactions are executed in accordance with management's authorization and
properly recorded, and that accounting records may be relied upon for the
preparation of financial information. There are inherent limitations in all
internal control systems based on the fact that the cost of such systems
should not exceed the benefits derived. Management believes that the
company's systems provide the appropriate balance of costs and benefits.
The company also maintains an internal auditing function that evaluates and
reports on the adequacy and effectiveness of internal accounting controls,
policies and procedures.
The Audit and Corporate Responsibility Committee of the Board of Directors
is composed entirely of outside directors. The Committee meets periodically
and independently with management, the internal auditors and the independent
accountants to discuss the company's internal accounting controls, auditing
and financial reporting matters. The internal auditors and the independent
accountants have unrestricted access to the Audit and Corporate
Responsibility Committee.
Management recognizes its responsibility for conducting the company's
affairs in a manner that is responsive to the interests of its shareholders
and its employees. This responsibility is characterized in the Code of
Conduct, which provides that the company will fully comply with laws, rules
and regulations of every country in which it operates and will observe the
rules of ethical business conduct. Employees of the company are expected
and directed to manage the businesses of the company accordingly.
James M. Ringler Lawrence B. Skatoff
President Senior Vice President
and Chief Executive Officer and Chief Financial Officer
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders of Premark
International, Inc.:
In our opinion, the consolidated financial statements listed in the index
appearing on page 34 under the heading "Financial Statements" present
fairly, in all material respects, the financial position of Premark
International, Inc. and its subsidiaries at December 28, 1996 and December
30, 1995, and the results of their operations and their cash flows for each
of the three years in the period ended December 28, 1996, in conformity with
generally accepted accounting principles. These financial statements are
the responsibility of Premark International, Inc.'s management; our
responsibility is to express an opinion on these financial statements based
on our audits. We conducted our audits of these statements in accordance
with generally accepted auditing standards which require that we plan and
perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining,
on a test basis, evidence supporting the amounts and disclosures in the
financial statements, assessing the accounting principles used and
significant estimates made by management, and evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for the opinion expressed above.
Price Waterhouse LLP
Chicago, Illinois
February 14, 1997
<PAGE>
<TABLE>
Consolidated Statement of Income
<CAPTION>
(In millions, except per share amounts) Dec. 28, Dec. 30, Dec. 31,
Year ended 1996 1995 1994
--------- --------- ---------
<S> <C> <C> <C>
Net sales $2,267.6 $2,213.4 $2,118.3
Costs and expenses
Cost of products sold 1,443.8 1,420.9 1,368.1
Delivery, sales and administrative expense 660.2 648.0 617.6
Interest expense 16.3 26.6 20.1
Interest income (7.0) (2.0) (1.9)
Loss on disposition of business 43.1 - -
Other (income) expense, net (1.7) (0.4) 3.6
--------- --------- ---------
Total costs and expenses 2,154.7 2,093.1 2,007.5
--------- --------- ---------
Income before income taxes 112.9 120.3 110.8
Provision for income taxes 56.2 41.4 40.0
--------- --------- ---------
Income from continuing operations 56.7 78.9 70.8
Discontinued operations:
Income from operations (net of tax provision of
$22.8, $57.1 and $45.5 in 1996, 1995 and
1994, respectively) 62.2 177.0 154.7
Costs to effect the business discontinuance
(net of $4.3 tax benefit) - (18.3) -
--------- --------- ---------
Net income $ 118.9 $ 237.6 $ 225.5
========= ========= =========
Income (loss) per common and common equivalent share:
Continuing operations $ 0.87 $ 1.24 $ 1.06
Discontinued operations:
Income from operations 0.96 2.77 2.33
Costs to effect the business discontinuance - (0.29) -
--------- --------- ---------
Net income per common and common equivalent share $ 1.83 $ 3.72 $ 3.39
========= ========= =========
See Notes to the Consolidated Financial Statements.
</TABLE>
<PAGE>
<TABLE>
Consolidated Statement of Cash Flows
<CAPTION>
Dec. 28, Dec. 30, Dec. 31,
(In millions) Year ended 1996 1995 1994
--------- --------- ---------
<S> <S> <S> <S>
Cash flows from operating activities
Net income $ 118.9 $ 237.6 $ 225.5
Adjustments to reconcile net income to net cash provided by
operating activities from continuing operations:
Income from discontinued operations (62.2) (158.7) (154.7)
Loss on disposition of business 38.6 - -
Depreciation and amortization 68.1 71.4 73.8
Changes in assets and liabilities:
Accounts and notes receivable (14.3) (14.9) (40.4)
Inventory (6.5) (11.9) (51.7)
Net deferred income taxes 10.2 (20.3) (17.2)
Accounts payable and accruals 1.3 (43.9) 49.7
Current income taxes 1.2 0.7 38.6
Other 7.1 (6.6) 60.4
--------- --------- ---------
Net cash provided by operating activities
of continuing operations 162.4 53.4 184.0
--------- --------- ---------
Cash flows from investing activities
Capital expenditures (84.1) (85.7) (69.5)
Purchases of short-term investments (84.3) - -
Proceeds from disposition (acquisition) of businesses 35.3 (5.9) (6.1)
Other 5.6 (2.0) (5.8)
--------- --------- ---------
Net cash used in investing activities
of continuing operations (127.5) (93.6) (81.4)
--------- --------- ---------
Cash flows from financing activities
Repayment of long-term debt (0.7) (0.7) (0.8)
Net (decrease) increase in short-term borrowings (129.3) 103.7 21.2
Proceeds from long-term borrowing 5.5 - -
Payment of dividends (56.8) (58.0) (43.3)
Proceeds from exercise of stock options 19.1 14.5 16.9
Purchase of treasury stock (10.0) (169.7) (59.4)
--------- --------- ---------
Net cash used in financing activities
of continuing operations (172.2) (110.2) (65.4)
--------- --------- ---------
Effect of exchange rate changes on cash and cash equivalents (1.1) 0.8 0.5
Cash provided by (used in) discontinued operations 248.8 150.9 (70.9)
--------- --------- ---------
Net increase (decrease) in cash and cash equivalents 110.4 1.3 (33.2)
Cash and cash equivalents at beginning of year 19.8 18.5 51.7
--------- --------- ---------
Cash and cash equivalents at end of year $ 130.2 $ 19.8 $ 18.5
========= ========= =========
See Notes to the Consolidated Financial Statements.
</TABLE>
<PAGE>
<TABLE>
Consolidated Balance Sheet
<CAPTION>
Dec. 28, Dec. 30,
(Dollars in millions, except per share amounts) 1996 1995
--------- ---------
<S> <C> <C>
Assets
Cash and cash equivalents $ 130.2 $ 19.8
Short-term investments 84.3 -
Accounts and notes receivable, less allowances of $18.4 in 1996 and $19.7 in 1995 384.4 377.8
Inventories 333.1 347.6
Recoverable income taxes 10.8 12.3
Deferred income tax benefits 67.4 77.2
Prepaid expenses 43.8 45.0
--------- ---------
Total current assets 1,054.0 879.7
Property, plant and equipment, net 416.4 424.7
Intangibles, less accumulated amortization of $73.6 in 1996 and $84.9 in 1995 106.8 168.7
Other assets 83.6 73.0
Net assets of discontinued operations - 415.2
--------- ---------
Total assets $1,660.8 $1,961.3
========= =========
Liabilities and shareholders' equity
Accounts payable $ 105.7 $ 104.4
Short-term borrowings and current portion of long-term debt 3.5 133.0
Accrued liabilities 350.4 365.7
--------- ---------
Total current liabilities 459.6 603.1
Long-term debt 115.9 121.7
Postretirement benefit cost 120.8 120.1
Other liabilities 88.6 107.6
Shareholders' equity:
Preferred stock, $1.00 par value, authorized 50,000,000 shares; issued - none - -
Series A Junior Participating Preferred stock, $1.00 par value,
authorized 1,000,000 shares; issued - none - -
Common stock, $1.00 par value, authorized 200,000,000 shares;
issued - 69,003,840 shares 69.0 69.0
Capital surplus 342.7 590.3
Retained earnings 688.2 735.7
Treasury stock, 6,276,776 shares at December 28, 1996,
and 7,857,080 shares at December 30, 1995, at cost (211.4) (258.0)
Unearned portion of restricted stock issued for future service (2.3) (1.0)
Cumulative foreign currency adjustments (10.3) (127.2)
--------- ---------
Total shareholders' equity 875.9 1,008.8
--------- ---------
Total liabilities and shareholders' equity $1,660.8 $1,961.3
========= =========
See Notes to the Consolidated Financial Statements.
</TABLE>
<PAGE>
<TABLE>
Consolidated Statement of Shareholders' Equity
<CAPTION>
Number of shares Amounts
-------------------- -----------------------------------------------------------------
Cumulative
foreign
Common Treasury Common Capital Retained Treasury currency
(In millions) stock stock stock surplus earnings stock adjustments
------- --------- ------- -------- --------- --------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
December 25, 1993 69.0 (5.2) $ 34.5 $ 582.3 $ 418.7 $ (93.0) $ (129.6)
Net income 225.5
Cash dividends declared (47.2)
Purchase of treasury stock (1.5) (61.2)
Treasury stock issued for
incentive plans and
related tax benefits 1.6 23.9 (17.2) 28.6
Effect of 2-for-1 stock split 34.5 (34.5)
Translation adjustments 7.3
------- --------- ------- -------- --------- --------- -----------
December 31, 1994 69.0 (5.1) 69.0 571.7 579.8 (125.6) (122.3)
Net income 237.6
Cash dividends declared (61.8)
Purchase of treasury stock (3.9) (167.3)
Treasury stock issued for
incentive plans and
related tax benefits 1.1 18.6 (19.9) 34.9
Translation adjustments (4.9)
------- --------- ------- -------- --------- --------- -----------
December 30, 1995 69.0 (7.9) 69.0 590.3 735.7 (258.0) (127.2)
Net income 118.9
Cash dividends declared (45.3)
Purchase of treasury stock (0.2) (7.3)
Treasury stock issued for
incentive plans and
related tax benefits 1.8 14.1 (33.9) 53.9
Translation adjustments (6.7)
Distribution of Tupperware
Corporation to shareholders (261.7) (87.2) 123.6
------- --------- ------- -------- --------- --------- -----------
December 28, 1996 69.0 (6.3) $ 69.0 $ 342.7 $ 688.2 $(211.4) $ (10.3)
======= ========= ======= ======== ========= ========= ===========
See Notes to the Consolidated Financial Statements.
</TABLE>
<PAGE>
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
The consolidated financial statements include the accounts of Premark and
all of its subsidiaries. Intercompany accounts and transactions have been
eliminated. The company's fiscal year ends on the last Saturday of
December, and included 52 weeks in 1996 and 1995 and 53 weeks in 1994.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions. These estimates and assumptions may affect the reported
amounts of assets and liabilities and disclosure of contingent assets and
liabilities at the date of the financial statements, as well as the reported
amounts of revenues and expenses during the reporting period. Actual
results could differ from those estimates.
Certain amounts for prior years have been reclassified to conform to the
1996 presentation.
Cash and Cash Equivalents
The company considers all highly liquid investments with a maturity of three
months or less when purchased to be cash equivalents.
Short-Term Investments
Short-term investments consist primarily of commercial paper with original
maturities at date of purchase beyond three months and less than 12 months.
Short-term investments are classified as held-to-maturity and are carried at
cost which approximates fair value.
Inventories
Inventories are stated at the lower of cost or market. Inventory cost
includes cost of raw material, labor and overhead. Approximately 68 percent
of inventories, including substantially all domestic inventories, are valued
on the last-in, first-out (LIFO) cost method. The first-in, first-out
(FIFO) cost method is generally used for the remaining inventories. If
inventories valued on the LIFO method had been valued using the FIFO method,
they would have been $40.8 million higher at the end of 1996 and $46.2
million higher at the end of 1995.
Property and Depreciation
Properties are stated at cost. Depreciation is calculated using a
straight-line method over the estimated useful lives ranging from 10 to 45
years for buildings and improvements and 3 to 20 years for machinery and
equipment. Upon the sale or retirement of property, plant and equipment, a
gain or loss is recognized. If the carrying value of an asset, including
associated intangibles, exceeds the sum of estimated undiscounted future
cash flows, then an impairment loss is recognized for the difference between
estimated fair value and carrying value. Expenditures for maintenance and
repairs are charged to expense.
Intangibles
The excess of cost over the fair value of net assets of businesses acquired
($95.3 million in 1996 and $156.5 million in 1995) and other intangibles are
being amortized on a straight-line basis over 40 years. The decrease in
1996 is primarily due to the disposition of Hartco.
Revenue Recognition
Revenue is recognized when product is shipped or serviced. Revenue from
food equipment service contracts is deferred and recognized ratably over the
service period.
Income Taxes
Deferred income taxes reflect the net effects of temporary differences
between the carrying amounts of assets and liabilities for financial
statement purposes and the amounts used for income tax purposes. These
deferred tax assets and liabilities are measured based upon tax laws as
currently enacted.
Income (Loss) Per Share
Income (loss) per share is computed based upon the weighted average number
of common and common equivalent shares, consisting of stock options,
outstanding during the year.
Financial Instruments
Forward exchange contracts are periodically used by the company to manage
its foreign currency exposures.
Gains and losses on contracts designated as hedges of net investments in a
foreign subsidiary or intercompany transactions of a long-term nature are
accrued as exchange rates change, and are recognized in shareholders' equity
as foreign currency adjustments. Gains and losses on contracts designated
as hedges of intercompany transactions that are not of a long-term nature
are accrued as exchange rates change and are recognized in income. Gains
and losses on contracts designated as hedges of identifiable foreign
currency commitments are deferred and included in the measurement of the
related foreign currency transaction.
Fair Value of Financial Instruments
The carrying amounts of cash and cash equivalents, short-term investments,
accounts and notes receivable, accounts payable, short-term borrowings and
outstanding forward exchange contracts approximated their fair values at
December 28, 1996, and December 30, 1995, because of the short maturity of
those instruments. The fair value of long-term debt is determined based on
the borrowing rates available to the company for long-term debt with similar
terms and average maturities.
Foreign Currency Translation
The results of operations for foreign subsidiaries, other than those
operating in highly inflationary countries, are translated into U.S. dollars
using the average exchange rates during the year, while the assets and
liabilities are translated using period-end exchange rates. The related
translation adjustments are recorded in a separate component of
shareholders' equity, "Cumulative foreign currency adjustments." Gains and
losses from foreign currency transactions, as well as from the translation
of financial statements of subsidiaries in highly inflationary countries,
are included in income, but were not significant.
Stock-Based Compensation
Statement of Financial Accounting Standards No. 123, "Accounting for Stock-
Based Compensation," (SFAS No. 123) encourages, but does not require,
companies to record compensation cost for stock-based employee compensation
plans at fair value. The company has chosen to continue to account for
stock-based compensation using the intrinsic value method prescribed in
Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to
Employees," (APB No. 25) and related Interpretations. Accordingly,
compensation cost for stock options is measured as the excess, if any, of
the quoted market price of the company's stock at the date of the grant over
the amount an employee must pay to acquire the stock. Compensation expense
associated with restricted stock grants is equal to the fair market value of
the shares on the date of grant and is recognized ratably over the required
holding period.
NOTE 2 DISTRIBUTION OF TUPPERWARE TO SHAREHOLDERS AND HARTCO DISPOSITION
On November 1, 1995, the company's Board of Directors authorized management
to proceed with a plan to establish Tupperware as an independent company
through a tax-free distribution to Premark's shareholders (the
Distribution). The Distribution was effected on May 31, 1996.
Net sales of Tupperware were $0.6 billion in 1996 through the date of the
Distribution, $1.4 billion for 1995, and $1.3 billion for 1994. As a result
of the planned Distribution, the company recorded a fourth quarter 1995
pretax charge of $22.6 million ($18.3 million after tax, or 29 cents per
share) for costs to effect the business discontinuance. Included in that
amount were $5.5 million of relocation and severance expenses, $6.0 million
of professional and advisory fees, $5.0 million of registration fees and
financing expenses, and $6.1 million of computer systems and facilities
expenses. The accrual was substantially utilized in 1996.
In June 1996, the company sold its Hartco Flooring subsidiary for $35.8
million and the assumption of debt. A pretax loss of $43.1 million ($38.6
million after tax or $0.60 per share) was recognized as a result of the
sale.
NOTE 3 INVENTORIES
(In millions) 1996 1995
-------- --------
Finished goods $ 163.7 $ 169.8
Work in process 26.2 37.9
Raw materials and supplies 143.2 139.9
-------- --------
Total inventories $ 333.1 $ 347.6
======== ========
NOTE 4 PROPERTY, PLANT AND EQUIPMENT
(In millions) 1996 1995
-------- --------
Land $ 25.2 $ 26.6
Buildings and improvements 243.0 249.1
Machinery and equipment 640.2 629.9
Construction in progress 32.5 33.4
-------- --------
Total property, plant and equipment 940.9 939.0
Less accumulated depreciation 524.5 514.3
-------- --------
Property, plant and equipment, net $ 416.4 $ 424.7
======== ========
NOTE 5 ACCRUED LIABILITIES
(In millions) 1996 1995
-------- --------
Warranties and maintenance
service agreements $ 99.7 $ 98.9
Compensation and employee benefits 95.8 89.7
Insurance 47.1 39.1
Taxes other than income taxes 20.0 20.9
Other 87.8 117.1
-------- --------
Total accrued liabilities $ 350.4 $ 365.7
======== ========
NOTE 6 FINANCING ARRANGEMENTS
Short-term Borrowings
(In millions) 1996 1995
------- -------
Total short-term borrowings
at year-end $ 2.6 $132.3
Weighted average interest rate
at year-end 10.1% 6.1%
Average borrowings during
the year $ 63.9 $166.4
Weighted average interest rate
for the year 5.7% 6.2%
Maximum borrowings during the year $196.4 $211.5
Long-term Debt
(In millions) 1996 1995
------ ------
10 1/2% notes due 2000 $100.0 $100.0
5.95% and variable rate industrial
revenue bonds due 1998-2002 7.5 17.8
Other 9.3 4.6
------ ------
116.8 122.4
Less current portion 0.9 0.7
------ ------
Total long-term debt $115.9 $121.7
====== ======
Interest paid in 1996, 1995 and 1994 was $16.7 million, $24.0 million and
$18.8 million, respectively.
The fair value of the 10 1/2% notes at the end of 1996 and 1995 was $112.8
million and $118.1 million, respectively. The fair value of the remaining
long-term debt approximates its book value.
The company had unused lines of credit amounting to $511.8 million at
December 28, 1996, including $250.0 million under an unsecured revolving
credit facility, which supports the company's commercial paper borrowing
capability and expires in May 2001. Total principal payments due on
long-term debt in the five years subsequent to December 28, 1996, are $114.3
million, including the $100 million of 10 1/2% notes due in 2000.
Operating Leases
Rental expense for operating leases (reduced by sublease income of
approximately $0.9 million in 1996, $0.3 million in 1995 and $0.4 million in
1994) totaled $35.3 million in 1996, $34.5 million in 1995 and $32.5 million
in 1994. Approximate minimum rental commitments under noncancelable
operating leases in effect at December 28, 1996, were: 1997 -- $24.4
million; 1998 -- $19.9 million; 1999 -- $14.3 million; 2000 -- $8.2 million;
2001 -- $5.2 million; after 2001 -- $13.9 million.
Other Financial Instruments
At December 28, 1996, the company had forward exchange contracts maturing
between January 16 and December 18, 1997, to sell $70.0 million and to
purchase $9.5 million in foreign currencies at fixed rates on the value
dates. The larger components of these positions were contracts to sell
$26.1 million of German marks, $16.3 million of British pounds sterling and
$10.1 million of Canadian dollars, and to purchase $9.5 million of German
marks. The net accrued loss on forward exchange contracts was $1.3 million
at both December 28, 1996 and December 30, 1995.
NOTE 7 INCOME TAXES
Income before income taxes was as follows:
(In millions) 1996 1995 1994
------- ------- -------
Domestic $111.6 $112.4 $106.7
Foreign 1.3 7.9 4.1
------- ------- -------
Total $112.9 $120.3 $110.8
======= ======= =======
The provision for income taxes was as follows:
(In millions) 1996 1995 1994
------- ------- -------
Current
Federal $ 36.7 $ 40.2 $ 49.3
Foreign 5.6 4.2 4.4
State 5.4 5.1 8.0
------- ------- -------
47.7 49.5 61.7
------- ------- -------
Deferred
Federal 7.5 (1.6) (15.3)
Foreign (0.4) (6.2) (3.6)
State 1.4 (0.3) (2.8)
------- ------- -------
8.5 (8.1) (21.7)
------- ------- -------
Total $ 56.2 $ 41.4 $ 40.0
======= ======= =======
The differences between the provision for income taxes and income taxes
computed using the U.S. federal statutory rate were as follows:
1996 1995 1994
------- ------- -------
Statutory federal tax rate 35.0% 35.0% 35.0%
Increase (reduction) in
taxes resulting from:
Nondeductible loss
on Hartco sale 9.4 - -
State taxes 3.9 2.6 3.1
Foreign income taxes 3.8 (1.4) (1.9)
Repatriation of
foreign earnings 0.3 (2.6) 0.5
Adjustment to
tax accruals (3.4) (0.6) -
Change in valuation
allowance for
deferred tax assets - - (3.2)
Other 0.8 1.4 2.6
------- ------- -------
Effective income tax rate 49.8% 34.4% 36.1%
======= ======= =======
In 1996 and 1995, the company recognized $14.1 million and $18.6 million,
respectively, of benefits for deductions associated with the exercise of
employee stock options including amounts in 1995 related to certain
Tupperware employees. These benefits were added directly to capital surplus
and are not reflected in the provision for income taxes.
Deferred tax assets (liabilities) comprise of the following:
(In millions) 1996 1995
-------- --------
Depreciation $ (40.9) $ (48.5)
Other (3.5) 2.1
-------- --------
Gross deferred tax liabilities (44.4) (46.4)
-------- --------
Postretirement benefits 49.3 49.1
Employee benefits 19.5 22.5
Self-insurance reserves 14.6 12.5
Tax carryforwards 14.1 15.5
Adhesive claims 12.5 13.8
Warranty reserves 7.9 7.3
Environmental reserves 5.4 6.0
Costs to effect the business
discontinuance 1.2 6.8
Other accruals 26.5 18.5
-------- --------
Gross deferred tax assets 151.0 152.0
Valuation allowance (16.5) (7.3)
-------- --------
Net deferred tax assets $ 90.1 $ 98.3
======== ========
The valuation allowance primarily represents reserves for foreign operating
losses and capital loss carryforwards. Management believes it is more
likely than not that these net deferred tax assets will be realized through
the reduction of future taxes payable. Significant factors considered by
management in determining the probability of realization of these assets
include historical operating results of the company as well as expectations
of future earnings. At December 28, 1996, the company had foreign operating
loss carryforwards of $26.0 million. It also had $13.8 million of capital
loss carryforwards available to offset certain future U.S. federal income
tax obligations. Of the total, $29.8 million of carryforwards expire at
various dates from 1997 to 2011, and the remainder have unlimited lives.
During 1996, the company recognized net benefits of $0.5 million related to
foreign net operating loss carryforwards. Repatriation of foreign earnings
would not result in a significant incremental cost to the company.
The company paid income taxes in 1996, 1995 and 1994, of $37.9 million,
$38.0 million and $19.5 million, respectively, a portion of which was owed
as a result of income generated by the domestic operations of Tupperware.
NOTE 8 RETIREMENT BENEFIT PLANS
Pension Plans
The company has various pension plans covering substantially all domestic
employees and certain employees in other countries.
The actuarial cost method used in determining pension expense is the
projected unit credit method. Generally, annual cash contributions are
equal to the minimum funding amounts required by ERISA for U.S. plans.
Net pension expense included the following components:
(In millions) 1996 1995 1994
------- ------- -------
Service cost of benefits
earned during the year $ 10.4 $ 7.9 $ 9.7
Interest cost on projected
benefit obligation 21.0 19.7 18.5
Actual return on plan assets (38.5) (55.9) 4.3
Net amortization and deferral 14.5 32.1 (27.2)
------- ------- -------
Net pension expense $ 7.4 $ 3.8 $ 5.3
======= ======= =======
The funded status of the plans related to the company's continuing
operations was as follows:
U.S. Plans Foreign Plans
-------------- --------------
(In millions) 1996 1995 1996 1995
----- ----- ----- -----
Actuarial present value of
benefit obligations:
Vested benefits $217.3 $225.1 $ 25.8 $ 21.4
Nonvested benefits 7.6 5.7 0.2 0.2
------- ------- ------- -------
Accumulated benefit
obligation 224.9 230.8 26.0 21.6
Effect of projected future
salary increases 34.5 33.5 3.8 4.0
------- ------- ------- -------
Projected benefit
obligation 259.4 264.3 29.8 25.6
Plan assets at fair value -
primarily equity securities
and corporate and
government bonds 279.8 257.9 29.4 21.9
------- ------- ------- -------
Plan assets (less than)
in excess of projected
benefit obligation 20.4 (6.4) (0.4) (3.7)
Unrecognized prior
service cost 2.5 2.8 1.9 1.9
Unrecognized net loss (gain) (22.9) 11.0 (4.1) 0.5
Unrecognized net transition
(asset) obligation (8.4) (10.5) 0.1 0.2
------- ------- ------- -------
Accrued pension cost $ (8.4) $ (3.1) $ (2.5) $ (1.1)
======= ======= ======= =======
Actuarial assumptions:
Discount rate 7.5% 7.25% 7.0-10.0% 7.0-10.0%
Salary growth rate 4.5 5.0 5.0- 6.0 5.0- 7.0
Return on plan assets 9.0 9.0 6.5-10.0 6.5-10.0
Certain foreign plans were unfunded. At December 28, 1996, and December 30,
1995, the accumulated benefit obligations of these plans were $4.1 million
and $4.2 million, respectively.
The company also has several savings, thrift and profit-sharing plans. Its
contributions to these plans are based upon various levels of employee
participation. The total cost of these plans was $14.1 million in 1996,
$11.7 million in 1995 and $13.4 million in 1994.
Medical and Life Insurance Benefits
In addition to providing pension benefits, the company provides certain
postretirement health care and life insurance benefits for selected U.S. and
Canadian employees. Most employees and retirees outside the United States
are covered by government health care programs. Employees may become
eligible for these benefits if they reach normal retirement age while
working for the company and satisfy certain years of service requirements.
The medical plans are contributory, with retiree contributions adjusted
annually, and contain other cost-sharing features such as deductibles and
coinsurance. The U.S. medical plans include an allowance for Medicare for
post-65 retirees. The company has a right to modify or terminate these
plans.
The net postretirement benefit costs were:
(In millions) 1996 1995 1994
------- ------- -------
Service cost $ 2.4 $ 2.5 $ 2.9
Interest cost 7.9 9.0 7.9
Net amortization (0.4) (0.7) (0.3)
------- ------- -------
Net postretirement
benefit cost $ 9.9 $ 10.8 $ 10.5
======= ======= =======
The projected liabilities, which are not funded, are reconciled to the
amounts recognized in the company's balance sheet as follows:
(In millions) 1996 1995
------- -------
Accumulated postretirement
benefit obligation:
Retirees $ 67.4 $ 51.3
Fully eligible participants 6.2 18.8
Other active participants 41.1 47.8
------- -------
114.7 117.9
Unrecognized prior service
benefit 6.6 5.7
Unrecognized gain 5.5 2.6
------- -------
Accrued postretirement
benefit cost $126.8 $126.2
======= =======
The weighted-average discount rate used in determining the accumulated
postretirement benefit obligation was 7.5 percent at December 28, 1996, and
7.25 percent at December 30, 1995. The assumed health care cost trend rate
is 9.0 percent for the pre-65 plan and 6.0 percent for the post-65 plan for
1997. These rates are assumed to decrease by one percentage point per year
until an ultimate level of 5.5 percent is reached. The rate is assumed to
remain at that level thereafter. The health care cost trend rate assumption
has a significant effect on the amounts reported. For example, increasing
the rate by one percentage point in each year would increase the accumulated
postretirement benefit obligation as of December 28, 1996, by $13.3 million.
The effect of a one percentage point increase on the aggregate of the
service and interest cost components of net postretirement benefit cost for
1996 would be $1.4 million.
NOTE 9 INCENTIVE COMPENSATION PLANS
The company has an incentive plan (the Plan) which provides for grants of
performance and stock awards.
Performance Awards
Under the Plan, key employees earned cash performance awards of
approximately $11.8 million in 1996, $11.9 million in 1995 and $16.0 million
in 1994. As of December 28, 1996, 198 employees were eligible to receive
performance awards.
Stock Awards
The company has adopted the disclosure-only provisions of SFAS No. 123.
Consistent with prior years, stock-based compensation continues to be
recorded using the intrinsic value method prescribed in APB No. 25 and
related Interpretations.
The Plan includes awards of stock options and restricted stock to employees
and officers. As of December 28, 1996, the maximum number of shares that
may be granted under the Plan is 5,404,375. Of the total shares available
for award, up to 280,931 may be granted in the form of restricted stock. As
of December 28, 1996, 241 employees participated in the Plan.
All outstanding stock options vest three years after their date of
grant, and the vesting periods on outstanding restricted stock range from
three to five years from date of grant. All stock options issued to
employees and officers under the Plan and previous plans have had exercise
prices equal to the fair market value of the shares on the date of grant and
have a term of 10 years. Consequently, the company has not recorded any
compensation expense associated with these stock options.
Compensation expense associated with restricted stock grants is equal to the
fair market value of the shares on the date of grant and is recognized
ratably over the required holding period. Compensation expense associated
with restricted stock grants was not significant.
Under the Director Stock Plan (Director Plan) non-employee directors may
elect to receive their annual retainers in the form of stock or stock
options. Options granted to directors become exercisable on the last day of
the fiscal year in which they are granted, have a term of 10 years and have
an exercise price that compensates for the foregone cash retainer. This
amount and the value of stock grants on the date of award have been
recognized as an expense by the company. The number of shares initially
available for grant under the Director Plan and the number of shares
available as of December 28, 1996, were 600,000 and 434,800, respectively.
As of December 28, 1996, options to purchase 144,738 shares were
exercisable.
Restricted stock and stock option activity in 1996, 1995 and 1994 for the
Plan, Director Plan and previous plans is summarized below:
Restricted Stock
(Thousands of shares) 1996 1995 1994
------- ------- -------
Beginning balance 44 55 189
Shares awarded 203 35 -
Shares released (22) (46) (128)
Shares forfeited (55) - (6)
Adjustment due to
Tupperware distribution 28 - -
------- ------- -------
Ending balance 198 44 55
======= ======= =======
Shares available for issuance 281 447 492
======= ======= =======
Average fair value of shares
awarded during the year $17.37 $43.65 -
======= ======= =======
Stock Options
(Thousands of
shares) 1996 1995 1994
------------------ ------------------ ------------------
Average Average Average
Option Option Option
Shares Price Shares Price Shares Price
-------- -------- -------- -------- -------- --------
Beginning
balance 4,361 $27.59 4,939 $21.88 6,010 $16.20
Granted 1,642 15.43 660 46.16 713 44.04
Canceled (1,628) 29.20 (109) 33.32 (38) 29.18
Exercised (1,640) 11.61 (1,129) 12.90 (1,746) 11.21
Adjustment due
to Tupperware
distribution 5,344 - -
------- -------- -------
Ending balance 8,079 $ 9.79 4,361 $27.59 4,939 $21.88
======= ======= ======== ======= ======= =======
Options
exercisable
at year-end 3,871 $ 6.03 2,433 $15.47 2,381 $12.64
======= ======= ======== ======= ======= =======
Average fair
value of
options
granted
during the
year $ 4.63 $12.79 $13.63
======= ======= =======
After the Distribution, restricted stock and the outstanding options to
purchase Premark common stock, which were held by Premark officers and
employees, continued to be solely for the purchase of Premark common stock.
The number of restricted shares and the number and exercise price of
outstanding stock options were adjusted in a manner that maintained in the
aggregate the excess of market value over exercise price. Restricted shares
and options that were held by Tupperware officers and employees were
canceled.
The fair value of each option grant is estimated on the date of grant using
the Black-Scholes option pricing model with the following assumptions for
1996, 1995 and 1994, respectively: dividend yield of 1.6, 2.0 and 2.0
percent; average risk-free interest rate of 6.4, 5.8, and 7.5 percent;
expected volatility of 25 percent and expected option life of 5.1 years for
all years.
Shares subject to option as of December 28, 1996 are summarized below:
(Thousands
of shares) Options Outstanding Options Exercisable
-------------------------------- ---------------------
Range of Shares Average Average Shares Average
Exercise Subject Option Remaining Subject Option
Prices to Option Price Life to Option Price
- --------- --------- ------- --------- --------- -------
$1.72 - $4.33 1,572 $ 3.31 3.8 years 1,572 $ 3.31
$4.73 - $11.77 3,603 9.29 7.0 2,281 7.85
$12.22 - $23.20 2,904 13.91 9.1 18 12.22
------- -------
8,079 $ 9.79 7.1 3,871 $ 6.03
======= =======
If the company had determined compensation cost based on the fair value at
the grant dates for the 1996 and 1995 stock option grants consistent with
SFAS No. 123, the company's net earnings and earnings per share from
continuing operations would have been reduced to the pro forma amounts
indicated below:
Year Ended
-----------------------------
(In millions except Dec. 28, Dec. 30,
per share amounts) 1996 1995
-------- --------
Net income from continuing
operations:
Reported $ 56.7 $ 78.9
Pro forma 54.0 78.6
Net income from continuing
operations per common and
common equivalent share:
Reported $ 0.87 $ 1.24
Pro forma 0.83 1.23
The above pro forma amounts assume the application of SFAS No. 123 beginning
with the 1995 grants. These amounts are not representative of the effects
on reported net income for future years as stock compensation expense is
amortized over the three year vesting period. As a result, 1997 will be the
first year in which three years of amortization of stock compensation
expense is reflected.
NOTE 10 SEGMENTS OF THE BUSINESS
The company has the following business segments: the Food Equipment Group--
commercial food equipment for the foodservice and food retail industries;
the Decorative Products Group--decorative laminates and laminate flooring,
ceramic tile and hardwood flooring (prior to the sale of Hartco in June
1996); and the Consumer Products Group--home appliances, direct-to-the-home
cookware and physical fitness equipment.
(In millions) 1996 1995 1994
--------- --------- ---------
Net sales
Food Equipment Group:
United States $ 728.1 $ 710.8 $ 687.8
Europe 414.3 442.2 369.2
Other International 96.0 84.8 78.5
--------- --------- ---------
Total Food Equipment Group 1,238.4 1,237.8 1,135.5
Decorative Products Group 730.4 686.6 690.0
Consumer Products Group 298.8 289.0 292.8
--------- --------- ---------
Total net sales $2,267.6 $2,213.4 $2,118.3
========= ========= =========
Segment profit
Food Equipment Group:
United States $ 63.8 $ 71.1 $ 61.8
Europe 6.2 15.5 15.8
Other International 7.9 5.3 3.0
--------- --------- ---------
Total Food Equipment Group 77.9 91.9 80.6
Decorative Products Group 28.5 50.4 36.5
Consumer Products Group 32.6 25.3 39.4
--------- --------- ---------
Total segment profit 139.0 167.6 156.5
Unallocated expenses (16.8) (22.7) (27.5)
Interest expense, net (9.3) (24.6) (18.2)
--------- --------- ---------
Income from continuing
operations before
income taxes $ 112.9 $ 120.3 $ 110.8
========= ========= =========
Identifiable assets
Food Equipment Group:
United States $ 401.3 $ 390.8 $ 378.6
Europe 231.6 246.1 218.7
Other International 58.0 49.8 48.0
--------- --------- ---------
Total Food Equipment Group 690.9 686.7 645.3
Decorative Products Group 525.8 624.5 633.8
Consumer Products Group 149.8 139.0 142.8
Corporate 294.3 95.9 53.9
--------- --------- ---------
Total identifiable assets $1,660.8 $1,546.1 $1,475.8
========= ========= =========
Depreciation and amortization
Food Equipment Group:
United States $ 16.2 $ 16.9 $ 19.7
Europe 8.0 8.5 7.6
Other International 1.5 1.0 1.4
--------- --------- ---------
Total Food Equipment Group 25.7 26.4 28.7
Decorative Products Group 35.3 37.4 38.5
Consumer Products Group 5.5 5.3 5.2
Corporate 1.6 2.3 1.4
--------- --------- ---------
Total depreciation and
amortization $ 68.1 $ 71.4 $ 73.8
========= ========= =========
Capital expenditures
Food Equipment Group:
United States $ 22.2 $ 26.9 $ 23.2
Europe 7.5 6.5 6.6
Other International 6.2 2.3 0.7
--------- --------- ---------
Total Food Equipment Group 35.9 35.7 30.5
Decorative Products Group 36.1 40.9 31.6
Consumer Products Group 12.0 8.6 6.9
Corporate 0.1 0.5 0.5
--------- --------- ---------
Total capital expenditures $ 84.1 $ 85.7 $ 69.5
========= ========= =========
The operations of the Decorative Products and Consumer Products groups are
predominantly in the United States. Sales to a single customer did not
exceed 10 percent of total sales. Export sales were $152.8 million, $124.6
million and $117.0 million in 1996, 1995 and 1994, respectively. In the
Decorative Products Group, the only class of products that accounted for
more than 10 percent of consolidated sales was decorative laminates with
sales of approximately $458 million in 1996, $426 million in 1995 and $427
million in 1994. In the Food Equipment Group, service revenue accounted for
$381 million, $363 million and $339 million of sales for the years 1996,
1995 and 1994, respectively. The cost of sales associated with these
service revenues were $206 million, $202 million and $179 million in 1996,
1995 and 1994, respectively.
Unallocated expenses are corporate expenses and other items not related to
the operations of the segments. Corporate assets consist of cash and assets
maintained for general corporate purposes. As of December 28, 1996, the
company's net investment in international operations was $233.2 million.
NOTE 11 CONTINGENCIES
The company and certain subsidiaries are involved in litigation and various
legal matters that are being defended and handled in the ordinary course of
business. Included among these matters are environmental issues for which
the company estimates its range of possible exposure to be $11 million to
$36 million as of December 28, 1996. The company anticipates that any
necessary expenditures would be made over the next 10 years. As of December
28, 1996, the company had accruals of $14.9 million for these matters. The
company has not recorded any significant claims against third parties
associated with these accruals.
As of December 28, 1996, the company had an accrual of $61.9 million
recorded for the estimated costs of adhesive claims against its Wilsonart
subsidiary. Also recorded were assets totaling $29.9 million representing
future amounts expected to be reimbursed by its insurer for these claims.
None of the company's contingencies is expected to have a material adverse
effect on its financial position, results of operations or any individual
year's cash flow.
NOTE 12 QUARTERLY SUMMARY (UNAUDITED)
Following is a summary of the unaudited interim results of operations, the
dividends declared per share of common stock and the price range of the
common stock composite for each quarter in the years ended December 28,
1996, and December 30, 1995.
(In millions, except First Second Third Fourth
per share amounts) quarter quarter quarter quarter
------- ------- ------- -------
Year ended December 28, 1996
Net sales $528.7 $565.7 $563.2 $610.0
Cost of products sold 340.7 363.9 353.0 386.2
Income (loss) from
continuing operations 11.8 (17.3) 30.2 32.0
Net income 44.6 12.1 30.2 32.0
Per common and common
equivalent share:
Income (loss) from
continuing operations 0.19 (0.27) 0.46 0.48
Net income 0.71 0.19 0.46 0.48
Dividends declared
per share 0.27 0.30 0.08 0.08
Composite stock price range:
High 55 1/8 18 1/2* 20 24 1/4
Low 49 5/8 15 1/4* 16 3/8 18 7/8
Close 53 5/8 18 1/2* 19 22 7/8
Year ended December 30, 1995
Net sales $519.6 $539.0 $556.3 $598.5
Cost of products sold 333.1 342.5 353.0 392.3
Income from continuing
operations 14.2 17.1 26.0 21.6
Net income 46.5 67.1 46.8 77.2
Per common and common
equivalent share:
Income from continuing
operations 0.22 0.27 0.41 0.34
Net income 0.71 1.06 0.74 1.22
Dividends declared
per share 0.20 0.27 0.27 0.27
Composite stock price range:
High 46 3/4 53 1/2 54 3/4 52 1/2
Low 38 1/2 44 50 3/4 44 1/8
Close 44 1/8 51 7/8 50 7/8 50 5/8
*On May 31, 1996, Premark spun off its Tupperware business. Stock prices
reflect activity after May 20.
NOTE 13 SHAREHOLDERS' RIGHTS PLAN
In November 1996, the company replaced its shareholders' rights plan with a
new plan having a duration of 10 years, under which the company declared a
dividend of one Series A Junior Participating Preferred share purchase right
for each outstanding share of common stock. The company redeemed the common
share purchase rights declared under a ten-year rights agreement adopted in
March 1989.
If an acquirer buys 15 percent or more of the company's stock, the plan
allows other shareholders to buy, with each right, additional company shares
at a 50 percent discount. If the company is acquired in a merger or other
business combination transaction, rights holders will be entitled to buy
shares of the acquiring company at a 50 percent discount. If an acquirer
buys between 15 percent and 50 percent of the company's outstanding stock,
the company can exchange part or all of the rights of other holders for
shares of the company's stock on a one-for-one basis, or shares of the
Series A Junior Participating Preferred stock on a one-for-one-hundredth
basis. Before an acquirer buys 15 percent or more of the company's common
stock, the company may redeem the rights. The Board is authorized to reduce
the 15 percent threshold to not less than 10 percent.
<PAGE>
<TABLE>
SCHEDULE II--VALUATION AND QUALIFYING ACCOUNTS
For the three years ended December 28, 1996
(In millions)
<CAPTION>
Col. A Col. B Col. C Col. D Col. E
Additions
--------------------
Charged to
Balance at Charged Other Balance
Beginning to Costs Accounts Deductions at End
Description of Period Expenses Describe Describe of Period
- ----------- --------- -------- -------- ---------- ---------
<S> <C> <C> <C> <C> <C>
Allowance for doubtful accounts, current and long term:
Year ended $ 20.2 $ 5.5 - $ (5.8)<F1> $ 19.0
December (0.4)<F2>
28, 1996 (0.5)<F3>
Year ended $ 18.2 $ 4.5 - $ (3.4)<F1> $ 20.2
December 0.5 <F2>
30, 1995 0.4 <F4>
Year ended $ 15.2 $ 6.1 - $ (3.8)<F1> $ 18.2
December 0.4 <F2>
31, 1994 0.3 <F4>
Valuation allowance for deferred tax assets:
Year ended
December
28, 1996 $ 7.3 $ 9.2 - - $ 16.5
Year ended
December
30, 1995 $ 6.9 $ 0.4 - - $ 7.3
Year ended
December
31, 1994 $ 14.1 $ (7.2) - - $ 6.9
<FN>
<F1> Represents write-offs less recoveries
<F2> Foreign currency translation adjustment
<F3> Business sold
<F4> Businesses acquired
</TABLE>
By-Laws
of
Premark International, Inc.
(As amended February 29, 1996)
ARTICLE I
Stockholders
Section 1. The annual meeting of the stockholders of the Corporation
shall be held on the Wednesday before the first Thursday in May of each year
(or if said day is a legal holiday, then on the next succeeding day not a
holiday) or on such other date, and at such time and at such place within or
without the State of Delaware, as may be fixed by the Board of Directors, for
the purpose of electing directors and for the transaction of such other
business as may properly be brought before the meeting.
Section 2. (a) Subject to the rights of the holders of any class or
series of stock having a preference over the Common Stock of the Corporation
as to dividends or upon liquidation ("Preferred Stock"), any action required
or permitted to be taken by the stockholders of the Corporation must be
effected at an annual or special meeting of stockholders of the Corporation
and may not be effected by any consent in writing by such stockholders.
Subject to the rights of the holders of any class or series of Preferred
Stock, special meetings of stockholders of the Corporation may be called only
by the Board of Directors pursuant to a resolution adopted by a majority of
the Whole Board (as such term is defined in Article EIGHTH of the
Corporation's Restated Certificate of Incorporation (the "Certificate of
Incorporation")).
(b) Special meetings of the stockholders may be held at such time and at
such place within or without the State of Delaware, as may be stated in the
call.
Section 3. Notice of the time and place of every meeting of stockholders
shall be delivered personally or mailed at least ten days and not more than
sixty days prior thereto to each stockholder of record entitled to vote at
his address as it appears on the records of the Corporation. Such further
notice shall be given as may be required by law. Business transacted at any
special meeting shall be confined to the purpose or purposes stated in the
notice of such special meeting. Meetings may be held without notice if all
stockholders entitled to vote are present or if notice is waived by those not
present.
Section 4. Except as otherwise provided by law or by the Certificate of
Incorporation, the presence, in person or by proxy, of the holders of record
of shares of capital stock of the Corporation entitling the holders thereof
to cast a majority of the votes (after giving effect to the provisions of
Article NINTH of the Certificate of Incorporation) entitled to be cast by the
holders of shares of capital stock of the Corporation entitled to vote shall
constitute a quorum at all meetings of the stockholders. The chairman of the
meeting or the holders of record of a majority of such shares so present or
represented may adjourn the meeting from time to time, whether or not there
is such a quorum. No notice of the time and place of adjourned meetings need
be given except as required by law.
Section 5. Election of directors at all meetings of the stockholders at
which directors are to be elected shall be by ballot, and, except as
otherwise set forth in any Preferred Stock Designation (as defined in Article
FOURTH of the Certificate of Incorporation) with respect to the right of the
holders of any class or series of Preferred Stock to elect additional
directors under specified circumstances, a plurality of the votes cast
thereat shall elect. Except as otherwise provided by law, the Certificate of
Incorporation, any Preferred Stock Designation, the By-Laws of the
Corporation or resolution adopted by the Whole Board, all matters other than
the election of directors submitted to the stockholders at any meeting shall
be decided by a majority of the votes cast with respect thereto.
Section 6. (a) At any annual meeting of the stockholders, only such
business shall be conducted as shall have been brought before the meeting (i)
by or at the direction of the Board of Directors or (ii) by any stockholder
of the Corporation who is entitled to vote with respect thereto and who
complies with the notice procedures set forth in this Section 6(a). For
business to be properly brought before an annual meeting by a stockholder,
the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered or mailed to and received at the principal executive offices of the
Corporation not less than 30 days prior to the date of the annual meeting;
provided, however, that in the event that less than 40 days' notice or prior
public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be received not
later than the close of business on the 10th day following the day on which
such notice of the date of the annual meeting was mailed or such public
disclosure was made. A stockholder's notice to the Secretary shall set forth
as to each matter such stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired to be brought before
the annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and address, as they appear on the Corporation's
books, of the stockholder proposing such business, (iii) the class and number
of shares of the Corporation's capital stock that are beneficially owned by
such stockholder and (iv) any material interest of such stockholder in such
business. Notwithstanding anything in the By-Laws to the contrary, no
business shall be brought before or conducted at an annual meeting except in
accordance with the provisions of this Section 6(a). The officer of the
Corporation or other person presiding over the annual meeting shall, if the
facts so warrant, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the provisions of this
Section 6(a) and, if he should so determine, he shall so declare to the
meeting and any such business so determined to be not properly brought before
the meeting shall not be transacted.
At any special meeting of the stockholders, only such business shall be
conducted as shall have been brought before the meeting by or at the
direction of the Board of Directors.
(b) Only persons who are nominated in accordance with the procedures set
forth in these By-Laws shall be eligible for election as directors.
Nominations of persons for election to the Board of Directors of the
Corporation may be made at a meeting of stockholders at which directors are
to be elected only (i) by or at the direction of the Board of Directors or
(ii) by any stockholder of the Corporation entitled to vote for the election
of directors at the meeting who complies with the notice procedures set forth
in this Section 6(b). Such nominations, other than those made by or at the
direction of the Board of Directors, shall be made by timely notice in
writing to the Secretary of the Corporation. To be timely, a stockholder's
notice shall be delivered or mailed to and received at the principal
executive offices of the Corporation not less than 30 days prior to the date
of the meeting; provided, however, that in the event that less than 40 days'
notice or prior disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the 10th day following the day on which
such notice of the date of the meeting was mailed or such public disclosure
was made. Such stockholder's notice shall set forth (i) as to each person
whom such stockholder proposes to nominate for election or re-election as a
director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is
otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (including such person's written
consent to being named in the proxy statement as a nominee and to serving as
a director if elected); and (ii) as to the stockholder giving the notice (x)
the name and address, as they appear on the Corporation's books, of such
stockholder and (y) the class and number of shares of the Corporation's
capital stock that are beneficially owned by such stockholder. At the request
of the Board of Directors any person nominated by the Board of Directors for
election as a director shall furnish to the Secretary of the Corporation that
information required to be set forth in a stockholder's notice of nomination
which pertains to the nominee. No person shall be eligible for election as
a director of the Corporation unless nominated in accordance with the
provisions of this Section 6(b). The officer of the Corporation or other
person presiding at the meeting shall, if the facts so warrant, determine and
declare to the meeting that a nomination was not made in accordance with such
provisions and, if he should so determine, he shall so declare to the meeting
and the defective nomination shall be disregarded.
Section 7. (a) The Board of Directors by resolution shall appoint one
or more inspectors, which inspector or inspectors may include individuals who
serve the Corporation in other capacities, including, without limitation, as
officers, employees, agents or representatives of the Corporation, to act at
a meeting of stockholders and make a written report thereof. One or more
persons may be designated as alternate inspectors to replace any inspector
who fails to act. If any inspectors or alternates who have been appointed
are unable to act at a meeting of stockholders, the Chairman of the meeting
shall appoint one or more inspectors to act at the meeting. Each inspector,
before discharging his or her duties, shall take and sign an oath faithfully
to execute the duties of inspector with strict impartiality and according to
the best of his or her ability. The inspectors shall have the duties
prescribed by the General Corporation Law of the State of Delaware.
(b) The Chairman of the meeting or the Secretary of the Corporation shall
fix and announce at the meeting the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote
at a meeting.
ARTICLE II
Directors
Section 1. (a) Subject to the rights of the holders of any class or
series of Preferred Stock to elect directors under specified circumstances,
the number of directors shall be fixed from time to time exclusively by the
Board of Directors pursuant to a resolution adopted by a majority of the
Whole Board. The directors, other than those who may be elected by the
holders of any class or series of Preferred Stock, shall be divided, with
respect to the time for which they severally hold office, into three classes,
with the term of office of the first class to expire at the 1987 annual
meeting of stockholders, the term of office of the second class to expire at
the 1988 annual meeting of stockholders and the term of office of the third
class to expire at the 1989 annual meeting of stockholders, with each
director to hold office until his or her successor shall have been duly
elected and qualified. At each annual meeting of stockholders, commencing
with the 1987 annual meeting, (i) directors elected to succeed those
directors whose terms then expire shall be elected for a term of office to
expire at the third succeeding annual meeting of stockholders after their
election, with each director to hold office until his or her successor shall
have been duly elected and qualified and (ii), if authorized by a resolution
of the Board of Directors, directors may be elected to fill any vacancy on
the Board of Directors regardless of how such vacancy shall have been
created.
(b) A whole number of directors equal to at least one third of the Whole
Board shall constitute a quorum for the transaction of business, but if at
any meeting of the Board of Directors there shall be less than a quorum
present a majority of those present may adjourn the meeting from time to time
until a quorum shall have been obtained.
(c) Subject to the rights of the holders of any class or series of
Preferred Stock, and unless the Board of Directors otherwise determines,
newly created directorships resulting from any increase in the authorized
number of directors or any vacancies in the Board of Directors resulting from
death, resignation, retirement, disqualification, removal from office or
other cause may be filled only by a majority vote of the directors then in
office, though less than a quorum, and directors so chosen shall hold office
for a term expiring at the annual meeting of stockholders at which the term
of office of the class to which they have been elected expires and until such
director's successor shall have been duly elected and qualified. No decrease
in the number of authorized directors constituting the Whole Board shall
shorten the term of any incumbent director.
(d) Subject to the rights of the holders of any class or series of
Preferred Stock, any director, or the entire Board of Directors, may be
removed from office at any time, but only for cause and only by the
affirmative vote of the holders of at least a majority of the voting power
of all of the then-outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (the "Voting Stock")
(after giving effect to the provisions of Article NINTH of the Certificate
of Incorporation), voting together as a single class.
Section 2. Meetings of the Board of Directors shall be held at such place
within or without the State of Delaware, as may from time to time be fixed
by, or determined in the manner provided by, resolution of the Board, or as
may be specified in the call of any meeting. Regular meetings of the Board
of Directors shall be held at such times as may from time to time be fixed
by, or determined in the manner provided by, resolution of the Board, and
special meetings may be held at any time upon the call of the Executive
Committee or of the Chairman of the Board of Directors by oral, telegraphic
or written notice, duly served on or sent or mailed to each director not less
than two days before such meeting. A meeting of the Board may be held without
notice immediately after the annual meeting of stockholders at the same place
at which such meeting was held. Notice need not be given of regular meetings
of the Board held at times and places fixed by resolution of the Board. A
meeting may be held at any time without notice if all the directors are
present or if those not present waive notice of the meeting in writing,
either before or after such meeting.
Section 3. The Board of Directors may, in its discretion, by resolution
passed by a majority of the Whole Board, designate an Executive Committee to
consist of the Chairman of the Board of Directors and such number of other
directors as the Board may from time to time determine (not less than three),
which Committee, to the extent provided in said resolution, shall have, and
may exercise when the Board is not in session, the powers of the Board in the
management of the business and affairs of the Corporation, except the power
to change the membership or to fill vacancies in the Board or said Committee.
The Board shall have the power at any time to change the membership of said
Committee (subject to the requirement that the Chairman of the Board be a
member thereof), to fill vacancies in it, or to dissolve it. The Executive
Committee may make rules for the conduct of its business and may appoint such
committees and assistants as it shall from time to time deem necessary .
Section 4. The Board of Directors may from time to time, in its
discretion, by resolution passed by a majority of the Whole Board, designate,
and appoint, from the directors, other committees of one or more persons
which shall have and may exercise such lawfully delegable powers and duties
conferred or authorized by the resolutions of designation and appointment.
The Board shall have power at any time to change the members of any such
committee, to fill vacancies, and to discharge any such committee.
Section 5. Unless the Board shall provide otherwise, the presence of
one-half of the total membership of any committee of the Board shall
constitute a quorum for the transaction of business at any meeting of such
committee and the act of a majority of those present shall be necessary and
sufficient for the taking of any action thereat.
Section 6. The Executive Committee, and any other committee so designated
if the resolution which designates such committee or a supplemental
resolution of the Board shall so provide, may exercise the power and
authority of the Board to declare a dividend, to authorize the issuance of
stock or to adopt a certificate of ownership and merger pursuant to Section
253 of the Delaware General Corporation Law.
ARTICLE III
Officers
Section 1. The Board of Directors as soon as may be practicable after the
annual meeting of stockholders shall choose a Chairman of the Board of
Directors, a Secretary and a Treasurer and from time to time may choose such
other officers (including, without limitation, a President) as it may deem
proper. The Chairman of the Board of Directors shall be chosen from the
directors.
Section 2. The term of office of all officers shall be until the next
annual election of officers and until their respective successors are chosen,
but any officer may be removed from office at any time by the affirmative
vote of a majority of the members of the Whole Board.
Section 3. All officers chosen by the Board of Directors shall each have
such powers and duties as generally pertain to their respective offices,
subject to the specific provisions of this ARTICLE III. Such officers shall
also have such powers and duties as from time to time may be conferred by the
Board of Directors or by any committee thereof.
Section 4. The Chairman of the Board shall preside at all meetings of the
stockholders and of the Board of Directors. He shall make reports to the
Board of Directors and the stockholders, and shall perform all such other
duties as are properly required of him by the Board of Directors.
The Chief Executive Officer shall have general management and oversight
of the administration and operation of the Corporation's business and general
supervision of its policies and affairs.
The President (if one shall have been chosen by the Board of Directors)
shall act in a general executive capacity and shall assist the Chairman of
the Board of Directors in the administration and operation of the
Corporation's business and in the supervision of its policies and affairs.
During the absence or disability of the Chairman of the Board of Directors,
the President (if one shall have been chosen by the Board of Directors) shall
have and exercise all the powers of the Chairman of the Board of Directors.
Each meeting of the stockholders and of the Board of Directors shall be
presided over by the Chairman of the Board of Directors or, in his absence,
the President, if one shall have been chosen by the Board of Directors, or
in his absence, by such officer as has been designated by the Board of
Directors or, in his absence, by such officer or other person as is chosen
at the meeting. The Secretary or, in his absence, the
General Counsel of the Corporation or such officer as has been designated by
the Board of Directors or, in his absence, such officer or other person as
is chosen by the person presiding, shall act as secretary of each such
meeting.
ARTICLE IV
Certificates of Stock
The interest of each stockholder of the Corporation shall be evidenced by
certificates for shares of stock in such form as the Board of Directors may
from time to time prescribe, unless it shall be determined by, or pursuant
to, a resolution adopted by the Board of Directors that the shares
representing such interest be uncertificated. The shares of the stock of the
Corporation shall be transferred on the books of the Corporation by the
holder thereof in person or by his attorney, upon surrender for cancellation
of certificates for the same number of shares, with an assignment and power
of transfer endorsed thereon or attached thereto, duly executed, with such
proof of the authenticity of the signature as the Corporation or its agents
may reasonably require.
The certificates of stock shall be signed, countersigned and registered
in such manner as the Board of Directors may by resolution prescribe, which
resolution may permit all or any of the signatures on such certificates to
be in facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate has
ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same
effect as if he were such officer, transfer agent or registrar at the date
of issue.
ARTICLE V
Checks, Notes, Etc.
All checks on the Corporation's bank accounts and all drafts, bills of
exchange and promissory notes, and all acceptances, obligations and other
instruments for the payment of money, shall be signed by such person or
persons as shall be thereunto authorized from time to time by the Board of
Directors or by the committee or officer or officers of the Corporation to
whom the Board shall have delegated the power to authorize such signing;
provided, however, that the signature of any person so authorized on checks
and drafts drawn on the Corporation's dividend and special accounts may be
in facsimile if the Board of Directors or the committee or officer or
officers, whichever shall have authorized such person to sign such checks or
drafts, shall have authorized such person to sign in facsimile; and provided
further that in case notes or other instruments for the payment of money
(other than notes, bonds or debentures issued under a trust instrument of the
Corporation) are required to be signed by two persons, the signature thereon
of only one of the persons signing any such note or other instrument may be
in facsimile, and that in the case of notes, bonds or debentures issued under
a trust instrument of the Corporation and required to be signed by two
officers of the Corporation, the signatures of both such officers may be in
facsimile if specifically authorized and directed by the Board of Directors
of the Corporation and if such notes, bonds or debentures are required to be
authenticated by a corporate trustee which is a party to the trust
instrument; and provided further that in case any person or persons who shall
have signed any such note or other instrument, either manually or in
facsimile, shall have ceased to be a person or persons so authorized to sign
any such note or other instrument, whether because of death or by reason of
any other fact or circumstance, before such note or other instrument shall
have been delivered by the Corporation, such note or other instrument may,
nevertheless, be adopted by the Corporation and be issued and delivered as
though the person or persons who so signed such note or other instrument had
not ceased to be such a person or persons.
ARTICLE VI
Offices
The Corporation may have offices outside of the State of Delaware at such
places as shall be determined from time to time by the directors.
ARTICLE VII
Amendments
These By-Laws may be amended, added to, rescinded or repealed at any
meeting of the Board of Directors or of the stockholders, provided notice of
the proposed change was given in the notice of the meeting and, in the case
of a meeting of the Board of Directors, in a notice given no less than
twenty-four hours prior to the meeting; provided, however, that, in the case
of amendments by stockholders, notwithstanding any other provisions of these
By-Laws or any provision of law which might otherwise permit a lesser vote
or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the stock required by law, the Certificate of
Incorporation or these By-Laws, the affirmative vote of the holders of at
least 80 percent of the voting power of the then outstanding Voting Stock,
voting together as a single class, shall be required to alter, amend or
repeal any provision of these By-Laws.
ARTICLE VIII
Emergency Provisions
During any emergency resulting from an attack on the United States or on
a locality in which the Corporation conducts its business or customarily
holds meetings of its Board of Directors or its stockholders, or during any
nuclear or atomic disaster, or during the existence of any catastrophe, or
other similar emergency condition, as a result of which a quorum of the Board
of Directors of the Corporation or of the Executive Committee of the Board
of Directors cannot readily be convened for action, the following provisions
shall apply, notwithstanding any other provisions of the By-Laws of the
Corporation:
1. An emergency meeting or meetings of the Board of
Directors or of the surviving members thereof shall be called by
the Chairman of the Board, if available, or, if he is not
available, the Chairman on the Executive Committee, or, if he is
not available, by any other director or directors; any such meeting
to be held at such time and place and upon such notice, if any, as
the person or persons calling the meeting shall deem proper. The
Board may take any action at any such meeting which it deems
necessary and appropriate to meet the emergency.
2. Vacancies in the Board of Directors shall be filled as soon as
practicable in the manner specified in Section l of ARTICLE II of these
By-Laws. In filling vacancies, consideration shall be given to senior
officers of the Corporation.
3. The presence of the smallest number of directors permitted by
law to constitute a quorum, but not less than three, shall be sufficient
for the transaction of business at emergency meetings of the Board of
Directors, except that if there are less than three surviving directors,
the surviving director or directors, although less than a quorum, may
fill vacancies in the Board.
4. The By-Laws may be amended by the Board of Directors without
notice of the proposed amendment being given in the notice of the
meeting.
5. Without limiting the generality of the foregoing, the Board of
Directors is authorized to make all necessary determinations of fact
regarding the extent and severity of the emergency and the availability
of members of the Board of Directors; to designate and replace officers,
agents and a chairman, adopt rules of procedures and fill vacancies.
6. The emergency powers provided in this ARTICLE VIII shall be in
addition to any powers provided by law.
CONFORMED COPY
========================================================
Premark International, Inc., Issuer
AND
The First National Bank of Chicago, Trustee
Indenture
Dated as of September 15, 1990
__________
========================================================
TABLE OF CONTENTS
__________
Page
PARTIES.............................................. 1
RECITALS
Authorization of Indenture...................... 1
Compliance with Legal Requirements.............. 1
Purpose of and Consideration for Indenture...... 1
ARTICLE ONE
DEFINITIONS
SECTION 1.1. Certain Terms Defined................. 1
Attributable Debt..................... 2
Authenticating Agent.................. 2
Authorized Newspaper.................. 2
Board of Directors.................... 3
Board Resolution...................... 3
Business Day.......................... 3
Commission............................ 3
Consolidated Net Tangible Assets...... 3
Corporate Trust Office................ 3
Coupon................................ 4
covenant defeasance................... 4
Depositary............................ 4
Dollar................................ 4
ECU................................... 4
Event of Default...................... 4
Foreign Currency...................... 4
Funded Debt........................... 4
Government Obligations................ 5
Holder, Holder of Securities,
Securityholder...................... 5
Indenture............................. 5
Interest.............................. 5
Issuer................................ 5
Issuer Order.......................... 5
Judgment Currency..................... 6
Mortgage.............................. 6
Officers' Certificate................. 6
Opinion of Counsel.................... 6
original issue date................... 6
Original Issue Discount Security...... 6
Outstanding........................... 6
Periodic Offering..................... 7
Person................................ 8
principal............................. 8
Principal Property.................... 8
Record Date........................... 8
Registered Global Security............ 8
Registered Security................... 8
Required Currency..................... 8
Responsible Officer................... 8
Restricted Subsidiary................. 9
Secured Debt.......................... 9
Security or Securities................ 9
Security Register and Security
Registrar........................... 9
Subsidiary............................ 9
Trust Indenture Act of 1939........... 9
Trustee............................... 9
Unregistered Security................. 10
Yield to Maturity..................... 10
ARTICLE TWO
SECURITIES
SECTION 2.1. Forms Generally....................... 10
SECTION 2.2. Form of Trustee's Certificate
of Authentication................... 10
SECTION 2.3. Amount Unlimited; Issuable in Series.. 11
SECTION 2.4. Authentication and Delivery of
Securities.......................... 14
SECTION 2.5. Execution of Securities............... 18
SECTION 2.6. Certificate of Authentication......... 19
SECTION 2.7. Denomination and Date of
Securities; Payments of Interest.... 19
SECTION 2.8. Registration, Transfer and Exchange... 20
SECTION 2.9. Mutilated, Defaced, Destroyed, Lost
and Stolen Securities............... 25
SECTION 2.10. Cancellation of Securities;
Destruction Thereof................. 27
SECTION 2.11. Temporary Securities.................. 27
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1. Payment of Principal and Interest..... 28
SECTION 3.2. Offices for Payments, etc............. 28
SECTION 3.3. Appointment to Fill a Vacancy in
Office of Trustee................... 30
SECTION 3.4. Paying Agents......................... 31
SECTION 3.5. Written Statement to Trustee.......... 32
SECTION 3.6. Limitations on Liens.................. 32
SECTION 3.7. Restrictions on Sale and Lease-Back... 34
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1. Issuer to Furnish Trustee
Names and Addresses of
Securityholders..................... 35
SECTION 4.2. Preservation and Disclosure of
Securityholders Lists............... 36
SECTION 4.3. Reports by the Issuer................. 38
SECTION 4.4. Reports by the Trustee................ 39
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1. Event of Default Defined; Acceleration
of Maturity; Waiver of Default...... 41
SECTION 5.2. Collection of Indebtedness by Trustee;
Trustee May Prove Debt.............. 45
SECTION 5.3. Application of Proceeds............... 48
SECTION 5.4. Suits for Enforcement................. 49
SECTION 5.5. Restoration of Rights on Abandonment
of Proceedings...................... 50
SECTION 5.6. Limitations on Suits by
Securityholders..................... 50
SECTION 5.7. Unconditional Right of
Securityholders to Institute
Certain Suits....................... 51
SECTION 5.8. Powers and Remedies Cumulative;
Delay or Omission Not Waiver of
Default............................. 51
SECTION 5.9. Control by Holders of Securities...... 52
SECTION 5.10. Waiver of Past Defaults............... 52
SECTION 5.11. Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances....................... 53
SECTION 5.12. Right of Court to Require Filing
of Undertaking to Pay Costs......... 53
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1. Duties and Responsibilities of the
Trustee; During Default; Prior to
Default............................. 54
SECTION 6.2. Certain Rights of the Trustee......... 56
SECTION 6.3. Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof..... 58
SECTION 6.4. Trustee and Agents May Hold
Securities or Coupons;
Collections, etc.................... 58
SECTION 6.5. Moneys Held by Trustee................ 58
SECTION 6.6. Compensation and Indemnification
of Trustee and Its Prior Claim...... 58
SECTION 6.7. Right of Trustee to Rely on
Officers' Certificate, etc.......... 59
SECTION 6.8. Qualification of Trustee;
Conflicting Interests............... 59
SECTION 6.9. Persons Eligible for Appointment
as Trustee.......................... 68
SECTION 6.10. Resignation and Removal; Appointment
of Successor Trustee................ 68
SECTION 6.11. Acceptance of Appointment by
Successor Trustee................... 70
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee... 72
SECTION 6.13. Preferential Collection of Claims
Against the Issuer.................. 73
SECTION 6.14. Appointment of Authenticating Agent... 78
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1. Evidence of Action Taken by
Securityholders..................... 80
SECTION 7.2. Proof of Execution of Instruments and
of Holding of Securities............ 80
SECTION 7.3. Holders to be Treated as Owners....... 81
SECTION 7.4. Securities Owned by Issuer Deemed Not
Outstanding......................... 82
SECTION 7.5. Right of Revocation of Action Taken... 83
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1. Supplemental Indentures Without
Consent of Securityholders.......... 83
SECTION 8.2. Supplemental Indentures With Consent
of Securityholders.................. 85
SECTION 8.3. Effect of Supplemental Indenture...... 87
SECTION 8.4. Documents to Be Given to Trustee...... 88
SECTION 8.5. Notation on Securities in Respect of
Supplemental Indentures............. 88
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1. Covenant of Issuer Not to Merge,
Consolidate, Sell or Convey
Property Except Under Certain
Conditions.......................... 88
SECTION 9.2. Securities to be Secured in
Certain Events...................... 89
SECTION 9.3. Successor Corporation Substituted
for Issuer.......................... 90
SECTION 9.4. Opinion of Counsel Delivered
to Trustee.......................... 90
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1. Satisfaction and Discharge of
Indenture........................... 91
SECTION 10.2. Application by Trustee of Funds
Deposited for Payment of
Securities.......................... 97
SECTION 10.3. Repayment of Moneys Held by Paying
Agent............................... 97
SECTION 10.4. Return of Moneys Held By Trustee
and Paying Agent Unclaimed for
Two Years........................... 97
SECTION 10.5. Indemnity For Government
Obligations......................... 98
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1. Incorporators, Stockholders,
Officers and Directors of
Issuer Exempt from Individual
Liability........................... 98
SECTION 11.2. Provisions of Indenture for
the Sole Benefit of Parties
and Holders of Securities
and Coupons......................... 99
SECTION 11.3. Successors and Assigns of Issuer
Bound by Indenture.................. 99
SECTION 11.4. Notices and Demands on Issuer,
Trustee and Holders of Securities
and Coupons......................... 99
SECTION 11.5. Officers' Certificates and Opinions
of Counsel; Statements to Be
Contained Therein................... 100
SECTION 11.6. Payments Due on Saturdays, Sundays
and Holidays........................ 100
SECTION 11.7. Conflict of Any Provision of
Indenture with Trust Indenture
Act of 1939......................... 102
SECTION 11.8. New York Law to Govern................ 102
SECTION 11.9. Counterparts.......................... 102
SECTION 11.10. Effect of Headings.................... 103
SECTION 11.11. Securities in a Foreign Currency
or in ECU........................... 104
SECTION 11.12. Judgment Currency..................... 104
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1. Applicability of Article.............. 105
SECTION 12.2. Notice of Redemption; Partial
Redemptions......................... 105
SECTION 12.3. Payment of Securities Called for
Redemption.......................... 107
SECTION 12.4. Exclusion of Certain Securities from
Eligibility for Selection for
Redemption.......................... 108
SECTION 12.5. Mandatory and Optional Sinking
Funds............................... 108
TESTIMONIUM.......................................... 113
SIGNATURES........................................... 113
THIS INDENTURE dated as of September 15, 1990 between
Premark International, Inc., a Delaware corporation (the
"Issuer"), and The First National Bank of Chicago, as trustee (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue
from time to time of its unsecured debentures, notes or other
evidences of indebtedness to be issued in one or more series
(the "Securities") up to such principal amount or amounts as
may from time to time be authorized in accordance with the
terms of this Indenture;
WHEREAS, the Issuer has duly authorized the
execution and delivery of this Indenture
to provide, among other things,
for the authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture
a valid indenture and agreement according to its terms
have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases
of the Securities by the holders thereof, the Issuer and the
Trustee mutually covenant and agree for the equal and proportionate
benefit of the respective holders from time to time
of the Securities and of the coupons, if any, appertaining
thereto as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following
terms (except as otherwise expressly provided or unless the
context otherwise clearly requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section. All other
terms used in this Indenture that are defined in the Trust
Indenture Act of 1939 or the definitions of which in the
Securities Act of 1933 are referred to in the Trust Indenture
Act of 1939, including terms defined therein by reference to
the Securities Act of 1933 (except as herein otherwise
expressly provided or unless the context otherwise
requires), shall have the meanings assigned to such terms in
said Trust Indenture Act and in said Securities Act as in
force at the date of this Indenture. All accounting terms
used herein and not expressly defined shall have the meanings
assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted
accounting principles" means such accounting principles as
are generally accepted at the time of any computation. The
words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision. The
terms defined in this Article include the plural as well as the
singular.
"Attributable Debt" means, as to any particular
lease under which any Person is at the time liable and at any
date as of which the amount thereof is to be determined, the lesser of (i) the
fair value of the property subject to such lease (as determined by the Board
of Directors) and (ii) the
total net amount of rent required to be paid by such Person
under such lease during the remaining primary term thereof,
discounted from the respective due dates thereof to such date
at the rate per annum equal to the interest rate implicit in such lease.
The net amount of rent required to be paid under
any such lease for any such period shall be the aggregate
amount of rent payable by the lessee with respect to such
period after excluding amounts required to be paid on account
of maintenance and repairs, insurance, taxes, assessments,
water rates and similar charges or any amount required to be paid by such
lessee thereunder contingent upon the amount of sales
(or other similar contingent amounts).
In the case of any lease
which is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of
such penalty, but no rent shall be considered as required to
be paid under such lease subsequent to the first date upon which it may be
so terminated.
"Authenticating Agent" shall have the meaning set forth
in Section 6.14.
"Authorized Newspaper" means a newspaper (which, in
the case of The City of New York, will, if practicable, be
The Wall Street Journal (Eastern Edition),
published in an official language of
the country of publication customarily published at least
once a day for at least five days in each calendar week and
of general circulation in The City of New York, the United Kingdom or in
Luxembourg, as applicable.
If it shall be impractical in the opinion
of the Trustee to make any publication of any notice required
hereby in an Authorized Newspaper, any publication or other
notice in lieu thereof which is made or given with the
approval of the Trustee shall constitute a sufficient publication
of such notice.
"Board of Directors" means either the Board of
Directors of the Issuer or any committee of such Board duly
authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer to have
been duly adopted or consented to
by the Board of Directors and to be in full force and
effect, and delivered to the Trustee.
"Business Day" means, with respect to any series of
Securities,
a day on which, in any city where
amounts are payable on the
Securities of such series as therein specified,
banking institutions
are not authorized or required by law or regulation to close.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under
the Securities Exchange Act of 1934, or if at any time after
the execution and delivery of this Indenture such Commission
is not existing and performing the duties now assigned to it
under the Trust Indenture Act of 1939, then the body performing such
duties on such date.
"Consolidated Net Tangible Assets"
means the aggregate amount of assets (less applicable reserves and other
properly deductible items) after deducting therefrom (a)all current
liabilities (including the current portion of Funded Debt),
(b)all other liabilities except deferred income taxes, Funded Debt and
stockholders' equity (including preferred stock, whether or not redeemable),
(c)all goodwill, trade names, trademarks, patents, organization expenses,
unamortized debt discount and expense less unamortized debt premium and
other like intangibles (other than deferred charges and prepaid expenses),
(d)adjustments for minority interests and (e)equity in and net advances
to Subsidiaries (other than Restricted Subsidiaries),
all as set forth on the most recent consolidated balance
sheet of the Issuer and its Restricted
Subsidiaries and
computed in accordance with generally accepted accounting principles.
"Corporate Trust Office" means the office of the
Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered,
which office is, at the date as of which this Indenture is
dated, located at One First National Plaza, Suite 0126,
Chicago, Illinois 60670.
"Coupon" means any interest coupon appertaining to
a Security.
"covenant defeasance" shall have the meaning
set forth in Section 10.1(C).
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered
Global Securities, the
Person designated as Depositary by the Company pursuant to Section 2.3 until
a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean
each Person who is then a Depositary hereunder; and if at any time
there is more than one such Person, "Depositary" as used with respect to
the Securities of any such series shall mean each Depositary with respect to
the Registered Global Securities of such series.
"Dollar" means the coin or currency of the United
States of America as at the time of payment is legal tender
for the payment of public and private debts.
"ECU" means the European Currency Unit as defined
and revised from time to time by the Council of European
Communities.
"Event of Default" means any event or condition
specified as such in Section 5.1.
"Foreign Currency" means a currency issued by the
government of a country other than the United States of America.
"Funded Debt" means all indebtedness for borrowed money
owed or guaranteed by the Issuer or any of its Restricted Subsidiaries and
any other indebtedness which, under generally accepted accounting
principles, would appear as indebtedness on the most recent consolidated
balance sheet of the Issuer and its Restricted Subsidiaries, which matures
by its terms more than 12 months from the date of such consolidated balance
sheet or which matures by its terms in less than 12 months but by its terms
is renewable or extendible beyond 12 months from the date of such
consolidated balance sheet at the option of the borrower.
"Government Obligations" means securities that are (a)
direct obligations of the government which issued the currency in which the
Securities of a particular series are denominated for the payment of which
its full faith and credit is pledged or (b) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality
of such government the payment of which is unconditionally guaranteed as a
full faith and credit obligation by such government, which, in either case,
are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian
with respect to any such Government Obligation or a specific payment of
principal of or interest on any such Government Obligation held by such
custodian for the account of the holder of such depository receipt,
provided that (except as provided by law)
such custodian is not authorized
to make any deduction from the amount payable to the holder of such
depository receipt from any amount
received by the custodian in respect
of such Government Obligation or the specific payment of principal of or
interest on such Government Obligation evidenced by such depository
receipt.
"Holder", "Holder of Securities", "Securityholder"
or other similar terms mean (a) in the case of any Registered Security,
the Person in whose name such Security is registered in the Security
Register kept by the Issuer for that purpose in accordance with the terms
hereof, and (b) in the case of any Unregistered Security, the bearer of such
Security, or any Coupon appertaining thereto, as the case may be.
"Indenture" means this instrument as originally
executed and delivered or, if amended or supplemented as
herein provided, as so amended or supplemented or both, and
shall include the forms and terms of particular series of
Securities established as provided hereunder.
"Interest" means, when used with respect to non-interest
bearing Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in
Article Six) Premark International, Inc.,
a Delaware corporation and,
subject to Article Nine, its successors and assigns.
"Issuer Order" means a written statement, request or
order of the Issuer signed in its name by the Chairman
of the Board of
Directors, the President or any Vice President (whether or not
designated by a number or numbers or a word or words added before
or after the title "Vice President") and by
the Treasurer, any Assistant Treasurer, the
Secretary, any Assistant Secretary, the Comptroller or any Assistant
Comptroller of the Issuer.
"Judgment Currency" shall have the meaning
set forth in Section 11.12.
"Mortgage" shall have the meaning set forth in Section
3.6.
"Officers' Certificate" means a certificate signed
by the Chairman
of the Board of Directors, the President
or any Vice President (whether or not designated by a number
or numbers or a word or words added before or after the title
"Vice President") and by
the Treasurer,
any Assistant Treasurer, the Secretary, any Assistant Secretary,
the Comptroller or any Assistant Comptroller
of the Issuer and delivered to the
Trustee. Each such certificate shall include the statements
provided for in Section 11.5.
"Opinion of Counsel" means an opinion in writing
signed by the General Counsel of the Issuer
or by such other
legal counsel who may be an employee of or counsel
to the Issuer and who shall be satisfactory to the Trustee.
Each such opinion shall include the statements provided for
in Section 11.5, if and to the extent required thereby.
"original issue date" of any Security (or portion
thereof) means the earlier of (a) the date of such Security
or (b) the date of any Security (or portion thereof) for
which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any
Security that provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to Section 5.1.
"Outstanding" (except as otherwise provided in
Section 6.8), when used with reference to Securities, shall,
subject to the provisions of Section 7.4, mean, as of any
particular time, all Securities authenticated and delivered
by the Trustee under this Indenture, except
(a) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the
payment or redemption of which moneys or Government
Obligations (as provided for in Section 10.1)
in the necessary
amount shall have been deposited in trust with
the Trustee or with any paying agent (other than
the Issuer) or shall have been set aside,
segregated and held in trust by the Issuer for the
Holders of such Securities (if the Issuer shall act
as its own paying agent), provided that if such
Securities, or portions thereof, are to be redeemed
prior to the maturity thereof, notice of such
redemption shall have been given as herein
provided, or provision satisfactory to the Trustee
shall have been made for giving such notice; and
(c) Securities which shall have been paid or
in substitution for which
other Securities shall have been authenticated and
delivered pursuant
to the terms of Section 2.9 (except with respect to
any such Security as to which proof satisfactory to
the Trustee is presented that such Security is held
by a Person in whose hands such Security is a
legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite
principal amount of Outstanding Securities of any or all
series have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be
deemed to be Outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable
as of the date of such determination upon a declaration of
acceleration of the maturity thereof pursuant to Section 5.1.
"Periodic Offering" means an offering of Securities
of any series from time to time, the specific terms of which Securities,
including, without limitation, the rate or rates of interest, if any,
thereon, the stated maturity or maturities thereof and the redemption
provisions, if any, with respect thereto are to be determined by the
Company or its agents upon the issuance of such Securities.
"Person" means any individual, corporation, partnership,
joint venture, association, joint stock company,
trust, unincorporated organization or government or any
agency or political subdivision thereof.
"principal", whenever used with reference to the
Securities or any Security or any portion thereof, shall be
deemed to include the words "and premium, if any".
"Principal Property"
means any manufacturing or processing plant or warehouse owned
at the date of this Indenture or thereafter acquired
by the Issuer or any of its Restricted Subsidiaries,
located in the United States of
America, and having a gross book value (including
related land and improvements thereon and all machinery and equipment
included therein without deduction of any depreciation reserves) in excess
of 3% of Consolidated Net Tangible Assets, other than (i)any
such plant or warehouse
which, in the opinion of the Board of Directors, is not of
material importance to the total business conducted by the Issuer and its
Subsidiaries as an entirety, or (ii)any portion of any such plant or
warehouse which, in the opinion of the Board of Directors
is not of material importance to the use or operation of such
plant or warehouse.
"Record Date" shall have the meaning set
forth in Section 2.7.
"Registered Global Security" means a Security evidencing all or a
part of a series of Securities issued to the Depositary, or its nominee,
for such series in
accordance with Section 2.4, and bearing the legend prescribed in Section
2.4.
"Registered Security" means any Security registered
on the Security Register of the Issuer.
"Required Currency" shall have the
meaning set forth in Section 11.12.
"Responsible Officer", when used with respect to the
Trustee, means the chairman of the board of directors, any
vice chairman of the board of directors, the chairman of the
trust committee, the chairman of the executive committee, any
vice chairman of the executive committee, the president, any
vice president (whether or not designated by numbers or words
added before or after the title "vice president"),
the cashier, the secretary, the treasurer
any trust officer, any assistant trust officer, any assistant
vice president, any assistant cashier, any assistant
secretary, any assistant treasurer or any other officer or
assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at
the time shall be such officers, respectively, or to whom
any corporate trust matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary"
means a Subsidiary of the Issuer substantially all the assets of
which are located, or substantially all the business of which is carried on,
within the United States of America and its territories and possessions,
which owns any Principal Property.
"Secured Debt" shall have the meaning set forth in Section
3.6.
"Security" or "Securities" (except as otherwise
provided in Section 6.8) shall have the meaning stated in the first
recital of this Indenture or, as the case may be, Securities
that have been authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" shall
have the respective meanings set forth in Section 2.8.
"Subsidiary" means a corporation more than 50% of
the outstanding voting stock of which is owned, directly or
indirectly, by the Issuer or by one or more Subsidiaries, or by the
Issuer and one or more other Subsidiaries. For the purposes of this
definition, "voting stock" means stock which ordinarily has voting power for
the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
"Trust Indenture Act of 1939" (except as otherwise
provided in Sections 8.1 and 8.2) means the Trust Indenture
Act of 1939 as in force at the date as of which this Indenture
was originally executed.
"Trustee" means the Person identified as "Trustee"
in the first paragraph hereof and, subject to the provisions
of Article Six, shall also include any successor trustee. "Trustee"
shall also mean or include each Person who is then a trustee
hereunder; and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series
shall mean the trustee with respect to the Securities of such series.
"Unregistered Security" means any Security other
than a Registered Security.
"Yield to Maturity" means the yield to maturity
on a series of Securities, calculated at the time of issuance
of such series, or, if applicable, at the most recent
redetermination of interest on such series, in
accordance with accepted financial practice.
ARTICLE TWO
SECURITIES
~~~~~~~~~~
SECTION 2.1 Forms Generally. The Securities of
each series and the Coupons, if any, to be attached thereto
shall be substantially in such form (not inconsistent with
this Indenture) as shall be established by or pursuant to one or more
Board Resolutions (as set forth in a Board Resolution or, to the extent
established pursuant to rather than set forth in a Board Resolution, an
Officers' Certificate detailing such establishment)
or in one or more indentures
supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have
imprinted or otherwise reproduced thereon such letters, numbers or other
marks of identification and such legend or
legends or endorsements, not inconsistent with the provisions of this
Indenture,
as may be required to comply with any law or with any
rules or regulations pursuant thereto, or with any rules of
any securities exchange or to conform to general usage, all
as may be determined by the officers executing such
Securities and Coupons, if any, as evidenced by their
execution of such Securities and Coupons.
The definitive Securities and Coupons, if any,
shall be printed, lithographed or engraved on steel engraved
borders or may be produced in any other manner, all as determined
by the officers executing such Securities and Coupons,
if any, as evidenced by their execution of such Securities
and Coupons.
SECTION 2.2 Form of Trustee's Certificate of
Authentication. The Trustee's certificate of authentication
on all Securities shall be in substantially the following
form:
"This is one of the Securities
referred to in the within-mentioned Indenture.
The First National Bank
of Chicago, as Trustee
By_____________________
Authorized Officer"
If at any time there shall be an Authenticating Agent appointed
with respect to any series of Securities, then the Trustee's certificate of
authentication to be borne by the Securities
of each such series shall be substantially as follows:
"This is one of the Securities referred to in the within-mentioned
Indenture.
_________________________,
as Authenticating Agent
By_____________________
Authorized Officer"
SECTION 2.3 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is
unlimited.
The Securities may be issued in one or more series,
and each such series shall rank
pari passu with all other unsecured and unsubordinated debt of the Issuer.
There shall be established in or pursuant to one or more Board
Resolutions (and to the extent
established pursuant to rather than set forth in a Board Resolution, in
an Officers' Certificate detailing such establishment) or
established in one or more indentures supplemental
hereto, prior to the initial issuance of Securities of any
series:
(1) the designation of the
Securities of such series, which shall distinguish
the Securities of such series from the Securities
of all other series;
(2) any limit upon the aggregate principal
amount of the Securities of such series that may be
authenticated and delivered under this Indenture
(except for Securities authenticated and delivered
upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of such series
pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars,
the coin or currency in which the
Securities of such series are denominated (including,
but not limited to, any Foreign Currency
or ECU);
(4) the date or dates on which the principal
of the Securities of such series is payable;
(5) the rate or rates at which the Securities
of such series shall bear interest, if any,
the date or dates from which such interest
shall accrue, on which
such interest shall be payable and (in the case of Registered
Securities) on which a record shall be taken
for the determination of Holders to whom interest
is payable
and/or the
method by which such rate or rates or date or dates
shall be determined;
(6) the place or places where the principal of
and any interest on Securities of such series shall
be payable (if other than as provided in Section
3.2);
(7) the right, if any, of the Issuer to redeem Securities
of such series, in
whole or in part, at its option
and the period or periods within which, the price or
prices at which and any terms and conditions upon which Securities of
such series may be so redeemed, pursuant to any sinking fund or
otherwise;
(8) the obligation, if any, of the Issuer to
redeem, purchase or repay Securities of such series
pursuant to any mandatory redemption, 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 any terms and conditions
upon which Securities of such series shall be
redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(9) if other than denominations of $1,000 and
any integral multiple thereof in the case of
Registered Securities, or $1,000 and $5,000 in the
case of Unregistered Securities,
the denominations in which
Securities of such series shall be issuable;
(10) if other than the principal amount
thereof, the portion of the principal amount of
Securities of such series which shall be payable
upon declaration of acceleration of the maturity
thereof;
(11) if other than the coin or currency in
which the Securities of such series are
denominated, the coin or currency in which payment
of the principal of or interest
on the Securities of such series shall be payable;
(12) if the principal of or
interest on the Securities of such series are to be
payable, at the election of the Issuer or a Holder
thereof, in a coin or currency other than that in
which the Securities of such series are denominated, the period or
periods within which, and the terms and conditions
upon which, such election may be made;
(13) if the amount of payments of the principal
of and interest on the Securities
of such series may be determined with reference to
an index based on a coin or currency other than
that in which the Securities of such series are
denominated, the manner in which such amounts shall
be determined;
(14) whether the Securities of such series will
be issuable as Registered Securities (and if so, whether such
Securities will be issuable as Registered Global Securities) or
Unregistered Securities (with or without Coupons),
or any combination of the foregoing, any restrictions
applicable to the offer, sale or delivery of Unregistered
Securities or the payment of interest thereon and, if
other than as provided in Section 2.8, the terms
upon which Unregistered Securities of such series
may be exchanged for Registered Securities of such
series and vice versa;
(15) whether and under what circumstances the
Issuer will pay additional amounts on the
Securities of such series held by a person
who is
not a U.S. person in respect of any tax, assessment
or governmental charge withheld or deducted and, if
so, whether the Issuer will have the option to
redeem such Securities rather than pay such
additional amounts;
(16) if the Securities of such series are to be
issuable in definitive form (whether upon original issue
or upon exchange of a temporary Security of such series)
only upon receipt of certain certificates or other documents
or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(17) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other
agents with respect to the Securities of such
series;
(18) any other events of default or covenants with
respect to the Securities of such series; and
(19) any other terms of such series (which
terms shall not be inconsistent with the provisions
of this Indenture).
All Securities of any one series and Coupons, if any,
appertaining thereto shall be substantially identical, except in the
case of Registered Securities as to denomination and except as may
otherwise be provided by or pursuant to the Board Resolution or
Officers' Certificate referred to
above or as set forth in
any indenture supplemental hereto referred to above.
All Securities of any one series
need not be issued at the same time and may be issued from time to time,
consistent with the terms of this Indenture, if
so provided by or pursuant to such Board Resolution, such Officers'
Certificate
or in any such indenture supplemental hereto.
SECTION 2.4 Authentication and Delivery of
Securities.
The Issuer may from time to time
deliver Securities of any series, having attached thereto
appropriate Coupons,
executed by the Issuer to the
Trustee for authentication,
together with the applicable documents referred to below in this Section,
and the Trustee shall thereupon
authenticate and deliver such Securities to or upon the
order of the Issuer
(contained in the Issuer Order referred to below in this Section) or
pursuant to such procedures acceptable to the Trustee and to such recipients
as may be specified from time to time by an Issuer Order. If so provided
in the Board Resolution or supplemental indenture establishing the
Securities of any series,
the maturity date,
original issue date, interest rate and any other terms of any or all of
the Securities of
such series and the Coupons, if any,
appertaining thereto may be determined by
or pursuant to such Issuer Order and procedures. If provided for in such
procedures, such Issuer Order may authorize authentication and delivery
pursuant to oral or electronic
instructions from the Issuer or its duly authorized
agent, which instructions shall be promptly confirmed in writing.
In authenticating such
Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive
(but, in the case of subparagraphs 2, 3
and 4 below, only at or before the time of the first request of the Issuer
to the Trustee to authenticate Securities of such series)
and (subject to Section
6.1) shall be fully protected in relying upon,
unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication
and setting forth delivery instructions if the Securities and
the Coupons, if any, are not to
be delivered to the Issuer,
provided that, with respect to
Securities of a series subject to a Periodic Offering, (a)
such Issuer Order may be delivered by the Issuer to the
Trustee at any time
prior to the delivery to the Trustee of the Securities of such series
for authentication and delivery, (b) the Trustee shall authenticate
and deliver the Securities of such series for original issue from
time to time, in an aggregate principal amount not exceeding
the aggregate principal amount established for such series,
pursuant to an Issuer Order or pursuant to such procedures
acceptable to the Trustee as may be specified from time to time
by an Issuer Order,
(c) if so provided in the Board Resolution or supplemental indenture
establishing the Securities of such series,
the maturity date, original issue
date, interest rate and any other terms of
any or all of the
Securities of such series may be determined by an Issuer Order
or pursuant to such procedures and (d) if provided for in such
procedures, such Issuer Order may authorize authentication
and delivery pursuant to oral or electronic instructions from
the Issuer or its duly authorized agent, which
instructions shall be promptly confirmed in writing;
(2) any Board Resolution, Officers' Certificate and/or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or
pursuant
to which the forms and terms of the Securities of such series and
the Coupons, if any, were established;
(3) an Officers' Certificate setting forth the form or
forms and terms of
the Securities of such series and the
Coupons, if any, stating that such form or
forms and terms have been established pursuant to
Sections 2.1 and 2.3 and comply with this Indenture, and covering such
other matters as the Trustee may reasonably request; and
(4) at the option of the Issuer, either
an Opinion of Counsel, or a letter addressed to the Trustee
permitting it to rely on an Opinion of Counsel, substantially
to the effect that:
(a) the forms of the Securities of such series
and the Coupons, if any, have
been duly authorized
and established in conformity with the provisions of this
Indenture;
(b) in the case of an underwritten offering,
the terms of the Securities of such series
have been duly authorized and
established
in conformity with the provisions of this Indenture, and, in the case of
an offering that is not underwritten, certain terms of the Securities
of such series have
been established pursuant to a Board Resolution, an Officers' Certificate
or a supplemental indenture in accordance with the provisions of
this Indenture and when
such other terms as are to be established pursuant to an Issuer
Order or procedures set forth
in an Issuer Order shall have been established, all such terms will have
been duly authorized by the Issuer and will have been established in
conformity with the provisions of this Indenture;
(c) when the Securities of such series and the Coupons, if
any, have been
executed by the Issuer
and authenticated by the Trustee
in accordance with the provisions of this
Indenture and delivered to and duly paid for by the purchasers
thereof, they will have been duly issued under this Indenture and
will be valid and legally binding obligations of the Issuer,
enforceable in accordance with their respective terms,
subject to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting the enforcement
of creditors' rights and to general principles of equity,
and will
be entitled to the benefits of this Indenture; and
(d) no consent, approval, authorization, order,
registration or qualification of or with any governmental
agency or body having jurisdiction over the Company
is required for the execution and delivery of the
Securities of such series by the Company, except such
as have been obtained (except that no opinion need be
expressed as to state securities or Blue Sky laws).
The Trustee shall have the right to decline to
authenticate and deliver any Securities of any series
under this Section
(other than Securities the forms and terms of which shall have
been established by supplemental indenture)
if the Trustee, being advised by counsel, determines that such
action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its board of directors or board of
trustees, executive committee or a trust committee of directors,
trustees or Responsible Officers shall determine that
such action would expose the Trustee to personal liability
to existing Holders
or would affect the Trustee's rights,
duties or immunities under the Securities of any such series,
this Indenture or
otherwise.
If the Issuer shall establish pursuant to Section 2.3 that
the Securities of a series are to be issued in the form of one or more
Registered Global Securities, then the Issuer shall execute and the Trustee
shall, in
accordance with this Section and the Issuer Order with respect to such
series, authenticate and deliver one or more Registered Global Securities that
(i)
shall be in an aggregate amount equal to the
aggregate principal amount specified in such Issuer Order,
(ii) shall be registered in the name of the
Depositary therefor or its nominee,
(iii) shall be delivered
by the Trustee to such Depositary or
pursuant to such Depositary's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged
in whole or in part for Securities in definitive registered form, this
Security may not be transferred except as a whole by the Depositary to the
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."
Each Depositary designated pursuant to Section 2.3 must, at the
time of its designation and at all times while it serves as Depositary, be
a clearing agency registered under the Securities Exchange Act of 1934 and
any other applicable statute or regulation.
SECTION 2.5 Execution of Securities. The
Securities
shall be
signed on behalf of the Issuer by both (a) its
Chairman
of the Board of Directors or any Vice Chairman of the Board of Directors
or
its President or any Vice President (whether or not
designated by a number or numbers or a word or words added before
or after the title "Vice President") and (b) by
its Treasurer or any Assistant Treasurer or its Secretary or any
Assistant Secretary,
under its corporate seal (except in the case of Coupons)
which may, but need not,
be attested. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. The
seal of the Issuer may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor
errors or defects in any such reproduction of the seal or any
such signature shall not affect the validity or enforceability of
any Security that has been duly authenticated
and delivered by the Trustee.
The Coupons, if any, applicable to the Securities of any series shall
bear the facsimile signature of the Treasurer or any Assistant Treasurer of
the Issuer.
In case any officer of the Issuer who shall have
so signed any of the Securities or Coupons, if any, shall cease
to be such officer before the Security or Coupon so signed
(or the Security to which the Coupon so signed appertains)
shall be authenticated and delivered by the Trustee or disposed
of by the Issuer, such Security or Coupon nevertheless
may be authenticated and delivered or disposed of as though
the person who signed such Security or Coupon had not ceased
to be such officer of the Issuer; and any Security or Coupon
may be so signed on behalf of the Issuer by such persons as, at
the actual date of the execution of such Security or Coupon,
shall be the proper officers of the Issuer, although at the
date of the execution and delivery of this Indenture any such
person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only
such Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore
recited, executed by the Trustee by the manual signature of
one of its authorized officers, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any
purpose. No Coupon shall be entitled to the benefits of this
Indenture or shall be valid and obligatory for any purpose
until the
certificate of authentication
on the Security to which such Coupon appertains
shall have been duly executed by the Trustee.
The execution of such certificate
by the Trustee upon any Security executed by the
Issuer shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of
this Indenture.
SECTION 2.7 Denomination and Date of Securities;
Payments of Interest. The Securities of each series
shall be issuable as
Registered Securities or Unregistered Securities in
denominations established as contemplated by Section
2.3 or, with
respect to the Registered Securities of any series, if not so established,
in denominations
of $1,000 and any integral multiple thereof. If denominations of
Unregistered Securities of any series are not so established,
such Securities shall be issuable in
denominations of $1,000 and $5,000. The Securities of each series
shall be
numbered, lettered or otherwise distinguished in such manner
or in accordance with such plan as the officers of the Issuer
executing the same may determine with the approval of the
Trustee, as evidenced by the execution and authentication
thereof.
Each Registered Security shall be dated the date of
its authentication. Each Unregistered Security shall be
dated as established in or pursuant to
the Board Resolution or supplemental indenture
referred to in Section 2.3.
The Securities of each series shall bear interest, if any, from the date, and
such interest shall be payable on the dates, established
as contemplated by Section 2.3.
The Person in whose name any Registered Security of
any series is registered at the close of business on any
Record Date applicable to such series with respect
to any interest payment date for such series shall be
entitled to receive the interest, if any, payable on such
interest payment date notwithstanding any transfer or
exchange of such Registered Security subsequent to the Record
Date and prior to such interest payment date, except if and
to the extent the Issuer shall default in the payment of the
interest due on such interest payment date,
in which case such defaulted interest shall be paid to the
Persons in whose names Outstanding Registered Securities of
such series are registered at the close of business on a
subsequent Record Date (which shall be not less than five
Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf
of the Issuer to the Holders of Registered Securities of such series
not less than 15
days preceding such subsequent Record Date. The term "Record
Date", as used with respect to any interest payment date
(except a date for payment of defaulted interest) for the Securities of any
series, shall mean the date specified as
such in the terms of the Registered
Securities of such series established
as contemplated by Section 2.3.
SECTION 2.8 Registration, Transfer and Exchange.
The Issuer will keep, or cause to be kept, at the Corporate
Trust Office and
at each other office or agency to be maintained
for the purpose as provided in Section 3.2 for each series of Securities
a register
or registers (collectively the "Security Register")
in which, subject to such reasonable regulations
as it may prescribe, it will provide for the registration of
Registered
Securities of such series and the registration of transfer of Registered
Securities of such series. The Security
Register shall be in written form in the
English language or in any other form capable of being converted
into such form within a reasonable time. At all
reasonable times such register or registers not maintained by the
Trustee shall be open for
inspection by the Trustee. Unless and until otherwise determined
by the Issuer pursuant to Section 2.3, the Security Register with
respect to each series of Registered Securities shall be kept solely
at the Corporate Trust Office and, for this purpose, the Trustee shall be
designated the "Security Registrar."
Upon due presentation for registration of transfer
of any Registered Security of any series at any such office
or agency, the Issuer 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, maturity date and interest rate
in authorized denominations for
a like aggregate principal amount.
Unregistered Securities (except for any temporary global
Unregistered Securities)
and Coupons (except for Coupons attached to any temporary
global Unregistered Securities)
shall be transferable
by delivery.
At the option of the Holder thereof, Registered
Securities of any series (other than a Registered Global Security,
except as set forth below)
may be exchanged for one or more Registered Securities of such series in
authorized denominations for a like aggregate principal
amount, upon surrender of such Registered Securities to be
exchanged at the office or agency to be maintained
for such purpose in accordance with Section 3.2 and
upon payment, if the Issuer shall so require, of the charges
hereinafter provided. If the Securities of any series are
issued in both registered and unregistered form, except as
otherwise specified for a particular series
pursuant to Section 2.3, at the option of
the Holder thereof, Unregistered Securities of any series may
be exchanged for Registered Securities of such series in
authorized denominations for a like aggregate principal
amount, upon surrender of such Unregistered Securities to be
exchanged at the office or agency to be maintained
for such purpose in accordance with Section 3.2, with,
in the case of Unregistered Securities that have Coupons
attached, all unmatured Coupons and all matured Coupons in
default thereto appertaining, and upon payment, if the Issuer
shall so require, of the charges hereinafter provided. At
the option of the Holder thereof, if Unregistered Securities
of any series,
maturity date, interest rate and original issue date
are issued in more than one
authorized denomination,
except as otherwise specified for a particular series
pursuant to Section 2.3,
such Unregistered Securities may be exchanged for other Unregistered
Securities of such series in authorized
denominations for a like aggregate principal
amount, upon surrender of such Unregistered Securities to be
exchanged at the office or agency to be maintained
for such purpose in accordance with Section 3.2 or as
specified for a particular series
pursuant to Section 2.3, with, in the case of
Unregistered Securities that have Coupons attached, all
unmatured Coupons and all matured Coupons in default thereto
appertaining, and upon payment, if the Issuer shall so
require, of the charges hereinafter provided. Unless otherwise
specified for a particular series
pursuant to Section 2.3, Registered Securities
of any series may not be exchanged for Unregistered
Securities of such series. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the
Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive. All
Securities and Coupons surrendered upon any exchange or
transfer provided for in this Indenture shall be promptly
cancelled and disposed of by the Trustee and the Trustee will
deliver a certificate of disposition thereof to the Issuer.
All Registered Securities presented for
registration of transfer, exchange, redemption or payment
shall (if so required by the Issuer or the Trustee) be duly
endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer
and the Trustee duly executed by, the Holder or his attorney
duly authorized in writing.
The Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge that may be
imposed in connection with any exchange or registration of
transfer of Securities. No service charge shall be made for
any such transaction.
The Issuer shall not be required to (a) issue, exchange or
register a transfer of any Securities of any series for a
period of 15 days next preceding the first mailing or publication of notice
of redemption of Securities of such series to be redeemed or
(b) exchange or register the transfer of
any Securities selected, called or being called for
redemption, in whole or in part,
except, in the case of any Security
to be redeemed in
part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for Securities in
definitive registered form, a Registered Global Security representing all or a
portion
of the Securities of a series may not be transferred except as a whole by
the Depositary for such Registered 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
Depositary for such Registered Global Security
or a nominee of such successor Depositary.
If at any time a Depositary for any Registered
Securities of a series represented by one or more Registered
Global Securities
notifies the Issuer that it is unwilling or unable to continue as
Depositary for such
Registered Securities or if at any time any such
Depositary shall no longer be eligible
under Section 2.4, the Issuer shall appoint a successor Depositary with
respect to the Registered Securities held by such Depositary.
If a successor Depositary
is not appointed by the Issuer within 90
days after the Issuer receives such notice or becomes aware of such
ineligibility, the
Registered Securities of such series shall no longer
be represented by one or more Registered
Global Securities held by such Depositary, and the
Issuer shall execute, and the Trustee, upon receipt of an Issuer Order
for the authentication and delivery of definitive Securities of
such series, shall
authenticate and deliver Securities of such series in
definitive registered form without coupons, in any authorized
denominations and in an aggregate principal amount equal to the principal
amount of the Registered Global Security or Securities held by such
Depositary in exchange for such Registered Global Security
or Securities.
Within seven days after the occurrence
of an Event of Default specified in clause
(a), (b) or (c) of Section 5.1 with respect to any series of Securities,
the Issuer shall execute,
and the Trustee shall
authenticate and deliver, Securities of such series in definitive
registered form without coupons, in any authorized denominations and in an
aggregate principal amount equal to the principal amount of the Registered
Global Security or Securities representing Registered Securities of such
series in exchange for such Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion determine
that the Registered Securities of a particular series
shall no longer be represented by a Registered Global Security or
Securities. In such event, the Issuer shall execute, and the Trustee, upon
receipt of an Issuer Order for the authentication and delivery of
definitive Securities of such series, shall authenticate and deliver,
Securities of such
series in definitive registered form without coupons, in
any authorized denominations and in an aggregate principal amount equal to the
principal amount of the Registered Global
Security or Securities representing Registered Securities of such series
in exchange for such Registered Global Security or Securities.
If so specified by the Issuer pursuant to Section 2.3 with respect
to Securities of a particular series
represented by a Registered Global Security,
the Depositary for such Registered Global Security may
surrender such Registered Global Security in exchange in
whole or in part for Securities of such series in definitive registered form
on such terms as are acceptable to the Issuer and such Depositary.
Thereupon, the Issuer shall execute, and the Trustee shall authenticate
and deliver:
(i) to each Person specified by such Depositary a new
Registered Security or
Securities of such
series, in any authorized denominations requested
by such Person, in an aggregate principal amount equal to,
and in exchange for,
such Person's beneficial interest in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference between the principal amount of the
surrendered Registered Global Security and the aggregate principal amount
of Registered Securities authenticated and delivered pursuant to clause
(i) above.
Upon the exchange of any Registered Global Security for Securities in
definitive registered form without coupons, in authorized denominations,
such Registered Global Security shall be cancelled by the
Trustee or an agent of the Issuer or the Trustee.
Securities in
definitive registered form without coupons issued in exchange for a Registered
Global
Security pursuant to this Section shall be registered in such names and
in such authorized denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee or an agent of the Issuer or the
Trustee. The Trustee or such agent
shall deliver such
Securities to or as directed by the Persons in whose names such Securities
are so registered.
All Securities issued upon any registration of
transfer or exchange
of Securities shall be valid obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Securities surrendered upon such
registration of
transfer or exchange.
Notwithstanding anything herein or in the terms of
any series of Securities to the contrary, none of the Issuer,
the Trustee or any agent of the Issuer or the Trustee
(any of which, other than the Issuer,
shall rely on an Officers' Certificate
and an Opinion of Counsel) shall be required to exchange any
Unregistered Security for a Registered Security if such
exchange would result in adverse Federal income tax consequences
to the Issuer (such as, for example, the inability of
the Issuer to deduct from its income, as computed for Federal
income tax purposes, the interest payable on the Unregistered
Securities) under then applicable United States Federal
income tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost
and Stolen Securities. In case any temporary or definitive
Security or any Coupon appertaining to any Security shall
become mutilated, defaced or be destroyed, lost or stolen,
the Issuer in its discretion may execute, and upon receipt of an Issuer
Order, the Trustee shall authenticate and deliver
a new Security of the same series,
maturity date, interest rate and original issue date,
bearing a number or other distinguishing symbol
not contemporaneously
outstanding, in exchange and substitution for the mutilated
or defaced Security, or in lieu of and in substitution
for the Security so destroyed, lost or stolen, with Coupons
corresponding to the Coupons appertaining to the Securities so
mutilated, defaced, destroyed, lost or stolen, or in exchange
or substitution for the Security to which such mutilated,
defaced, destroyed, lost or stolen Coupon appertained, with
Coupons appertaining thereto corresponding to the Coupons
so mutilated, defaced, destroyed, lost or stolen. In
every case the applicant for a substitute Security or Coupon
shall furnish to the Issuer and to the Trustee and any agent
of the Issuer or the Trustee such security or indemnity as
may be required by them to indemnify and defend and to save
each of them harmless and, in every case of destruction, loss
or theft, evidence to their satisfaction of the destruction,
loss or theft of such Security or Coupon and of the ownership
thereof and, in the case of mutilation or defacement, shall surrender
the Security and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or
Coupon, the Issuer may require the payment of a sum sufficient
to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) or its agent
connected therewith.
In case any Security or Coupon which has matured or is
about to mature or has been called for redemption in full
shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may, instead of issuing a substitute
Security, pay or authorize the payment of the same
or the relevant Coupon
(without surrender thereof except in the case of a mutilated
or defaced Security or Coupon), if the applicant for such
payment shall furnish to the Issuer and to the Trustee and
any agent of the Issuer or the Trustee such security or
indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft,
evidence to
their satisfaction of the destruction, loss or theft of such
Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series
issued pursuant to the provisions of this Section by virtue
of the fact that any such Security or Coupon is destroyed,
lost or stolen shall constitute an additional contractual
obligation of the Issuer, whether or not the destroyed, lost
or stolen Security or Coupon shall be at any time enforceable
by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth
in) this Indenture equally and proportionately with any and
all other Securities or Coupons of such series duly authenticated
and delivered hereunder. All Securities and Coupons
shall be held and owned upon the express condition that, to
the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities
and Coupons 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 Securities; Destruction
Thereof. All Securities and Coupons surrendered for
payment, redemption, registration of transfer or exchange, or
for credit against any payment in respect of a sinking or
analogous fund, if surrendered to the Issuer or any agent of
the Issuer or any agent of the Trustee,
shall be delivered to the Trustee or its agent
for cancellation or, if surrendered to the Trustee, shall be
cancelled by it; and no Securities or Coupons shall be issued
in lieu thereof except as expressly permitted by any of the
provisions of this Indenture. The Trustee or its agent
shall dispose of
cancelled Securities and Coupons held by it and deliver a
certificate of disposition to the Issuer. If the Issuer or its agent
shall acquire any of the Securities or Coupons, such
acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities or Coupons
unless and until the same are delivered to the Trustee or its agent
for
cancellation.
SECTION 2.11 Temporary Securities. Pending the
preparation of definitive Securities for any series, the
Issuer may execute and the Trustee shall authenticate and
deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each
case in form satisfactory to the Trustee). Temporary
Securities of any series shall be issuable as
Registered Securities without coupons, or as Unregistered Securities
with or without coupons attached thereto, of any authorized
denomination, and substantially in the form of the definitive
Securities of such series but with such omissions, insertions
and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the
concurrence of the Trustee as evidenced by the execution and authentication
thereof.
Temporary Securities may contain
such references to any provisions of this Indenture as may be
appropriate. Every temporary Security shall be executed by
the Issuer and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with
like effect, as the definitive Securities. Without unreasonable
delay the Issuer shall execute and shall furnish definitive
Securities of such series and thereupon temporary
Registered Securities of such series may be surrendered in
exchange for such definitive Securities in registered form
without charge at each office or agency to
be maintained for such purpose in accordance with
Section 3.2 and, in the case of Unregistered Securities, at
any office or agency to be maintained for such purpose as
specified pursuant to Section 2.3, and the Trustee shall
authenticate and deliver in exchange for such temporary
Securities of such series an equal aggregate principal amount
of definitive Securities of the same series in authorized
denominations and, in the case of Unregistered Securities,
having attached thereto any appropriate Coupons. Until so
exchanged, the temporary Securities of any series shall be
entitled to the same benefits under this Indenture as definitive
Securities of such series, unless otherwise established
pursuant to Section 2.3.
The provisions of this
Section are subject to any restrictions or limitations on the
issue and delivery of temporary Unregistered Securities of
any series that may be established pursuant to Section 2.3 (including any
provision that Unregistered Securities of such series initially be issued
in the form of a single global Unregistered Security to be delivered to a
depositary or agency located outside the United States and
the procedures pursuant to which definitive
Unregistered Securities of such
series would be issued in exchange for such temporary global Unregistered
Security).
ARTICLE THREE
COVENANTS OF THE ISSUER
~~~~~~~~~~~~~~~~~~~~~~~
SECTION 3.1 Payment of Principal and Interest. The
Issuer covenants and agrees for the benefit of each series of
Securities that it will duly and
punctually pay or cause to be paid the principal of,
and interest on, each of the
Securities of such series (together with any additional amounts payable
pursuant to the terms of such Securities)
at the place or places, at the
respective times and in the manner
provided in such Securities and in the Coupons, if any,
appertaining thereto and in
this Indenture. The interest on
Securities with Coupons attached (together with
any additional amounts payable pursuant to the terms of such Securities)
shall be payable only upon presentation and surrender of the several Coupons
for such interest installments as are evidenced thereby as they severally
mature. If any temporary Unregistered Security provides that
interest thereon may be paid while in temporary form,
the interest on any such temporary Unregistered Security (together
with any additional amounts payable pursuant to the terms of such Security)
shall be paid, as to the installments of interest evidenced by Coupons
attached thereto, if any, only upon presentation and surrender thereof, and,
as to the other installments of interest, if any,
only upon presentation of such temporary Unregistered Security
for notation thereon of the
payment of such interest, in each case subject to any restrictions that may
be established pursuant to Section 2.3.
The interest on Registered Securities (together
with any additional amounts payable pursuant to the terms of such
Securities) shall be payable only to or upon the written order of the
Holders thereof and, at the option of the Issuer, may be paid by
wire transfer or by mailing
checks for such interest payable to or upon the written order of such
Holders at their last addresses as they
appear on the registry books of the Issuer.
SECTION 3.2 Offices for Payments, etc.
So long as any Registered Securities are outstanding hereunder,
the
Issuer will maintain in the Borough of Manhattan, The City of New York
and Chicago, Illinois an
office or
agency where the Registered Securities of each series may be presented for
payment,
where the Securities of each series may be presented for
exchange as in this Indenture provided and
where the Registered Securities of each series may
be presented for registration of transfer as in this Indenture provided.
The Issuer will maintain one or more offices or
agencies in a city or cities
located outside the United States (including any city in which such an
office or
agency is required to be maintained under the rules of any stock exchange on
which the Securities of any series are listed) where the Unregistered
Securities, if any,
of each series and Coupons, if any, appertaining thereto may be
presented for payment. No payment on any Unregistered Security or Coupon
will be made upon presentation of such Unregistered Security or Coupon at an
office or
agency of the Issuer within the United States, nor will any payment be
made by transfer to an account in, or by mail to an address in, the United
States unless pursuant to applicable United States laws and regulations then
in effect such payment can be made without adverse tax consequences
to the Issuer. Notwithstanding the foregoing,
payments in Dollars on Unregistered Securities of any series and
Coupons appertaining thereto which are payable in Dollars may be made
at an office or
agency of the Issuer maintained in the Borough of Manhattan, The City
of New York and Chicago, Illinois, if such payment in Dollars at each office
or agency
maintained by the Issuer outside the United States for payment on such
Unregistered Securities is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City of
New York and Chicago, Illinois,
an office or
agency where notices and demands to or upon the Issuer in
respect of the Securities of any series, the Coupons appertaining thereto or
this Indenture may be served.
The Issuer will give to the Trustee written
notice of the location of each such office or
agency and of any change of location
thereof. In case the Issuer shall fail to maintain any office or
agency required
by this Section to be located in the
Borough of Manhattan, The City of New York, or shall fail to give such
notice of the location or of any change in the location of any of the
above offices or agencies,
presentations and demands may be made and notices may be served at the
Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or
more additional offices or agencies
where the Securities of any series and any Coupons appertaining thereto may be
presented for payment, where the Securities of such series may be presented
for exchange as in this Indenture provided and
where the Registered Securities of such series may be presented for
registration of transfer as in this Indenture provided, and the Issuer may
from time to time rescind any such designation;
provided, however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to
maintain any office or agency provided
for in this Section. The Issuer will give to the
Trustee prompt written notice of any such designation or rescission thereof.
SECTION 3.3 Appointment to Fill a Vacancy in Office
of Trustee. The Issuer, whenever necessary to avoid
or fill a vacancy in the office of Trustee, will appoint,
in the manner provided in Section 6.10, a Trustee,
so that there shall at all times be a Trustee with respect to
each series of Securities hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall
appoint a paying agent other than the Trustee with respect to the
Securities of any series, it will
cause such paying agent 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:
(a) that it will hold all sums received by it as such
agent for the payment of the principal of or interest
on the Securities of such series (whether such sums have been paid to
it by the Issuer or by any other obligor on the
Securities of such series) in trust for the benefit of the Holders
of the Securities of such series and the Coupons
appertaining thereto, if any, or of the Trustee, and
(b) that it will give the Trustee notice of any
failure by the Issuer (or by any other obligor on
the Securities of such series) to make any payment of the principal
of or interest on the Securities of such series when the same shall
be due and payable.
The Issuer will, on or prior to each due date of the
principal of or interest on the Securities of any series, deposit
with the paying agent a sum sufficient to pay such
principal or interest so becoming due, and (unless such paying agent
is the Trustee) the Issuer will promptly notify
the Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent
with respect to the Securities of any series,
it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate
and hold in trust for the benefit of the Holders of
the Securities of such series or the Coupons, if any,
appertaining thereto
a sum sufficient to pay such principal
or interest so becoming due. The Issuer will promptly
notify the Trustee of any failure to take such action.
Anything in this Section to the contrary
notwithstanding, but subject to Section 10.1,
the Issuer may at any time, for the
purpose of obtaining a satisfaction and discharge
with respect to one or more or all series of Securities hereunder,
or for any other reason, pay or cause
to be paid to the Trustee all sums held in trust for
any such series by the Issuer or any paying
agent hereunder, as required by this Section, such
sums to be held by the Trustee
upon the trusts herein contained.
Anything in this Section to the contrary
notwithstanding, the agreement to hold sums in trust
as provided in this Section is subject to the provisions
of Sections 10.3 and 10.4.
SECTION 3.5 Written Statement to Trustee. The Issuer will
deliver to the Trustee on or before April 30
in each year (beginning with
April 30, 1991)
an Officers' Certificate (which need not comply with
Section11.5) stating that in the course of the performance by the signers
of their duties as officers of the Issuer they would normally have
knowledge of any default by the Issuer in the performance of any covenants
contained in Sections 3.6 and 3.7,
stating whether or not they have knowledge of
any such default and, if so, specifying each such default of which the
signers have knowledge and the nature thereof.
SECTION 3.6 Limitations on Liens. If the Issuer or any
Restricted Subsidiary shall incur, assume or guarantee any indebtedness for
borrowed money secured by a mortgage, pledge, security interest or other
lien or encumbrance (any such mortgage, pledge, security interest or other
lien or encumbrance being hereafter in Sections 3.6 and 3.7 referred to as
a "Mortgage" or "Mortgages") (any such indebtedness being hereafter in
Sections 3.6 and 3.7 referred to as "Secured Debt") on any Principal
Property owned by the Issuer or a Restricted Subsidiary or on any shares of
stock or indebtedness of any Restricted Subsidiary, the Issuer shall
secure, or cause such Restricted Subsidiary to secure, the Securities
(together with, if the Issuer shall so determine, any other indebtedness
for borrowed money incurred, assumed or guaranteed by the Issuer or any
Restricted Subsidiary ranking equally with, or prior to, the Securities,
whether then or thereafter existing) equally and ratably with (or, at the
option of the Issuer, prior to) such Secured Debt, unless after giving
effect thereto the aggregate principal amount of all such Secured Debt,
together with all Attributable Debt in respect of sale and leaseback
transactions involving Principal Properties (other than sale and leaseback
transactions as to which the Issuer would be entitled to incur Secured
Debt, in an amount at least equal to the Attributable Debt in respect of
such sale and leaseback transaction, on the property to be leased, without
equally and ratably securing the Securities, pursuant to the exclusions
from the computation of Secured Debt contained below in clauses (a)-(g) of
this Section and other than sale and leaseback transactions the proceeds of
which have been applied in accordance with clause (b) of Section 3.7),
would not exceed 10% of the Consolidated Net Tangible Assets of the Issuer.
This restriction will not apply to, and there shall be excluded in
computing Secured Debt for the purpose of such restriction, indebtedness
secured by:
(a) Mortgages on property of, or on any shares of
stock or indebtedness of, any corporation existing at
the time such corporation is merged into or
consolidated with the Issuer or a Restricted Subsidiary,
at the time of a sale, lease or other disposition of the
properties of such corporation (or any
division thereof) as an entirety or substantially
as an entirety to the Issuer or a Restricted
Subsidiary or at the time such corporation becomes
a Restricted Subsidiary;
(b) Mortgages securing indebtedness of a Restricted
Subsidiary to the Issuer or to another
Restricted Subsidiary;
(c) Mortgages on any Principal Property, shares
of stock or indebtedness existing at the time of
acquisition thereof (including acquisition through
merger or consolidation) by the Issuer or any
Restricted Subsidiary;
(d) Mortgages upon or with respect to any
property acquired, constructed or improved by the Issuer
or any Restricted Subsidiary after the date
of this Indenture which are created, incurred or assumed
contemporaneously with, or within 180 days after,
the latest to occur of the acquisition, completion
of construction or improvement, or the commencement
of commercial operation, of such property to secure or
provide for the payment of any part of the purchase price
of such property or the cost of such construction
or improvement; provided, however, that
in the case of any such construction or improvement
the Mortgage shall not apply to any property
theretofore owned by the Issuer or any
Restricted Subsidiary other than any theretofore
substantially unimproved real property on which
the property so constructed, or the improvement,
is located;
(e) Mortgages in favor of the United States of
America or any State thereof, or any department, agency,
instrumentality or political subdivision
of the United States of America or any State thereof
or political entity affiliated therewith, or in favor of any
other country, or any political subdivision thereof, to
secure partial, progress, advance or other payments,
or other obligations, pursuant to any contract or
statute or to secure any indebtedness incurred for the
purpose of financing all or any part of the cost
of acquiring, constructing or improving the
property subject to such
Mortgages (including Mortgages incurred
in connection with pollution control,
industrial revenue or similar financings);
(f) Mortgages existing at the date of this
Indenture; and
(g) Mortgages for the sole purpose of extending,
renewing or replacing in whole or in part the
indebtedness secured thereby referred to in the
foregoing clauses (a) to (f), inclusive, or
in this clause (g); provided, however, that
the principal amount of indebtedness secured thereby
shall not exceed the principal amount of indebtedness
so secured at the time of such
extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited
to all or a part of the property subject to the
Mortgage so extended, renewed or replaced (plus
improvements on or to such property).
SECTION 3.7 Restrictions on Sale and Lease-Back. Neither
the Issuer nor any Restricted Subsidiary may enter into any sale and
leaseback transaction involving any Principal Property, if the latest to
occur of, the acquisition, the completion of construction or the
commencement of commercial operation of such Principal Property shall have
occurred more than 180 days prior thereto, unless (a) the Issuer or such
Restricted Subsidiary could create Secured Debt secured by such Principal
Property under the restrictions described in Section 3.6 in an amount equal
to the Attributable Debt with respect to the sale and leaseback transaction
without equally and ratably securing the Securities or (b) the Issuer,
within 90 days from the effective date of such sale and leaseback
transaction, applies an amount not less than the greater of (i) the net
proceeds of the sale of such Principal Property leased pursuant to such
arrangement or (ii) the fair value, in the opinion of the Board of
Directors of the Issuer, of such Principal Property so leased to (x) the
retirement of its Funded Debt or (y) the purchase of other property which
will constitute a Principal Property having a fair value, in the opinion of
the Board of Directors of the Issuer, at least equal to the fair value, in
the opinion of the Board of Directors of the Issuer, of the Principal
Property leased in such sale and leaseback transaction. This restriction
will not apply to any sale and leaseback transaction between the Issuer
and a Restricted Subsidiary or between Restricted Subsidiaries or
involving the taking back of a lease for a period of less than three years.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
_________ISSUER AND THE TRUSTEE_________
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SECTION 4.1 Issuer to Furnish Trustee
Names and Addresses of Securityholders.
The Issuer and any other obligor on the Securities covenant and agree that
they will furnish or cause to be furnished to
the Trustee a list in such form as
the Trustee may reasonably require of the names
and addresses of the Holders of the Registered Securities of each series:
(a) semi-annually and not more than 15 days after each
Record Date for the payment of interest
on such Registered Securities, as of
such Record Date and on dates to be determined pursuant to
Section 2.3 for non-interest bearing Registered Securities,
in each year, and
(b) at such other times as the Trustee may request
in writing, within 30 days after receipt by the
Issuer of any such request, as of a date not more than 15 days
prior to the time such information is
furnished,
provided that if and so long as the
Trustee shall be the Security Registrar for such series and all of the
Securities of such series are Registered Securities, such list
shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders
Lists. (a) The Trustee shall preserve, in as current
a form as is reasonably practicable, all information
as to the names and addresses of the Holders of each series of
Registered Securities (i)
contained in the most recent list furnished
to it as provided in Section 4.1,
(ii) received by it in the
capacity of Security Registrar for such series, if so
acting, and (iii) filed with it within the two preceding years pursuant
to 4.4(c)(ii). The Trustee may destroy any list furnished
to it as provided in Section 4.1 upon receipt of a
new list so furnished.
(b) In case three or more Holders of Securities
(hereinafter referred to as "applicants") apply in
writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned
a Security for a period of at least six months preceding
the date of such application, and such application states
that the applicants desire to communicate with other
Holders of Securities of a particular series (in which case the
applicants must all hold Securities of such series)
or with Holders of all Securities
with respect to their rights under
this Indenture or under such Securities and such application is
accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit,
then the Trustee shall, within five Business Days after
the receipt of such application, at its election, either
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with
the provisions of subsection (a) of this Section, or
(ii) inform such applicants as to the approximate number
of Holders of Registered Securities of such series or of
all Registered Securities,
as the case may be,
whose names and addresses appear
in the information preserved at the time by the Trustee,
in accordance with the provisions of such subsection (a)
and as to the approximate cost of mailing
to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such
applicants access to such information, the Trustee
shall, upon the written request of such applicants,
mail to each Holder of such series or all
Holders of Registered Securities,
whose name and address
appears in the information preserved at the time by the
Trustee in accordance with the provisions of such subsection (a)
a copy of the form of proxy or other
communication which is specified in such request, with
reasonable promptness after a tender to the Trustee
of the material to be mailed and of payment, or provision
for the payment, of the reasonable expenses of mailing,
unless within five days after such tender the Trustee
shall mail to such applicants and file with the
Commission, together with a copy of the
material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be
contrary to the best interests of the Holders of
Registered Securities of such series
or of all Registered Securities, as the case may be,
or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If
the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining
one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all
the objections so sustained have been met, and shall
enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with
reasonable promptness after the entry of such order
and the renewal of such tender; otherwise the Trustee
shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Each and every Holder of Securities and Coupons, by
receiving and holding the same, agrees with the Issuer and
the Trustee that neither the Issuer or the
Trustee nor any agent of the Issuer or the Trustee
shall be held accountable by reason of the disclosure
of any such information as to the names and addresses
of the Holders of Securities in accordance with the
provisions of subsection (b) of this Section, regardless
of the source from which such information was derived,
and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request
made under such subsection (b).
SECTION 4.3 Reports by the Issuer. The Issuer
covenants:
(a) to file with the Trustee, within 15 days after
the Issuer is required to file the same with the
Commission, copies of the annual reports and of the
information, documents and other reports (or copies
of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations
prescribe) which the Issuer may be required to file with
the Commission pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934; or if the Issuer
is not required to file information, documents or
reports pursuant to either of such Sections, then to
file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time
by the Commission, such of the supplementary and periodic
information, documents, and reports which may be required
pursuant to Section 13 of the Securities Exchange Act
of 1934 in respect of a debt security listed and registered
on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from
time to time by the Commission, such additional
information, documents and reports with respect to
compliance by the Issuer with the conditions and
covenants provided for in this Indenture as may be
required from time to time by such rules and regulations; and
(c) to transmit by mail to the Holders of Securities within 30
days after the filing thereof with the Trustee,
in the manner and to the extent provided in Section 4.4(c),
such summaries of any information, documents
and reports required to be filed by the Issuer pursuant
to subsections (a) and (b) of this Section as may be required
to be transmitted to such Holders
by rules and regulations prescribed from time to time
by the Commission.
SECTION 4.4 Reports by the Trustee. (a) Within
60 days after May 15 of each year, commencing with the year 1991,
the Trustee shall transmit by mail to the Holders of the Securities
of each series, as
provided in subsection (c) of this Section, a brief report dated
as of such May 15 with respect to:
(i) its eligibility under Section 6.9 and
its qualification under Section 6.8, or in lieu
thereof, if to the best of its knowledge it has
continued to be eligible and qualified under such
Sections, a written statement to such effect;
(ii) the character and amount of any advances
(and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee
(as such) which remain unpaid on the date of such report
and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities
of such series, on any property or funds held or collected by it as
Trustee, except that the Trustee shall not be required
(but may elect) to report such advances if such advances
so remaining unpaid aggregate not more than 1/2 of 1%
of the principal amount of the Securities of such series
Outstanding on the date of such report;
(iii) the amount, interest rate and maturity
date of all other indebtedness owing by the Issuer
(or by any other obligor on the Securities) to
the Trustee in its individual capacity on the date of
such report, with a brief description of any property
held as collateral security therefor, except any
indebtedness based upon a creditor relationship
arising in any manner described in
Section 6.13(b)(2),(3),(4) or (6);
(iv) the property and funds, if any, physically
in the possession of the Trustee (as such) on the date
of such report;
(v) any additional issue of Securities which the
Trustee has not previously reported; and
(vi) any action taken by the Trustee in the
performance of its duties under this Indenture which
it has not previously reported and which in its
opinion materially affects the Securities of such series, except
action in respect of a default, notice of which has
been or is to be withheld by it in accordance with
the provisions of Section 5.11.
(b) The Trustee
shall transmit to the Holders of each series,
as provided in subsection (c) of this Section, a brief
report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by
the Trustee, as such, since the date of the last report
transmitted pursuant to the provisions of subsection (a)
of this Section (or if no such report has yet been so
transmitted, since the date of this Indenture) for
the reimbursement of which it claims or may claim
a lien or charge, prior to that of the Securities of such series, on
property or funds held or collected by it as Trustee
and which it has not previously reported pursuant to
this subsection (b), except that the Trustee shall not
be required (but may elect) to report such advances
if such advances remaining unpaid at any time aggregate
10% or less of the principal amount of the Securities of such series
outstanding at such time, such report to be transmitted
within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted
by mail:
(i) to all Holders of Registered Securities, as the
names and addresses of such Holders appear upon the registry
books of the Issuer;
(ii) to such other Holders of Securities as have, within two
years preceding such transmission, filed their names and addresses
with the Trustee for that purpose; and
(iii) except in the case of reports pursuant to subsection (b),
to each Holder of a Security whose name and address are preserved at
the time by the Trustee as provided in Section 4.2(a).
(d) A copy of each such report shall, at the time of
such transmission to the Holders, be furnished to
the Issuer and be filed by the Trustee with each stock
exchange, if any, upon which the Securities of any
series are listed and also
with the Commission. The Issuer agrees to notify the
Trustee when and as the Securities of such series become admitted to
trading on any national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
____________ON EVENT OF DEFAULT____________
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SECTION 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default" with respect to
Securities of any series,
wherever used herein,
means each of the
following events which shall have occurred and be continuing
(whatever the
reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of any
instalment of interest upon any of the Securities
of such series
as and when the
same shall become due and payable, and continuance
of such default for a period of 30 days; or
(b) default in the payment of all or any part of
the principal of any of the Securities of such series as and when
the same shall become due and payable, whether at maturity, upon
any redemption, by declaration or otherwise; or
(c) default in the deposit of any sinking fund or analogous
payment for the benefit of the Securities of such series as and when
the same shall become due and payable;
(d) failure on the part of the Issuer duly to
observe or perform any other of the covenants or
agreements on the part of the Issuer in the Securities
of such series
or in this Indenture contained (other than a covenant
or agreement expressly included herein solely for the
benefit of Securities of other series)
for a period of 90 days
after the date on which written notice
specifying such failure, stating that such notice is
a "Notice of Default" hereunder and demanding
that the Issuer
remedy the same, shall have been given by
registered or certified mail, return receipt requested,
to the Issuer by the Trustee,
or to the Issuer and
the Trustee by the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of all series
affected thereby; or
(e) a court having jurisdiction in the premises
shall enter a decree or order for relief in respect
of the Issuer in an involuntary case under any
applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee or sequestrator
(or similar official) of the Issuer or for any
substantial part of the property of the Issuer,
or ordering the
winding up or liquidation of the affairs of the Issuer,
and such
decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or
(f) the Issuer shall commence a voluntary case
under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or consent
to the entry of an order for relief in an
involuntary case under any such law, or consent to the
appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar
official) of the Issuer or for any substantial part of
the property of the Issuer, or make any general assignment for the
benefit
of creditors; or
(g) any other Event of Default provided in the supplemental
indenture or Board
Resolution establishing the terms of
such
series of Securities as provided in Section 2.3
or in the form of Security for
such series.
If an Event of Default described in clause (a), (b) or (c) shall have
occurred and be continuing with respect to the Securities of any series,
then, and in each and every such case, unless the principal of all of the
Securities of such series shall have already become due and payable, either
the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of such series
then Outstanding, by notice in writing to the
Issuer (and to the Trustee if given by such Holders), may declare the
entire principal of all the Securities of such series then Outstanding and
the interest accrued thereon to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
If an Event of Default described in clause (d) or (g) (if
the Event of Default under either clause is with
respect to less than all series of the Securities then Outstanding)
shall have occurred and be continuing
with respect to the Securities of one or more series,
then, and in each and every such case, unless
the principal of all of the Securities of such series shall have
already become due and payable, either the Trustee
or the Holders of not less than 25% in aggregate
principal amount of the Securities of all series affected thereby
then Outstanding (voting as one class),
by notice in writing to the Issuer (and to
the Trustee if given by such Holders), may declare the entire
principal of all
the Securities of all such affected series then Outstanding
and the interest accrued thereon to be due and payable
immediately, and upon any such declaration the same shall become
immediately due and payable.
If an Event of Default described in clause (d), (e), (f) or (g)
(if the Event of Default under clause (d) or (g), as the case may be, is with
respect to all series of Securities then Outstanding)
shall have occurred
and be continuing, then, and in each and every such case, unless the
principal of all the Securities shall have already become due and
payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of all the Securities then Outstanding
(voting as
one class), by notice in writing to the Issuer (and to the Trustee if
given by such Holders), may declare the entire principal
of all the Securities then Outstanding
and interest accrued thereon, if any,
to be due and payable immediately, and upon any such declaration the same
shall become immediately due and payable.
The foregoing paragraph,
however, is subject to the condition that if, at
any time after the principal
of the Securities of one or more series shall
have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter
provided, the Issuer shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured
instalments of interest upon all the Securities of such series
and the principal of all Securities of such series
which shall
have become due otherwise than by acceleration (with
interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law,
on overdue instalments of interest
at the same rate as the rate of interest (or Yield to Maturity,
in the case of Original Issue Discount Securities)
specified in the Securities
of such series, to the date of such payment or
deposit) and such amount as shall be sufficient to
cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all
other expenses and liabilities incurred, and
all advances made, by the Trustee
except as a result
of negligence or bad faith, and
if any and all Events of Default under this Indenture with respect to such
series, other than the non-payment
of the principal of Securities of such series which shall have become
due by acceleration, shall
have been cured, waived or otherwise remedied as
provided herein--then, and in
every such case, the Holders of a majority in
aggregate principal amount of all the
Securities of such affected series
then Outstanding (voting as one class, except in the case of Events of
Default described in clauses (a), (b) and (c) of such paragraph,
in which case each series of Securities as to which such an Event of
Default shall have occurred shall vote as a separate class),
by written notice
to the Issuer and to the Trustee, may waive all defaults
with respect to such series
and rescind and annul such declaration and its
consequences, but no such waiver or rescission
and annulment shall extend to or
shall affect any subsequent default or shall
impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions
hereof, then, from and after such declaration, unless such declaration
has been rescinded and annulled, the principal amount of such Original
Issue Discount Securities shall be deemed, for all purposes hereunder,
to be such portion of the principal thereof as shall be due and payable
as a result of such acceleration, and payment of such portion of the
principal thereof as shall be due and payable as a result of such
acceleration,
together with interest, if any, thereon
and all other amounts owing thereunder, shall constitute payment in full
of such Original Issue Discount Securities.
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee
May Prove Debt. The Issuer covenants that (a) in
case default shall be made in the payment of any instalment
of interest on any of the Securities of any series when such interest
shall have become due and payable, and such default shall
have continued for a period of 30 days, or (b) in case
default shall be made in the payment of all or any part
of the principal of any of the Securities of any series when the same
shall have become due and payable, whether at maturity, upon redemption, by
declaration or otherwise -- then,
upon demand of the Trustee, the Issuer will pay to the
Trustee for the benefit of the Holders of the Securities
of such series
the whole amount that then shall have become due and payable
on all Securities of such series, including all Coupons,
for principal or interest, as the
case may be (with interest
to the date of such payment upon the overdue principal
and, to the extent that payment of such interest is
enforceable under applicable law, on overdue instalments
of interest at the same rate as the rate of interest (or Yield to
Maturity, in the case of Original Issue Discount Securities)
specified in the Securities of such series);
and in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection,
including reasonable compensation to the Trustee, its
agents, attorneys and counsel, and any expenses and
liabilities incurred, and all advances made, by the
Trustee
except as a result of its negligence or bad
faith.
Until such demand is made by the Trustee, the
Issuer may pay the principal of and interest on the Securities
of such series to the Holders, whether or not the Securities
of such series be overdue.
In case the Issuer shall fail forthwith to pay
such amounts upon such demand, the Trustee, in its
own name and as trustee of an express trust, shall be entitled and
empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against
the Issuer or other obligor upon the Securities of such series
and collect in the
manner provided by law out of the property of the Issuer or other
obligor upon the Securities of such series,
wherever situated the moneys adjudged
or decreed to be payable.
In case there shall be pending proceedings relative to
the Issuer or any other obligor upon the Securities of any series
under Title 11
of the United States Code or any other applicable
Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver,
assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other
obligor, or in case of any other comparable judicial proceedings
relative to the Issuer or such other obligor, or to
the creditors or property of the Issuer or such other obligor, the
Trustee, irrespective of whether the principal of the 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, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount
of the principal and interest (or, if the Securities of any
series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms
of such series) owing and unpaid in respect of the
Securities of each 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 and 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 negligence or bad faith) and of the Securityholders allowed
in any judicial proceedings relative to the Issuer or such other
obligor, or to the creditors or property
of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations,
to vote on behalf of the Holders of the Securities of each series
in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in
comparable proceedings, and
(c) 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 the
Securityholders and of the Trustee on their behalf; and any
trustee, receiver, liquidator, custodian or other similar
official is hereby authorized by each of the Securityholders
to make payments to the Trustee, and, in the event that the
Trustee shall consent to the making of payments directly to
the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the
Trustee, and its agents,
attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee
except as a result of negligence or bad
faith.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or vote for or accept or
adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
of any series
or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any
such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims
under this Indenture, or under any of the Securities of any series or
Coupons appertaining thereto,
may be enforced by the Trustee without the possession
of any of the Securities of such series or Coupons appertaining thereto
or the production thereof
on 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,
subject to the payment of the expenses, disbursements
and compensation of the Trustee
and its agents,
attorneys and counsel, shall be for the ratable benefit of the
Holders of the Securities or Coupons appertaining to such Securities
in respect of which such action was taken.
In any proceedings brought by the Trustee
(and also any proceedings involving the interpretation
of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held
to represent all the Holders of the Securities
and Coupons appertaining thereto
in respect to which action was taken,
and it shall not be necessary to make any Holders of
such Securities or Coupons
parties to any such proceedings.
SECTION 5.3 Application of Proceeds.
Any moneys collected by the Trustee pursuant to this Article
in respect of the Securities of any series shall be
applied in the following order at the
date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal
or interest, upon presentation of the several Securities
and Coupons appertaining thereto
in respect of which moneys have been collected
and stamping (or otherwise noting) thereon the payment,
or issuing Securities of the same series in reduced principal
amounts in exchange for the presented Securities if
only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses of collection
applicable to such series,
including reasonable compensation to the Trustee
and its agents, attorneys and counsel and of all expenses
and liabilities incurred, and all advances made,
by the Trustee
except as a result of negligence
or bad faith;
SECOND: In case the principal of the Securities
of such series
in respect of which moneys have been collected
shall not have become and be then due and payable, to
the payment of interest on the Securities of such series
in default in the order of the
maturity of the instalments of such interest, with
interest (to the extent that such interest has been
collected by the Trustee) upon the overdue instalments
of interest at the same rate as the rate of interest
(or Yield to Maturity, in the case of Original Issue Discount
Securities) specified in such Securities, such
payments to be made
ratably to the Persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities
of such series in respect of which moneys have been collected
shall have become and be then due and payable,
to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for principal and interest,
with interest upon the
overdue principal, and (to the extent that such interest
has been collected by
the Trustee) upon overdue instalments of interest
at the same rate as the rate of interest
(or Yield to Maturity, in the case of Original Issue Discount
Securities)
specified in the 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
Securities of such series, then to the payment of such principal
and interest, without
preference or priority of principal over interest,
or of interest over principal,
or of any instalment of interest over any other instalment of
interest, or of any Security of such series over any other
Security of such series, ratably to the aggregate of
such principal and
accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if
any, to the Issuer or any other person lawfully
entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an
Event of Default has occurred, has not been waived
and is continuing, the Trustee may in its discretion
proceed to protect and enforce the rights vested
in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual
to protect and enforce any of such rights, either
at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture
or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 5.5 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee shall have
proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued
or abandoned for any reason, or shall have been
determined adversely to the Trustee, then, and in
every such case, the Issuer and the Trustee shall
be restored respectively to their former positions
and rights hereunder, and all rights, remedies and
powers of the Issuer, the Trustee and the Securityholders
shall continue as though no such proceedings had
been taken.
SECTION 5.6 Limitations on Suits by
Securityholders. No
Holder of any Security of any series
or of any Coupon appertaining thereto
shall have any right by virtue
or by availing of any provision of this Indenture to
institute any action or proceeding at law or in equity
or in bankruptcy or otherwise upon or under or with
respect to this Indenture, or for the appointment of a
trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder,
unless such Holder previously shall have given to the
Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the
Holders of not less than 25% in aggregate principal
amount of the Securities of each affected series then
Outstanding (determined as provided in Section 5.1 and voting
as one class)
shall have
made written request upon the Trustee to institute
such action or proceedings 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 proceeding
and no direction inconsistent with such written request
shall have been given to the Trustee
pursuant to Section 5.9; it being understood and
intended, and being expressly
covenanted by the taker and Holder of every Security
or Coupon
with every other taker and Holder and the Trustee,
that no one or more Holders of Securities of any series
or Coupons appertaining thereto shall have
any right in any manner whatever by virtue or by
availing of any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holder
of Securities or Coupons appertaining thereto,
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 Holders of Securities
of the affected series and Coupons. For
the protection and enforcement of the provisions of
this Section, each and every Securityholder and
the Trustee shall be entitled to such relief as can
be given either at law or in equity.
SECTION 5.7 Unconditional Right of Securityholders
to Institute Certain Suits. Notwithstanding
any other provision in this Indenture and any provision
of any Security, the right of
any Holder of any Security or Coupon to receive payment of the
principal of and interest on such Security or Coupon on or after
the respective due dates expressed in such Security or Coupon,
or to institute suit for the enforcement
of any such payment on or after such respective dates,
shall not be
impaired or affected without the consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default. Except as provided
in Section 5.6, no right or
remedy herein conferred upon or reserved to the Trustee
or to the Holders of Securities or Coupons
is intended to be exclusive
of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy
given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment
of any other appropriate right or remedy.
No delay or omission of the Trustee or of any
Holder of Securities or Coupons
to exercise any right
or power accruing upon any Event of Default occurring
and continuing as aforesaid shall impair any such
right or power or shall be construed to be a waiver
of any such Event of Default or an acquiescence therein; and,
subject to Section 5.6, every
power and remedy given by this Indenture or by
law to the Trustee or to the
Holders of Securities or Coupons may be
exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Holders of Securities or Coupons.
SECTION 5.9 Control by Holders of Securities. The Holders
of a majority in aggregate principal amount of the Securities
of each series affected at the time Outstanding
(determined as provided in Section 5.1 and voting as one class)
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 upon the Trustee
with respect to the Securities of such affected series
by this Indenture; provided that such
direction shall not
be otherwise than in accordance with law
and the provisions of this Indenture and
provided further that
(subject to the provisions of Section 6.1) 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 or proceeding
so directed may not lawfully be
taken or if the Trustee in good faith by its board
of directors, its executive
committee or a trust committee of directors or
Responsible Officers of the
Trustee shall determine that the action or proceedings
so directed would involve
the Trustee in personal liability or
that the actions or forbearances
specified in or pursuant to such
direction would be unduly prejudicial to the
interests of Holders of the
Securities of all affected
series not joining in the giving of said
direction, it being understood that
(subject to Section 6.1) the Trustee shall
have no duty to ascertain whether or
not such actions or forbearances are unduly
prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee
in its discretion to take any action deemed proper by the
Trustee and which is not inconsistent
with such direction or directions by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the
declaration of
acceleration of the maturity of any Securities as
provided in Section 5.1, the Holders of a majority
in aggregate principal amount of the Securities of all series at
the time Outstanding with respect to which a default or
an Event of Default shall have
occurred and be continuing (determined as provided in
Section 5.1 and
voting as one class)
may on behalf of the Holders
of all such affected Securities waive any past default or
Event of Default described in
Section 5.1 and its consequences,
except a default or an Event of Default
in respect of a covenant or
provision hereof or of any Security
which cannot be modified or amended
without the consent of the Holder of each Security
affected. In the case of any such waiver, the Issuer, the Trustee and the
Holders of all such affected Securities
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.
Upon any
such waiver, such default shall cease to exist and
be deemed to have been cured and not to have occurred,
and any Event of Default arising therefrom shall be
deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent
thereon.
SECTION 5.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances. The Trustee shall, within 90 days
after the occurrence of a default with respect to the Securities of any
series, give notice of all defaults with respect to such series known to the
Trustee (i) if any Unregistered Securities of such series are then
Outstanding, to the Holders thereof by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York,
and (ii)to
all Holders of Securities of such series in the manner and to the extent
provided in Section 4.4(c),
unless in each case such defaults shall have been cured
before the mailing or publication of such notice (the term "default" for
the purpose of this Article being hereby defined
to mean any event or
condition which is, or with notice or lapse of time or both would become,
an Event of Default); provided that, except in the case of default in
the payment of the principal of or the interest on any of the Securities of
such series, or in the payment of any sinking fund instalment
or analogous payment
on such series,
the Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee or a trust
committee of directors or trustees and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in
the interests of the Securityholders of such series.
SECTION 5.12 Right of Court to Require Filing of Undertaking to
Pay Costs. All parties to this Indenture agree, and each
Holder of any Security or Coupon by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the
Trustee for any action taken, suffered or omitted by it
as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall
not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder or group of Securityholders of any series
holding in the aggregate more than 10% in aggregate principal
amount of the Securities of such series,
or, in the case of any
suit relating to or arising under clause (d) or (g)
of Section 5.1 (if the suit relates to the Securities of more than one but
less than all series), l0% in aggregate principal amount of the
Securities
then Outstanding
and
affected thereby, or, in the case of any suit relating to or
arising under clause (d) or (g) (if the suit
relates to
all the Securities then Outstanding), or
clause (e) or (f) of Section 5.1,
10% in aggregate principal amount of all Securities then Outstanding,
or to any suit
instituted by any Securityholder for the enforcement of
the payment of the principal of or the interest
(including interest evidenced by any Coupon)
on any Security
on or after the due date expressed in such Security or Coupon
or any date fixed
for redemption.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default.
The Trustee,
prior to
the occurrence of an Event of Default with respect to the Securities
of a particular series and after the curing
or waiving of all Events of Default which may have
occurred with respect to such series, undertakes to perform such duties and
only
such duties as are specifically set forth in this Indenture.
In case an Event of Default with respect to the Securities of a
particular series has occurred (which has not
been cured or waived), the Trustee shall exercise
with respect to such series
such of
the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
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) prior to the occurrence of an Event of Default
with respect to the Securities of any series
and after the curing or waiving of all such Events of Default
which may have occurred with respect to such series:
(i) the duties and obligations of the Trustee
with respect to the 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 as are specifically set forth
in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(ii) 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 statements, certificates or opinions
furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any
such statements, certificates
or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements
of this Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer
or Responsible Officers of the Trustee, unless it shall
be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(c) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good
faith in accordance with an appropriate direction of the Holders
pursuant to Section 5.9 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.
None of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds
or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of
any of its rights or powers, if there shall be reasonable
grounds for believing that the repayment of such funds or
adequate indemnity against such liability is not reasonably
assured to it.
SECTION 6.2 Certain Rights of the Trustee. Subject to
Section 6.1:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
Officers' Certificate or other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
bond, debenture,
note, Coupon, security 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
Issuer mentioned herein shall be sufficiently evidenced
by an Officers' Certificate (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 Issuer;
(c) the Trustee may consult with counsel and any written advice
or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith
and
in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Indenture
at the request, order or direction of any of the Holders
pursuant to the provisions of this Indenture, unless such
Holders shall have offered to the Trustee reasonable
indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers
conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default
with respect to the Securities of any series
and after the curing or waiving of all such Events
of Default, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, Coupon,
security or other paper or document
unless requested in writing so to do by the Holders
of not less than a majority in aggregate principal
amount of the Securities of all affected series then
Outstanding; provided 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, in the opinion of the Trustee, not
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 proceeding; the reasonable expenses of
every such investigation shall be
paid by the Issuer or, if paid by the Trustee,
shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly
or by or through agents or attorneys not regularly in its
employ, and the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained
herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the
Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representation as to the validity or sufficiency of this
Indenture or of the Securities or
Coupons. The Trustee shall not be accountable for
the use or application by the Issuer of any of the Securities or of the
proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities or Coupons;
Collections, etc. The Trustee or any agent of the Issuer or the
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons
with the same rights it would have if it were not the
Trustee or such agent and, subject to Sections 6.8 and 6.13,
may otherwise deal with the Issuer and receive, collect, hold and retain
collections from the Issuer with the same rights it would have if it were
not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the
provisions
of Section 10.4, 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 mandatory
provisions of law. Neither the Trustee nor any agent of the
Issuer or the Trustee shall be under any liability for
interest on any moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification
of Trustee and Its Prior Claim. The Issuer covenants and agrees to pay
to the
Trustee from time to time, and the Trustee shall be entitled to, reasonable
compensation (which shall not be limited by any provision of law in regard
to the
compensation of a trustee of an express trust), and the Issuer covenants and
agrees to pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred
or made
by or on behalf of it in accordance with any of the provisions of
this Indenture
(including the reasonable compensation and the expenses and disbursements
of its
counsel and of all agents and other persons not regularly in its employ)
except
any such expense, disbursement or advance as may arise from its
negligence or bad
faith. The Issuer also covenants to indemnify the Trustee
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part arising out of or in
connection with the acceptance or administration of this Indenture or the
trusts
hereunder and its duties hereunder, including the costs and expenses of
defending
itself against or investigating any claim of liability in the premises. The
obligations of the Issuer under this Section to compensate and indemnify the
Trustee and to pay or reimburse the
Trustee
for expenses, disbursements and advances shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. Such additional indebtedness shall be a senior
claim to that of the Securities upon all property and funds held or
collected by
the Trustee as such, except funds held in trust for the benefit of the Holders
of particular Securities
or Coupons, and the Securities are hereby subordinated to such
senior claim.
SECTION 6.7 Right of Trustee to Rely on Officers'
Certificate, etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the
trusts 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 6.8 Qualification of Trustee; Conflicting
Interests. (a) If the Trustee has
or shall acquire any conflicting interest,
as defined in this Section, it shall, within 90 days
after ascertaining that it has such conflicting interest, either
eliminate such conflicting interest or resign in the manner and
with the effect specified in this Article.
(b) In the event that the Trustee shall fail to comply with
the provisions of subsection (a) of this Section, the Trustee shall,
within 10 days after the expiration of such 90 day period,
transmit by mail notice of such failure to the Securityholders
in the manner and to the extent required by Section 4.4(c) and,
if any Unregistered Securities are then Outstanding, shall publish notice
of such failure at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York.
(c) For the purposes of this Section, the Trustee shall be
deemed to have a conflicting interest with respect to Securities of
any series if
(i) the Trustee is trustee under this Indenture
with respect to the Outstanding Securities of any other series
or is a trustee
under another indenture under which any other
securities, or certificates of interest or participation
in any other securities, of the Issuer are outstanding,
unless such other indenture is a collateral trust
indenture under which the only collateral consists
of Securities issued under
this Indenture;
provided that there shall be excluded from the
operation of this paragraph the Indenture dated
as of January30, 1987 (the "Dart Indenture")
among Dart Industries
Inc., as issuer, Premark International, Inc.,
as guarantor, and Morgan Guaranty Trust Company of
New York, as trustee, relating to $150,000,000 principal
amount of notes due 1997, the Indenture dated as of January30,
1987 (the "Hobart Indenture")
among Hobart Corporation, as issuer, Premark International,
Inc., as guarantor, and Morgan Guaranty Trust Company of New York,
as trustee, relating to $75,000,000 principal amount of notes
due 1994,
this Indenture with respect to the Securities of
any other series, such other
indenture or indentures under which other securities, or certificates
of interest or participation in other securities, of the Issuer are
outstanding if (x) the Dart Indenture, the Hobart Indenture,
this Indenture and such
other indenture or indentures are wholly unsecured, and such other
indenture or indentures are hereafter qualified under the Trust
Indenture Act of 1939, unless the Commission shall have found and
declared by order pursuant to Section 305(b) or Section 307(c) of the
Trust Indenture Act of 1939 that differences exist between the
provisions of this Indenture with respect to Securities of such series
and one or more other series, or the provisions of this Indenture and
the provisions of the Dart Indenture, the Hobart Indenture or
such other indenture or indentures which are so
likely to involve a material conflict of interest as to make it
necessary in the public interest or for the protection of investors to
disqualify the Trustee from acting as such under this Indenture with
respect to the Securities of such series and such other series, or under
this Indenture and the Dart Indenture, the Hobart Indenture or
such other indenture or indentures, or (y) the
Issuer shall have sustained the burden of proving, on application to
the Commission and after opportunity for hearing thereon, that
trusteeship under this Indenture with respect to the Securities of such
series and such other series, or under this Indenture and the Dart
Indenture, the Hobart Indenture or such other
indenture or indentures, is not so likely to involve a material
conflict of interest as to make it necessary in the public interest or
for the protection of investors to disqualify the Trustee from acting
as such under this Indenture with respect to the
Securities of such series
and such other
series, or under this Indenture and the Dart Indenture, the Hobart
Indenture or such other indentures;
(ii) the Trustee or any of its directors or executive officers is
an obligor upon the Securities
of any series issued under this Indenture
or an underwriter for the Issuer;
(iii) the Trustee directly or indirectly controls or is directly
or indirectly controlled by or is under direct or indirect common
control with the Issuer or an underwriter for the Issuer;
(iv) the Trustee or any of its directors or executive officers
is a director, officer, partner, employee, appointee or representative
of the Issuer, or of an underwriter (other than the Trustee
itself) for the Issuer who is currently engaged in the business
of underwriting, except that (x) one individual may be a director
or an executive officer, or both, of the Trustee and a director or an
executive officer, or both, of the Issuer, but may not be at the
same time an executive officer of both the Trustee and the Issuer;
(y) if and so long as the number of directors of the Trustee
in office is more than nine, one additional individual may be a
director or an executive officer,
or both, of the Trustee and a director of the Issuer;
and (z) the Trustee may be designated
by the Issuer or by any underwriter for the Issuer to act in
the capacity of transfer agent, registrar, custodian, paying agent,
fiscal agent, escrow agent or depositary, or in any other similar
capacity, or, subject to the provisions of subsection (c)(i) of
this Section, to act as trustee, whether under an indenture or
otherwise;
(v) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Issuer or by any director,
partner or executive officer thereof, or 20% or more of such
voting securities is beneficially owned, collectively, by any two
or more of such persons; or 10% or more of the voting securities
of the Trustee is beneficially owned either by an underwriter
for the Issuer or by any director, partner or executive officer
thereof, or is beneficially owned, collectively, by any two or
more such persons;
(vi) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default, (x) 5% or more
of the voting securities, or 10% or more of any other class of
security of the Issuer, not including the Securities issued
under this Indenture and securities issued under any other indenture
under which the Trustee is also trustee, or (y) 10% or more
of any class of security of an underwriter for the Issuer;
(vii) the Trustee is the beneficial owner
of, or holds as collateral
security for an obligation which is in default, 5% or more of the
voting securities of any person who, to the knowledge of the
Trustee, owns 10% or more of the voting securities
of, or controls directly or indirectly or is under direct or indirect
common control with, the Issuer;
(viii) the Trustee is the beneficial owner
of, or holds as collateral
security for an obligation which is in default,
10% or more of any class of
security of any person who, to the knowledge of the
Trustee, owns 50% or more of
the voting securities of the Issuer; or
(ix) the Trustee owns on May 15 in any calendar year, in the
capacity of executor, administrator, testamentary or
inter vivos
trustee, guardian, committee or conservator,
or in any other similar capacity,
an aggregate of 25% or more of the voting
securities, or of any class of
security, of any person, the beneficial ownership of
a specified percentage of
which would have constituted a conflicting
interest under clause (vi), (vii) or
(viii) of this subsection. As to any such securities
of which the Trustee acquired
ownership through becoming executor,
administrator or testamentary trustee of
an estate which included them, the provisions
of the preceding sentence shall not
apply, for a period of two years from the date
of such acquisition, to the extent
that such securities included in such estate
do not exceed 25% of such voting
securities or 25% of any such class of security.
Promptly after May 15 in each
calendar year, the Trustee shall make a check of
its holdings of such securities
in any of the above-mentioned capacities
as of such May 15. If the Issuer fails
to make payment in full of principal of or
interest on any of the Securities when
and as the same becomes due and payable, and such
failure continues for 30 days
thereafter, the Trustee shall make a prompt check
of its holdings of such
securities in any of the above-mentioned capacities
as of the date of the
expiration of such 30-day period, and after such
date, notwithstanding the
foregoing provisions of this paragraph, all such
securities so held by the
Trustee, with sole or joint control over such
securities vested in it, shall, but
only so long as such failure shall continue,
be considered as though beneficially
owned by the Trustee for the purposes of
clauses (vi), (vii) and (viii) of
this subsection.
The specification of percentages in
clauses (v) to (ix), inclusive,
of this subsection shall not be construed as indicating
that the ownership of such
percentages of the securities of a person is or is not
necessary or sufficient
to constitute direct or indirect control for the purposes
of clauses (iii)
or (vii) of this subsection.
For the purposes of clauses (vi), (vii), (viii) and (ix)
of this subsection only,
(i) the terms "security" and "securities"
shall include only such securities as are generally known as
corporate securities, but shall not include any note or other
evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or
participation in any such note or evidence of indebtedness;
(ii) an obligation shall be deemed to be "in default" when
a default in payment of principal shall have continued for 30
days or more and shall not have been cured; and
(iii) the Trustee
shall not be deemed to be the owner or holder of (x) any
security which it holds as collateral security, as trustee or
otherwise, for an obligation which is not in default as defined
in clause (ii) above, or (y) any security which it holds as
collateral security under this Indenture, irrespective of any
default hereunder, or (z) any security which it holds as agent
for collection, or as custodian, escrow agent or depositary,
or in any similar representative capacity.
Except as provided above, the word "security" or
"securities", as used
in this Section, shall mean any note, stock, treasury stock,
bond, debenture, evidence of indebtedness, certificate of interest
or participation in any profit-sharing agreement, collateral
trust certificate, preorganization certificate or subscription,
transferable share, investment contract, voting trust certificate,
certificate of deposit for a security, fractional undivided
interest in oil, gas or other mineral rights or, in general,
any interest or instrument commonly known as a "security",
or any certificate of interest or participation in, temporary
or interim certificate for, receipt for, guarantee of, or
warrant or right to subscribe to or purchase, any of the foregoing.
(d) For purposes of this Section:
(i) the term "underwriter", when used with reference to the
Issuer, shall mean every person who, within three years prior
to the time as of which the determination is made, has purchased
from the Issuer with a view to, or has offered or sold for the
Issuer in connection with, the distribution of any security of
the Issuer outstanding at such time, or has participated or has
had a direct or indirect participation in any such undertaking,
or has participated or has had a participation in the direct
or indirect underwriting of any such undertaking, but such term
shall not include a person whose interest was limited to a
commission from an underwriter or dealer not in excess of the
usual and customary distributors' or sellers' commission;
(ii) the term "director" shall mean any director of a corporation
or any individual performing similar functions with respect to
any organization, whether incorporated or unincorporated;
(iii) the term "person" shall mean an individual, a corporation,
a partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof; as used in this clause, the term "trust" shall include
only a trust where the interest or interests of the beneficiary
or beneficiaries are evidenced by a security;
(iv) the term "voting security" shall mean any security
presently entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any
security issued under or pursuant to any trust, agreement or
arrangement whereby a trustee or trustees or agent or agents
for the owner or holder of such security are presently
entitled to vote in the direction or management of the affairs
of a person;
(v) the term "Issuer" shall mean any obligor upon the
Securities; and
(vi) the term "executive officer" shall mean the president,
every vice president, every trust officer, the cashier, the
secretary and the treasurer of a corporation, and any individual
customarily performing similar functions with respect to any
organization, whether incorporated or unincorporated, but shall
not include the chairman of the board of directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance
with the following provisions:
(i) a specified percentage of the voting securities of the
Trustee, the Issuer or any other person referred to in this
Section (each of whom is referred to as a "person" in this
subsection) means such amount of the outstanding voting securities
of such person as entitles the holder or holders thereof to cast
such specified percentage of the aggregate votes which the holders
of all the outstanding voting securities of such person are entitled
to cast in the direction or management of the affairs of such
person;
(ii) a specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities
of the class outstanding;
(iii) the term "amount", when used in regard to securities,
means the principal amount if relating to evidences of
indebtedness, the number of shares if relating to capital
shares and the number of units if relating to any other kind
of security;
(iv) the term "outstanding" means issued and not held by or
for the account of the issuer; the following securities shall
not be deemed outstanding within the meaning of this definition:
(A) securities of an issuer held in a sinking fund relating
to securities of the issuer of the same class;
(B) securities of an issuer held in a sinking fund relating
to another class of securities of the issuer, if the obligation
evidenced by such other class of securities is not in default
as to principal or interest or otherwise;
(C) securities pledged by the issuer thereof as security
for an obligation of the issuer not in default as to principal
or interest or otherwise; and
(D) securities held in escrow if placed in escrow by the
issuer thereof;
provided that any voting securities of
an issuer shall be deemed outstanding if any person other than
the issuer is entitled to exercise the voting rights thereof;
and
(v) a security shall be deemed to be of the same class as
another security if both securities confer upon the holder or
holders thereof substantially the same rights and privileges;
provided that, in the case of secured evidences
of indebtedness, all of which are issued under a single indenture,
differences in the interest rates or maturity dates of various
series thereof shall not be deemed sufficient to constitute
such series different classes and provided, further, that,
in the case of unsecured evidences of indebtedness, differences
in the interest rates or maturity dates thereof shall not be
deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single indenture.
SECTION 6.9 Persons Eligible for Appointment as Trustee.
There shall at all times be a Trustee hereunder
for each series of Securities
which shall be a corporation organized
and doing business under the laws of the United States of
America or of any State thereof or the District of Columbia having
a combined capital and surplus of at least $5,000,000, and
which is authorized under such laws to exercise corporate
trust powers and is subject to supervision or examination by
Federal, State or District of Columbia authority. Such
corporation shall have its principal place of business in
the City of Chicago, Illinois or
the Borough of Manhattan, The City of
New York, if there
be such a corporation in such location willing to act upon reasonable and
customary terms and conditions. If such corporation publishes
reports of condition at least annually,
pursuant to law or to
the requirements of the aforesaid supervising or examining authority,
then, for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of
this Section, the Trustee shall resign immediately in
the manner and with the effect specified in Section 6.10.
SECTION 6.10 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all
series of Securities by giving
written notice of resignation to the Issuer and (i) if any Unregistered
Securities of a series affected are then Outstanding, by giving notice of
such resignation to the Holders thereof by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York,
(ii)
if any Unregistered Securities of a series affected are then Outstanding, by
mailing notice of such resignation to the Holders thereof who have filed
their names and addresses with the Trustee pursuant to Section 4.4(c)(ii)
at such addresses as were so furnished to the Trustee and (iii) by mailing
notice of such resignation to the Holders of the then Outstanding Registered
Securities of each series affected at their addresses as they shall appear
on the Security
registry books. Upon receiving such notice of resignation, the
Issuer shall promptly appoint a successor trustee or trustees with
respect to the applicable series by written
instrument, in duplicate, executed by authority of the Board of
Directors, one copy of which instrument shall be delivered
to the resigning Trustee and one copy to the successor trustee or
trustees. If no successor trustee shall have been so appointed
with respect to any series and shall
have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning trustee may petition any
court of competent jurisdiction for the appointment of a
successor trustee, or any Holder who has been a bona fide
Holder of a Security or Securities of such series
for at least six months may,
subject to the provisions of Section 5.12, on behalf of such Holder
and all others similarly situated, petition any such court for
the appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following
shall occur:
(i) the Trustee shall fail to comply with the provisions
of Section 6.8 with respect to any series of
Securities after written request therefor by the Issuer
or by any Holder who has been a bona fide Holder
of a Security or Securities of such series
for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.9
and shall fail to resign
after written request therefor by the Issuer or by any
Holder; or
(iii) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent,
or a receiver or
liquidator of the
Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation
or liquidation;
then, in any such case, the Issuer may remove the Trustee
with respect to the Securities of any or all series, as appropriate,
and appoint a successor trustee for such series
by written instrument, in
duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered
to the Trustee so removed and one copy to the successor trustee or
trustees, or, subject to the provisions of Section 5.12, any Holder
who has been a bona fide Holder of a Security or Securities
of such series for
at least six months may, on behalf of such Holder and all others
similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor
trustee. Such court may thereupon, after such notice, if any,
as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of
the Securities of each series
at the time Outstanding may at any time remove
the Trustee with respect to Securities of such series
and appoint a successor trustee with respect to
the Securities of such series
by delivering to
the Trustee so removed, to the successor trustee so appointed
and to the Issuer the evidence provided for in Section 7.1
of the action in that regard taken by the Holders.
(d) Any resignation or removal of the Trustee
with respect to any series
of Securities and any
appointment of a successor trustee
with respect to such series
pursuant to any of the
provisions of this Section shall become effective
upon acceptance of appointment by the successor trustee
as provided in Section 6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10
shall execute, acknowledge and deliver to the Issuer and to
its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all applicable series
of Securities shall become effective and such successor
trustee, without any further act, deed or conveyance, shall
become vested with all rights, powers, trusts and duties
with respect to such applicable series
of its predecessor hereunder, with like effect as if originally
named as trustee for such series
hereunder; but, nevertheless, on the written
request of the Issuer or of the successor trustee, upon
payment of its charges then unpaid, the trustee ceasing to act shall,
subject to Section 10.4, pay over to the successor trustee all moneys
at the time held by it hereunder for the benefit of such applicable series
and shall execute, acknowledge and deliver an instrument transferring to such
successor trustee all such rights, powers, trusts and
duties. Upon
request of any such successor trustee, the Issuer shall execute and
acknowledge any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all
such rights, powers and trusts. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or
funds held or collected by such trustee for the benefit of such applicable
series to secure any amounts then due it pursuant
to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but less than all) series,
the Issuer, the predecessor trustee
and each successor trustee so appointed
shall execute, acknowledge and deliver an indenture supplemental
hereto which shall contain such provisions as shall be deemed necessary
or desirable to confirm that all the rights, powers, trusts and
duties of such predecessor trustee with respect to the Securities
of any series as to which such predecessor trustee is not retiring
shall continue to be vested in such predecessor trustee, 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, it being understood
that nothing herein or in such supplemental indenture shall
constitute such trustees as co-trustees of the same trust and that
each such trustee shall be trustee of a separate trust or trusts under
this indenture.
No successor trustee with respect to any series
of Securities shall accept appointment as provided
in this Section unless at the time of such acceptance
such successor trustee shall be qualified under the provisions
of Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee
as provided in this Section, the Issuer shall give notice
thereof (a) if any Unregistered Securities of a series affected are then
Outstanding, to the Holders thereof by publication of such notice at least
once in an Authorized Newspaper in the Borough of Manhattan, The City of
New York,
(b) if any Unregistered Securities of a series affected are
then Outstanding, to the Holders thereof who have filed their names and
addresses with the Trustee pursuant to Section 4.4(c)(ii) by mailing
such notice to such Holders at such addresses as were so furnished to the
Trustee (and the Trustee shall make such information available to the Issuer
for such purpose) and (c) to the Holders of Registered Securities of each
series affected, by mailing such notice to such Holders at their addresses
as they shall appear on the Security registry books. If
the acceptance of appointment is substantially
contemporaneous with the resignation, then the
notice called for by the preceding sentence may
be combined with the notice called for by Section 6.10.
If the Issuer fails to give such notice within 10 days after
acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be given at the
expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee
may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any corporation succeeding
to the corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided that such corporation shall
be qualified under the provisions of Section 6.8 and eligible under
the provisions of Section 6.9, without the execution or filing
of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
In case at the time of such succession to the Trustee
any of the
Securities of any series shall have been authenticated but not delivered,
any such successor trustee may adopt the certificate
of authentication of any predecessor trustee and deliver
the Securities so authenticated; and, in case at that time any
of the Securities of any series shall not have been authenticated, any
successor trustee may authenticate such Securities either
in the name of any predecessor hereunder or in the name of such
successor trustee; and in all such cases such certificate of authentication
shall have the full force which it is anywhere in the Securities
of such series
or in this Indenture provided that the certificate of authentication of the
Trustee shall have; provided that the right to
adopt the certificate of authentication of any predecessor
trustee or to authenticate Securities of any series in the name of any
predecessor trustee shall apply only to its successor
or successors by merger,
conversion or consolidation.
SECTION 6.13 Preferential Collection of Claims
Against the Issuer.
(a) Subject to the provisions of this Section, if
the Trustee shall be or shall
become a creditor, directly or indirectly, secured
or unsecured, of the Issuer
within four months prior to a default, as defined
in subsection (c) of this Section, or subsequent
to such a default, then, unless and until such default shall be cured, the
Trustee shall set apart and hold in a special account for the benefit of the
Trustee individually, the Holders of the Securities and Coupons
and the holders of other
indenture securities (as defined in such subsection (c)):
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in
respect of principal or interest, effected after the
beginning of such four months' period and valid as against
the Issuer and its other creditors, except any such
reduction resulting from the receipt or disposition of
any property described in clause (2) of this subsection,
or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy
had been filed by or against the Issuer upon the date
of such default; and
(2) all property received by the Trustee in respect of
any claim as such creditor, either as security therefor, or
in satisfaction or composition thereof, or otherwise, after
the beginning of such four months' period, or an amount equal
to the proceeds of any such property if disposed
of, subject, however, to the
rights, if any, of the Issuer and its other creditors
in such property or such proceeds.
Nothing herein contained, however, shall affect the right
of the Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any person (other than the
Issuer) who is liable thereon, (ii) the proceeds of
the bona fide sale of any such claim by the Trustee to
a third person, and (iii) distributions made in cash,
securities or other property in respect of claims filed
against the Issuer in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11
of the United States Code or applicable state law;
(B) to realize, for its own account, upon any property held
by it as security for any such claim, if such property was
so held prior to the beginning of such four months' period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any
property held by it as security for any such claim, if
such claim was created after the beginning of such four
months' period and such property was received as security
therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at
the time such property was so received the Trustee had no
reasonable cause to believe that a default as defined in
subsection (c) of this Section would occur within four
months; or
(D) to receive payment on any claim referred to in clause (B)
or (C) of this subsection, against the release of any property held as
security for such claim as provided in such clause
(B) or (C), as the case may
be, to the extent of the fair value of such property.
For the purposes of clauses (B), (C) and (D), property
substituted after the beginning of such four months' period
for property held as security at the time of such substitution
shall, to the extent of the fair value of the property released,
have the same status as the property released, and, to the
extent that any claim referred to in any of such clauses is
created in renewal of or in substitution for or for the purpose
of repaying or refunding any pre-existing claim of the Trustee as
such creditor, such claim shall have the same status as such
pre-existing claim.
If the Trustee shall be required to account, the funds
and property held in such special account and the proceeds
thereof shall be apportioned among the Trustee, the Holders
and the holders of other indenture securities in such manner that
the Trustee, the Holders
and the holders of other indenture
securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the
Issuer in bankruptcy or receivership or in proceedings for
reorganization pursuant to Title 11 of the United States Code or applicable
State law, the same percentage of their respective claims,
figured before crediting to the claim of the Trustee anything
on account of the receipt by it from the Issuer of the funds
and property in such special account and before crediting to
the respective claims of the Trustee, the Holders and
the holders of other indenture securities dividends on
claims filed against the Issuer in bankruptcy or receivership
or in proceedings for reorganization pursuant to
Title 11 of the United States Code
or applicable State law, but after crediting thereon
receipts on account of the indebtedness represented by their
respective claims from all sources other than from
such dividends and from the
funds and property so held in such special account.
As used in this paragraph
with respect to any claim, the term "dividends" shall
include any distribution
with respect to such claim, in bankruptcy or receivership
or in proceedings for reorganization pursuant to
Title 11 of the United States Code or applicable
State law, whether
such distribution is made in cash, securities or
other property, but shall not
include any such distribution with respect to the
secured portion, if any, of
such claim. The court in which such bankruptcy,
receivership or proceeding for
reorganization is pending shall have jurisdiction
(i) to apportion among the
Trustee, the Holders and the holders of other
indenture securities, in
accordance with the provisions of this paragraph, the
funds and property held in
such special account and the proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the
provisions of this paragraph
due consideration in determining the fairness of
the distributions to be made to
the Trustee, the Holders and the holders
of other indenture securities
with respect to their respective claims, in which
event it shall not be necessary
to liquidate or to appraise the value of any securities
or other property held
in such special account or as security for any such claim,
or to make a specific
allocation of such distributions as between the secured and
unsecured portions
of such claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee who has resigned or been removed after
the beginning of such four-months' period shall be subject to
the provisions of
this subsection as though such resignation or removal had
not occurred. If
any Trustee has resigned or been removed prior to the beginning
of such four-months'
period, it shall be subject to the provisions of this
subsection if
and only if the following conditions exist:
(i) the receipt of property or reduction of claim which
would have given rise to the obligation to account, if such
Trustee had continued as trustee, occurred after the beginning
of such four-months' period; and
(ii) such
receipt of property or reduction of claim occurred
within four months after such resignation or removal.
(b) There shall be excluded from the operation of this Section
a creditor relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture or any security or securities having
a maturity of one year or more at the time of acquisition
by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction or by this Indenture for
the purpose of preserving any property which shall at any
time be subject to the lien of this Indenture or of
discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advance and of the circumstances
surrounding the making thereof is given to the Securityholders
at the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business
in the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary,
or other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented or an indebtedness created as a
result of goods or securities sold in a cash transaction
as defined in subsection (c)(3) of this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of
the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Issuer; or
(6) the acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange, acceptances or obligations
which fall within the classification of self-liquidating paper
as defined in subsection (c)(4) of this Section.
(c) As used in this Section:
(1) the term "default" shall mean any failure to make payment
in full of the principal of or interest upon any of the
Securities or upon the other indenture securities when and
as such principal or interest becomes due and payable;
(2) the term "other indenture securities" shall mean securities
upon which the Issuer is an obligor (as defined in the Trust
Indenture Act of 1939) outstanding under any other indenture
(i) under which the Trustee is also trustee, (ii) which contains
provisions substantially similar to the provisions of subsection (a)
of this Section and (iii) under which a default exists at the
time of the apportionment of the funds and property held in
said special account;
(3) the term "cash transaction" shall mean any transaction
in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or
bankers and payable upon demand;
(4) the term "self-liquidating paper" shall mean any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Issuer for the purpose of
financing the purchase, processing, manufacture, shipment, storage
or sale of goods, wares or merchandise and which is secured
by documents evidencing title to, possession of, or a lien upon,
the goods, wares or merchandise or the receivables or proceeds
arising from the sale of the goods, wares or merchandise previously
constituting the security, provided the security is received by
the Trustee simultaneously with the creation of the creditor
relationship with the Issuer arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance
or obligation; and
(5) the term "Issuer" shall mean any obligor
upon the Securities.
SECTION 6.14 Appointment of Authenticating
Agent. As long as any Securities of a series remain Outstanding, the
Trustee may, by an instrument in writing, appoint with the approval of the
Issuer an authenticating agent (the "Authenticating Agent") which shall be
authorized to act on behalf of, but subject to the direction of,
the Trustee to authenticate Securities of such series,
including Securities
issued upon exchange, registration of transfer, partial redemption or
pursuant to Section 2.9. Securities of such series so authenticated
shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee. Whenever reference is made in this
Indenture to the authentication and delivery of Securities of any series by
the Trustee or to the Trustee's certificate of
authentication, such reference shall be deemed to include authentication
and delivery on behalf of the Trustee by an Authenticating
Agent for such series and a certificate of authentication executed on
behalf of the Trustee by such Authenticating Agent. Such Authenticating
Agent shall at all times be a corporation organized and doing business
under the laws of the United States of America or of any State thereof or
of the District of Columbia authorized
under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $5,000,000 (determined as provided in
Section 6.9 with respect to the Trustee) and subject to supervision or
examination by Federal or State authority.
Any corporation into which any Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any corporation succeeding to
the corporate agency or corporate trust
business of any Authenticating Agent, shall be the successor to
such Authenticating Agent with respect to all series of Securities for
which it served as Authenticating Agent without the execution or filing of
any paper or any further act on the part of the Trustee or
such Authenticating Agent.
Any Authenticating Agent may at any time, and if it shall cease
to be eligible hereunder shall, resign by giving written notice of
resignation to the Trustee and to the Issuer. The Trustee may at any time
terminate the agency of any Authenticating Agent by giving written notice
thereof to such Authenticating Agent and the Issuer.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, the Trustee
shall upon receipt of an Issuer Order
appoint a successor Authenticating Agent and shall provide
notice of such appointment to all Holders of Securities affected thereby
in the manner and to the extent provided in Section6.11 with respect to
the appointment of a successor trustee. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall
become vested with all rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent.
The Authenticating Agent for the
Securities of any series shall have no responsibility
or liability for any action taken by it as such at the direction of the
Trustee.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to
any Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by
Securityholders. Any request, demand, authorization,
direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by
a specified percentage in aggregate principal amount of the
Holders of one or more series may be evidenced (i) by one
or more instruments of substantially similar tenor signed by such
specified percentage of Holders in person or by agent or proxy duly
appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective
when such instrument or instruments are delivered to the Trustee;
(ii) by the record of such specified percentage of Holders voting in
favor thereof at any meeting of such Holders duly called and held by
the Trustee; and (iii) by a combination of such instrument or instruments
and any such record of a meeting.
SECTION 7.2 Proof of Execution of Instruments
and of Holding of Securities. Subject to
Sections 6.1 and 6.2, the execution of any
instrument by a Holder or his agent or proxy and proof of the holding
by any Person of any of the Securities of any series shall be sufficient
if made in the following manner:
(a) The fact
and date of the execution by any such Person of any instrument may be
proved by the certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds or administer
oaths that the Person executing such instrument acknowledged to him
the execution thereof, or by an affidavit of a witness to such
execution sworn to before any such notary or other such officer.
Where such execution is by or on behalf of any legal entity other than
an individual, such certificate or affidavit shall also constitute
sufficient proof of the authority of the Person executing the same.
The ownership of an Unregistered Security of any series, or of any
Coupon attached thereto at its issuance, and the identifying
number of such Security and the date of such ownership, may be
proved by the production of such Security or Coupon or by a
certificate executed by any trust company, bank, banker or recognized
securities dealer, wherever situated, if
such certificate shall be deemed by the Trustee to be satisfactory.
Each such certificate shall be dated and shall state that on the date
thereof a Security of such series bearing a specified identifying
number was deposited with or exhibited to such trust company, bank,
banker or recognized securities dealer by the person named in such
certificate. Any such certificate may be issued in respect of one or
more Unregistered Securities of one or more series specified therein.
The ownership by the Person named in any such certificate of any
Unregistered Security
specified therein shall be presumed to continue
unless at the time
of any determination of such ownership
and holding (1) another certificate bearing a
later date issued in respect of such Security shall be produced,
(2) such Security shall be produced
by some other Person or (3) such Security
shall have ceased to be Outstanding.
Subject to Sections 6.1 and 6.2, the fact and date of the execution of
any such instrument
and the ownership, amount and numbers
of any Unregistered Securities may also be proven
in accordance with such reasonable rules and regulations as may
be prescribed by the Trustee for any series or in any other manner
which the Trustee may deem sufficient.
(b) In the case of Registered Securities, the ownership of
such Securities shall be proved by the Security Register or by a
certificate of the Security Registrar.
SECTION 7.3 Holders to be Treated as Owners. The Issuer,
the Trustee and any agent of the Issuer or the Trustee may
deem and treat the Person in whose name any Security of any series shall
be registered upon the Security Register
for such series as the absolute
owner of such Security (whether or not such Security shall
be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment
of or on account of the principal of and, subject to the
provisions of this Indenture, interest on such Security
and for all other purposes; and none of the Issuer, the
Trustee and any agent of the Issuer or the Trustee shall be affected
by any notice to the contrary. The Issuer, the Trustee and any agent of the
Issuer or the Trustee may treat the Holder of any Unregistered Security and
the Holder of any Coupon as the absolute owner of such Unregistered Security
or Coupon (whether or not such Unregistered Security or Coupon shall be
overdue) for the purpose of receiving payment thereof or on account thereof
and for all other purposes; and none of the Issuer, the Trustee and any
agent of the Issuer or the Trustee shall be affected by any notice to the
contrary. All such payments so made
to any such Person, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual
to satisfy and discharge the liability for moneys payable
upon any such Security or Coupon.
SECTION 7.4 Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders
of the requisite aggregate principal amount of Outstanding Securities
of one or more series
have concurred in any direction, consent or waiver under
this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities
with respect to which such determination is being made
or by any Person
directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer
or any other obligor on the Securities
with respect to which such determination is being made
shall be disregarded
and deemed not to be Outstanding for the purposes of any
such determination, except that for the purpose of
determining whether the Trustee shall be protected
in relying on any such direction, consent or waiver,
only Securities which the Trustee knows are so owned
shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so
to act with respect to such Securities and that the
pledgee is not the Issuer or any other obligor upon
such Securities or any Person directly or indirectly
controlling or controlled by or under direct or indirect
common control with the Issuer or any other obligor on
such Securities. In case of a dispute as to such right,
the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the
Issuer shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if
any, known by the Issuer to be owned or held by or for
the account of any of the above-described Persons; and,
subject to Sections 6.1 and 6.2, the Trustee shall
be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth
and of the fact that all Securities not listed therein
are Outstanding for the purposes of any such determination.
SECTION 7.5 Right of Revocation of Action
Taken. At any time prior to (but not
after) the evidencing to the Trustee, as
provided in Section 7.1, of the taking of
any action by the Holders of the requisite percentage in
aggregate principal amount of the Securities
of one or more series, as the case may be,
specified in this Indenture in connection with
such action, any Holder of a Security the serial
number of which is shown by the evidence to be
included among the serial numbers of the Securities
the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust
Office and upon proof of ownership as
provided in Section 7.2, revoke such action so far
as concerns such Security. Except as aforesaid,
any such action taken by the Holder of any Security of any series
shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security
and of any Securities of such series issued in exchange or substitution
therefor or on registration of transfer thereof,
irrespective of whether or not any notation
in regard thereto is made upon any such Security. Any
action taken by the Holders of the requisite percentage in
aggregate principal amount of the Securities
of one or more series, as the case may be,
specified
in this Indenture in connection with such action shall
be conclusively binding upon the Issuer, the Trustee and
the Holders of all the Securities of such series.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without
Consent of Securityholders. The Issuer, when
authorized by a resolution of the Board of Directors
(which resolution may provide general terms or parameters for
such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an
Issuer Order),
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 of 1939 as in force at the date of
the execution thereof) for one or more of the following
purposes:
(a) to convey, transfer, assign, mortgage
or pledge to the Trustee as security for the
Securities of one or more series
any property or assets;
(b) to evidence the succession of another
corporation to the Issuer, or successive
successions, and the assumption by the successor
corporation of the covenants, agreements and
obligations of the Issuer pursuant to Article Nine;
(c) to add to the covenants of the Issuer
such further covenants, restrictions, conditions or
provisions as the Issuer and the Trustee
shall consider to be for the protection of the
Holders of Securities of any series or Coupons
appertaining thereto,
and to make the occurrence,
or the occurrence and continuance, of a default in
complying with
any such additional covenant, restriction,
condition or provision an Event of Default
permitting the enforcement of all or any of the
several remedies provided in this Indenture as herein
set forth; 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 an Event of Default
or may limit the remedies available to the Trustee
upon such an Event of Default or may limit the right
of the Holders of a majority in aggregate principal
amount of the Securities of such series to waive such an Event of
Default;
(d) to cure any ambiguity or to correct or
supplement any provision contained herein or in
any supplemental indenture which may be defective or
inconsistent with any other provision contained
herein or in any supplemental indenture, or to make
such other provisions
as the Issuer may
deem necessary or desirable, provided that no
such action shall
adversely affect the interests of the Holders of the
Securities of any series or the Coupons appertaining
thereto;
(e) to establish the form and terms of the Securities of
any series or of the Coupons appertaining to such Securities,
as permitted by Sections 2.1 and 2.3; and
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one trustee, all as provided in
Section 6.11.
The Trustee is hereby authorized to join with the Issuer
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 or assets
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 may be executed without
the consent of the Holders of any of the Securities at
the time Outstanding, notwithstanding any of the
provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced
as provided in Article Seven) of the Holders of
not less than a majority in aggregate principal amount
of the Securities of all series
at the time Outstanding affected by such
supplemental indenture (voting as one class), the
Issuer, when authorized by a resolution of the
Board of Directors
(which resolution may provide general terms or parameters for
such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an
Issuer Order),
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 of 1939 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 Securities of each such
series or of the Coupons appertaining to such Securities;
provided that no such supplemental
indenture shall (a) extend the time of payment of the
principal, or any instalment of the principal,
of any
Security or reduce the principal amount thereof, or reduce
the rate or extend the time of payment of interest thereon,
or reduce any amount payable on the
redemption thereof, or make the principal
thereof or the
interest thereon payable in any coin or currency other than that
provided in such Security and the Coupons, if any, appertaining thereto
or in accordance with the terms
thereof, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon an acceleration of
the maturity thereof pursuant to Section 5.1 or the amount thereof
provable in bankruptcy pursuant to Section 5.2, or alter the
provisions of Section 11.11 or 11.12, or impair or
affect the right to institute suit for the
payment thereof when due or, if such Security shall so provide, any
right of repayment at the option
of the Holder,
in each case
without the consent of the Holder of each Security
so affected, or (b) reduce the percentage
in principal amount of the Outstanding
Securities of the affected
series, the consent of whose Holders
is required for any such supplemental
indenture or
for any waiver provided for in this Indenture,
without the consent of the Holders of
each Security so affected.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included
solely for the benefit of one or more series of Securities, or
which modifies the rights of the Holders of Securities of such series or of
the Coupons appertaining to such Securities with respect to such covenant or
provision, shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or of the Coupons appertaining
to such Securities.
Upon the request of the Issuer, accompanied by a
Board Resolution complying with the first paragraph of this Section and
evidence of the consent of the Holders
of the Securities
as aforesaid and such other documents, if any,
as may be required by Section 7.1, the Trustee shall join with the Issuer 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 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
Promptly after the execution by the Issuer and
the Trustee of any supplemental indenture pursuant to the
provisions of this Section, the Trustee shall give
notice thereof (i) to the Holders of then Outstanding Registered Securities
of each series affected thereby, by mailing a notice thereof by first-class
mail to such Holders at their addresses as they shall appear on the Security
Register, (ii) if any Unregistered Securities of a series affected thereby
are then Outstanding, to the Holders thereof who have filed their names and
addresses with the Trustee pursuant to Section 4.4(c)(ii), by mailing a
notice thereof by first-class mail to such Holders at such addresses as were
so furnished to the Trustee and (iii) if any Unregistered Securities of a
series affected thereby are then Outstanding, to all Holders thereof, by
publication of a notice thereof at least once in an Authorized Newspaper in
the Borough of Manhattan, The City of New York,
and in each case such notice
shall set forth in general terms the substance of such supplemental
indenture. Any failure of the Issuer to give such
notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such
supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon
the execution of any supplemental indenture pursuant
to the provisions hereof, 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 Issuer and the
Holders of Securities
of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all
respects to such modifications and amendments, and
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.
SECTION 8.4 Documents to Be Given to Trustee. The
Trustee, subject to the provisions of Sections 6.1 and 6.2, may receive an
Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any
supplemental indenture executed pursuant to this Article
complies with the applicable provisions of this Indenture.
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures. Securities of any series authenticated
and delivered after the execution of any supplemental
indenture pursuant to the provisions of this Article
may bear a notation in form approved by the Trustee
as to any matter provided for by such supplemental
indenture.
If the Issuer or the Trustee shall so determine, new
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 by the Issuer,
authenticated by the Trustee and delivered in exchange
for the Securities of such series then Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant of Issuer Not to Merge, Consolidate,
Sell or Convey Property Except Under Certain Conditions.
Nothing contained
in this Indenture or in any of the Securities shall
prevent any consolidation of the Issuer with, or merger
of the Issuer into, any other corporation or corporations
(whether or not affiliated with the Issuer), or successive
consolidations or mergers to which the Issuer or its
successor or successors shall be a party or parties,
or shall prevent any sale, lease or conveyance of the property
of the Issuer as an entirety or substantially as an
entirety; provided, that, and the Issuer hereby
covenants and agrees, upon any such consolidation,
merger, sale, lease or conveyance, the due and punctual payment
of the principal of and interest on all the
Securities, according to their tenor, and the due and
punctual performance and observance of all of the
covenants and conditions of this Indenture to be
performed or observed by the Issuer, shall be expressly
assumed, by supplemental indenture satisfactory in form
to the Trustee, executed and delivered to the Trustee by
the corporation formed by such consolidation, or into
which the Issuer shall have been merged, or which shall
have acquired such property;
provided, further,
that the corporation formed by such consolidation or into which the Issuer
merged or the person which acquired by conveyance or sale, or which leases,
the
properties and assets of the Issuer as an entirety or
substantially as an entirety shall be a
corporation organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia; and provided,
further,
that immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing.
SECTION 9.2 Securities to be Secured in Certain
Events. If, upon any such consolidation or merger of the Issuer
or
upon any such sale, lease or conveyance of
the property of the Issuer as an entirety or substantially as an entirety
to any other corporation,
any Principal Property
owned by the Issuer or a Restricted Subsidiary immediately prior
thereto or
any shares of stock or indebtedness of any Restricted Subsidiary owned
by the Issuer or a Restricted Subsidiary immediately prior thereto
would thereupon become subject to any
mortgage, security interest, pledge, lien or other encumbrance (unless such
Secured Debt could have been incurred by the Issuer or any Restricted
Subsidiary
without the Issuer's being required by the provisions of Section 3.6 to
secure the Securities equally and ratably with (or prior to) such Secured
Debt),
the Issuer or such Restricted Subsidiary,
prior to any such consolidation, merger, sale, lease or
conveyance, will by indenture supplemental hereto secure the Securities
(together with, if the Issuer shall so determine, any other indebtedness
incurred, assumed or guaranteed by the Issuer or such Restricted Subsidiary
ranking
equally with, or prior to,
the Securities, whether then existing or thereafter created) by a
direct lien on such Principal Property, shares of stock or indebtedness,
prior to all liens other than any theretofore existing thereon.
SECTION 9.3 Successor Corporation Substituted for
Issuer. In
case of any consolidation, merger, sale, lease or
conveyance referred to in Section 9.1,
and following such an assumption by the
successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer, with the
same effect as if it had been named herein.
Such successor corporation may cause to be
signed, and may issue either in its own name or in the
name of the Issuer prior to such succession, any or all
of the Securities issuable hereunder which theretofore
shall not have been signed by the Issuer and delivered
to the Trustee; and, upon the order of such successor
corporation, instead of the Issuer, and subject to all
the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall
deliver any Securities which previously shall have been
signed and delivered by the officers of the Issuer
to the Trustee for authentication, and any Securities which
such successor corporation thereafter shall cause to be
signed and delivered
to the Trustee for that purpose.
All of the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture
as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, lease
or conveyance such changes in phraseology and form (but
not in substance) may be made in the Securities
thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance
(other than a conveyance by way of lease), the Issuer or
any successor corporation which shall theretofore have
become such in the manner described in this Article
shall be discharged from all obligations and covenants
under this Indenture and the Securities and may be liquidated and dissolved.
SECTION 9.4 Opinion of Counsel Delivered
to Trustee. The Trustee, subject to the provisions of Sections 6.1 and
6.2, may receive an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption,
and any such liquidation or dissolution, complies with the applicable
provisions of this Indenture.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
____________UNCLAIMED MONEYS____________
~~~~~~~~~~~~~~~~
SECTION 10.1 Satisfaction and Discharge of
Indenture. (A) If at any time (a) the Issuer shall have
paid or caused to be paid the principal
of and interest on all the Securities
of each series theretofore authenticated,
including all Coupons appertaining thereto
(other than Securities
and Coupons appertaining thereto
which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.9),
in accordance with the terms of this Indenture and such Securities
or (b) as to Securities and Coupons not so paid, the Issuer shall have
delivered
to the Trustee for cancellation all
Securities of each series theretofore authenticated
and all Coupons appertaining thereto
(other than any Securities and Coupons appertaining thereto
which shall
have been destroyed, lost or stolen and which shall have been replaced or
paid as provided in Section 2.9) or (c)
as to Securities and Coupons not so paid or delivered for
cancellation,
in the case of any series of Securities as to which the exact amount
(including the
currency of payment) of principal of and interest due
can be determined at the time of making
the deposit referred to in clause (ii) below,
(i) all the Securities of such series
and all Coupons appertaining thereto
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 (ii) the Issuer shall have irrevocably deposited or caused
to be deposited with the Trustee as trust funds the entire amount in cash
(other than moneys repaid by the Trustee or any paying agent to the Issuer
in accordance with Section 10.4) or
Government
Obligations, maturing as to principal and interest at such times and in
such amounts as will insure the availability of cash, or a combination
thereof, sufficient
in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered
to the Trustee, to pay
(A) the principal and interest on all Securities of such series
and Coupons appertaining thereto on each date
that such principal or interest is due and payable and (B) any
mandatory sinking fund or analogous payments on the dates on which such
payments are due and payable in accordance with the terms of
this Indenture and the Securities of such series;
and if, in any such case, the Issuer shall also pay or
cause to be paid all other sums payable hereunder by the Issuer;
then this Indenture shall cease to be of further effect
(except as to (i) rights of registration of transfer and
exchange of Securities and of Coupons appertaining
thereto and the Issuer's right of optional redemption, if any, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen
Securities or Coupons, (iii) the rights of Holders of Securities
and Coupons appertaining thereto to receive payments of principal
thereof and interest thereon, upon the original stated due dates
therefor (but not upon acceleration), and remaining rights of such Holders
to receive mandatory sinking fund or analogous
payments, if any, (iv) the rights,
obligations, duties
and immunities of the Trustee hereunder,
(v) the rights of
Holders of Securities and Coupons appertaining thereto
as beneficiaries hereof with
respect to the property so deposited with the Trustee and payable to
all or any of them and (vi) the obligations of the Issuer under
Section 3.2) and the Trustee, on demand of the Issuer accompanied
by an Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have been complied with,
and at the
cost and expense of the Issuer, shall execute proper instruments
acknowledging such satisfaction and discharge of this Indenture;
provided that the rights of Holders of the
Securities and Coupons
to receive amounts in respect of principal of and interest on
the Securities and Coupons
held by them shall not be delayed longer than required by
then-applicable mandatory rules or policies of any national
securities exchange upon
which the Securities are listed.
The Issuer agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly
incurred and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture or the Securities.
(B) The following provisions shall apply to the Securities
of each series unless specifically otherwise provided in the Board
Resolution, Officers' Certificate or supplemental indenture relating
thereto provided
pursuant to Section 2.3. In addition to discharge of this Indenture
pursuant to the next preceding paragraph (A), in the case of any series of
Securities as to which the exact amount (including the currency of payment) of
principal of and interest due can be determined at
the time of making the deposit referred to in subparagraph (a) below,
the Issuer shall be deemed to
have paid and discharged the entire indebtedness on all the Securities of
such series and the Coupons appertaining thereto
on the 91st day after the date of such deposit,
and the provisions of this Indenture with
respect to the Securities of such series and Coupons appertaining
thereto shall no
longer be in effect (except as to (i) rights of registration of transfer
and exchange of Securities of such series and of Coupons appertaining
thereto and the Issuer's right of optional redemption, if any,
(ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities or Coupons,
(iii) the
rights of Holders of Securities of such series
and Coupons appertaining thereto
to receive
payments of principal thereof and interest thereon, upon the original
stated due dates therefor (but not upon acceleration), and remaining rights
of such Holders to receive mandatory sinking fund or analogous payments, if
any,
solely from the trust fund referred to in subparagraph (a) below,
(iv) the rights, obligations, duties and immunities of the Trustee
hereunder, (v) the rights of Holders of Securities of
such series and Coupons appertaining thereto
as beneficiaries hereof with respect to the
property so deposited with the Trustee and payable to all or any of them and
(vi) the obligations of the Issuer under Section 3.2), and the Trustee, at
the cost and
expense of the Issuer, shall, at the Issuer's request, execute proper
instruments acknowledging the same, if:
(a) the Issuer
shall have irrevocably deposited or caused to be irrevocably deposited
with the Trustee
as a trust fund
specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of the Securities of such
series and Coupons appertaining thereto (i) cash in an
amount, or (ii)
Government Obligations, maturing as to
principal and interest at such times and in such amounts as
will insure the availability of cash, or (iii) a combination
thereof, sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee,
to pay (A) the principal and interest on all Securities of
such series and Coupons appertaining thereto on each date
that such principal or interest is due and payable and (B) any
mandatory sinking fund or analogous payments on the dates on which such
payments are due and payable in accordance with the terms of
this Indenture and the Securities of such series;
(b) no Event of Default or event which, with notice or
lapse of time or both, would become an Event of Default with
respect to the Securities of such series shall have occurred
and be continuing on the date of such deposit or, insofar as
clauses (e) and (f) of Section 5.1 are concerned, at any time during
the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(c) such deposit shall not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement
or instrument to which the Issuer is a party
or by which it is bound;
(d) such deposit shall not cause any Securities of such
series then listed on any national securities exchange registered
under the Securities Exchange Act of 1934, as amended, to be delisted;
(e) the Issuer shall have delivered to the Trustee an
Opinion of
Counsel to the effect that
(i) if such deposits shall include Government Obligations in respect
of any government other than the United States of America,
such deposit shall not result in the Issuer, the
Trustee or such trust
constituting an
"investment company" under the Investment Company
Act of 1940, as amended, and (ii)
(x) the Issuer has received from, or there has been published
by, the Internal Revenue Service a ruling or (y) since the date
of this Indenture, there has been a change in the applicable Federal
income tax law, in either case to the effect that, and
such opinion shall confirm that, the
Holders of the Securities of such series then Outstanding and Coupons
appertaining thereto will not recognize income, gain or loss
for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal
income tax on the same amounts, in the same manner and at
the same times as would have been the case if such deposit,
defeasance and discharge had not occurred; and
(f) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the defeasance
contemplated by this paragraph have been complied with.
(C) The Issuer
shall be released from its obligations under Sections 3.5, 3.6 and 3.7
and Article Nine with respect to the Securities of a particular
series and any Coupons
appertaining thereto Outstanding on and
after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance").
Covenant defeasance means that, with respect to the Outstanding Securities
of such series,
the Issuer may omit to comply with and
shall have no liability in respect of any term, condition or
limitation set forth in Sections 3.5, 3.6 and 3.7 and Article Nine,
whether directly or
indirectly by reason of any reference elsewhere herein to any such
Section or Article by reason of any reference in such Section or Article
to any
other provision herein or by reason of any reference to any such Section or
Article
in any other document, and such omission
to comply shall not constitute an Event of Default under Section
5.1 with respect to the Outstanding Securities of such series,
but the remainder of this Indenture and other
Outstanding Securities and Coupons shall
be unaffected thereby. The following shall be the conditions to
application of this paragraph (C):
(a) the Issuer shall have irrevocably deposited or
caused to be irrevocably deposited with the Trustee as a trust fund
specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of the Securities of such
series and Coupons appertaining thereto,
(i) cash in an amount, or (ii) Government
Obligations, maturing as to principal and interest at such
times and in such amounts as will insure the availability of
cash, or (iii) a combination thereof, sufficient in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay (A)
the principal and interest on all
Securities of such series and Coupons appertaining thereto
on each date that such principal or interest is due and payable
and (B) any mandatory sinking fund or analogous payments on the dates on
which
such payments are due and payable in accordance with the terms
of this Indenture and the Securities of such series;
(b) no Event of Default or event which, with notice or
lapse of time or both, would become an Event of Default with
respect to the Securities of such series shall have occurred
and be continuing on the date of such deposit or, insofar as
clauses (e) and (f) of Section 5.1 are concerned, at any time during
the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(c) such covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the
Issuer is a party or by which it is bound;
(d) such covenant defeasance shall not cause any
Securities of such series then listed on any
national securities exchange registered under the Secuities Exchange
Act of 1934, as amended, to be delisted;
(e) the Issuer shall have delivered to the Trustee an
Opinion of Counsel to the effect
that (i) if such deposits shall include Government Obligations
in respect of any government other than the United States of
America,
such deposit shall not result in the Issuer, the Trustee
or such trust constituting an "investment
company" under the Investment Company Act of 1940, as amended,
and (ii)
the Holders of the Securities
of such series then Outstanding and Coupons appertaining thereto
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
(f) the Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to
such covenant defeasance have been
complied with.
SECTION 10.2 Application by Trustee of Funds
Deposited for Payment of Securities. Subject to Section 10.4,
all moneys deposited with the Trustee (or other trustee) pursuant
to Section 10.1 in respect of the Outstanding Securities of a particular
series and the Coupons appertaining thereto
shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including
the Issuer acting as its own paying agent), to the Holders of such
Securities and Coupons
of all sums due and to become
due thereon for principal and interest; but such money need not
be segregated from other funds except to the extent required by
law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this
Indenture with respect to the Securities of any series, all moneys
then held by any paying agent under the provisions of this
Indenture with respect to such series of Securities shall, upon
demand of the Issuer, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further
liability with respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years.
Any moneys
deposited with or paid to the Trustee or any paying agent
for the payment of the principal of or interest on any
Security of any series or Coupons appertaining thereto
and not applied but remaining unclaimed for two
years after the date upon which such principal or
interest shall have become due and payable, shall, upon
the written request of the Issuer and unless otherwise
required by mandatory provisions of applicable escheat
or abandoned or unclaimed property law, be repaid to the
Issuer by the Trustee or such paying agent,
and the Holder of the Securities of such series and of any Coupons
appertaining thereto shall, unless otherwise
required by mandatory provisions of applicable escheat
or abandoned or unclaimed property laws, thereafter look
only to the Issuer for any payment which such Holder may
be entitled to collect, and all liability of the Trustee
or any paying agent with respect to such moneys shall
thereupon cease; provided, however, that the Trustee or such
paying agent, before being required to make any such repayment with respect to
moneys deposited with it for any payment
(a) in respect of Registered Securities of any series, shall at the expense
of the Issuer, mail by first-class mail to Holders of such Securities
at their addresses as they shall appear on the Security Register for the
Securities of such series,
and (b)
in respect of Unregistered
Securities of any series, shall at the expense of the Issuer cause to be
published once, in an Authorized Newspaper in the Borough of Manhattan, The
City of New York,
notice that such moneys remain and that, after a date specified therein,
which shall not be less than 30 days from the date of such
mailing or publication,
any unclaimed balance of such moneys then remaining will be repaid to the
Issuer.
SECTION 10.5 Indemnity for Government
Obligations. The Issuer shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 10.1 or the principal or interest
received in respect of such Government
Obligations, other than any such tax, fee or
other charge which by law is for the account of the Holders of the
Securities and Coupons for whose benefit such Government Obligations are
held.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or
agreement contained in this Indenture, or in any
Security or Coupon, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, as such, or
against any past, present or future stockholder, officer
or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor,
under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by
any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the
acceptance of the Securities and the Coupons appertaining thereto
by the Holders thereof and
as part of the consideration for the issue of the
Securities and the Coupons appertaining thereto.
SECTION 11.2 Provisions of Indenture for the
Sole Benefit of Parties and Holders of Securities and Coupons. Nothing in
this Indenture, in the Securities or in the Coupons appertaining thereto,
expressed or
implied, shall give or be construed to give to any
person, firm or corporation, other than the parties hereto and their
successors
and the Holders of the Securities or Coupons, if any, any legal
or equitable right, remedy or claim
under this Indenture or under any covenant or
provision herein contained, all
such covenants and provisions being for the sole
benefit of the parties hereto
and their successors
and of the Holders of the Securities or Coupons, if any.
SECTION 11.3 Successors and Assigns of Issuer
Bound by Indenture. All the covenants,
stipulations, promises and agreements in this Indenture contained by or
on behalf of the Issuer shall bind its successors and assigns,
whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee
and Holders of Securities and Coupons. 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 any Holder of Securities
of any series or Coupons appertaining thereto
or upon the Issuer may be given or served by
being deposited postage prepaid in the United States mail, first-class
mail (except as otherwise specifically provided herein),
addressed (until another address of the Issuer is filed
by the Issuer with the Trustee) to Premark International, Inc.,
1717 Deerfield Road, Deerfield, Illinois 60015,
Attention: Corporate Secretary.
Any
notice, direction, request or demand by the Issuer
or any Holder of Securities of any series or Coupons appertaining thereto
to or upon the Trustee shall be deemed to have been sufficiently given
or served by being deposited postage prepaid in the United States mail,
first-class mail (except as otherwise specifically provided herein),
addressed (until another address of the Trustee is filed
by the Trustee with the Issuer) to The First National Bank of Chicago,
One First National Plaza, Suite 0126, Chicago, Illinois 60602,
Attention: The Corporate Trust Division. Any notice required or
permitted to be given
or served by the Issuer or by the Trustee to or upon (i) any Holders of
Registered Securities of any series or any Holders of Unregistered
Securities who have filed their names and addresses with the Trustee pursuant
to Section 4.4(c)(ii), may be given or served by being deposited in the
United States mail, first-class mail (except as otherwise specifically
provided herein), addressed
at their addresses as they shall appear on the Security
Register or at the addresses so filed, respectively, and (ii) any Holders
of other Unregistered Securities, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York.
In any case where notice to the
Holders of Securities is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice
may be waived in writing by the person entitled to
receive such notice, either before or after the event,
and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance
upon such waiver.
In case, by reason of the suspension of or
irregularities in regular mail service, it shall be
impracticable to mail notice to the Issuer
when such
notice is required to be given pursuant to any provision
of this Indenture, then any manner of giving such notice
as shall be reasonably
satisfactory to the Trustee shall be deemed
to be a sufficient giving of such notice.
SECTION 11.5 Officers' Certificates and Opinions of
Counsel; Statements to Be Contained Therein.
Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions
of this Indenture, the Issuer shall furnish to the
Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture
relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent have been
complied with, except that in the case of any such
application or demand as to which the furnishing of
such documents 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 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 (a) a statement that the
person making such certificate or opinion has read such
covenant or condition, (b) 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,
(c) 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 (d) a statement
as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
Any certificate, statement or opinion of an
officer of the Issuer may be based, insofar as
it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such
officer knows that the certificate or opinion or
representations with respect to the matters upon
which his certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise
of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to
factual matters, information with respect to which is
in the possession of the Issuer, upon the certificate,
statement or opinion of or representations by an
officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or
representations with respect to the matters upon which
his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an
officer of the Issuer or of counsel may be based,
insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an
accountant or firm of accountants in the employ of
the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion
or representations with respect to the accounting
matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that
the same are erroneous.
Any certificate or opinion of any independent
firm of public accountants filed with and directed to the Trustee
shall contain a statement that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and
Holidays. If the date of maturity of interest
on or principal of the Securities of any series
or any Coupons appertaining thereto
or the date
fixed for redemption or repayment of any such Security or Coupon
shall not be a
Business Day, then payment of interest or principal need
not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect
as if made on the date of maturity or the date fixed for
redemption or repayment, and no interest shall accrue for the period
after such date.
SECTION 11.7 Conflict of Any Provision of Indenture
with Trust Indenture Act of 1939. 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 to be included herein
by any of Sections 310 to 317, inclusive, of the Trust
Indenture Act of 1939, such required provision shall
control.
SECTION 11.8 New York Law to Govern. This
Indenture and each Security and Coupon
shall be deemed to be a
contract under the laws of the State of New York, and for
all purposes shall be construed in accordance with the
laws of such State, except as may otherwise be
required by
mandatory provisions of law.
SECTION 11.9 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.
SECTION 11.10 Effect of Headings. The Article
and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction
hereof.
SECTION 11.11 Securities in a Foreign Currency or in ECU.
Unless otherwise specified in a Board Resolution, a supplemental indenture
or an Officers' Certificate delivered pursuant to
Section 2.3 with respect to a particular series of
Securities, whenever for purposes of this Indenture any action may be taken
by the Holders of a specified percentage in aggregate principal amount of
Securities of one or more series
at the time Outstanding and, at such time, there
are Outstanding Securities of any series which are denominated in a
Foreign
Currency (including ECUs), then the
principal amount of Securities of such series which shall be deemed to be
Outstanding for the purpose of taking such action shall be the amount of
Dollars that could be obtained for such amount at the Market
Exchange Rate. For purposes of this Section, Market Exchange Rate
shall mean the noon Dollar buying rate in New York City for cable transfers
of such Foreign Currency as published by the Federal
Reserve Bank of New York; provided, however, that in the case
of ECUs, Market Exchange Rate shall mean the rate of exchange
determined by the Commission of the European Communities (or any
successor thereto) as published in the Official Journal of the
European Communities (such publication or any successor
publication, the "Journal"). If such Market Exchange Rate is not
available for any reason with respect to such Foreign Currency or ECUs, the
Trustee shall use, in its sole discretion and without liability
on its part, such quotation of the Federal Reserve Bank of New
York or, in the case of ECUs, the rate of exchange as published
in the Journal, as of the most recent available date, or
quotations or, in the case of ECUs, rates of exchange from one or
more major banks in The City of New York
or in the country of issue of
the Foreign Currency in question, which for purposes of the ECU shall be
Brussels, Belgium, or such other quotations or, in the case of
ECU, rates of exchange as the Trustee shall deem appropriate.
The provisions of this paragraph shall also apply in
connection with any other action taken by the Holders of Securities pursuant
to the terms of this Indenture, including without limitation
Section 5.1.
All decisions and determinations of the Trustee
regarding the Market Exchange Rate or any alternative determination
provided for in the preceding paragraph
shall be in its sole discretion
and shall, in the absence of manifest error, be conclusive to the extent
permitted by law
for all
purposes and irrevocably binding upon the Issuer and all Holders.
SECTION 11.12 Judgment Currency. The Issuer
agrees, to the fullest extent that it may effectively do so under
applicable law, that (a) if for the purpose of obtaining judgment
in any court it is necessary to convert the sum due in respect of
the principal of or interest on the Securities
of any series (the "Required Currency") into a currency in which a
judgment will be rendered (the "Judgment Currency"), the rate of
exchange used shall be the rate at which, in accordance with normal
banking procedures, the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a New York
Banking Day, in which case, to the extent permitted by applicable law,
the rate of exchange used shall be the rate at which, in accordance with
normal banking procedures, the Trustee could purchase in The City
of New York the Required Currency with the Judgment Currency on the
New York Banking Day next preceding the
day on which final unappealable judgment is entered
and (b) its obligations under this Indenture and the Securities of such
series to make payments in
the Required Currency (i) shall not be discharged or satisfied by
any tender, or any recovery pursuant to any judgment (whether or
not entered in accordance with clause (a)), in any currency
other than the Required Currency, except to the extent that such
tender or recovery shall result in the effective receipt by the
payee of the full amount of the Required Currency expressed to be
payable in respect of such payments, (ii) shall be enforceable as
an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which
such effective receipt shall fall short of the full amount of the
Required Currency so expressed to be payable and (iii) shall not
be affected by judgment being obtained for any other sums due under
this Indenture. For purposes of the foregoing, "New York Banking
Day" means any day except a Saturday, Sunday or a legal holiday in
The City of New York or a day on which banking institutions in The
City of New York are authorized or required by law or executive
order to close.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The
provisions of this Article shall be applicable to the Securities of any
series which are redeemable before their maturity or to any sinking
fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 2.3 for Securities of any
series.
SECTION 12.2 Notice of Redemption; Partial
Redemptions. Notice of redemption to the Holders of Registered
Securities of any series to be redeemed as a whole or in part
shall
be given by mailing notice of such redemption by first
class mail, postage prepaid, at least 30 days and not
more than 60 days prior to the date fixed for redemption,
to such Holders at their last addresses
as they shall appear upon the registry books for such Securities.
Notice of redemption to the Holders of Unregistered Securities of any
series to
be redeemed as a whole or in part, who have filed their names and
addresses with the Trustee pursuant to Section 4.4(c)(ii), shall be
given by mailing notice of such redemption by first class mail,
postage prepaid, at least 30 days and not more than 60 days
prior to the date fixed for redemption, to such Holders at such
addresses as were so furnished to the Trustee (and, in the case of
any such notice given by the Issuer, the Trustee shall make such
information available to the Issuer for such purpose). Notice of
redemption to all other Holders of Unregistered Securities
of any series shall be published in an Authorized Newspaper
in the Borough of
Manhattan, The City of New York,
in each case once in each of three successive
calendar weeks, the first publication to be not less than 30
days nor more than 60 days prior to the date fixed for redemption.
Any notice
which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether
or not the Holder receives the notice. Failure to give
notice by mail, or any defect in the notice to the Holder
of any Security of any series designated for redemption as a whole or
in part, shall not affect the validity of the proceedings
for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify
the principal amount of each Security of such series held by such Holder
to be redeemed, the date fixed for redemption, the
redemption price, the place or places of payment, that
payment will be made upon presentation and
surrender of such Securities and, in the case of Securities with
Coupons attached thereto, of all Coupons appertaining thereto
maturing after the date fixed for redemption,
that such redemption
is pursuant to the mandatory or optional sinking or other analogous fund,
or both, if such be the case, that interest
accrued to the date fixed for redemption will be paid as
specified in such notice and that on and after said date
interest thereon or on the portions thereof to be redeemed
will cease to accrue. In
case any Security 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
Security, a new Security or Securities of such series in authorized
denominations for an aggregate principal amount
equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed
at the option of the Issuer shall be given by the Issuer or,
at the Issuer's request, by the Trustee in the name and at
the expense of the Issuer.
On or before the redemption
date specified in the notice of redemption given as
provided in this Section, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the
Issuer is acting as its own paying agent, set aside,
segregate and hold in trust as provided in Section 3.4)
an amount of money sufficient to redeem on the redemption
date all the Securities of any series so called for redemption
at the applicable
redemption price, together with accrued interest to the
date fixed for redemption.
The Issuer will deliver to the Trustee at least 70 days
prior to the date fixed for redemption an Officers'
Certificate stating the aggregate principal amount of
Securities of each series to be redeemed.
In case of a redemption at the option of the Issuer prior to
the expiration of any restriction on such redemption, the Issuer
shall deliver to the Trustee, prior to the giving of any
notice of redemption to Holders pursuant to this Section, an Officers'
Certificate stating that such restriction has been complied with.
If less than all the Securities of any series are to be redeemed,
the Trustee shall select, in such manner as it shall deem
appropriate and fair, Securities of such Series to be redeemed in whole
or in part. Securities may be redeemed in part in
multiples equal to the minimum authorized denomination for Securities
of such series or any multiple thereof. The
Trustee shall promptly
notify the Issuer in writing of the Securities of such series selected
for redemption and, in the case of any Securities of such series selected
for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to
the redemption of Securities of any series shall relate, in the case of
any Security redeemed or to be redeemed only in part, to
the portion of the principal amount of such Security which
has been or is to be redeemed.
SECTION 12.3 Payment of Securities Called for
Redemption. If notice of redemption has been given
as provided in Section 12.2, the Securities or portions of Securities
specified in such notice shall become due and payable on
the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued
to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of
such Securities at the applicable redemption price, together with
interest accrued to said date) interest on the Securities
or portions of Securities so called for redemption shall
cease to accrue, the unmatured Coupons, if any, appertaining
thereto shall be void
and, except as provided in Sections 6.5
and 10.4, such Securities shall cease from
and after the date fixed for redemption
to be entitled to
any benefit or security under this Indenture, and the
Holders thereof shall have no right in respect of such
Securities except the right to receive the applicable redemption
price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such
Securities at a place of payment specified in said
notice, together with all Coupons, if any, appertaining thereto
maturing after the date fixed for redemption,
such Securities or the specified portions
thereof shall be paid and redeemed by the Issuer at the
applicable redemption price, together with interest
accrued thereon to the date fixed for redemption; provided
that payment of interest
becoming due on or prior to
the date fixed for redemption shall be
payable, in the case of Securities with Coupons attached thereto,
to the Holders of the Coupons for such interest upon surrender
thereof or, in the case of Registered Securities,
to the Holders of such Registered Securities registered as
such on the relevant Record Date, subject to the terms
and provisions of Sections 2.3 and 2.7.
If any Security called for redemption
shall not be so paid upon surrender thereof
for redemption, the principal shall, until
paid or duly provided for, bear interest
from the date fixed for redemption at the rate of interest or Yield to
Maturity (in the case of an Original Issue Discount Security)
borne by such Security.
If any Security with Coupons attached thereto is
surrendered for redemption and is not accompanied by all
appurtenant Coupons maturing after the date fixed for redemption,
the surrender of such missing Coupon or Coupons may be waived by
the Issuer and the Trustee, if there be furnished to each of them
such security or indemnity as they may require to save each of them
harmless.
Upon presentation of any Security redeemed in
part only, the Issuer shall execute and the Trustee shall
authenticate and deliver to or on the order of the Holder
thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal
amount equal to the unredeemed portion of the Security
so presented.
SECTION 12.4 Exclusion of Certain Securities
from Eligibility for Selection for Redemption. Securities
shall be excluded from eligibility for selection for redemption
if they are identified by registration
and certificate number in an Officers' Certificate
delivered to the Trustee at least 40 days prior to the
last date on which notice of redemption may be
given as being owned of record and beneficially
by, and not pledged or hypothecated by either (a) the Issuer or
(b) an entity specifically identified in such Officers'
Certificate as directly or indirectly controlling or controlled by
or under direct or indirect common control with the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the
terms of the Securities of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such
minimum amount provided for by the terms of the Securities of any series
is herein referred to as an "optional sinking fund payment".
The date on which
a sinking fund payment is to be made is herein referred
to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory
sinking fund payment with respect to any series of Securities
in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased
or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for
Securities of such series (not previously so credited) theretofore purchased
or otherwise acquired (except as aforesaid) by the Issuer
and delivered to the
Trustee for cancellation pursuant to Section 2.10, (b) receive credit
for optional sinking fund payments (not previously so
credited) made pursuant to this Section or (c) receive
credit for Securities of such series (not previously so credited) redeemed
by the Issuer through any optional redemption provision
contained in the terms of such series.
Securities so delivered or credited shall
be received or credited by the Trustee at the sinking fund
redemption price specified in such Securities.
On or before the 60th day next preceding each
sinking fund payment date for any series, the Issuer will deliver to the
Trustee an Officers' Certificate (which need not contain the
statements required by Section 11.5)
(a) specifying the portion of the
mandatory sinking fund payment due on such date to be satisfied by payment
of cash and the portion to be satisfied by credit of
Securities of such series and the basis for such credit,
(b) stating that none of the Securities
of such series to be so credited has
theretofore been so credited, (c) stating that no defaults
in the payment of interest or Events of Default with respect to
such series have occurred
(which have not been waived or cured) and are continuing
and (d) stating whether or not the Issuer intends to
exercise its right to make an optional sinking fund payment
on such date with respect to such series
and, if so, specifying the amount of such optional sinking
fund payment which the Issuer intends to pay on or before
the next succeeding sinking fund payment date. Any Securities of such
series to be so credited and required to be delivered to the Trustee in
order for the Issuer to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the
Trustee shall be delivered for cancellation pursuant to
Section 2.10 to the Trustee with such Officers' Certificate
(or reasonably promptly
thereafter if acceptable to the Trustee). Such Officers' Certificate
shall be
irrevocable, and upon its receipt by the Trustee the Issuer shall become
unconditionally obligated to make all the cash payments or other
deliveries therein
referred to, if any, on or before the next succeeding sinking fund payment
date.
Failure of the Issuer, on or before any such 60th day, to deliver such
Officers' Certificate
and Securities specified in this paragraph,
if any, shall not constitute a default but
shall constitute, on and as of such 60th day, the irrevocable election of the
Issuer that (i) the mandatory sinking fund payment for such
series due on the next succeeding sinking
fund payment date shall be paid entirely in cash without the option to deliver
or credit Securities of such series in respect thereof and (ii)
the Issuer will make no optional sinking fund payment with
respect to such series on such date as provided in this Section.
If the sinking fund payment or payments (mandatory or
optional or both) to be made in cash on the next succeeding sinking
fund payment date plus any unused balance of
any preceding sinking fund payments made in cash shall
exceed $50,000 (or the equivalent thereof in any Foreign Currency or ECU), or
any lesser sum in Dollars (or the equivalent thereof
in any Foreign Currency or ECU)
if the Issuer shall so
request with respect to the Securities of any particular series,
such cash shall be applied on the next succeeding sinking fund
payment date to the redemption of Securities of such series
at the applicable sinking fund redemption price, together with
accrued interest to the date fixed for redemption. If such amount shall be
$50,000
(or the equivalent thereof in any Foreign Currency or ECU)
or less and the Issuer makes no such request, then such amount shall be
carried over
until
a sum in excess of $50,000
(or the equivalent thereof in any Foreign Currency or ECU)
is available. The Trustee shall select, in the
manner provided in Section 12.2, for redemption on such
sinking fund payment date a sufficient
principal amount of Securities of such series to absorb said cash,
as nearly as may be, and
shall (if requested in writing by the Issuer) inform the Issuer of the serial
numbers of the Securities of such series (or portions thereof)
so selected. Securities shall be excluded from eligibility for redemption
under this Section if they are identified by registration and certificate
number in an Officers' Certificate delivered to the Trustee
at least 40 days prior to the
sinking
fund payment date as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Issuer or (b) an entity
specifically identified in such Officers' Certificate
as directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer. The Trustee, in the name and
at the expense of the Issuer (or the Issuer, if it shall so request
the Trustee in writing), shall cause notice of redemption of the
Securities of such series to be given in
substantially the manner provided in Section 12.2 (and with the effect
provided
in Section 12.3) for the redemption of Securities of such series
in part at the option of the
Issuer. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series
shall be added to the next cash sinking fund
payment for such series
and, together with such payment, shall be applied in accordance with the
provisions of this Section. Any and all sinking fund moneys held on the
stated maturity date of the Securities of a particular series
(or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series, shall be applied, together with
other moneys, if necessary, sufficient
for the purpose, to the payment of the principal of and interest on the
Securities of such series at maturity.
Unless otherwise provided for, on or before each sinking fund
payment date, the Issuer shall pay to the Trustee in cash
or shall otherwise provide for the payment of all interest
accrued to the date fixed for redemption on Securities to
be redeemed on such sinking fund payment
date.
The Trustee shall not redeem or cause to be redeemed
Securities of any series with sinking fund moneys or give any
notice of redemption of Securities of such series by operation of the
sinking fund for such series
during the continuance of a default in the payment
of interest on the Securities of such series or of any Event of Default
with respect to such series except that, if
notice of redemption of any Securities of such series
shall theretofore have been given, the
Trustee shall redeem or cause to be redeemed such Securities,
provided that the Trustee or one or more paying agents
shall have received from the Issuer a sum sufficient for such redemption.
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 the
sinking
fund, shall, during the continuance of such default or Event of Default, be
deemed to have been collected under Article Five and held for the payment of
all Securities of such series. In case such Event of Default shall
have been waived as provided
in Section 5.10 or the default cured on or before the 60th day preceding
any sinking fund payment date, such moneys shall thereafter be applied
on such sinking fund payment date in accordance with this
Section to the redemption of Securities of such series.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested,
all as of September 15, 1990.
PREMARK INTERNATIONAL, INC.
By /s/ David S. Simon
~~~~~~~~~~~~~~~~~~
Title: Vice President,
Treasury & Information
Systems
[CORPORATE SEAL]
Attest:
By /s/ Thomas R. Roehlk
~~~~~~~~~~~~~~~~~~~~
Title: Assistant Secretary
THE FIRST NATIONAL BANK
OF CHICAGO, AS TRUSTEE
By /s/ Larry Dillard
~~~~~~~~~~~~~~~~~
Title: Assistant Vice
President
[CORPORATE SEAL]
Attest:
By /s/ Barbara G. Grosse
~~~~~~~~~~~~~~~~~~~~~
Trust Officer
STATE OF ILLINOIS )
) ss.:
COUNTY OF LAKE )
On this 27th day of September, 1990 before me personally
came David S. Simon, to me personally known, who, being by me
duly sworn, did depose and say that he resides at Deerfield, Illinois,
that he is a Vice President, Treasury & Information Systems
of Premark International, Inc.,
one of the
corporations described in and which executed the above instrument; that
he knows the corporate seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
[NOTARIAL SEAL]
/s/ Peter J. Daane
~~~~~~~~~~~~~~~~~~
Notary Public
State of Illinois
My Commission Expires
Feb. 7, 1994
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On this 27th day of September, 1990 before me personally
came Larry Dillard, to me personally known, who, being by me
duly sworn, did depose and say that he resides at Glenwood, IL
that he is a Assistant Vice President of The First National Bank of Chicago,
one of the
corporations described in and which executed the above instrument; that
he knows the corporate seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
[NOTARIAL SEAL]
/s/ Eydie A. Wrobel
~~~~~~~~~~~~~~~~~~~
Notary Public
State of Illinois
My Commission Expires 9/29/92
PREMARK INTERNATIONAL, INC.
CHANGE OF CONTROL POLICY
FOR
DIRECTOR-LEVEL EMPLOYEES
1. Purpose: The Board of Directors (the "Board") of Premark
International, Inc. (the "Company"), has determined that it is in the best
interests of the Company and its shareholders to assure that the Company will
have the continued dedication of each director-level employee located at the
Company's corporate headquarters office ("Employee") notwithstanding the
possibility, threat or occurrence of a Change of Control (as defined below) of
the Company. The Board believes it is imperative to diminish the inevitable
distraction of Employees by virtue of the personal uncertainties and risks
created by a pending or threatened Change of Control and to encourage the full
attention and dedication of Employees to the Company currently and in the
event of any threatened or pending Change of Control, and to ensure Employees
of financial security in the event of a Change of Control. Therefore, in
order to accomplish these objectives, the Board has established this Policy,
effective November 5, 1986, and subsequently amended the Policy, effective
March 7, 1989 and November 6, 1996.
2. Definitions. The following definitions are applicable to
the Policy:
(a) The "Effective Date" shall be the first date on which a
Change of Control occurs. Anything in this Policy to the contrary
notwithstanding, if a Change of Control occurs and if the Employee's
employment with the Company is terminated or the Employee ceases to be a
director-level employee of the Company prior to the date on which the Change
of Control occurs, and if it is reasonably demonstrated by the Employee that
such termination of employment or cessation of status as a director-level
employee of the Company (i) was at the request of a third party who has taken
steps reasonably calculated to effect the Change of Control or (ii) otherwise
arose in connection with or anticipation of the Change of Control, then for
all purposes of this Policy the "Effective Date" shall mean the date
immediately prior to the date of such termination of employment or cessation
of status as a director-level employee of the Company.
(b) A "Change of Control" shall mean:
(i) The acquisition, other than from the Company, by any
individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of securities representing 20% or more of the
combined voting power of the Company's securities entitled to vote in the
election of directors; provided, however, that any acquisition by the Company
or any of its subsidiaries, or by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any of its subsidiaries, or any
merger or acquisition following which more than 60% of the combined voting
power of the securities of the resulting parent corporation is held by the
holders of the combined voting power of the Company's securities in
substantially the same proportion as their ownership immediately prior to such
transaction and the Incumbent Board still constitutes at least a majority of
the Board, shall not constitute a Change of Control; or
(ii) Individuals who, as of November 6, 1996, constitute
the Board (the "Incumbent Board") cease for any reason to constitute at least
a majority of the Board, provided that any individual becoming a director
subsequent to November 6, 1996, whose election, or nomination for election by
the Company's shareholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but excluding,
for this purpose, any such individual whose initial assumption of office is in
connection with an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or consents; or
(iii) Approval by the shareholders of the Company of (A) a
complete liquidation or dissolution of the Company, or (B) the sale or other
disposition of all or substantially all of the assets of the Company, or (C) a
reorganization, merger or consolidation of the Company, provided that such
transaction shall not constitute a Change of Control if, following such
transaction, the holders of the combined voting power of the Company's
securities own more than 60% of the combined voting power of the securities of
the corporation which acquires the assets in (B) above or the parent
corporation which results from the reorganization, merger or consolidation in
(C) above and the Incumbent Board still constitutes at least a majority of
such entities; or
(iv) The sale or other disposition, in response to a
pending or threatened Change of Control, of a majority of the voting stock or
all or substantially all of the assets of the corporations comprising the
decorative laminate business or the food equipment business, if the sales or
operating income of such business constituted at least 20% of the Company's
consolidated sales or operating income during the most recently completed
fiscal year; provided that, if such an event takes place, the Employee will
not have the right to terminate employment for any reason or for no reason
during the Window Period under Section 5(c) and receive the benefits set forth
in Section 6, but will have the right to terminate employment for Good Reason
under Section 5(c) and receive such benefits. The Board of Directors of the
Company shall determine, in its sole discretion, whether the sale or other
disposition of such businesses is in response to a pending or threatened
Change of Control. If the Board determines that such transaction is not in
response to a pending or threatened Change of Control, the Employee shall have
no right to the benefits set forth in this Policy; provided, however, that the
Board shall review the circumstances of such transaction, including
management's role in initiating the transaction, its effect on shareholder
value, and its effect on the Employee's responsibilities and terms of
employment, and shall determine, in its sole discretion, whether all or any
part of the benefits set forth in this Policy shall be awarded to the
Employee.
3. Employment Period. (a) The Company hereby agrees to
continue the Employee in its employ for the period commencing on the Effective
Date and ending on the second anniversary of such date (the "Employment
Period"). The Employee will be expected to remain in the employ of the
Company during the Employment Period.
(b) Nothing contained in this Policy shall impair or
interfere in any way with the right of the Employee to terminate the
Employee's employment or the right of the Company to terminate the employment
of the Employee with or without cause prior to the Effective Date. Nothing
contained in this Policy shall be construed as a contract of employment
between the Company and the Employee or as a right of the Employee to continue
in the employ of the Company, or as a limitation of the right of the Company
to discharge the Employee with or without cause prior to a Change of Control.
Moreover, if prior to the Effective Date, (i) the Employee's employment with
the Company terminates or (ii) the Employee ceases to be a director-level
employee of the Company located at the Company's headquarters office, then the
Employee shall have no further rights under this Policy.
4. Terms of Employment. (a) Position and Duties. (i) During
the Employment Period, (A) the Employee's position (including status, offices,
titles and reporting requirements), authority, duties and responsibilities
shall be at least commensurate in all material respects with the most
significant of those held, exercised and assigned at any time during the 90-
day period immediately preceding the Effective Date and (B) the Employee's
services shall be performed at the location where the Employee was employed
immediately preceding the Effective Date or
any office or location less than 35 miles from such location.
For purposes of Section 4(a)(i) (A) such position, authority,
duties and responsibilities shall be regarded as not commensurate if, as a
result of a Change of Control, (I) the Company becomes a direct or indirect
subsidiary of another corporation or becomes controlled, directly or
indirectly, by an unincorporated entity (such ultimate parent corporation or
unincorporated entity is hereinafter referred to as a "parent company"), or
(II) all or substantially all of the assets of the Company are acquired by
another corporation or corporations or unincorporated entity or entities owned
or controlled, directly or indirectly, by another corporation or
unincorporated entity (such ultimate parent corporation or unincorporated
entity is also hereinafter referred to as a "parent company"), unless, in each
case, (x) Section 12(b) of this Policy shall have been complied with by any
such parent company and (y) the Employee shall have assumed a position with
such parent company and the Employee's position, authority, duties and
responsibilities with such parent company are at least commensurate in all
material respects with the most significant of those held, exercised and
assigned with the Company at any time during the 90-day period immediately
preceding the Effective Date.
(ii) During the Employment Period, and excluding any
periods of vacation and sick leave to which the Employee is entitled, the
Employee will be expected to devote reasonable attention and time during
normal business hours to the business affairs of the Company and, to the
extent necessary to discharge the responsibilities assigned to the Employee
hereunder, to use the Employee's reasonable best efforts to perform faithfully
and efficiently such responsibilities. During the Employment Period it shall
not be a violation of this Policy for the Employee to (A) serve on corporate,
civic or charitable boards or committees, (B) deliver lectures, fulfill
speaking engagements or teach at educational institutions and (C) manage
personal investments, so long as such activities do not significantly
interfere with the performance of the Employee's responsibilities as an
employee of the Company in accordance with this Policy. It is expressly
understood and agreed that to the extent that any such activities have been
conducted by the Employee prior to the Effective Date, the continued conduct
of such activities (or the conduct of activities similar in nature and scope
thereto) subsequent to the Effective Date shall not thereafter be deemed to
interfere with the performance of the Employee's responsibilities to the
Company.
(b) Compensation. (i) Base Salary. During the Employment
Period, the Employee shall receive an annual base salary ("Annual Base
Salary"), which shall be paid at a monthly rate, at least equal to twelve
times the highest monthly base salary paid or payable to the Employee by the
Company in respect of the twelve-month period immediately preceding the month
in which the Effective Date occurs. During the Employment Period, the Annual
Base Salary shall be reviewed at least annually and shall be increased at any
time and from time to time as shall be substantially consistent with increases
in base salary generally awarded in the ordinary course of business to other
peer employees of the Company. Any increase in Annual Base Salary shall not
serve to limit or reduce any other obligation to the Employee under this
Policy. Annual Base Salary shall not be reduced after any such increase and
the term Annual Base Salary as utilized in this Policy shall refer to Annual
Base Salary as so increased.
(ii) Incentive Awards. In addition to Annual Base Salary,
the Employee shall be paid, for each fiscal year ending during the Employment
Period, an annual incentive award (the "Incentive Award") in cash at least
equal to the average annual incentive award paid or payable, including by
reason of any deferral, to the Employee by the Company in respect of the three
fiscal years immediately preceding the fiscal year in which the Effective Date
occurs (the "Recent Incentive Award"). In cases where the Employee received
or deferred a pro rata award because his or her participation was for less
than the full Incentive Award fiscal year, the Recent Incentive Award shall be
recalculated by increasing the awards for which a pro rata payment was
received or deferred to the level they would have been had the Employee
participated for the full fiscal year. The recalculation is solely for
purposes of defining the term Recent Incentive Award, and shall not entitle
the Employee to any increase in awards paid or payable prior to the Effective
Date. Each such Incentive Award shall be paid no later than the end of the
third month of the year next following the years for which the Incentive Award
is awarded, unless the Employee shall elect to defer the receipt of such
Incentive Award.
(iii) Profit Sharing, Thrift, Savings and Pension Plans.
In addition to Annual Base Salary and Incentive Award payable as hereinabove
provided, the Employee shall be entitled to participate during the Employment
Period in all profit sharing, thrift, savings, supplemental plans and pension
plans, practices, policies and programs generally applicable to other peer
employees of the Company, but in no event shall such plans, practices,
policies and programs provide the Employee with profit sharing opportunities
(measured with respect to both regular and special profit sharing
opportunities), thrift opportunities, savings opportunities and pension
benefits opportunities, in each case, less favorable, in the aggregate, than
the most favorable of those provided by the Company for the Employee under
such plans, practices, policies and programs as in effect at any time during
the 90-day period immediately preceding the Effective Date.
(iv) Welfare Benefit Plans. During the Employment Period,
the Employee and/or the Employee's family, as the case may be, shall be
eligible for participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs provided by the Company
(including, without limitation, medical, prescription, dental, disability,
salary continuance, employee life, group life, accidental death and travel
accident insurance plans and programs) to the extent generally applicable to
other peer employees of the Company, but in no event shall such plans,
practices, policies and programs provide benefits which are less favorable, in
the aggregate, than the most favorable of such plans, practices, policies and
programs in effect for the Employee at any time during the 90-day period
immediately preceding the Effective Date.
(v) Expenses. During the Employment Period, the Employee
shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by the Employee in accordance with the most favorable policies,
practices and procedures of the Company in effect for the Employee at any time
during the 90-day period immediately preceding the Effective Date or, if more
favorable to the Employee, as in effect at any time thereafter generally with
respect to other peer employees of the Company.
(vi) Perquisites. During the Employment Period, the
Employee shall be entitled to perquisites in accordance with the most
favorable plans, practices, programs and policies of the Company in effect for
the Employee at any time during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Employee, as in effect at any time
thereafter generally with respect to other peer employees of the Company.
(vii) Office and Support Staff. During the Employment
Period, the Employee shall be entitled to an office or offices of a size and
with furnishings and other appointments, and to secretarial and other
assistance, at least equal to the most favorable of the foregoing provided to
the Employee by the Company at any time during the 90-day period immediately
preceding the Effective Date or, if more favorable to the Employee, as
provided at any time thereafter generally with respect to other peer employees
of the Company.
(viii) Vacation. During the Employment Period, the
Employee shall be entitled to paid vacation in accordance with the most
favorable plans, policies, programs and practices of the Company as in effect
for the Employee at any time during the 90-day period immediately preceding
the Effective Date or, if more favorable to the Employee, as in effect at any
time thereafter generally with respect to other peer employees of the Company.
5. Termination of Employment. (a) Death or Disability. The
Employee's employment shall terminate automatically upon the Employee's death
during the Employment Period. If the Company determines in good faith that
the Disability of the Employee has occurred during the Employment Period
(pursuant to the definition of "Disability" set forth below), it may give to
the Employee written notice in accordance with Section 12(b) of this Policy of
its intention to terminate the Employee's employment. In such event, the
Employee's employment with the Company shall terminate effective on the 30th
day after receipt of such notice by the Employee (the "Disability Effective
Date"), provided that, within the 30 days after such receipt, the Employee
shall not have returned to full-time performance of the Employee's duties.
For purposes of this Policy, "Disability" means the absence of the Employee
from the Employee's duties with the Company on a substantially full-time basis
for 180 consecutive business days as a result of incapacity due to mental or
physical illness which is determined to be total and permanent by a physician
selected by the Company or its insurers and acceptable to the Employee or the
Employee's legal representative (such agreement as to acceptability not to be
withheld unreasonably).
(b) Cause. The Company may terminate the Employee's
employment during the Employment Period for Cause. For purposes of this
Policy, "Cause" shall mean:
(i) the willful and continued failure of the Employee to
perform substantially the Employee's duties with the Company (other than any
such failure resulting from incapacity due to physical or mental illness),
after a written demand for substantial performance is delivered to the
Employee by the Company which specifically identifies the manner in which the
Company believes that the Employee has not substantially performed the
Employee's duties, or
(ii) the willful engaging by the Employee in illegal
conduct or gross misconduct which is materially and demonstrably injurious to
the Company.
For purposes of this provision, no act or failure to act on the part of the
Employee shall be considered "willful" unless it is done, or omitted to be
done, by the Employee in bad faith or without reasonable belief that the
Employee's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution
duly adopted by the Board or upon the instructions of an officer of the
Company or based upon the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by the Employee in
good faith and in the best interests of the Company. The cessation of
employment of the Employee shall not be deemed to be for Cause unless and
until there shall have been delivered to the Employee a copy of a statement
signed by an officer of the Company (after reasonable notice is provided to
the Employee and the Employee is given an opportunity, together with counsel,
to be heard), finding that, in the good faith opinion of the Company, the
Employee is guilty of the conduct described in subparagraph (i) or (ii) above,
and specifying the particulars thereof in detail.
(c) Good Reason; Window Period. The Employee's employment
may be terminated (i) during the Employment Period by the Employee for Good
Reason or (ii) during the Window Period by the Employee for any reason or for
no reason (except as set forth in Section 2(d)(iv)). For purposes of this
Policy, the "Window Period" shall mean that 30-day period immediately
following the first anniversary of the Effective Date. For purposes of this
Policy, "Good Reason" shall mean:
(A) the assignment to the Employee of any duties
inconsistent in any respect with the Employee's position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 4(a) of this Policy, or any other
action by the Company which results in a diminution in such position,
authority, duties or responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Employee;
(B) any failure by the Company to comply with any of the
provisions of Section 4(b) of this Policy, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Employee;
(C) the Company's requiring the Employee to be based at any
office or location other than that described in Section 4(a)(i)(B) hereof;
(D) any purported termination by the Company of the
Employee's employment otherwise than as expressly permitted by this Policy; or
(E) any failure by the Company or any successor to comply
with and satisfy Section 11(c) of this Policy, provided that such successor
has received at least ten days prior written notice from the Company or the
Employee of the requirements of Section 11(c) of this Policy.
For purposes of this Section 5(c), any good faith determination of "Good
Reason" made by the Employee shall be conclusive.
(d) Notice of Termination. Any termination by the Company
for Cause, or by the Employee during the Window Period or for Good Reason,
shall be communicated by Notice of Termination to the other party hereto given
in accordance with Section 12(b) of this Policy. For purposes of this Policy,
a "Notice of Termination" shall mean a written notice which (i) indicates the
specific termination provision in this Policy relied upon, (ii) to the extent
applicable, sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Employee's employment under
the provision so indicated and (iii) if the Date of Termination (as defined
below) is other than the date of receipt of such notice, specifies the
termination date (which date shall be not more than fifteen days after the
giving of such notice). The failure by the Employee or the Company to set
forth in the Notice of Termination any fact or circumstance which contributes
to a showing of Good Reason or Cause, as the case may be, shall not waive any
right of the Employee or the Company hereunder or preclude the Employee or the
Company from asserting such fact or circumstance in enforcing the Employee's
or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" shall mean
(i) if the Employee's employment is terminated by the Company for Cause, or by
the Employee during the Window Period or for Good Reason, the date of receipt
of the Notice of Termination or any later date specified therein, as the case
may be, (ii) if the Employee's employment is terminated by the Company other
than for Cause, Disability or death, the Date of Termination shall be the date
on which the Company notifies the Employee of such termination, and (iii) if
the Employee's employment is terminated by reason of death or Disability, the
Date of Termination shall be the date of death of the Employee or the
Disability Effective Date, as the case may be.
6. Obligations of the Company upon Termination. (a) Good
Reason or during the Window Period; Other than for Cause or Disability. If,
during the Employment Period, the Company shall terminate the Employee's
employment other than for Cause or Disability or the Employee shall terminate
employment either for Good Reason or for any reason or for no reason during
the Window Period, the Company shall have the following obligations:
(i) The Company shall pay to the Employee in a lump sum in
cash within 30 days after the Date of Termination the aggregate of the
following amounts:
(A) the amount equal to the product of (x) two and (y) the
sum of the Employee's Annual Base Salary and the greater of (i)
the Employee's Recent Incentive Award and (ii) the Incentive Award
paid or payable, including by reason of any deferral, to the
Employee for the most recently completed fiscal year ("Most Recent
Incentive Award"). In cases where the Employee received or
deferred a pro rata award because his or her participation was for
less than the full Incentive Award fiscal year, the Most Recent
Incentive Award shall be recalculated by increasing the award for
which a pro rata payment was received or deferred to the level it
would have been had the Employee participated for the full fiscal
year. The recalculation is solely for purposes of defining the
term Most Recent Incentive Award. Such amount shall be paid in
lieu of, and the Employee hereby waives the right to receive, any
other amount of severance relating to salary or bonus continuation
to be received by the Employee upon such termination of employment
under any severance plan, policy or arrangement of the Company;
and
(B) the amount equal to the product of (x) the maximum
Incentive Award that would have applied to the Employee under the
applicable incentive plans of the Company and the policies and
procedures thereunder for the fiscal year of the Company in which
the Date of Termination occurs, and (y) a fraction, the numerator
of which is the number of days in the current fiscal year through
the Date of Termination, and the denominator of which is 365; and
(C) the amount of the Employee's Annual Base Salary through
the Date of Termination to the extent not theretofore paid and the
amount of any compensation previously deferred by the Employee
(together with any accrued interest thereon) and not yet paid by
the Company and any accrued vacation pay of the Employee not yet
paid by the Company.
For purposes of this Policy, the aggregate of the amounts described in clauses
(A), (B) and (C) of this Section 6(a) shall hereafter be referred to as the
"Special Termination Amount".
(ii) For the remainder of the Employment Period, or such
longer period as any plan, program, practice or policy may provide, the
Company shall continue benefits to the Employee and, where applicable, the
Employee's family at least equal to those which would have been provided to
them in accordance with the plans, programs, practices and policies described
in Section 4(b)(iv) of this Policy if the Employee's employment had not been
terminated, in accordance with the most favorable plans, practices, programs
or policies of the Company generally applicable to other peer employees and
their families during the 90-day period immediately preceding the Effective
Date or, if more favorable to the Employee, as in effect at any time
thereafter generally with respect to other peer employees of the Company their
families (for purposes of determining eligibility of the Employee for retiree
benefits pursuant to such plans, practices, programs and policies, the
Employee shall be considered to have remained employed until the end of the
Employment Period and to have retired on the last day of such period);
provided, however, that with respect to medical benefits, the Company shall
continue, for the lifetime of the Employee, medical benefits for the Employee
and the Employee's family no less favorable than the medical benefits provided
to the Employee under the Premark International, Inc. health care plans (or
any successor plans thereto) during the 90-day period immediately preceding
the Effective Date or, if more favorable to the Employee, as in effect at any
time thereafter generally with respect to any other peer employees of the
Company and their families; and, provided, further, that, in the event the
Employee becomes reemployed with another employer and is eligible to receive
medical or other welfare benefits under any employer provided plan, the
medical and other welfare benefits described herein shall not be provided by
the Company during such applicable period of eligibility, but shall resume if
such period of eligibility shall terminate.
(iii) To the extent not theretofore paid or provided, the
Company shall timely pay or provide to the Employee any other amounts or
benefits required to be paid or provided or which the Employee is eligible to
receive under any plan, program, policy or practice or contract or agreement
of the Company and its affiliated companies (such other amounts and benefits
shall be hereinafter referred to as the "Other Benefits").
(b) Death. If the Employee's employment is terminated by
reason of the Employee's death during the Employment Period, the Company shall
have no further obligations to the Employee's legal representatives under this
Policy, other than the payment by the Company of the Special Termination
Amount, provided however, that the amount of such payment determined under
Section 6(a)(i)(A) shall be adjusted as follows. The amount set forth in
clause (A) shall be offset in all cases by the basic Company life insurance
benefit paid or payable in respect of the Employee's death and, in addition,
if the death occurs after the one year anniversary following the Change of
Control, it shall be offset by the amount of any salary payments made to the
Employee for any periods of employment following the Change of Control. The
adjusted Special Termination Amount shall be paid to the Employee's estate or
beneficiary, as applicable, in a lump sum in cash within 30 days of the Date
of Termination. Anything in this Policy to the contrary notwithstanding, the
Employee's family shall be entitled to receive benefits at least equal to the
most favorable benefits provided generally by the Company to surviving
families of peer employees of the Company under such plans, programs,
practices and policies relating to family death benefits, if any, as in effect
generally with respect to other peer employees and their families at any time
during the 90-day period immediately preceding the Effective Date or, if more
favorable to the Employee and/or the Employee's family, as in effect on the
date of the Employee's death generally with respect to other peer employees of
the Company and their families.
(c) Disability. If the Employee's employment is terminated
by reason of the Employee's Disability during the Employment Period, the
Company shall have no further obligations to the Employee under this Policy,
other than the payment by the Company of the Special Termination Amount. The
Special Termination Amount shall be paid to the Employee in a lump sum in cash
within 30 days of the Date of Termination. Anything in this Policy to the
contrary notwithstanding, the Employee shall be entitled after the Disability
effective date to receive disability and other benefits at least equal to the
most favorable of those generally provided by the Company to disabled
employees and/or their families in accordance with such plans, programs,
practices and policies relating to disability, if any, as in effect generally
with respect to other peer employees and their families at any time during the
90-day period immediately preceding the Effective Date or, if more favorable
to the Employee and/or the Employee's family, as in effect at any time
thereafter through the Date of Termination generally with respect to other
peer employees of the Company and their families.
(d) Cause; Other than for Good Reason or during the Window
Period. If the Employee's employment shall be terminated for Cause during the
Employment Period, the Company shall have no further obligations to the
Employee under this Policy, other than the obligation to pay to the Employee
Annual Base Salary through the Date of Termination plus the amount of any
compensation previously deferred by the Employee, in each case to the extent
theretofore unpaid. If the Employee terminates employment during the
Employment Period, excluding a termination either for Good Reason or for any
reason or for no reason during the Window Period, the Company shall have no
further obligations to the Employee under this Policy, other than for the
following obligations: (i) payment of the Employee's Annual Base Salary
through the Date of Termination to the extent not theretofore paid, (ii)
payment of the product of (x) the greater of the Recent Incentive Award and
the Most Recent Incentive Award and (y) a fraction, the numerator of which is
the number of days in the current fiscal year through the Date of Termination,
and the denominator of which is 365 and (iii) payment of any compensation
previously deferred by the Employee (together with any accrued interest
thereon) and not yet paid by the Company and any accrued vacation pay of the
Employee not yet paid by the Company (the amounts described in paragraphs (i),
(ii) and (iii) shall be paid to the Employee in a lump sum in cash within 30
days of the Date of Termination).
7. Non-exclusivity. Except as explicitly modified or otherwise
explicitly provided by this Policy, (i) nothing in this Policy shall prevent
or limit the Employee's continuing or future participation in any benefit,
bonus, incentive or other plans, programs, policies or practices provided by
the Company and for which the Employee may qualify, nor shall anything herein
limit or otherwise affect such rights as the Employee may have under any
agreements with the Company and (ii) amounts which are vested benefits or
which the Employee is otherwise entitled to receive under any plan, policy,
practice or program of the Company at or subsequent to the Date of Termination
shall be payable in accordance with such plan, policy, practice or program
except as explicitly modified by this Policy.
8. Full Settlement. The Company's obligation to make the
payments provided for in this Policy and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Employee or others. In no event shall the Employee be obligated to seek other
employment or take any other action by way of mitigation of the amounts
payable to the Employee under any of the provisions of this Policy and, except
as provided in Section 6(a)(ii) of this Policy, such amounts shall not be
reduced whether or not the Employee obtains other employment. With the
exception of any disputes regarding determinations made by the Board of
Directors of the Company under Section 2(d)(iv) of this Policy, the Company
agrees to pay, to the full extent permitted by law, all legal fees and
expenses which the Employee may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Company, the Employee or others of
the validity or enforceability of, or liability under, any provision of this
Policy or any guarantee of performance thereof (including as a result of any
contest by the Employee about the amount of any payment pursuant to this
Policy), plus in each case interest on any delayed payment at the applicable
Federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue
Code of 1986, as amended (the "Code").
9. Certain Additional Payments by the Company. (a)
Anything in this Policy to the contrary notwithstanding, in the event it shall
be determined that as a result, directly or indirectly, of any payment or
distribution by the Company to or for the benefit of the Employee, whether
paid or payable or distributed or distributable pursuant to the terms of this
Policy or otherwise (a "Payment"), the Employee would be subject to the excise
tax imposed by Section 4999 of the Code or any interest or penalties are
incurred by the Employee with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then the Employee shall be entitled to
promptly receive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by the Employee of all taxes (including any interest
or penalties imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest and penalties imposed with
respect thereto) and Excise Tax imposed upon the Gross-Up Payment, but
excluding any income taxes on the Payment, the Employee is in the same after-
tax position as if no Excise Tax had been imposed upon the Employee.
(b) Subject to the provisions of Section 9(c), all
determinations required to be made under this Section 9, including whether or
when a Gross-Up Payment is required and the amount of such Gross-Up Payment
and the assumptions to be utilized in arriving at such determinations, shall
be made by the Company's public accounting firm (the "Accounting Firm"). All
fees and expenses of the Accounting Firm shall be borne solely by the Company.
Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid
to the Employee within five days of the receipt of the Accounting Firm's
determination.
(c) The Employee shall notify the Company as soon as
possible in writing of any claim by the Internal Revenue Service that, if
successful, would require the payment by the Company of the Gross-Up Payment.
If the Company notifies the Employee in writing within 30 days that it desires
to contest such claim, the Employee shall cooperate with the Company in good
faith in order effectively to contest such claim.
The Company shall control all proceedings taken in connection with such
contest; provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Employee
harmless, on an after-tax basis, for any Excise Tax or income tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses and advances; and further
provided that any extension of the statute of limitations is limited solely to
such contested amount; and the Company's control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and the Employee shall be entitled to settle or contest, as the case
may be, any other issue raised by the Internal Revenue Service or any other
taxing authority.
10. Confidential Information. The Employee shall hold in a
fiduciary capacity for the benefit of the Company all secret or confidential
information, knowledge or data relating to the Company or any of its
affiliated companies, and their respective businesses, which shall have been
obtained by the Employee during the Employee's employment by the Company or
any of its affiliated companies and which shall not be or become public
knowledge (other than by acts by the Employee or representatives of the
Employee in violation of this Policy). After termination of the Employee's
employment with the Company, the Employee shall not, without prior written
consent of the Company or as may otherwise be required by law or legal
process, communicate or divulge any such information, knowledge or data to
anyone other than the Company and those designated by it. In no event shall
an asserted violation of the provisions of this Section 10 constitute a basis
for deferring or withholding any amounts otherwise payable to the Employee
under this Policy.
11. Successors. (a) The rights under this Policy shall not be
assignable by the Employee without the prior written consent of the Company
otherwise than by will or the laws of descent and distribution. The rights
under this Policy shall inure to the benefit of and be enforceable by the
Employee's legal representatives.
(b) The rights under this Policy shall inure to the benefit
of and be binding upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Policy in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Policy, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Policy by operation of law,
or otherwise.
12. Miscellaneous. (a) This Policy shall be governed by and
construed in accordance with the laws of the State of Illinois, without
reference to principles of conflict of laws. The captions of this Policy are
not part of the provisions hereof and shall have no force or effect.
(b) All notices and other communications under this Policy
shall be in writing and shall be given by hand delivery to the other party or
by registered or certified mail, return receipt requested, postage prepaid,
addressed, in the case of the Employee, to the Employee's last known address
on file with the Company, and in the case of the Company, to Premark
International, Inc., 1717 Deerfield Road, Deerfield, IL 60015, Attention:
General Counsel, or to such other address as either the Employee or the
Company shall have furnished to the other in writing. Notice and
communications shall be effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of
this Policy shall not affect the validity or enforceability of any other
provision of this Policy.
(d) The Company may withhold from any amounts payable under
this Policy such Federal, state or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) Failure to insist upon strict compliance with any
provision of this Policy shall not be deemed to be a waiver of such provision
or any other provision of this Policy.
(f) The Board shall have the power at any time, in its
discretion to amend, abandon or terminate the Policy, in whole or in part,
except that the Policy may not be modified by the Company or its successor in
any manner which would reduce the amount or timing of benefits payable
hereunder:
(i) at the request of a third party who has taken steps
reasonably calculated to effect the Change of Control,
(ii) in connection with or in anticipation of the Change of
Control, or
(iii) after the Change of Control.
(g) The Policy shall be administered under the direction of
the Compensation and Directors Committee of the Board. A majority of the
Committee shall constitute a quorum, and the acts of a majority of the members
present at any meeting at which a quorum is present, or acts approved in
writing by a majority of the Committee without a meeting, shall be the acts of
the Committee.
(h) The Policy shall be unfunded. None of the Company, any
affiliated company, or the Board shall be required to segregate assets that
may at any time be represented by benefits under the Policy, except as may be
required by applicable law. None of the Company, any affiliated company, or
the Board shall be deemed to be a trustee of any amounts to be paid under the
Policy. The liability of the Company or any affiliated company to any
Employee with respect to any benefit shall be based solely upon the
contractual obligations created by the Policy. No such obligation shall be
deemed to be secured by any pledge or any encumbrance on any property of the
Company.
EXHIBIT 11
PREMARK INTERNATIONAL, INC.
STATEMENT OF COMPUTATION OF PER SHARE EARNINGS
1996 1995 1994
(Dollars in millions, shares in thousands) -------- -------- --------
Earnings
Income from continuing operations $ 56.7 $ 78.9 $ 70.8
Income from discontinued operations 62.2 177.0 154.7
-------- -------- --------
Income from operations 118.9 255.9 225.5
Costs to effect the
business discontinuance - (18.3) -
-------- -------- --------
Net income $ 118.9 $ 237.6 $ 225.5
======== ======== ========
PRIMARY METHOD
Shares
Cumulative average outstanding shares 62,015 61,526 63,637
Common equivalent shares 2,992 2,304 2,891
-------- -------- --------
Weighted average number of common
shares and common equivalent
shares outstanding 65,007 63,830 66,528
======== ======== ========
Primary earnings per share:
Income from continuing operations $ 0.87 $ 1.24 $ 1.06
Income from discontinued operations 0.96 2.77 2.33
-------- -------- --------
Income from operations 1.83 4.01 3.39
Costs to effect the
business discontinuance - (0.29) -
-------- -------- --------
Net income $ 1.83 $ 3.72 $ 3.39
======== ======== ========
FULLY DILUTED METHOD
Shares
Cumulative average outstanding shares 62,015 61,526 63,637
Common equivalent shares 3,058 2,331 2,928
-------- -------- --------
Weighted average number of common
shares and common equivalent
shares outstanding 65,073 63,857 66,565
======== ======== ========
Fully diluted earnings per share:
Income from continuing operations $ 0.87 $ 1.24 $ 1.06
Income from discontinued operations 0.96 2.77 2.33
-------- -------- --------
Income from operations $ 1.83 $ 4.01 $ 3.39
Costs to effect the
business discontinuance - (0.29) -
-------- -------- --------
Net income $ 1.83 $ 3.72 $ 3.39
======== ======== ========
Group-Wide Companies Listing Place of Incorporation
as of Monday, March 10, 1997
Company Name Place of Incorporation
Adamatic, A Corporation New Jersey
Compagnie Hobart S.A. France
Corporacion Coral, S.A. de C.V. Mexico
Equipment Technique Service S.A.R.L. France
Florida Tile Industries, Inc. Florida
Foster Refrigerator (U.K.) Limited United Kingdom
Foster Refrigerator France S.A. France
Foster Refrigerator U.K. Management
Services United Kingdom
FTI Factors, Inc. Delaware
Hobart (Japan) K.K. Japan
Hobart (Swiss) A.G. Switzerland
Hobart Andina S.A. Columbia
Hobart Argentina S.A. Argentina
Hobart Corporation Delaware
Hobart Dayton Mexicana, S.A. de C.V. Mexico
Hobart do Brasil Ltda. Brazil
Hobart Equipment Leasing Limited United Kingdom
Hobart Food Equipment (Tianjin) Co., Ltd. China
Hobart Food Equipment Pty Ltd. Australia
Hobart Foster Belgium N.V. Belgium
Hobart Foster Danmark A/S Denmark
Hobart Foster Holland B.V. Netherlands
Hobart Foster Sverige AB Sweden
Hobart Foster Techniek B.V. Netherlands
Hobart Foster, Norge A/S Norway
Hobart GmbH Germany
Hobart Holdings, Inc. Delaware
Hobart International, Inc. Delaware
Hobart Korea Co. Ltd. Korea
Hobart Manufacturing Company Limited, The United Kingdom
Hobart Manufacturing Company Pty Ltd., The Australia
Hobart Sales & Service, Inc. Ohio
Hopital Services Systemes S.A. France
Inox Equipment S.A. France
PMI Food Equipment (Hong Kong) Limited Hong Kong
PMI Food Equipment Group (Malaysia), Inc. Delaware
PMI Food Equipment Group Europe S.A. France
PMI Food Equipment Group France S.A. France
Precor Incorporated Delaware
Precor Products Limited United Kingdom
Precor Sportgerate GmbH Germany
Premark Canada Inc. Canada
Premark Export Sales, Ltd. Barbados
Premark FEG Beteiligingsgesellschaft MbH Germany
Premark FEG GmbH & Co. KG Germany
Premark FEG L.L.C. Delaware
Premark FT Holdings, Inc. Delaware
Premark HII Holdings, Inc. Ohio
Premark RWP Holdings, Inc. Delaware
Premark Services, Inc. Delaware
Premark WB Holdings, Inc. Delaware
Quality Food Equipment (PTY) Ltd South Africa
Tasselli Industria Frigoriferi SpA Italy
TIF Holdings, Inc. Delaware
Wavebest Limited United Kingdom
West Bend Company, The Delaware
West Bend de Mexico, S.A. de C.V. Mexico
Wilsonart Germany GmbH Germany
Wilsonart International Holdings, Inc. Delaware
Wilsonart International, Inc. Delaware
Wilsonart Korea Ltd. Korea
Wilsonart Limited U.K. United Kingdom
Wilsonart Singapore Pte. Ltd. Singapore
Wolf Range L.L.C. Delaware
Exhibit 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 (No. 33-53561), the Registration Statement on Form S-8
(No. 33-51021) and the Prospectus constituting part of the Registration
Statement on Form S-3 (No. 33-35137) of Premark International, Inc. of our
report dated February 14, 1997 appearing on page 35 of this Form 10-K.
Price Waterhouse LLP
Chicago, Illinois
March 20, 1997
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
director of Premark International, Inc., a Delaware corporation,
(the "Corporation"), hereby constitutes and appoints John M.
Costigan, L. John Fletcher and Gregory J. Mancuso, and each of
them, true and lawful attorneys-in-fact and agents of the
undersigned, with full power of substitution and resubstitution,
for and in the name, place and stead of the undersigned, in any
and all capacities, to sign the Annual Report on Form 10-K of the
Corporation for its fiscal year ended December 28, 1996, and any
and all amendments thereto, and to file or cause to be filed the
same, together with any and all exhibits thereto and other
documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and
agents and substitutes, and each of them, full power and
authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises as
fully to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents and substitutes, and each of them,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set
his or her hand and seal this 6th day of March, 1997.
Warren L. Batts
William O. Bourke
Harry W. Bowman
Ruth M. Davis
Lloyd C. Elam
W. James Farrell
Richard S. Friedland
Joseph E. Luecke
John B. McKinnon
David R. Parker
Janice D. Stoney
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM PREMARK
INTERNATIONAL, INC.'S 1996 FINANCIAL STATEMENTS AS FILED IN ITS ANNUAL REPORT ON
FORM 10-K AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-28-1996
<PERIOD-START> DEC-31-1995
<PERIOD-END> DEC-28-1996
<CASH> 130,200
<SECURITIES> 84,300
<RECEIVABLES> 402,800
<ALLOWANCES> 18,400
<INVENTORY> 333,100
<CURRENT-ASSETS> 1,054,000
<PP&E> 940,900
<DEPRECIATION> 524,500
<TOTAL-ASSETS> 1,660,800
<CURRENT-LIABILITIES> 459,600
<BONDS> 115,900
0
0
<COMMON> 69,000
<OTHER-SE> 806,900
<TOTAL-LIABILITY-AND-EQUITY> 1,660,800
<SALES> 2,267,600
<TOTAL-REVENUES> 2,267,600
<CGS> 1,443,800
<TOTAL-COSTS> 1,443,800
<OTHER-EXPENSES> (1,700)
<LOSS-PROVISION> 5,500
<INTEREST-EXPENSE> 16,300
<INCOME-PRETAX> 112,900
<INCOME-TAX> 56,200
<INCOME-CONTINUING> 56,700
<DISCONTINUED> 62,200
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 118,900
<EPS-PRIMARY> 1.83
<EPS-DILUTED> 0
</TABLE>
