<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 12, 1996
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
EXIDE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------------
DELAWARE 23-0552730
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1400 NORTH WOODWARD AVENUE
BLOOMFIELD HILLS, MICHIGAN 48304 (810) 258-0080
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
BERNARD F. STEWART
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
EXIDE CORPORATION
1400 NORTH WOODWARD AVENUE
BLOOMFIELD HILLS, MICHIGAN 48304 (810) 258-0080
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
CARTER W. EMERSON
KIRKLAND & ELLIS
200 EAST RANDOLPH DRIVE
CHICAGO, ILLINOIS 60601 (312) 861-2000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend reinvestment plans, please check the following box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) PRICE PER SHARE (2) PRICE (2) FEE
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<S> <C> <C> <C> <C>
Common Stock, $.01 par
value................. 4,992,571 shares $30.06 $150,076,684.30 $51,750.58
</TABLE>
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(1) This amount represents the aggregate number of shares issuable upon
conversion of the Registrant's outstanding 2.90% Convertible Senior
Subordinated Notes due 2005.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee, based upon the average of the high and low sales price
of the Common Stock on the New York Stock Exchange as reported in the
consolidated reporting system as of February 9, 1996.
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
4,992,571 SHARES
EXIDE CORPORATION
COMMON STOCK
($.01 PAR VALUE)
This Prospectus covers the sale from time to time by certain stockholders
(the "Selling Stockholders") of 4,992,571 shares (the "Shares") of Common
Stock, $.01 par value, of Exide Corporation (the "Company" or "Exide") which
are issuable upon conversion of the Company's outstanding 2.90% Convertible
Senior Subordinated Notes due 2005 (the "Notes"). See "Selling Stockholders."
The Company will not receive any proceeds from the sale of the Shares.
The Shares or any part of the Shares may be sold from time to time by any of
the Selling Stockholders or by donees or transferees in privately negotiated
transactions, on the New York Stock Exchange ("NYSE") or such other exchange
upon which the Common Stock of the Company trades, through underwriters in one
or more underwritten offerings or through brokers, dealers or agents, who may
receive compensation in the form of underwriting discounts, concessions or
commissions from the Selling Stockholders or the purchasers of Shares for whom
they may act as agent (which discounts and commissions are not anticipated to
exceed those customary in the types of transactions involved), or any
combination thereof. The Shares may be sold in amounts (which may involve one
or more block transactions) and on terms to be determined at the time of sale.
The Selling Stockholders reserve the sole right to accept and, together with
any agent of the Selling Stockholders, to reject in whole or in part any
proposed purchase of the Shares. Any broker or dealer participating in any such
sale may be deemed to be an "underwriter" within the meaning of the Securities
Act of 1933, as amended (the "Securities Act") and if so will be required to
deliver a copy of this Prospectus to any person who purchases any of the Shares
from or through such broker or dealer. To the extent required, the Company will
prepare and file with the Commission a post-effective amendment to the
Registration Statement or a supplement to this Prospectus. See "Plan of
Distribution."
The Company has agreed to pay the cost of the registration of the Shares and
the preparation of this Prospectus and the Registration Statement under which
this Prospectus is filed.
The Common Stock of the Company is listed on the NYSE under the symbol EX. On
February 9, 1996, the last reported sales price of the Common Stock on the NYSE
was $30 per share.
----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NORHAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
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The date of this Prospectus is , 1996
<PAGE>
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (together with all
amendments and exhibits, the "Registration Statement") under the Securities
Act covering the sale of the Shares by the Selling Stockholders from time to
time. This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information,
reference is hereby made to the Registration Statement. Statements contained
herein concerning the provisions of any documents are not necessarily complete
and, in each instance, reference is made to the copy of such document filed as
an exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such
reference.
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Commission. Such
reports and other information filed by the Company pursuant to the Exchange
Act, may be inspected and copied (at prescribed rates) at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Regional Offices of the Commission at 75
Park Place, New York, New York 10007 and at Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. In addition, reports, proxy
statements and other information may be inspected at the offices of the NYSE,
20 Broad Street, New York, New York 10005, upon which the Common Stock of the
Company is traded.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission (File No. 1-11263) are
incorporated herein by reference:
(i) the Company's Annual Report on Form 10-K for the fiscal year ended
March 31, 1995;
(ii) the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended October 1, 1995 filed on November 15, 1995, the Company's Quarterly
Report on Form 10-Q for the fiscal quarter ended July 2, 1995 filed on
August 16, 1995, as amended by the Company's Quarterly Report on Form 10-
Q/A filed on September 27, 1995, the Company's Current Report on Form 8-K
filed on November 22, 1995, the Company's Current Report on Form 8-K filed
on September 29, 1995, the Company's Current Report on Form 8-K filed on
September 8, 1995, the Company's Current Report on Form 8-K filed on August
29, 1995 and the Company's Current Report on Form 8-K filed on June 2,
1995, as amended by the Company's Current Report on Form 8-K/A filed on
July 31, 1995; and
(iii) the description of the Common Stock contained in the Company's
Registration Statement on Form S-1 (File No. 33-56581) filed on November
23, 1994.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Shares made hereby shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent
that a statement contained herein or in any subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of such person, a
copy of any or all of the documents which have been incorporated by reference
in this Prospectus, other than exhibits to such documents not specifically
described above. Requests for such documents should be directed to Bernard F.
Stewart, Executive Vice President and General Counsel, Exide Corporation, 1400
North Woodward Avenue, Bloomfield Hills, Michigan 48304, telephone (810) 258-
0080.
2
<PAGE>
THE COMPANY
The Company is the leading manufacturer and marketer of starting, lighting
and ignition ("SLI") batteries in the world. Through its acquisitions of
B.I.G. Batteries Group Limited, Sociedad Espanola del Acumulador Tudor, S.A.
and Compagnie Europeenne d'Accumulateurs S.A. ("CEAC"), as well as its
assumption of the customers of Gemala Battery Company Limited ("Gemala
Battery"), the Company has become Europe's largest producer and marketer of
SLI batteries and industrial batteries.
NORTH AMERICA
Exide and its affiliates have a unit market share in SLI batteries of
approximately 39% in the United States and Canada, based on information
provided by an industry trade association. The Company believes that it is the
lowest cost major producer in its North American markets. Over 80% of all
automotive batteries sold in the United States and Canada are sold in the
aftermarket, and in fiscal 1995 approximately 88% of the Company's unit sales
were of automotive replacement batteries. The aftermarket is influenced more
by the age and number of vehicles in service than new production levels and
tends to be less cyclical than the original equipment manufacturing ("OEM")
market. In April 1994, Sears, Roebuck & Co., one of the largest retailers of
SLI batteries in the United States, selected the Company as the primary
supplier of its batteries, including the Die Hard(R) brand. Exide is the
leading supplier for 17 of the 20 largest battery retailers in the United
States, including NAPA Distribution Centers, Kmart Corp., Northern Automotive
Corporation, Montgomery Ward & Co. and The Pep Boys-Manny, Moe & Jack.
The Company also produces SLI batteries for the OEM market in North America,
principally for Chrysler Corporation for whom it is the primary supplier.
Other products manufactured by Exide include batteries for trucks, farm and
other off-road vehicles, boats, garden tractors and golf carts, battery
chargers and accessories, wheel weights and remanufactured starters and
alternators.
Current management, which is led by Arthur M. Hawkins, Chairman, President
and Chief Executive Officer, who joined Exide in 1985, has transformed the
Company into a marketing-driven business by developing a new customer base
focused on leading mass-merchandisers, auto supply chains and wholesalers and
introducing merchandise displays, innovative packaging and programs to assist
customers in marketing and inventory management. To support and expand this
customer base, Exide has expanded its Company-owned distribution system from
12 wholesale branch outlets in 1985 to over 130 today. These outlets, which
distribute Exide batteries to both large accounts and local dealers and other
small volume customers, also allow the Company to collect used batteries for
recycling in its lead smelters as part of its recycling program aimed at
reducing costs and protecting the environment. In addition, in recent years
the Company has introduced several new products including an advanced line of
maintenance-free batteries and an emergency vehicle battery. The Company,
which markets its products under various trademarks including Exide, Willard
and Prestolite, has strengthened its brand recognition through promotional
activities, including sponsoring a NASCAR Winston Cup racing team and an
Indianapolis-type car.
For the fiscal year ended March 31, 1995, Exide's North American operations
would have accounted for approximately 39.2% of Exide's total net sales pro
forma for the recent acquisitions.
EUROPE
Exide is the leading manufacturer and marketer of SLI and industrial
batteries in Europe with major market presence in France, Spain, Portugal,
Italy, Germany, the United Kingdom, Sweden, Denmark, Finland and Norway. The
Company believes it is one of the lowest cost, highest quality suppliers of
SLI and industrial batteries in Europe. SLI batteries and industrial batteries
accounted for approximately 53% and 41%, respectively, of the net sales of
Exide's European operations for the fiscal year ended March 31, 1995 pro forma
for the recent acquisitions. Approximately 70% of all automotive batteries
sold in Europe are sold in the aftermarket and approximately 76% of the
automotive battery net sales of Exide's operations in Europe during
3
<PAGE>
fiscal 1995 were of automotive replacement batteries. Exide produces SLI
batteries for the European OEM market and is one of the major suppliers to
Fiat S.p.A. ("Fiat"), the Volkswagen group (Volkswagen AG/AUDI AG/Seat/Skoda
Automobilova AS), the PSA group (Peugeot S.A./Citroen), the Renault group and
Volvo. By assuming the customers of Gemala Battery, the Company is also a
supplier to Ford Motor Co. in Europe. The Company's SLI battery brand strategy
in Europe is based on well recognized brands, including Tudor, Hagen Batterie,
Exide, Fulmen and Sonnenschein. On a going forward basis, the Company will
focus its SLI battery marketing efforts on these strong brands. Standby
batteries represented approximately 47% and traction batteries represented
approximately 53% of industrial battery sales of the Company in fiscal 1995.
Major standby battery customers include telecommunications companies and
European navies. Major traction battery customers in Europe include the
electric vehicle operations of the Linde group (Still GmbH, LL Fenwicks, Fiat
and Lansing), Clark and Jungheinrich. As in the automotive market, the
Company's industrial battery brands, including TS, Hagen Batterie, Tudor,
Fulmen, Sonnenschein, Chloride Motive Power, Magneti Marelli and ASTA, are
well recognized in their markets.
For the fiscal year ended March 31, 1995, Exide's European operations would
have represented approximately 60.8% of Exide's total net sales pro forma for
the recent acquisitions.
----------------
The Company is a Delaware corporation organized in 1966 to succeed to the
business of a New Jersey corporation founded in 1888 by Thomas A. Edison. The
principal executive offices of the Company are located at 1400 North Woodward
Avenue, Bloomfield Hills, Michigan 48304, telephone number (810) 258-0080.
PRICE RANGE OF COMMON STOCK AND DIVIDEND POLICY
The Common Stock is listed and traded on the NYSE under the symbol EX. The
following table sets forth, for the periods indicated, the high and low sales
prices per share of the Common Stock, as reported on the NYSE Composite
Transactions Tape.
<TABLE>
<CAPTION>
SALES PRICE
---------------
HIGH LOW
------- -------
<S> <C> <C>
Fiscal year ended March 31, 1994:
Third Quarter (commencing October 29, 1993)............. $29 3/8 $20
Fourth Quarter.......................................... 42 1/4 29 3/8
Fiscal year ended March 31, 1995:
First Quarter........................................... 50 1/4 35 5/8
Second Quarter.......................................... 53 1/2 45 5/8
Third Quarter........................................... 56 1/4 47
Fourth Quarter.......................................... 57 1/2 32 3/4
Fiscal year ending March 31, 1996:
First Quarter........................................... 43 5/8 30 3/8
Second Quarter.......................................... 53 1/2 44
Third Quarter........................................... 49 5/8 42 5/8
Fourth Quarter (through February 9, 1996)............... 51 1/8 28 1/2
</TABLE>
See the cover page of this Prospectus for a recent price of the Common
Stock.
The Company has paid cash dividends of $.02 per share on the Common Stock in
each completed quarter following its initial public offering in 1993. The
Company expects to continue to pay quarterly cash dividends on the Common
Stock. The declaration and payment of dividends on the Common Stock will be
subject to the discretion of the Board of Directors of the Company. The timing
and amount of dividends, if any, will depend, among other things, on the
Company's results of operations, financial condition, cash requirements and
other factors deemed relevant by the Board of Directors. In addition, the
Company's credit agreement and indentures contain certain restrictions on its
ability to pay dividends.
4
<PAGE>
SELLING STOCKHOLDERS
The Selling Stockholders will have received their shares upon conversion of
the 2.90% Convertible Senior Subordinated Notes Due 2005 of the Company. In
connection with the issuance of the Notes, the Company agreed to file a
registration statement with the Commission covering the resale of the Shares
issuable upon conversion of the Notes and to indemnify each Selling Stockholder
against claims made against them arising out of, among other things, statements
made in such registration statement. In addition, the Company agreed to cause
this registration statement to remain effective for the earlier of three years
or until all of the Shares are sold.
PLAN OF DISTRIBUTION
The Company will not receive any proceeds from the sale of the Shares by the
Selling Stockholders. The Shares or any part thereof may be sold from time to
time by any of the Selling Stockholders or by donees or transferees in
privately negotiated transactions, on the NYSE or such other exchange upon
which the Common Stock of the Company trades, through underwriters in one or
more underwritten offerings or through brokers, dealers or agents, who may
receive compensation in the form of underwriting discounts, concessions or
commissions from the Selling Stockholders or the purchasers of Shares for whom
they may act as agent (which discounts and commissions are not anticipated to
exceed those customary in the types of transactions involved), or any
combination thereof. The Shares may be sold in amounts (which may involve one
or more block transactions) and on terms to be determined at the time of sale.
The Selling Stockholders reserve the sole right to accept and, together with
any agent of the Selling Stockholders, to reject in whole or in part any
proposed purchase of the Shares. Any broker or dealer participating in any such
sale may be deemed to be an "underwriter" within the meaning of the Securities
Act and if so will be required to deliver a copy of this Prospectus to any
person who purchases any of the Shares from or through such broker or dealer.
To the extent required, the Company will prepare and file with the Commission
a post-effective amendment to the Registration Statement or a supplement to
this Prospectus.
Offers or sales of the Shares have not been registered or qualified under the
laws of any country, other than the United States. To comply with certain
states' securities laws, if applicable, the Shares will be offered or sold in
such jurisdictions only through registered or licensed brokers or dealers. In
addition, in certain states the Shares may not be offered or sold unless they
have been registered or qualified for sale in such states or an exemption from
registration or qualification is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person
engaged in a distribution of the Shares may not simultaneously engage in
market-making activities with respect to such Shares for a period of two to
nine business days prior to the commencement of such distribution. In addition
to and without limiting the foregoing, each Selling Stockholder and any other
person participating in a distribution will be subject to applicable provisions
of the Exchange Act and the rules and regulations thereunder, including without
limitation Rules 10b-6 and 10b-7, which provisions may limit the timing of
purchases and sales of any of the Shares by the Selling Stockholders or any
such other person. All of the foregoing may affect the marketability of the
Shares and the brokers' and dealers' ability to engage in market-making
activities with respect to the Shares.
Pursuant to an agreement with the Selling Stockholders, the Company has
agreed to pay the cost of the registration of the Shares and the preparation of
this Prospectus and the Registration Statement under which this Prospectus is
filed. The expenses so payable by the Company are estimated to be approximately
$84,750.58 Under agreements entered into with the Company, the Selling
Stockholders will be indemnified by the Company against certain civil
liabilities, including liabilities under the Securities Act.
5
<PAGE>
COMMISSION POSITION ON INDEMNIFICATION
The Company's Certificate of Incorporation and Bylaws provide that the
Company shall indemnify each person who is or was an officer or director of
the Company to the fullest extent permitted by the Delaware General
Corporation Law as currently in effect or as the same may be amended (but only
to provide fuller indemnification) in the future, which includes
indemnification against liabilities arising under the Securities Act.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Company,
pursuant to the foregoing and any other agreements, the Company has been
informed that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is therefore
unenforceable.
LEGAL MATTERS
Certain legal matters with respect to the Shares will be passed upon for the
Company by Kirkland & Ellis, Chicago, Illinois.
EXPERTS
The audited consolidated financial statements and schedule of the Company as
of March 31, 1995 and 1994 and for each of the three fiscal years ended March
31, 1995 incorporated by reference in this Prospectus have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report with respect thereto dated June 27, 1995, also incorporated by
reference, in reliance upon the authority of said firm as experts in giving
said report. Reference is made to said report on the consolidated financial
statements, which includes an explanatory paragraph with respect to the change
in the method in accounting for postretirement employee benefits other than
pensions in fiscal 1994 as discussed in Note 8 to the consolidated financial
statements incorporated by reference herein from the Company's Form 10-K for
the fiscal year ended March 31, 1995.
The audited consolidated financial statements of CEAC incorporated by
reference in this Prospectus for the three years ended December 31, 1994, 1993
and 1992 and as of December 31, 1994 and 1993 have been audited by Ernst &
Young Audit, independent accountants, as indicated in their report with
respect thereto dated March 31, 1995 and are incorporated by reference.
The audited consolidated financial statements of Schuylkill Holdings, Inc.
and its subsidiary as of December 31, 1994 and for the year then ended
incorporated by reference in this Prospectus have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their report incorporated by
reference herein (which report expresses an unqualified opinion and includes
an explanatory paragraph regarding the ability of Schuylkill Holdings, Inc. to
continue as a going concern).
6
<PAGE>
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NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR IN-
CORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFOR-
MATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY
THE COMPANY OR THE SELLING STOCKHOLDERS. THIS PROSPECTUS DOES NOT CONSTITUTE
AN OFFER TO SELL, OR THE SOLICITATION OF AN OFFER TO BUY, ANY OF THE SECURI-
TIES OFFERED HEREBY IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM, IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PRO-
SPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THERE HAS NOT BEEN A CHANGE IN THE FACTS SET FORTH IN THIS
PROSPECTUS OR IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
----------------
TABLE OF CONTENTS
<TABLE>
<S> <C>
Available Information....................................................... 2
Incorporation of Certain Documents by Reference............................. 2
The Company................................................................. 3
Price Range of Common Stock and Dividend Policy............................. 4
Selling Stockholders........................................................ 5
Plan of Distribution........................................................ 5
Commission Position on Indemnification...................................... 6
Legal Matters............................................................... 6
Experts..................................................................... 6
</TABLE>
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4,992,571 SHARES
EXIDE CORPORATION
COMMON STOCK
($.01 PAR VALUE)
----------------
PROSPECTUS
----------------
, 1996
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<PAGE>
PART II--INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is a statement of estimated expenses of the issuance and
distribution of the securities being registered (other than underwriting
discounts and commissions), all of which are being paid by the registrant:
<TABLE>
<S> <C>
SEC Registration Fee........................................... $51,750.58
Accounting Fees and Expenses................................... 2,000.00
Legal Fees and Expenses........................................ 15,000.00
Printing and Engraving Expenses................................ 15,000.00
Miscellaneous Fees and Expenses................................ 5,000.00
----------
Total...................................................... $84,750.58
==========
</TABLE>
ITEM 15.
Section 145 of the Delaware General Corporation Law (the "DGCL") provides,
in effect, that any person made a party to any action by reason of the fact
that he is or was a director, officer, employee or agent of the Company may
and, in certain cases, must be indemnified by the Company against, in the case
of a non-derivative action, judgments, fines, amounts paid in settlement and
reasonable expenses (including attorney's fees) incurred by him as a result of
such action. In the case of a derivative action, such person must be
indemnified against expenses (including attorney's fees). In either type of
action the person must have acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the Company. This
indemnification does not apply, in a derivative action, to matters as to which
it is adjudged that the director, officer, employee or agent is liable to the
Company, unless upon court order it is determined that, despite such
adjudication of liability, but in view of all the circumstances of the case,
such director, officer, employee or agent is fairly and reasonably entitled to
indemnity for expenses. In a non-derivative action this indemnification does
not apply to any criminal proceeding in which such person had reasonable cause
to believe his conduct was unlawful.
Article Tenth of the Company's Certificate of Incorporation and Article V of
the Company's Bylaws provide that the Company shall indemnify each person who
is or was an officer or director of the Company to the fullest extent
permitted by Section 145 of the DGCL as currently in effect or as the same may
be amended (but only to provide fuller indemnification) in the future.
Article Ninth of the Company's Restated Certificate of Incorporation
provides that to the fullest extent permitted by the DGCL, a director of the
Company shall not be liable to the Company or its stockholders for monetary
damages for a breach of fiduciary duty as a director.
ITEM 16. EXHIBITS.
See Exhibit Index.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
II-1
<PAGE>
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and 1(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
II-2
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING OF FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF READING, STATE OF PENNSYLVANIA, ON FEBRUARY 12,
1996.
EXIDE CORPORATION
/s/ Alan E. Gauthier
By: _________________________________
Alan E. Gauthier
Executive Vice President and
Chief Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED. EACH PERSON BELOW WHOSE SIGNATURE IS
PRECEDED BY AN ASTERISK (*) HEREBY CONSTITUTES AND APPOINTS CATHERINE B.
HNATIN AND ALAN E. GAUTHIER, AND EACH OF THEM, HIS TRUE AND LAWFUL ATTORNEYS-
IN-FACT AND AGENTS, WITH FULL POWER OF SUBSTITUTION AND RESUBSTITUTION, FOR
HIM AND IN HIS NAME, PLACE AND STEAD, IN ANY AND ALL CAPACITIES, TO SIGN ANY
OR ALL AMENDMENTS (INCLUDING POST-EFFECTIVE AMENDMENTS) TO THIS REGISTRATION
STATEMENT, AND TO FILE THE SAME, WITH ALL EXHIBITS THERETO, AND OTHER
DOCUMENTS IN CONNECTION THEREWITH, WITH THE COMMISSION, GRANTING UNTO SAID
ATTORNEYS-IN-FACT AND AGENTS, AND EACH OF THEM, FULL POWER AND AUTHORITY TO DO
AND PERFORM EACH AND EVERY ACT AND THING REQUISITE AND NECESSARY TO BE DONE IN
AND ABOUT THE PREMISES, AS FULLY TO ALL INTENTS AND PURPOSES AS HE MIGHT OR
COULD DO IN PERSON, HEREBY RATIFYING AND CONFIRMING ALL THAT SAID ATTORNEYS-
IN-FACT AND AGENTS OR ANY OF THEM, OR THEIR OR HIS SUBSTITUTE OR SUBSTITUTES,
MAY LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* /s/ Arthur M. Hawkins President, Chairman of the February 12, 1996
____________________________________ Board and Director
Arthur M. Hawkins (Principal Executive
Officer)
By:
* /s/ Alan E. Gauthier Executive Vice President, February 12, 1996
____________________________________ Chief Financial Officer
Alan E. Gauthier and Director (Principal
Financial and Accounting
Officer)
By:
* /s/ Douglas N. Pearson Executive Vice President, February 12, 1996
____________________________________ President--North American
Douglas N. Pearson Operations and Director
By:
* /s/ William J. Rankin Executive Vice President and February 12, 1996
____________________________________ Director
William J. Rankin
By:
* /s/ Earl Dolive Director February 12, 1996
____________________________________
Earl Dolive
By:
* /s/ Timothy O. Fisher Director February 12, 1996
____________________________________
Timothy O. Fisher
By:
* /s/ Lawrence M. Wagner Director February 12, 1996
____________________________________
Lawrence M. Wagner
By:
* /s/ Robert H. Irwin Director February 12, 1996
____________________________________
Robert H. Irwin
By:
* /s/ Arthur R. Taylor Director February 12, 1996
____________________________________
Arthur R. Taylor
By:
</TABLE>
II-3
<PAGE>
EXIDE CORPORATION
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
4.1 Registration Rights Agreement, dated as of December 15, 1995, among
the Company, Morgan Stanley & Co. Incorporated, Salomon Brothers Inc
and BT Securities Corporation.
4.2* Restated Certificate of Incorporation of the Company, incorporated
by reference from Exhibit 3.1 to the Company's Registration
Statement on Form S-1 (File No. 33-68016), as amended (the "1993
Registration Statement").
4.3* Restated Bylaws of the Company, incorporated by reference from
Exhibit 3.2 to the 1993 Registration Statement.
5** Opinion of Kirkland & Ellis.
23.1** Consent of Kirkland & Ellis (included as part of Exhibit 5).
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of Ernest & Young Audit.
23.4 Consent of Deloitte and Touche LLP.
24 Power of Attorney (included on page II-3 of this Registration
Statement).
99.1 Placement Agreement with respect to the Notes, dated as of December
11, 1995, among the Company, Morgan Stanley & Co. Incorporated,
Salomon Brothers Inc and BT Securities Corporation.
99.2 Indenture with respect to the Notes, dated as of December 15, 1995,
between the Company and the Bank of New York as Trustee.
99.3 Form of Note (included in Exhibit 99.2).
</TABLE>
- --------
*Incorporated by reference
**To be filed by amendment
<PAGE>
Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of December 15, 1995 by and among Exide Corporation, a Delaware
corporation (the "Company"), and Morgan Stanley & Co. Incorporated, Salomon
Brothers Inc and BT Securities Corporation (the "Placement Agents") pursuant to
the Placement Agreement, dated as of December 11, 1995 (the "Placement
Agreement"), between the Company and the Placement Agents. In order to induce
the Placement Agents to enter into the Placement Agreement, the Company has
agreed to provide the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Placement
Agreement.
The Company agrees with the Placement Agents, (i) for their benefit as
Placement Agents and (ii) for the benefit of the holders from time to time of
the Notes (including the Placement Agents) and the holders from time to time of
the Common Stock issued upon conversion of the Notes (each of the foregoing a
"Holder" and together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Placement Agreement. As
used in this Agreement, the following terms shall have the following meanings:
Affiliate: "Affiliate" means, with respect to any specified person,
(i) any other person directly or indirectly controlling or controlled by,
or under direct or indirect common control with, such specified person or
(ii) any officer or director of such other person. For purposes of this
definition, the term "control" (including the terms "controlling,"
"controlled by" and "under common control with") of a person means the
possession, direct or indirect, of the power (whether or not exercised) to
direct or cause the direction of the management and policies of a person,
whether through the ownership of voting securities, by contract, or
otherwise.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in The City of New York are
authorized or obligated by law or executive order to close.
Common Stock: The shares of common stock, $.01 par value per share,
of the Company and any other shares of common stock as may constitute
"Common Stock" for purposes of the Indenture, in each case, as issuable or
issued upon conversion of the Notes.
<PAGE>
2
Damages Accrual Period: See Section 2(e) hereof.
Deferral Period: See Section 2(d) hereof.
Effectiveness Period: The period commencing with the date hereof and
ending on the earlier of the expiration of the time period referred to in
Rule 144(k) (taking into account the provisions of Rule 144(d) under the
Securities Act) and the date that all Registrable Securities have ceased to
be Registrable Securities.
Event: See Section 2(e) hereof.
Event Date: See Section 2(e) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Filing Date: See Section 2(a) hereof.
Holder: See the second paragraph of this Agreement.
Indenture: The Indenture, dated as of December 15, 1995, between the
Company and The Bank of New York, as trustee, pursuant to which the Notes
are being issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Initial Shelf Registration: See Section 2(a) hereof.
Managing Underwriters: The investment banking firm or firms that
shall manage or co-manage an Underwritten Offering.
Notes: The 2.90% Convertible Senior Subordinated Notes due 2005 of
the Company being issued and sold pursuant to the Placement Agreement and
the Indenture.
Notice Holder: See the second paragraph of Section 2(d)(i) hereof.
Placement Agents: Morgan Stanley & Co. Incorporated, Salomon Brothers
Inc and BT Securities Corporation.
Placement Agreement: See the first paragraph of this Agreement.
<PAGE>
3
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference in such
Prospectus.
Registrable Securities: The Common Stock of the Company into which
the Notes are convertible or converted, whether or not such Notes have been
converted, and at all times subsequent thereto, and any Common Stock issued
with respect thereto upon any stock dividend, split or similar event until,
in the case of any such Common Stock, (i) it is effectively registered
under the Securities Act and disposed of in accordance with the
Registration Statement covering it, (ii) it is saleable by the holder
thereof pursuant to Rule 144(k) or (iii) it is sold to the public pursuant
to Rule 144, and, as a result of the event or circumstance described in
either of the foregoing clauses (i) through (iii), the legends with respect
to transfer restrictions required under the Indenture are removed or
removable in accordance with the terms of the Indenture.
Registration Expenses: See Section 5 hereof.
Registration Statement: Any registration statement of the Company
which covers any of the Registrable Securities pursuant to the provisions
of this Agreement, including the Prospectus, amendments, and supplements to
such registration statement, including post-effective amendments, all
exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Rule 144: Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
Rule 144(k): Rule 144(k) under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
Rule 144A: Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
<PAGE>
4
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the SEC thereunder.
Selling Period: See the second paragraph of Section 2(d)(i) hereof.
Shelf Registration: See Section 2(a) hereof.
shelf registration statement: A registration statement for an
offering to be made on a continuous basis pursuant to Rule 415 under the
Securities Act registering the resale from time to time by the holders
thereof of all of the Registrable Securities upon and following conversion
of the Notes.
Subsequent Shelf Registration: See Section 2(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The Trustee under the Indenture.
Underwritten Registration or Underwritten Offering: A registration in
which Registrable Securities are sold to an underwriter for reoffering to
the public.
2. Shelf Registration.
(a) Shelf Registration. The Company shall prepare and file with the
SEC, as soon as practicable but in any event on or prior to the date sixty (60)
days following the latest date of original issuance of the Notes (the "Filing
Date"), a shelf registration statement (the "Initial Shelf Registration"). The
Initial Shelf Registration shall be on Form S-3 or another appropriate form
permitting registration of the Registrable Securities for resale by the Holders
in one or more Underwritten Offerings, privately negotiated transactions, sales
on the New York Stock Exchange, sales to brokers or dealers or otherwise. The
Company shall use reasonable efforts to cause the Initial Shelf Registration to
be declared effective under the Securities Act as soon as practicable and to
keep the Initial Shelf Registration continuously effective under the Securities
Act until the earlier of the expiration of the Effectiveness Period or the date
a Subsequent Shelf Registration (as defined below) covering all of the
Registrable Securities has been declared effective under the Securities Act.
The Initial Shelf Registration and all Subsequent Shelf Registrations shall be
referred to herein collectively as the "Shelf Registration".
(b) If the Initial Shelf Registration or any Subsequent Shelf
Registration ceases to be effective for any reason at any time during the
Effective Period (other than because all Registrable Securities registered
thereunder shall have been sold or shall have ceased to be Registrable
Securities), the Company shall use reasonable efforts to obtain the
<PAGE>
5
prompt withdrawal of any order suspending the effectiveness thereof, and in any
event shall within thirty (30) days of such cessation of effectiveness amend
such Shelf Registration in a manner reasonably expected to obtain the withdrawal
of the order suspending the effectiveness thereof, or file an additional shelf
registration statement covering all of the Registrable Securities (a "Subsequent
Shelf Registration") unless an amendment or Subsequent Shelf Registration could
not reasonably be expected to remedy such lapse. If a Subsequent Shelf
Registration is filed, the Company shall use reasonable efforts to cause such
Subsequent Shelf Registration to be declared effective as soon as practicable
after such filing and to keep such Registration Statement continuously effective
until the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration if
required by the rules, regulations or instructions applicable to the
registration form under the Securities Act used by the Company for such Shelf
Registration, if required by the Securities Act or if reasonably requested by
the Placement Agents or by the Trustee on behalf of the Holders of the
Registrable Securities covered by such Registration Statement or by the Managing
Underwriters of such Registrable Securities; provided that the party or parties
making such request shall have furnished to the Company with such request a
written description of such request and reasonable legal grounds therefor.
(d) Each Holder of Registrable Securities agrees that if such Holder
wishes to distribute its Registrable Securities pursuant to a Shelf Registration
and related Prospectus, it will do so only in accordance with this Section 2(d).
Each Holder of Registrable Securities agrees to give written notice to the
Company prior to any intended distribution of Registrable Securities under the
Shelf Registration, which notice shall specify the date on which such Holder
intends to begin such distribution. By giving such notice, the Holder consents
and agrees to the terms and conditions of this Agreement and accepts both the
rights and duties set forth herein. Within five Business Days after receipt of
such notice, the Company shall either:
(i) (A) If necessary, prepare and file with the Commission a post-
effective amendment to the Shelf Registration or a supplement to the
related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required document so
that such Registration Statement will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and so
that, as thereafter delivered to purchasers of the Registrable Securities
being sold thereunder, such Prospectus will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; (B) provide the
Holders of the Registrable Securities who gave such notice copies of any
documents filed pursuant to Section 2(d)(i)(A); and (C) inform each such
Holder
<PAGE>
6
that the Company has complied with its obligations in Section 2(d)(i)(A) or
that it is not necessary for the Company to take any of the actions
described in Section 2(d)(i)(A) (or that, if the Company has filed a post-
effective amendment to the Shelf Registration which has not yet been
declared effective, the Company will notify each such Holder to that
effect, will use reasonable efforts to secure the effectiveness of such
post-effective amendment as promptly as practicable and will immediately
notify each such Holder when the amendment has become effective).
Each Holder who has given notice of intention to distribute such
Holder's Registrable Securities in accordance with this Section 2(d) (a
"Notice Holder") shall distribute all or any such Registrable Securities
pursuant to the Shelf Registration and related Prospectus only upon notice
by the Company that the Registration Statement and Prospectus may be used
for such purpose pursuant to clause 2(d)(i)(C) above and only during the
45-day period commencing with the date on which the Company gives such
notice (such 45-day period is referred to as a "Selling Period"). The
Notice Holders will not distribute any Registrable Securities pursuant to
such Registration Statement or Prospectus after such Selling Period without
giving a new notice of intention to distribute pursuant to Section 2(d)
hereof and receiving a further notice from the Company pursuant to Section
2(d)(i)(C) hereof.
(ii) In the event of the happening of any event (A) of the kind
described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv), 3(c)(v), or 3(c)(vi)
hereof or (B) that the Company believes in good faith makes it advisable to
suspend use of the Prospectus for a discrete period of time due to pending
material corporate developments or similar material events that have not
yet been publicly disclosed and as to which the Company believes in good
faith that public disclosure will be disadvantageous to the Company and/or
its stockholders, the Company shall deliver a certificate in writing,
signed by its Chief Executive Officer, Chief Financial Officer, General
Counsel or Treasurer, to the Notice Holders, and the Managing Underwriters,
if any, to the effect of the foregoing and, upon receipt of such
certificate, each such Notice Holder's Selling Period will not commence or
shall be suspended until such Notice Holder's receipt of copies of the
supplemented or amended Prospectus provided for in Section 2(d)(i)(A)
hereof, or until it is advised in writing by the Company that the
Prospectus may be used, and it has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by
reference in such Prospectus. The Company will use reasonable efforts to
ensure that the use of the Prospectus may be resumed, and the Selling
Period will commence or recommence, as soon as practicable and, in the case
of a pending development or event referred to in Section 2(d)(ii)(B)
hereof, as soon as the earlier of (x) public disclosure of such pending
material corporate development or similar material event or (y) the date
upon which in the judgment of the Company, public disclosure of such
material corporate development or similar material event would not be
disadvantageous to the Company
<PAGE>
7
and/or its stockholders. Notwithstanding the foregoing, the Company shall
not under any circumstances be entitled to exercise its right under this
Section 2(d)(ii) to defer the commencement or recommencement of Selling
Periods more than one (1) time in any three (3) month period or two (2)
times in any twelve (12) month period, and each such period in which
Selling Periods are suspended shall not exceed thirty-five (35) days (a
"Deferral Period").
(e) The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if (i) the Initial Shelf Registration
has not been filed on or prior to the Filing Date, (ii) prior to the end of the
Effectiveness Period, the SEC shall have issued a stop order suspending the
effectiveness of the Shelf Registration, (iii) the aggregate number of days in
any one Deferral Period exceeds the periods permitted pursuant to Section
2(d)(ii) hereof or (iv) the number of Deferral Periods exceeds the number
permitted pursuant to Section 2(d)(ii) hereof (each of the events of a type
described in any of the foregoing clauses (i) through (iv) are individually
referred to herein as an "Event," and the Filing Date in the case of clause (i),
the date on which the effectiveness of the Shelf Registration has been suspended
or proceedings with respect to the Shelf Registration under Section 8(d) or 8(e)
of the Securities Act have been commenced in the case of clause (ii), the date
on which the duration of a Deferral Period exceeds the periods permitted by
Section 2(d)(ii) hereof in the case of clause (iii), and the date of the
commencement of a Deferral Period that causes the limit on the number of
Deferral Periods under Section 2(d)(ii) hereof to be exceeded in the case of
clause (iv), being referred to herein as an "Event Date"). Events shall be
deemed to continue until the "Event Termination," which shall be the following
dates with respect to the respective types of Events: the date the Initial
Registration Statement is filed in the case of an Event of the type described in
clause (i), the date that all stop orders suspending effectiveness of the Shelf
Registration have been removed, in the case of Events of the types described in
clause (ii), termination of the Deferral Period which caused the periods
permitted by Section 2(d)(ii) to be exceeded in the case of the commencement of
an Event of the type described in clause (iii), and termination of the Deferral
Period the commencement of which caused the number of Deferral Periods permitted
by Section 2(d)(ii) to be exceeded in the case of Events of the type described
in clause (iv).
Accordingly, upon the occurrence of any Event and until such time as
there are no Events which have occurred and are continuing (a "Damages Accrual
Period"), commencing on the Event Date on which such Damages Accrual Period
began, the Company agrees to pay, as liquidated damages, and not as a penalty,
an additional amount (the "Liquidated Damages Amount"): (A)(i) to each holder
of a Note that is a Notice Holder, accruing at a rate equal to one-half of one
percent per annum (50 basis points) on the aggregate principal amount at
maturity of Notes held by such Notice Holder and (ii) to each holder of Common
Stock that is a Notice Holder, accruing at a rate equal to one-half of one
percent per annum (50 basis points) calculated on an amount equal to the
aggregate principal
<PAGE>
8
amount at maturity of the Notes that were converted into such Common Stock; and
(B) if the Damages Accrual Period continues for in excess of thirty (30) days,
from and after the end of such thirty (30) day period until the end of the
applicable Damages Accrual Period, (i) to each holder of a Note (whether or not
a Notice Holder), accruing at a rate equal to one-half of one percent per annum
(50 basis points) on the aggregate principal amount at maturity of Notes held by
such holder and (ii) to each holder of Common Stock (whether or not a Notice
Holder), accruing at a rate equal to one-half of one percent per annum (50 basis
points) calculated on an amount equal to the aggregate principal amount at
maturity of the Notes that were converted into such Common Stock.
Notwithstanding the foregoing, no Liquidated Damages Amounts shall accrue under
clause (A) of the preceding sentence during any period for which Liquidated
Damages Amounts accrue under Clause (B) of the foregoing sentence or as to any
Registrable Securities from and after the earlier of (x) the date such
securities are no longer Registrable Securities, and (y) expiration of the
Effectiveness Period. The rate of accrual of the Liquidated Damages Amount with
respect to any period shall not exceed the rate provided for in this paragraph
notwithstanding the occurrence of multiple concurrent Events.
The Company shall pay the liquidated damages due on any Notes or
Common Stock by depositing with the Trustee under the Indenture (with respect to
payments to be made to holders of Notes) or with the Registrar of the Common
Stock (with respect to payments to be made to holders of Common Stock), in
trust, for the benefit of the holders of Notes or Common Stock or Notice
Holders, as the case may be, entitled thereto, at least one Business Day prior
to the applicable payment date, sums sufficient to pay the liquidated damages
accrued or accruing since the last preceding payment date through such payment
date. For these purposes, subject to the proviso set forth in the next
sentence, payment dates will be the same dates as the interest payment dates
with respect to the Notes under the Indenture. The Liquidated Damages Amount
due shall be payable to the holder of Notes or Common Stock entitled thereto on
such payment date to the holders of record thereof on the applicable record date
(corresponding to the record dates for interest payments on the Notes), provided
that accrued and unpaid Liquidated Damages Amounts shall be paid on the
applicable redemption date upon the redemption of any Note (to the extent
accrued with respect to such Note) and, in the event of redemption of all Notes,
shall also be paid on such redemption date to the holders of Common Stock (to
the extent accrued with respect to such Common Stock). The Trustee or Registrar
of Common Stock, as applicable, shall be entitled, on behalf of the holders of
the Notes, Common Stock and Notice Holders, to seek any available remedy for the
enforcement of this Agreement, including for the payment of such liquidated
damages. Nothing shall preclude a Notice Holder or holder of Registrable
Securities from pursuing or obtaining specific performance or other equitable
relief with respect to this Agreement, in addition to the payment of the
Liquidated Damages Amount.
All of the Company's obligations set forth in this Section 2(e) which
are outstanding with respect to any Registrable Securities at the time such
security ceases to be a
<PAGE>
9
Registrable Security shall survive until such time as all such obligations with
respect to such security have been satisfied in full (notwithstanding
termination of this Agreement pursuant to Section 8(o)).
The parties hereto agree that the liquidated damages provided for in
this Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by holders of Registrable Securities by reason of the failure of the
Shelf Registration to be filed or declared effective or unavailable (absolutely
or as a practical matter) for effecting resales of Registrable Securities, as
the case may be, in accordance with the provisions hereof.
3. Registration Procedures. In connection with the Company's
registration obligations under Section 2 hereof, the Company shall effect such
registration to permit the sale of the Registrable Securities, and pursuant
thereto the Company shall as expeditiously as possible:
(a) As described in Section 2(a), prepare and file with the SEC a
Registration Statement or Registration Statements on any appropriate form
under the Securities Act available for the sale of the Registrable
Securities by the Holders thereof, and use reasonable efforts to cause each
such Registration Statement to become effective and remain effective as
provided herein; provided that before filing any such Registration
Statement or Prospectus or any amendments or supplements thereto (other
than documents that would be incorporated or deemed to be incorporated
therein by reference and that the Company is required by applicable
securities laws or stock exchange requirements to file) the Company shall
furnish to the Placement Agents and the Managing Underwriters of such
offering, if any, copies of all such documents proposed to be filed, and
the Company shall not file any such Registration Statement or amendment
thereto or any Prospectus or any supplement thereto (other than such
documents which, upon filing, would be incorporated or deemed to be
incorporated by reference therein and that the Company is required by
applicable securities laws or stock exchange requirements to file) to which
the Holders of a majority of the Registrable Securities covered by such
Registration Statement, the Placement Agents, any Managing Underwriters or
their counsel shall reasonably object in writing within two full Business
Days of receipt thereof; provided that the party or parties objecting shall
have furnished to the Company with such objection a written description of
such objection and reasonable legal grounds therefor.
(b) Subject to Section 3(a), prepare and file with the SEC such
amendments and post-effective amendments to each Registration Statement as
may be necessary to keep such Registration Statement continuously effective
throughout the Effectiveness Period; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 (or any similar provisions then in force)
under the Securities Act; and comply with the provisions of
<PAGE>
10
the Securities Act with respect to the disposition of all securities
covered by such Registration Statement and Prospectus.
(c) Notify the selling Holders, the Placement Agents, and the Managing
Underwriters, if any, promptly, and (if requested by any such person)
confirm such notice in writing, (i) when a Prospectus, any Prospectus
supplement, a Registration Statement or a post-effective amendment to a
Registration Statement has been filed with the SEC, and, with respect to a
Registration Statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the SEC or any other federal or
state governmental authority for amendments or supplements to a
Registration Statement or related Prospectus or for additional information,
(iii) of the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation or threatening of any proceedings for that
purpose, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from
qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the existence of any fact or happening of any event which
makes any statement of a material fact in such Registration Statement or
related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue or which would require the making
of any changes in the Registration Statement or Prospectus in order that,
in the case of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and that in the case of the Prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (vi) of the Company's
determination that a post-effective amendment to a Registration Statement
would be appropriate.
(d) Use reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the lifting of
any suspension of the qualification (or exemption from qualification) of
any of the Registrable Securities for sale in any jurisdiction, at the
earliest possible moment.
(e) If reasonably requested by the Placement Agents or the Managing
Underwriters, if any, or the Holders of a majority of the Registrable
Securities being sold, (i) promptly incorporate in a Prospectus supplement
or post-effective amendment to a Registration Statement such information as
the Placement Agents or their counsel, the Managing Underwriters, if any,
or their counsel or such Holders, in connection with any offering of
Registrable Securities, believe should be included therein as required by
applicable law, provided that the party or parties making such a
<PAGE>
11
request shall have furnished to the Company with such request a written
description of such request and reasonable legal grounds therefor, and (ii)
make all required filings of such Prospectus supplement or such post-
effective amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment; provided that the Company shall not
be required to take any actions under this Section 3(e) that are not, in
the reasonable opinion of counsel for the Company, in compliance with
applicable law.
(f) Furnish to each Notice Holder, and the Placement Agents and their
counsel, and each Managing Underwriter, if any, and their counsel without
charge, at least one conformed copy of the Registration Statement or
Statements and any amendment thereto, including financial statements but
excluding schedules, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits (unless requested in
writing by such holder, counsel, Placement Agents or underwriter).
(g) Deliver to each Notice Holder, and the Placement Agents and their
counsel and each Managing Underwriter, if any, and their counsel in
connection with any offering of Registrable Securities, without charge, as
many copies of the Prospectus or Prospectuses relating to such Registrable
Securities (including each preliminary prospectus) and any amendment or
supplement thereto as such persons may reasonably request (such request to
include the address and other information to which such documents are to be
delivered); and the Company hereby consents to the use of such Prospectus
or each amendment or supplement thereto by each of the Notice Holders and
the Underwriters, if any, in connection with any offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or
supplement thereto.
(h) Solely to facilitate the resale of Registrable Securities under a
Registration Statement, prior to any public offering of Registrable
Securities, to register or qualify such Registrable Securities for offer
and sale under the securities or Blue Sky laws of the states of the United
States; keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of
the Registrable Securities covered by the applicable Registration
Statement; provided, that the Company shall not be required to (A) qualify
as a foreign corporation or as a dealer in securities in any jurisdiction
where it would not otherwise be required to qualify but for this Section
3(h), (B) file any general consent to service of process or (C) subject
itself to taxation in any such jurisdiction if it is not so subject.
<PAGE>
12
(i) Solely to facilitate the resale of Registrable Securities under a
Registration Statement, cause the Registrable Securities covered by the
applicable Registration Statement to be registered with or approved by such
other governmental agencies or authorities within the United States, except
as may be required solely as a consequence of the nature of such selling
Holder, in which case the Company will cooperate in all reasonable respects
with the filing of such Registration Statement and the granting of such
approvals, as may be necessary to enable the selling Holder or Holders
thereof or the Managing Underwriters, if any, to consummate the disposition
of such Registrable Securities.
(j) During any Selling Period (other than during a Deferral Period),
immediately upon the existence of any fact or the occurrence of any event
as a result of which a Registration Statement shall contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, or a Prospectus shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, promptly prepare
and file (subject to the proviso in Section 3(a)) a post-effective
amendment to each Registration Statement or a supplement to the related
Prospectus or any document incorporated therein by reference or file any
other required document (such as a Current Report on Form 8-K) that would
be incorporated by reference into the Registration Statement so that the
Registration Statement shall not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and so that the
Prospectus will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, as thereafter delivered to the purchasers
of the Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Registration Statement, use reasonable
efforts to cause it to become effective as soon as practicable.
(k) Enter into such agreements (including, in the event of an
Underwritten Offering, an underwriting agreement in form, scope and
substance as is customary in underwritten offerings) and take all such
other reasonably necessary actions in connection therewith (including, in
the event of an underwritten offering, those reasonably requested by the
Managing Underwriters, if any, or the Holders of a majority of the
Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection, whether
or not an underwriting agreement is entered into, and if the registration
is an underwritten registration, (i) make such representations and
warranties to the Holders of such Registrable Securities and the
underwriters with respect to the business of the
<PAGE>
13
Company and its subsidiaries, the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by reference, if
any, in each case, in form, substance and scope as are customarily made by
issuers similar to the Company to underwriters in underwritten offerings
and confirm the same if and when requested; (ii) use reasonable efforts to
obtain opinions of counsel to the Company and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters and their counsel and the Holders
of a majority of the Registrable Securities being sold) addressed to each
of the underwriters or, if there are no underwriters, to the selling
holders covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such Managing Underwriters and their counsel or the selling
holders, as the case may be; (iii) use reasonable efforts to obtain "cold
comfort" letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other certified public
accountants of any subsidiary of the Company or any business acquired or to
be acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Registration Statement),
addressed to the selling Holders as a group and each of the Managing
Underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings; and (iv) deliver such documents and certificates as
may be reasonably requested by the holders of a majority of the Registrable
Securities being sold, the Managing Underwriters and their counsel to
evidence the continued validity of the representations and warranties of
the Company and its subsidiaries made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in the
underwriting agreement entered into by the Company. The form, scope and
substance of the underwriting agreement entered into by the Company in
connection with its public offering of common stock in December 1994 are
deemed reasonable for purposes of this Section. The above shall be done at
each closing under such underwriting or similar agreement as and to the
extent required thereunder.
(l) If requested in connection with a disposition of Registrable
Securities pursuant to a Registration Statement, make available for
inspection, during regular business hours and after reasonable advance
notice, by a representative of the Holders of Registrable Securities being
sold, any Managing Underwriter participating in any disposition of
Registrable Securities, if any, and any attorney or accountant retained by
such selling holders or underwriter, financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries as
reasonably requested, and cause the executive officers, directors and
employees of the Company and its subsidiaries to supply all information
reasonably requested by any such representative, Managing Underwriter,
attorney or accountant in connection with such disposition; subject to
reasonable assurances by each such person that such
<PAGE>
14
information will only be used in connection with matters relating to such
Registration Statement.
(m) Comply with all applicable rules and regulations of the SEC and
make generally available to its security holders earning statements (which
need not be audited) satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated
under the Securities Act) no later than 45 days after the end of any 12-
month period (or 90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm commitment
or best efforts underwritten offering, and (ii) if not sold to underwriters
in such an offering, commencing on the first day of the first fiscal
quarter of the Company commencing after the effective date of a
Registration Statement, which statements shall cover said 12-month periods.
(n) Cooperate with the selling holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends;
and enable such Registrable Securities to be in such denominations and
registered in such names as the holders may request.
(o) Provide a CUSIP number for all Registrable Securities not later
than the effective date of the Registration Statement and provide the
Trustee under the Indenture and the transfer agent for the Common Stock
with printed certificates for the Registrable Securities which are in a
form eligible for deposit with The Depository Trust Company.
(p) Cause all Registrable Securities covered by the Registration
Statement to be listed on the New York Stock Exchange and each securities
exchange or quotation system on which the Company's Common Stock is then
listed no later than the date the Registration Statement is declared
effective.
(q) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc.
4. Holder's Obligations. Each Holder agrees, by acquisition of the
Notes and Registrable Securities, that no Holder of Registrable Securities shall
be entitled to sell any of such Registrable Securities pursuant to a
Registration Statement or to receive a Prospectus relating thereto, unless such
Holder has furnished the Company with the notice required pursuant to Section
2(d) hereof and, promptly after the Company's request, such other information
regarding such Holder and the distribution of such Registrable Securities as may
be required to be included in the Registration or the Prospectus or the Company
may
<PAGE>
15
from time to time reasonably request. The Company may exclude from such
registration the Registrable Securities of any Holder who does not furnish such
information provided above for so long as such information is not so furnished.
Each Holder of Registrable Securities as to which any Registration Statement is
being effected agrees promptly to furnish to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not misleading. Any sale of any Registrable
Securities by any Holder shall constitute a representation and warranty by such
Holder that the information relating to such Holder and its plan of distribution
is as set forth in the Prospectus delivered by such Holder in connection with
such disposition, that such Prospectus does not as of the time of such sale
contain any untrue statement of a material fact relating to such Holder or its
plan of distribution and that such Prospectus does not as of the time of such
sale omit to state any material fact relating to such Holder or its plan of
distribution necessary to make the statements in such Prospectus, in light of
the circumstances under which they were made, not misleading.
5. Registration Expenses. All fees and expenses incident to the
Company's performance of or compliance with this Agreement shall be borne by the
Company whether or not any of the Registration Statements become effective.
Such fees and expenses shall include, without limitation, (i) all registration
and filing fees (including, without limitation, fees and expenses (x) with
respect to filings required to be made with the SEC, the National Association of
Securities Dealers, Inc. and any securities exchange on which the Company's
Common Stock is then listed and (y) relating to compliance with federal
securities or Blue Sky laws (including, without limitation, fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Securities under the laws of such jurisdiction as may be required
under Section 3(h) hereof)), (ii) all expenses incurred in connection with the
preparation, word processing, printing and distribution of any Registration
Statement, any Prospectus, any amendments or supplements thereto, any
underwriting agreements, certificates for Registrable Securities in a form
eligible for deposit with The Depository Trust Company, securities sales
agreements and other documents relating to the performance of and compliance
with this Agreement, (iii) the reasonable fees and disbursements of the Trustee
and its counsel and of the registrar and transfer agent for the Common Stock,
(iv) messenger, telephone and delivery expenses relating to the performance of
the Company's obligations hereunder, (v) fees and disbursements of counsel for
the Company and the reasonable fees and disbursements of counsel for the Holders
in connection with the Shelf Registration (provided, that the Company shall not
be liable for the fees and expenses of more than one separate firm for all
parties participating in any transaction hereunder), (vi) fees and disbursements
of all independent certified public accountants referred to in Section 3(k)(iii)
hereof (including the expenses of any special audit and "cold comfort" letters
required by or incident to such performance) and (vii) Securities Act liability
insurance obtained by the Company in its sole discretion. In addition, the
Company shall pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of
<PAGE>
16
any annual audit, the fees and expenses incurred in connection with the listing
of the securities to be registered on any securities exchange on which similar
securities issued by the Company are then listed and the fees and expenses of
any person, including special experts, retained by the Company. Notwithstanding
the provisions of this Section 5, each seller of Registrable Securities shall
pay all selling expenses and all registration expenses, to the extent that the
Company is prohibited by applicable Blue Sky laws from paying for such expenses
or on behalf of such seller of Registrable Securities.
6. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless the Placement
Agents, each Holder and each person, if any, who controls the Placement Agents
or any Holder within the meaning of either Section 15 of the Securities Act or
Section 20(a) of the Exchange Act, or is under common control with, or is
controlled by, the Placement Agents or any Holder, from and against all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred by the Placement Agents, any Holder or any
such controlling or affiliated person in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) pursuant to which Registrable Securities
were registered under the Securities Act, including all documents incorporated
therein by reference, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or caused by any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus (as amended or
supplemented), or caused by any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to the Placement Agents or any Holder furnished to the Company in
writing by the Placement Agents or any selling Holder expressly for use therein
or by such Holder's failure to deliver a copy of the Prospectus or any
amendments or supplements thereto after the Company has furnished such Holder
with a sufficient number of copies of the same.
(b) Each Holder agrees, and such agreement shall be evidenced by the
Holder delivering to the Company the notice described in Section 2(d) hereof,
severally and not jointly, to indemnify and hold harmless the Company, the
Placement Agents and the other selling Holders, and each of their respective
directors, officers who sign the Registration Statement and each person, if any,
who controls the Company, the Placement Agents and any other selling Holder
within the meaning of either Section 15 of the Securities Act or Section 20(a)
of the Exchange Act to the same extent as the foregoing indemnity from the
Company to the Placement Agents and the Holders, but only with reference to
<PAGE>
17
information relating to such Holder furnished to the Company in writing by such
Holder expressly for use in any Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto) or by or on
behalf of such Holder's failure to deliver a copy of the Prospectus or any
amendments or supplements thereto after the Company has furnished such Holder
with a sufficient number of copies of the same.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or paragraph (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for (a) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Placement Agents and all
persons, if any, who control the Placement Agents within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, (b) the fees
and expenses of more than one separate firm (in addition to any local counsel)
for the Company, its directors, its officers who sign the Registration Statement
and each person, if any, who controls the Company within the meaning of either
such Section and (c) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Holders and all persons, if any, who
control any Holders within the meaning of either such Section, and that all such
fees and expenses shall be reimbursed as they are incurred. In such case
involving the Placement Agents and persons who control the Placement Agents,
such firm shall be designated in writing by Morgan Stanley & Co. Incorporated.
In such case involving the Holders and such persons who control Holders, such
firm shall be designated in writing by the holders of the majority of
Registrable Securities sold pursuant to the Registration Statement. In all
other cases, such firm shall be designated by the Company. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent but, if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of
<PAGE>
18
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party for such fees and expenses of counsel in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which such
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or paragraph
(b) of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party or
parties on the other hand from the distribution of Registrable Securities
pursuant to a Registration Statement or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the indemnifying party or parties on the
one hand and of the indemnified party or parties on the other hand in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the total net
proceeds from the initial placement (before deducting expenses) of the Notes
pursuant to the Placement Agreement. Benefits received by the Placement Agents
shall be deemed to be equal to the total purchase discounts and commissions
received by them pursuant to the Placement Agreement and benefits received by
any other Holders shall be deemed to be equal to the value of having the sale of
shares of Common Stock by such Holders registered under the Securities Act and
Blue Sky laws. Benefits received by any underwriter shall be deemed to be equal
to the total underwriting discounts and commissions, as set forth on the cover
page of the Prospectus forming a part of the Registration Statement which
resulted in such losses. The relative fault of the Company and the Holders
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or by
the Holders and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Holders'
respective obligations to contribute pursuant to this Section 6(d) are several
in proportion to the respective number of Registrable Securities of such Holder
that were registered pursuant to a Registration Statement, and not joint.
<PAGE>
19
(e) The Company and each Holder agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 6, no Holder shall be required to indemnify or contribute any amount in
excess of the amount by which the total price at which Registrable Securities
were sold by such Holder exceeds the amount of any damages that such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 6
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Placement Agents, any Holder or any person controlling the Placement Agents
or any Holder, or by or on behalf of the Company, its officers or directors or
any person controlling the Company, (iii) acceptance of any of the Registrable
Securities and (iv) any sale of Registrable Securities pursuant to a
Registration Statement.
The indemnity, contribution and expense reimbursement obligations of
the Company hereunder shall be in addition to any liability the Company may
otherwise have hereunder, under the Placement Agreement or otherwise. The
provisions of this Section 6 shall survive so long as Registrable Securities
remain outstanding, notwithstanding any transfer of the Registrable Securities
by any holder or any termination of this Agreement.
7. Information Requirements.
------------------------
(a) The Company shall file the reports required to be filed by it
under the Securities Act and the Exchange Act, and if at any time the Company is
not required to file such reports, it will, upon the request of any holder of
Registrable Securities, make publicly available other information so long as
necessary to permit sales pursuant to Rule 144 and Rule 144A under the
Securities Act. Upon the request of any holder of Registrable Securities, the
Company shall deliver to such holder a written statement as to whether it has
complied with such filing requirements. The Company further covenants that it
will cooperate with any holder of Registrable Securities and take such further
reasonable action as any holder of Registrable Securities may reasonably request
(including, without limitation,
<PAGE>
20
making such reasonable representations as any such holder may reasonably
request), all to the extent required from time to time to enable such holder to
sell Registrable Securities pursuant to Rule 144 or Rule 144A under the
Securities Act. Notwithstanding the foregoing, nothing in this Section 7 shall
be deemed to require the Company to register any of its securities under any
section of the Exchange Act.
(b) The Company shall file the reports required to be filed by it
under the Exchange Act and shall comply with all other requirements set forth in
the instructions to Form S-3 in order to allow the Company to continue to be
eligible to file registration statements on Form S-3 during the Effectiveness
Period.
8. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of its
obligations under this Agreement, each holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby further agrees that, in the event
of any action for specific performance in respect of such breach, it shall waive
the defense that a remedy at law would be adequate.
(b) No Conflicting Agreements. The Company has not, as of the date
hereof, and shall not, on or after the date of this Agreement, enter into any
agreement with respect to its securities which conflicts with the rights granted
to the holders of Registrable Securities in this Agreement. The Company
represents and warrants that the rights granted to the holders of Registrable
Securities hereunder do not in any way conflict with the rights granted to the
holders of the Company's securities under any other agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of holders
of a majority of the then outstanding Common Stock constituting Registrable
Securities (with holders of Notes deemed to be the holders, for purposes of this
Section, of the number of outstanding shares of Common Stock into which such
Notes are convertible). Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of holders of Registrable Securities whose securities
are being sold pursuant to a Registration Statement and that does not directly
or indirectly affect the rights of other holders of Registrable Securities may
be given by holders of at least a majority of the Registrable Securities being
sold by such holders; provided that the provisions of this
<PAGE>
21
sentence may not be amended, modified, or supplemented except in accordance with
the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, telecopier, or any courier guaranteeing overnight delivery
(i) if to a Holder, at the most current address given by such Holder to the
Company by means of a written notice given in accordance with the provisions of
this Section 8(d), which address initially is, with respect to the Placement
Agents, the address set forth in the Placement Agreement; and (ii) if to the
Company, initially at the Company's address set forth in the Placement Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 8(d).
All such notices and communications shall be deemed to have been duly
given at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Trustee and the
Registrar for the Common Stock.
Each Managing Underwriter shall provide notice to the Company of its
service in such capacity and such notice shall contain information as to where
communications to such Managing Underwriter should be directed.
(e) Approval of Holders. Whenever the consent or approval of holders
of a specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its Affiliates (other than the
Placement Agents or subsequent holders of Registrable Securities if such
subsequent holders are deemed to be such Affiliates solely by reason of their
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the holders of such required
percentage.
(f) Successors and Assigns. Any person who purchases any Registerable
Securities shall be deemed, for purposes of this Agreement, to be an assignee of
such Placement Agent. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties and shall inure
to the benefit of and be binding upon each holder of any Registrable Securities.
<PAGE>
22
(g) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made in this Agreement and each of the Holders
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights.
(h) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be original and all of which taken together
shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
(k) Severability. If any term, provision, covenant or restriction of
this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such which may be hereafter declared
invalid, illegal, void or unenforceable.
(l) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and the registration rights
granted by the Company with respect to the Common Stock of the Company into
which Notes are convertible. Except as provided or disclosed in the Placement
Agreement, including the exhibits and schedules thereto, there are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein, with respect to the registration rights granted by the
Company with respect to the Common Stock of the Company into which the Notes are
convertible. This Agreement supersedes all prior agreements and understandings
among the parties with respect to such registration rights.
(m) Attorneys' Fees. In any action or proceeding brought to enforce
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the prevailing party, as determined by the court, shall be
entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
<PAGE>
23
(n) Further Assurances. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things reasonably necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and the other
documents contemplated hereby and consummate and make effective the transactions
contemplated hereby.
(o) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Sections 4, 5 or 6 hereof and the
obligations to make payments of and provide for liquidated damages under Section
2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
their terms.
<PAGE>
24
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EXIDE CORPORATION
By: /s/ Alan E. Gauthier
------------------------------------------
Name:
Title:
Accepted as of the date first
above written:
MORGAN STANLEY & CO. INCORPORATED
By:______________________________
Name:
Title:
SALOMON BROTHERS INC
By:______________________________
Name:
Title:
BT SECURITIES CORPORATION
By:______________________________
Name:
Title:
<PAGE>
24
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EXIDE CORPORATION
By:_________________________________________
Name:
Title:
Accepted as of the date first
above written:
MORGAN STANLEY & CO. INCORPORATED
By: /S/ JOHN ADAMS
______________________________
Name: John Adams
Title: Managing Director
SALOMON BROTHERS INC
By:______________________________
Name:
Title:
BT SECURITIES CORPORATION
By:______________________________
Name:
Title:
<PAGE>
24
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EXIDE CORPORATION
By:_________________________________________
Name:
Title:
Accepted as of the date first
above written:
MORGAN STANLEY & CO. INCORPORATED
By:______________________________
Name:
Title:
SALOMON BROTHERS INC
By: /S/ DAVID SULLIVAN
------------------------------
Name: David Sullivan
Title: Associate
BT SECURITIES CORPORATION
By:______________________________
Name:
Title:
<PAGE>
24
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EXIDE CORPORATION
By:_________________________________________
Name:
Title:
Accepted as of the date first
above written:
MORGAN STANLEY & CO. INCORPORATED
By:______________________________
Name:
Title:
SALOMON BROTHERS INC
By:______________________________
Name:
Title:
BT SECURITIES CORPORATION
By: /S/ Jeff L. Ott
______________________________
Name: Jeff L. Ott
Title: Managing Director
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated June 27, 1995
included in Exide Corporation's Form 10-K for the year ended March 31, 1995
and to all references to our Firm included in this registration statement.
Arthur Andersen LLP
Philadelphia, PA.,
February 12, 1996
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the reference of our firm in this registration statement (Form
S-3) and related prospectus of Exide Corporation dated March 1996, and to the
incorporation by reference therein of our report dated March 31, 1995 with
respect to the consolidated financial statements of Compagnie Europeenne
d'Accumulateurs S.A. and its Subsidiaries as of December 31, 1994 and for the
year then ended, included in Exide Corporation's current report (Form 8-K/A)
dated July 31, 1995 filed with the Securities and Exchange Commission.
ERNST & YOUNG Audit
Represented by
John MACKEY
Paris, France
February 12, 1996
<PAGE>
EXHIBIT 23.4
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Form S-3 of Exide
Corporation of our report of Schuylkill Holdings, Inc. dated April 25, 1995
(which expresses an unqualified opinion and includes an explanatory paragraph
regarding the ability of the Company to continue as a going concern) appearing
in Form 8-K filed on September 29, 1995, and to the reference to us under the
heading "Experts" in such prospectus.
DELOITTE & TOUCHE LLP
Baton Rouge, Louisiana
February 12, 1996
<PAGE>
Exhibit 99.1
EXECUTION COPY
December 11, 1995
Morgan Stanley & Co. Incorporated
Salomon Brothers Inc
BT Securities Corporation
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs:
EXIDE CORPORATION, a Delaware corporation (the "Company"), proposes to
issue and sell to the several Placement Agents named in Exhibit A hereto (the
"Placement Agents"), $346 million aggregate principal amount at maturity of its
2.90% Convertible Senior Subordinated Notes due 2005 (the "Firm Notes") to be
issued pursuant to the provisions of an Indenture (the "Indenture") to be dated
as of the Closing Date (as defined in Section 3 hereof) among the Company, as
issuer, and The Bank of New York, as trustee (the "Trustee"). The Company also
proposes to issue and sell to the several Placement Agents not more than $51.9
million principal amount at maturity of the Company's 2.90% Convertible Senior
Subordinated Notes due 2005 (the "Additional Notes") to cover over allotments if
and to the extent such option is exercised by the Placement Agents pursuant to
the right to purchase such Additional Notes granted in Section 3 hereof. The
Firm Notes and the Additional Notes are hereinafter referred to as the "Notes."
The Notes are convertible, at the option of the holder, into shares of common
stock of the Company (the "Common Stock") at any time after sixty days following
the later of the latest date of original issuance thereof and the Closing Date
through final stated maturity, unless previously redeemed or otherwise
repurchased by the Company. The number of shares of Common Stock issuable upon
conversion of the Notes (the "Conversion Shares") is equal to 12.5473 shares per
$1,000 principal amount at maturity of Notes.
The Notes will be offered without being registered under the
Securities Act of 1933, as amended (the "Securities Act"), to qualified
institutional buyers in compliance with the exemption from registration provided
by Rule 144A under the Securities Act, in offshore transactions in reliance on
Regulation S under the Securities Act and to institutional
<PAGE>
2
accredited investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) that deliver a letter in the form annexed to the Final
Memorandum (as defined).
In connection with the sale of the Notes, the Company has prepared a
preliminary offering memorandum (the "Preliminary Memorandum") and will prepare
a final offering memorandum (the "Final Memorandum" and, with the Preliminary
Memorandum, each a "Memorandum") setting forth or including a description of the
terms of the Notes, the terms of the offering, a description of the Company and
any material developments relating to the Company occurring after the date of
the most recent financial statements incorporated by reference therein.
The purchasers of the Notes and their direct and indirect transferees
will be entitled to the benefits of a Registration Rights Agreement, to be dated
as of the Closing Date (the "Registration Rights Agreement") and to be
substantially in the form attached hereto as Exhibit B.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, you that as of the date hereof:
(a) The Preliminary Memorandum (including the information incorporated
by reference therein) does not contain and the Final Memorandum (including
the information incorporated by reference therein), in the form used by the
Placement Agents to confirm sales and on the Closing Date, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, except that the representations
and warranties set forth in this Section 1(a) do not apply to statements or
omissions in either Memorandum based upon information relating to the
Placement Agents furnished to the Company in writing by the Placement
Agents expressly for use therein. The documents incorporated by reference
in each Memorandum comply as to form in all material respects with the
applicable requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the rules and regulations promulgated thereunder.
(b) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in each Memorandum and is duly qualified to transact
business and is in good standing in each jurisdiction in which the failure
to be in good standing or to so qualify would have a material adverse
effect on the Company and its subsidiaries, taken as a whole (a "Material
Adverse Effect").
<PAGE>
3
(c) As used herein, the "Material Subsidiaries" of the Company are
Compagnie Europeene d'Accumulateurs S.A. ("CEAC"), GBC, Inc., General
Battery Corporation, a Pennsylvania Business Trust ("GBC"), Sociedad
Espanola del Acumulador Tudor, S.A. ("Tudor"), Hagen Batterie A.G.
("Hagen"), and Exide Batteries Limited ("B.I.G"). Each Material Subsidiary
of the Company has been duly incorporated, is validly existing as a
corporation or business trust, as the case may be, in good standing under
the laws of the jurisdiction of its incorporation, has the corporate or
business trust power and authority to own its property and to conduct its
business as described in each Memorandum and is duly qualified to transact
business and is in good standing in each jurisdiction in which the failure
to be so qualified or be in good standing would have a Material Adverse
Effect; and the Company beneficially owns, directly or indirectly an amount
equal to or at least 100%, 90.1%, 81.5% and 88.9% of the capital stock of
CEAC, Tudor, B.I.G. and Hagen, respectively, and with respect to such
shares the Company has, directly or indirectly, good and marketable title,
free and clear of all liens, charges, encumbrances or restrictions of any
kind, except for transfer restrictions and certain rights of first refusal
with respect to the capital stock of B.I.G. and liens under the European
Facilities Agreement (as defined in the Final Memorandum).
(d) This Agreement has been duly authorized, executed and delivered by
the Company.
(e) The Registration Rights Agreement has been duly authorized, and
when executed and delivered by the Company, will be a valid and binding
agreement of the Company, enforceable in accordance with its terms except
as (x) the enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally, (y) the availability
of equitable remedies and the waiver of equitable rights or defenses may be
limited by equitable principles of general applicability and (z) any rights
to indemnity and contribution may be limited by federal and state
securities laws and public policy considerations.
(f) The Notes have been duly authorized and, when executed,
authenticated and delivered in accordance with the terms of the Indenture
and paid for by the Placement Agents in accordance with the terms of this
Agreement, will (x) be valid and binding obligations of the Company
enforceable in accordance with their terms, except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (B) rights of acceleration,
if applicable, and the availability of equitable remedies may be limited by
equitable principles of general applicability and (y) be entitled to the
benefits of the Indenture.
(g) The Indenture has been duly authorized and, when executed and
delivered by the Company and the Trustee, will be a valid and binding
agreement of
<PAGE>
4
the Company, enforceable in accordance with its terms except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (y) rights of acceleration,
if applicable, and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(h) The Conversion Shares have been duly authorized and reserved and,
when issued upon conversion of the Notes in accordance with the terms of
such Notes and the Indenture, will be validly issued, fully paid and
nonassessable and will not be subject to any preemptive rights or similar
rights.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Indenture, the
Registration Rights Agreement, and the Notes, the issuance, sale and
delivery of the Notes, and the issuance and delivery of the Conversion
Shares upon conversion of the Notes will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company or any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, including, without limitation, the U.S.
Credit Agreement (as defined in the Final Memorandum) and the European
Facilities Agreement (as defined in the Final Memorandum) or any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Company or any of its subsidiaries and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the issuance of the Notes or
the Conversion Shares upon conversion of the Notes, or the performance by
the Company of its obligations under this Agreement, the Indenture, the
Registration Rights Agreement or the Notes, except (x) such as may be
required by the securities or Blue Sky laws of the various states and
foreign authorities in connection with the offer and sale of the Notes and
(y) such as may be required by the federal securities laws of the United
States and the rules and regulations promulgated thereunder and the
securities or Blue Sky laws of the various states in connection with the
registration of the offer and sale of the Conversion Shares pursuant to the
Registration Rights Agreement.
(j) There has not occurred any material adverse change, or any
development (including, without limitation, any material change or
development relating to liability or remediation costs in respect of
Environmental Laws (as defined below)), which is reasonably likely to
result in a prospective material adverse change, in the financial
condition, or in the earnings, business or operations of the Company and
its subsidiaries, taken as a whole, from that set forth in the Final
Memorandum.
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the
<PAGE>
5
properties of the Company or any of its subsidiaries is subject that could
reasonably be expected to have a Material Adverse Effect, or a material
adverse effect on the power or ability of the Company to perform its
obligations under this Agreement, the Indenture, the Registration Rights
Agreement or the Notes or to consummate the transactions contemplated by
the Final Memorandum, except as disclosed in the Final Memorandum.
(l) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of
and from, and has made all necessary declarations and filings with, all
federal, state, local and other governmental authorities, all self-
regulatory organizations and all courts and other tribunals, to own, lease,
license and use its properties and assets and to conduct its business in
the manner described in the Final Memorandum, except where the failure to
do so would not have a Material Adverse Effect.
(m) Neither the Company nor any affiliate (as defined in Rule 501(b)
of Regulation D under the Securities Act, an "Affiliate") of the Company
has directly, or through any agent, (i) sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of any security (as
defined in the Securities Act) which is or will be integrated with the sale
of the Notes in a manner that would require the registration under the
Securities Act of the Notes or (ii) engaged in any form of general
solicitation or general advertising in connection with the offering of the
Notes (as those terms are used in Regulation D under the Securities Act) or
in any manner involving a public offering within the meaning of Section
4(2) of the Securities Act, provided, however, that the Company makes no
representation as to the actions of the Placement Agents.
(n) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
(o) It is not necessary in connection with the offer, sale and
delivery of the Notes to the Placement Agents in the manner contemplated by
this Agreement to register the offer and sale of the Notes under the
Securities Act or to qualify the Indenture under the Trust Indenture Act of
1939, as amended.
(p) The terms of the Notes and the Indenture conform in all material
respects to the descriptions thereof contained in the Final Memorandum
under the heading "Description of Notes" and the Conversion Shares conform
in all material respects to the description thereof contained in the Final
Memorandum under the heading "Description of Capital Stock."
<PAGE>
6
(q) The Company and its subsidiaries are (i) in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, be reasonably expected to have a Material Adverse Effect.
(r) In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in the
course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties). On the basis of such review and as described in the Final
Memorandum, the Company has reasonably concluded that such associated costs
and liabilities would not, singly or in the aggregate, be reasonably
expected to have a Material Adverse Effect.
(s) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida) relating to issuers
doing business with Cuba.
(t) None of the Company or any of its respective Affiliates or any
person acting on its behalf (other than the Placement Agents) has engaged
in any directed selling efforts (as that term is defined in Regulation S
under the Securities Act ("Regulation S")) with respect to the Notes and
the Company and its respective Affiliates and any persons acting on its or
their behalf (other than the Placement Agents) have complied with the
offering restrictions requirement of Regulation S.
(u) The terms and provisions of the European Facilities Agreement
conform in all material respects to the description thereof contained in
the Final Memorandum; and the Company will make available to you and your
counsel copies of such closing documents delivered to the banks party to
the European Facilities Agreement as you or such counsel may reasonably
request prior to the Closing Date.
<PAGE>
7
2. Offering. You have advised the Company that you will make an offering
of the Notes purchased by you hereunder on the terms set forth in the Final
Memorandum as soon as practicable after this Agreement is entered into as in
your judgment is advisable.
3. Purchase and Delivery. The Company hereby agrees to sell to the
several Placement Agents, and the Placement Agents, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agree, severally and not jointly, to purchase from the
Company, the aggregate principal amount at maturity of Notes set forth opposite
their names in Exhibit A at a purchase price of $703.399525 per $1,000 principal
amount thereof at maturity plus accrued interest, if any, from December 15, 1995
to the date of payment and delivery (the "Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Placement Agents and the Placement Agents shall have a one-time right to
purchase, severally and not jointly, up to an aggregate of $51.9 million
principal amount at maturity of Notes at the Purchase Price. Additional Notes
may be purchased solely for the purpose of covering overallotments made in
connection with the offering of the Firm Notes. If any Additional Notes are to
be purchased, each Placement Agent agrees, severally and not jointly, to
purchase the principal amount at maturity of Additional Notes (subject to such
adjustments to eliminate the issuance of Additional Notes in denominations other
than integral multiples of $1000 principal amount at maturity as the Placement
Agents may determine) that bears the same proportion to the principal amount at
maturity of Additional Notes to be purchased as the principal amount at maturity
of Firm Notes set forth in Exhibit A hereto opposite the name of such Placement
Agent bears to the total principal amount at maturity of Firm Notes.
Payment for the Firm Notes shall be made against delivery of the Firm
Notes at a closing (the "Closing") to be held at the offices of Shearman &
Sterling, 599 Lexington Avenue, New York, New York, at 10:00 A.M., local time,
on December 15, 1995, or at such other time on the same or such other date, not
later than December 29, 1995 as shall be designated in writing by you. The time
and date of such payment are herein referred to as the "Closing Date." Payment
for the Firm Notes shall be made by (i) certified or official bank check or
checks payable to the order of the Company in New York Clearing House Funds or
(ii) if requested by the Company, by wire transfer in immediately available
funds according to written transfer instructions provided by the Company,
provided that the Company shall pay to Morgan Stanley & Co. Incorporated the
overnight cost of such funds at a rate equal to the closing Federal Funds rate
on the date such payment is made.
Payment for any Additional Notes to be sold by the Company shall be
made at the offices of Shearman & Sterling, 599 Lexington Avenue, New York, New
York, at 10:00 A.M., local time, on such date (which may be the same as the
Closing Date but shall in no event be earlier than the Closing Date nor later
than ten business days after the giving
<PAGE>
8
of the notice hereinafter referred to) as shall be designated in a written
notice from the Placement Agents to the Company their determination to purchase
an amount, specified in said notice, of Additional Notes. Payment for any
Additional Notes shall be made by (i) certified or official bank check payable
to the order of the Company in New York Clearing House Funds or (ii) if
requested by the Company, by wire transfer in immediately available funds
according to written transfer instructions provided by the Company, provided
that the Company shall pay to Morgan Stanley & Co. Incorporated the overnight
cost of such funds at a rate equal to the closing Federal Funds rate on the date
such payment is made. The time and date of such payment are hereinafter
referred to as the "Option Closing Date." The notice of the determination to
exercise the option to purchase Additional Notes and of the Option Closing Date
may be given at any time within 30 days after the date of this Agreement, but in
any event shall be given at least two business days prior to the Option Closing
Date.
Certificates for the Firm Notes and the Additional Notes shall be in
definitive or global form and registered in such names and in such denominations
as you shall request in writing not less than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The Firm Notes and
any Additional Notes shall be delivered to you on the Closing Date or the Option
Closing Date, as the case may be, with any transfer taxes payable in connection
with the transfer of the Notes to you duly paid, against payment of the purchase
price therefor.
4. Conditions to Closing. The obligations of the Placement Agents under
this Agreement to purchase the Notes will be subject to the following
conditions:
(a) Subsequent to the execution and delivery of this Agreement and on
or prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any development
which is reasonably likely to result in a prospective change, in the
financial condition, or in the earnings, business or operations, of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Final Memorandum, that, in your reasonable judgment, is
material and adverse and that makes it, in your reasonable judgment,
impracticable to market the Notes on the terms and in the manner
contemplated in the Final Memorandum.
<PAGE>
9
(b) You shall have received on the Closing Date a certificate, dated
the Closing Date and signed on the Company's behalf by (and solely in the
capacity of) an executive officer (or the Treasurer) of the Company, to the
effect set forth in clause (a)(i) above and to the effect that the
representations and warranties of the Company contained in this Agreement
are true and correct as of the Closing Date and that the Company has
complied with all of the agreements and satisfied all of the conditions on
its part to be performed or satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an opinion of Kirkland
& Ellis, counsel for the Company, dated the Closing Date, to the effect
that:
(i) the Company is validly existing as a corporation in good
standing under the laws of the State of Delaware, has the corporate
power and authority to own its property and to conduct its business as
described in the Final Memorandum and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
failure to so qualify or to be in good standing would have a Material
Adverse Effect;
(ii) each of the domestic Material Subsidiaries of the Company is
validly existing as a corporation or business trust in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate or business trust power and authority to own its property
and to conduct its business as described in the Final Memorandum and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the failure to so qualify or to be in good
standing would have a Material Adverse Effect;
(iii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iv) the Registration Rights Agreement has been duly authorized,
executed and delivered by, and is a valid and binding agreement of,
the Company, enforceable against the Company in accordance with its
terms except as (x) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law), (y) the availability of
equitable remedies and the waiver of equitable rights or defenses may
be limited by equitable principles of general applicability and (z)
any
<PAGE>
10
rights to indemnity and contribution may be limited by federal and
state securities laws and public policy considerations;
(v) the Indenture has been duly authorized, executed and
delivered by, and, assuming due execution and delivery by the Trustee,
is a valid and binding agreement of, the Company, enforceable against
the Company in accordance with its terms, except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law) and (y) rights of acceleration, if applicable, and
the availability of equitable remedies may be limited by equitable
principles of general applicability;
(vi) the Notes have been duly authorized and executed and, when
authenticated and delivered to and paid for by the Placement Agents in
accordance with the terms of this Agreement and assuming due
authentication by the Trustee, will be (x) valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, except as (A) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) and (B)
rights of acceleration, if applicable, and the availability of
equitable remedies may be limited by equitable principles of general
applicability and (y) entitled to the benefits of the Indenture;
(vii) The Conversion Shares have been duly authorized and
reserved and, when issued upon conversion of the Notes in accordance
with the terms of such Notes and the Indenture, will be validly
issued, fully paid and nonassessable and will not be subject to any
preemptive rights or similar rights;
(viii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture, the Notes and the Registration Rights Agreement, the
issuance, sale and delivery of the Notes and the issuance and delivery
of the Conversion Shares upon conversion of the Notes will not
contravene (A) any existing material applicable law of the State of
New York, the Delaware General Corporation Law or any existing
material federal law of the United States (including but not limited
to the Securities Act, the Exchange Act and the respective rules and
regulations thereunder) or any existing applicable material
<PAGE>
11
rule or regulation of such jurisdictions known to such counsel (in
each case other than any state securities or Blue Sky laws as to which
such counsel need not express any opinion) (no opinion need be
expressed pursuant to this subparagraph (viii)(A) as to any violation
of the antifraud provisions of any securities laws, including but not
limited to Section 10(b) of the Exchange Act and Rule 10b-5
thereunder), (B) the certificate of incorporation or by-laws of the
Company, (C) such agreements and instruments as are listed on Exhibit
C attached hereto, (D) to such counsel's knowledge, any agreements or
other instruments, other than those referred to in clause (C) above,
binding upon the Company or any of its subsidiaries that is material
to the Company and its subsidiaries, taken as a whole, or (E) to such
counsel's knowledge, any order to which the Company is subject;
(ix) no consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
issuance of the Notes or the Conversion Shares upon conversion of the
Notes or the performance by the Company of its obligations under this
Agreement, the Indenture, the Registration Rights Agreement or the
Notes except (x) such as may be required by the securities or Blue Sky
laws of the various states and foreign authorities in connection with
the offer and sale of the Notes and (y) such as may be required by the
federal securities laws of the United States and the rules and
regulations promulgated thereunder and the securities or Blue Sky laws
of the various states in connection with the registration of the offer
and sale of the Conversion Shares pursuant to the Registration Rights
Agreement, as to which such counsel need express no opinion;
(x) the statements in the Final Memorandum under the captions
"Description of Notes," "Certain Transactions," "Description of
Certain Indebtedness," "Certain United States Federal Income Tax
Considerations," "Description of Capital Stock" and "Transfer
Restrictions," in each case insofar as such statements constitute
summaries of the legal matters, documents and proceedings referred to
therein, in all material respects fairly present the information with
respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein;
(xi) the terms of the Notes and the Indenture conform in all
material respects to the descriptions thereof contained in the Final
Memorandum under the heading "Description of Notes" and the Conversion
Shares conform in all material respects to the description thereof
contained in the Final Memorandum under the caption "Description of
the Capital Stock";
<PAGE>
12
(xii) the Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended;
(xiii) nothing has come to the attention of such counsel which
has caused it to believe that (except for financial statements and
schedules and financial and statistical data included or incorporated
by reference in the Final Memorandum as to which such counsel need not
express any belief) the Final Memorandum when issued contained, or as
of the date such opinion is delivered contains, any untrue statement
of a material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading; and
(xiv) based upon the representations, warranties and agreements
of the Company in Sections 1(m), 1(t), 5(f), 5(g), 5(h), 5(i) and 5(k)
of this Agreement and of the Placement Agents in Section 6 of this
Agreement, it is not necessary in connection with the offer, sale and
delivery of the Notes to the Placement Agents under this Agreement or
in connection with the initial resale of such Notes by the Placement
Agents in accordance with Section 6 of this Agreement to register the
Notes under the Securities Act, it being understood that no opinion is
expressed as to any subsequent resale of any Note.
(d) You shall have received on the Closing Date an opinion of Bernard
F. Stewart, Executive Vice President and General Counsel of the Company,
dated the Closing Date, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by the Company;
(ii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture, the Registration Rights Agreement and the Notes and the
issuance, sale and delivery of the Notes and the issuance and delivery
of the Conversion Shares upon conversion of the Notes will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or, to such counsel's
knowledge, any agreement or other instrument binding upon the Company
or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or, to such counsel's knowledge, any
order to which the Company is subject;
<PAGE>
13
(iii) after reasonable inquiry, such counsel does not know of
any legal or governmental proceedings pending or threatened to which
the Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is subject
other than proceedings fairly summarized in all material respects in
the Final Memorandum and proceedings which such counsel believes are
not likely to have a Material Adverse Effect or a material adverse
effect on the power or ability of the Company to (x) perform its
obligations under this Agreement, the Registration Rights, the
Indenture and the Notes or (y) issue, sell and deliver the Notes or
(z) consummate the transactions contemplated by the Final Memorandum;
(iv) such counsel is of the opinion that, to the best of his
knowledge, the Company is (i) in substantial compliance with any and
all applicable Environmental Laws in all material respects, (ii) has
received all material permits, licenses or other approvals required of
it under applicable Environmental Laws to conduct its business which
it believes are necessary for its operations and (iii) is in
substantial compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, singly or in the
aggregate, have a Material Adverse Effect;
(v) each of Tudor, B.I.G., Hagen and CEAC is validly existing as
a corporation under the laws of the jurisdiction in which it was
incorporated and has the corporate power and authority to own its
property and to conduct its business as described in the Final
Memorandum;
(vi) all of the outstanding shares of capital stock of Tudor,
B.I.G., Hagen and CEAC have been duly authorized and validly issued
and are fully paid and non-assessable; none of the outstanding shares
of capital stock of Tudor, B.I.G., Hagen and CEAC was issued in
violation of the preemptive or similar rights of any stockholder of
such entity; and the Company owns, of record, directly or indirectly
an amount equal to or at least 100%, 90.1%, 81.5%, and 88.9% of the
outstanding shares of capital stock of CEAC, Tudor, B.I.G. and Hagen,
respectively, and with respect to such shares the Company has,
directly or indirectly, good and marketable title, free and clear of
all liens, charges, encumbrances or restrictions of any kind, except
for certain transfer restrictions and rights of first refusal with
respect to B.I.G. and liens under the European Facilities Agreement;
and
<PAGE>
14
(vii) nothing has come to the attention of such counsel which
leads him to believe that (except for financial statements and
schedules and financial and statistical data included or incorporated
by reference in the Final Memorandum as to which such counsel need not
express any belief) the Final Memorandum when issued contained, or as
of the date such opinion is delivered contains, any untrue statement
of a material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
(e) You shall have received on the Closing Date an opinion of David S.
Rifkind, Assistant General Counsel, Environmental Resources of the Company,
dated the Closing Date, to the effect that such counsel is of the opinion
that, to the best of his knowledge, the Company is (i) in substantial
compliance with any and all applicable Environmental Laws in all material
respects, (ii) has received all material permits, licenses or other
approvals required of it under applicable Environmental Laws to conduct its
business which it believes are necessary for its operations and (iii) is in
substantial compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits, licenses
or approvals would not, singly or in the aggregate, have a Material Adverse
Effect.
(f) You shall have received on the Closing Date (A) an opinion of
David S. Rifkind, Assistant General Counsel, Environmental Resources of the
Company, dated the Closing Date, to the effect that, to the best of his
knowledge, each of B.I.G., Tudor and CEAC (i) is in substantial compliance
with any and all applicable Environmental Laws in all material respects,
(ii) has received all material permits, licenses or other approvals
required of it under applicable Environmental Laws to conduct its business
which it believes are necessary for its operations, and (iii) is in
substantial compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits, licenses
or approvals would not, singly or in the aggregate, have a Material Adverse
Effect, (B) certificates from appropriate management personnel of CEAC,
B.I.G. and Tudor, to the effect that, to the best of their knowledge, CEAC,
B.I.G. or Tudor, as the case may be, (i) is in substantial compliance with
any and all applicable Environmental Laws in all material respects, (ii)
has received all material permits, licenses or other approvals required of
it under applicable Environmental Laws to conduct its business which it
believes are necessary for its operations, and (iii) is in substantial
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure
to receive required permits, licenses or other approvals
<PAGE>
15
or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
Material Adverse Effect.
(g) You shall have received on the Closing Date an opinion of Shearman
& Sterling, counsel for the Placement Agents, dated the Closing Date,
covering the matters referred to in (iii), (iv), (v), (vi), (x) (but only
as to the statements in the Final Memorandum under "Description of Notes,"
"Description of Capital Stock," "Private Placement" and "Transfer
Restrictions"), (xi), (xiii) and (xiv) of paragraph (c) above.
With respect to (xiii) of paragraph (c) above, Kirkland & Ellis,
counsel for the Company and Shearman & Sterling, counsel for the Placement
Agents, and, with respect to (vii) of paragraph (d) above, Bernard F.
Stewart may state that their opinions and beliefs are based upon their
participation in the preparation of each Memorandum (and any amendments or
supplements thereto) and review and discussion of the contents thereof, but
are without independent check or verification except as specified. The
opinion of Kirkland & Ellis may contain such applicable exceptions as were
contained in its opinion dated April 28, 1995 that was previously delivered
to Morgan Stanley & Co. Incorporated.
In addition, with respect to the opinions of Kirkland & Ellis, counsel
for the Company, Shearman & Sterling, counsel for the Placement Agents, and
Bernard F. Stewart, Executive Vice President and General Counsel of the
Company, (i) each of such counsel may also state that, insofar as such
opinions involve factual matters, they have relied to the extent they deem
proper upon certificates of the Company and any of its subsidiaries and
certificates of public officials, (ii) Kirkland & Ellis may state that,
with respect to (viii)(D) and (E) of paragraph (c) above, they have relied
upon the opinion of Bernard F. Stewart given in his capacity as Executive
Vice President and General Counsel of the Company, (iii) Bernard F. Stewart
may state that, with respect to (iv) of paragraph (d) above, he has relied
on the opinions of David S. Rifkind, and (iv) David S. Rifkind may state
that, insofar as his opinions in paragraph (e) and in paragraph (f) relate
to matters concerning CEAC, B.I.G. and Tudor, he has relied upon the
certificates of appropriate management personnel of CEAC, B.I.G. and Tudor,
respectively, as well as any opinions of local counsel reasonably
acceptable to you. Kirkland & Ellis need not express any opinion with
regard to the laws of any jurisdiction other than the laws of the United
States of America, the Delaware General Corporation Law and the laws of the
State of New York. Bernard F. Stewart need not express any opinion with
regard to the laws of any jurisdiction other than the laws of the United
States of America, the Delaware General Corporation Law and the laws of
Michigan, and except that insofar as his opinions relate to matters
concerning the laws of the State of New York, he shall assume that such
laws are comparable to the laws of the jurisdictions as to which he
<PAGE>
16
will be opining; with respect to matters of foreign law he may rely on
opinions of local counsel reasonably acceptable to you. With respect to
such local counsel opinions, (i) such local counsel shall expressly state
that Mr. Stewart may rely thereon and (ii) Mr. Stewart shall expressly
state that he believes he is justified in so relying.
(h) You shall have received, on each of the date hereof and the
Closing Date, a letter dated the date hereof or the Closing Date, as the
case may be, from each of Arthur Andersen LLP, independent public
accountants for the Company, Arthur Andersen & Co., independent auditors
for Tudor, and Ernst & Young Audit, independent accountants for CEAC, in
each case containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained in
each Memorandum.
(i) You shall have received on the date hereof the Registration Rights
Agreement effective as of the Closing Date and executed by the Company.
(j) You shall have received, prior to the Closing Date, from Arthur M.
Hawkins and Douglas N. Pearson, executed "lock-up" letters (the "Lock-Up
Letters"), in form and substance satisfactory to Morgan Stanley & Co.
Incorporated, pursuant to which Arthur M. Hawkins and Douglas N. Pearson
shall have agreed that, for a period of 90 days after the date of the Final
Memorandum, they will not offer, pledge, sell, contract to sell, sell any
option or contract or purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common
Stock, or enter into any swap or similar agreement that transfers, in whole
or in part, the economic risk of ownership of the Common Stock without the
prior written consent of Morgan Stanley & Co. Incorporated.
(k) You shall have received such other documents and certificates as
are reasonably requested by you or your counsel.
5. Covenants of the Company. In further consideration of the agreements
of the Placement Agents contained in this Agreement, the Company covenants as
follows:
(a) To furnish to you, without charge, during the period mentioned in
paragraph (c) below, as many copies of the Final Memorandum and any
supplements and amendments thereto as you may reasonably request and to
deliver such copies to you by 5:00 p.m. (New York time) on the business day
next following the execution of this Agreement.
<PAGE>
17
(b) Before amending or supplementing either Memorandum, to furnish to
you a copy of each such proposed amendment or supplement and not to use any
such proposed amendment or supplement to which you reasonably object.
(c) If, during such period after the date hereof and prior to the date
on which all of the Notes shall have been sold by the Placement Agents, any
event shall occur or condition exist as a result of which it is necessary
to amend or supplement the Final Memorandum in order to make the statements
therein, in light of the circumstances when such Memorandum is delivered to
the purchasers, not misleading, or if, in the opinion of counsel to the
Placement Agents, it is necessary to amend or supplement such Memorandum to
comply with law, forthwith to prepare and furnish to the Placement Agents,
at the Company's expense, either amendments or supplements to such
Memorandum so that the statements in such Memorandum as so amended or
supplemented will not, in light of the circumstances when such Memorandum
is delivered by the Placement Agents to purchasers of the Notes, be
misleading or so that such Memorandum, as so amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Placement Agents
shall reasonably request; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now
so qualified or to take any action which would subject it to the general
service of process in any jurisdiction where it is not now so subject.
(e) Whether or not any sale of Notes to the Placement Agents is
consummated, to pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation of each
Memorandum and all amendments and supplements thereto, (ii) the
preparation, issuance and delivery of the Notes and the Conversion Shares
upon conversion of the Notes, including any transfer taxes payable in
connection with the transfer of the Notes to the Placement Agents, (iii)
the fees and disbursements of the Company's counsel and the reasonable fees
and disbursements of the Company's accountants and the Trustee and its
counsel, (iv) the qualification of such Notes under state securities or
Blue Sky laws in accordance with the provisions of paragraph (d) hereof,
including filing fees and the reasonable fees and disbursements of counsel
for the Placement Agents in connection therewith and in connection with the
preparation of any Blue Sky or Legal Investment Memoranda, (v) the printing
and delivery to the Placement Agents of copies of any Blue Sky or Legal
Investment Memoranda, (vi) the printing and delivery to the Placement
Agents, in quantities as hereinabove stated, of copies of each Memorandum
and any amendments or supplements thereto, (vii) the fees and expenses, if
any, incurred in connection with the admission of the Notes for trading in
any appropriate
<PAGE>
18
market system including, without limitation, the Private Offerings, Resales
and Trading Through Automated Linkages Market ("PORTAL"), and (viii) any
expenses incurred by the Company in connection with a "road show"
presentation to potential investors.
(f) Neither the Company nor any of its Affiliates will sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Securities Act) which would be integrated with
the sale of the Notes in a manner which would require the registration
under the Securities Act of the Notes.
(g) Not to solicit any offer to buy, or offer or sell, the Notes by
means of any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Securities Act) or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act.
(h) While any of the Notes remain outstanding, to make available, upon
request, to any seller of such Notes the information specified in Rule
144A(d)(4) under the Securities Act, unless the Company is then subject to
Section 13 or 15(d) of the Exchange Act.
(i) To include a description of transfer restrictions, legends and
related information in each Memorandum, in form and substance reasonably
acceptable to the Placement Agents.
(j) To use its reasonable efforts to permit the Notes to be designated
PORTAL securities in accordance with the rules and regulations adopted by
the National Association of Securities Dealers, Inc. relating to trading in
the PORTAL Market.
(k) None of the Company or any of its Affiliates or any person acting
on its or their behalf (other than the Placement Agents) will engage in any
directed selling efforts (as that term is defined in Regulation S) with
respect to the Notes, and the Company and its Affiliates and each person
acting on its or their behalf (other than the Placement Agents) will comply
with the offering restrictions of Regulation S.
(l) To use the net proceeds received by it from the sale of the Notes
in the manner specified in the Final Memorandum under the caption "Use of
Proceeds."
(m) It will, and will cause the transfer agent with respect to the
Common Stock to, refuse to register any transfer of Conversion Shares sold
pursuant to Regulation S if such transfer is not made after registration of
the Conversion Shares
<PAGE>
19
under the Securities Act or in accordance with an available exemption from
the registration requirements of the Securities Act.
(n) To cause the Conversion Shares to be listed on the New York Stock
Exchange or any other exchange on which the Common Stock is listed and
primarily traded following registration of the Conversion Shares under the
Securities Act.
(o) For a period of 90 days after the date of the Final Memorandum, it
will not offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, or otherwise transfer or dispose of, directly
or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock, or enter into any
swap or similar agreement that transfers, in whole or in part, the economic
risk of ownership of the Common Stock without the prior written consent of
Morgan Stanley & Co. Incorporated; except for (i) sales to the Placement
Agents pursuant to this Agreement, (ii) the issuance of Common Stock in
connection with the acquisition of equity interests of Accumulateurs
Sonnenschein GmbH and (iii) the grant of options, restricted stock and
other awards to employees pursuant to a benefit plan in effect on the date
hereof and the issuance of shares of Common Stock upon exercise of such
options and other awards.
6. Offering of the Notes; Restrictions on Transfer. (a) Each Placement
Agent represents and warrants that it is a qualified institutional buyer as
defined in Rule 144A under the Securities Act (a "QIB"). Each Placement Agent
agrees with the Company that (x) it will not solicit offers for, or offer or
sell, the Notes by any form of general solicitation or general advertising (as
those terms are used in Regulation D under the Securities Act) or in any manner
involving a public offering within the meaning of Section 4(2) of the Securities
Act and (y) it will solicit offers for such Notes only from, and will offer such
Notes only to, persons that it reasonably believes to be (A) in the case of
offers inside the United States, (i) QIBs or (ii) other institutional accredited
investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act) ("institutional accredited investors") that, prior to their purchase of the
Notes, deliver to the Placement Agents a letter containing the representations
and agreements annexed to the Final Memorandum and (B) in the case of offers
outside the United States, persons other than U.S. persons ("foreign
purchasers," which term shall include dealers or other professional fiduciaries
in the United States acting on a discretionary basis for foreign beneficial
owners (other than an estate or trust)) that, in each case, in purchasing such
Notes are deemed to have represented and agreed as provided in the Final
Memorandum under the heading "Transfer Restrictions."
(b) Each Placement Agent represents, warrants, and agrees, severally
and not jointly with respect to offers and sales outside the United States that:
<PAGE>
20
(i) it understands that no action has been or will be taken in any
jurisdiction by the Company that would permit a public offering of the
Notes, or possession or distribution of either Memorandum or any other
offering or publicity material relating to the Notes, in any country or
jurisdiction where action for that purpose is required;
(ii) such Placement Agent will comply with all applicable laws and
regulations in each jurisdiction in which it acquires, offers, sells or
delivers Notes or has in its possession or distributes either Memorandum or
any such other material, in all cases at its own expense;
(iii) the Notes and the Conversion Shares have not been and will not
be registered under the Securities Act and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S.
persons except in accordance with Regulation S under the Securities Act or
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act;
(iv) such Placement Agent has offered the Notes and will offer and
sell the Notes (A) as part of their distribution at any time and (B)
otherwise until 40 days after the Closing Date, only in accordance with
Rule 903 of Regulation S. Accordingly, neither the Placement Agents, its
Affiliates nor any persons acting on its or their behalf have engaged or
will engage in any directed selling efforts (within the meaning of
Regulation S) with respect to the Notes, and the Placement Agents, their
Affiliates and any such persons have complied and will comply with the
offering restrictions requirement of Regulation S;
(v) such Placement Agent has (1) not offered or sold, and will not
offer or sell in the United Kingdom, by means of any document, any Notes
other than to persons whose ordinary business it is to buy and sell shares
or debentures, whether as a principal or agent, or in circumstances which
do not constitute an offer to the public within the meaning of the
Companies Act 1985, (2) complied and will comply with all applicable
provisions of the Financial Services Act 1986 with respect to anything done
by it in relation to the Notes in, from or otherwise involving the United
Kingdom and (3) only issued or passed on and will only issue and pass on to
any persons in the United Kingdom any document received by it in connection
with the issue of the Notes if that person is of a kind described in
Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1988;
(vi) such Placement Agent understands that the Notes have not been and
will not be registered under the Securities and Exchange Law of Japan, and
represents that it has not offered or sold, and agrees that it will not
offer or sell, any Notes, directly or indirectly in Japan or to or from any
resident of Japan except (1) pursuant
<PAGE>
21
to an exemption from the registration requirements of the Securities and
Exchange Law of Japan and (2) in compliance with any other applicable
requirements of Japanese law; and
(vii) such Placement Agent agrees that, at or prior to confirmation
of sales of the Notes, it will have sent to each distributor, dealer or
person receiving a selling concession, fee or other remuneration that
purchases Notes from it during the restricted period a confirmation or
notice to substantially the following effect:
"The Notes covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act") and may not
be offered or sold within the United States or to, or for the account
or benefit of, U.S. persons (i) as part of their distribution at any
time or (ii) otherwise prior to 40 days after the closing of the
offering, except in either case in accordance with Regulation S (or
Rule 144A, if available) under the Securities Act. Terms used above
have the meaning given to them by Regulation S."
Terms used in this Section 6 and not otherwise defined in this Agreement have
the meanings given to them by Regulation S.
7. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Placement Agent and each person, if any, who controls
such Placement Agent within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, or is under common control with, or is
controlled by, any Placement Agent, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Placement Agent or any such controlling
person or affiliated person in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in either Memorandum (as amended or supplemented,
if the Company shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material fact
necessary to make the statements therein in light of the circumstances under
which they were made not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Placement Agent furnished to the Company in writing by you or on your behalf
expressly for use therein; provided that the foregoing indemnity agreement with
respect to the Preliminary Memorandum shall not inure to the benefit of any
Placement Agent, or any person controlling such Placement Agent, if a copy of
the Final Memorandum (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Placement Agent if required by laws to have been delivered, at or
prior to the written confirmation of the sale of the Notes, and if the
<PAGE>
22
Final Memorandum (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities.
(b) Each Placement Agent agrees to indemnify and hold harmless the
Company, its directors, officers and each person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Placement Agent, but only with reference to information relating
to such Placement Agent furnished to the Company in writing by you or on your
behalf expressly for use in either Memorandum or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to paragraphs (a) or (b) above, such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Morgan Stanley & Co. Incorporated, in the case of
parties indemnified pursuant to paragraph (a) above, and by the Company, in the
case of parties indemnified pursuant to paragraph (b) above. The indemnifying
party shall not be liable for or required to contribute to any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party
<PAGE>
23
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) If the indemnification provided for in paragraph (a) or (b) of
this Section 7 is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Notes or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying party or parties on the one hand and of the indemnified party
or parties on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Placement Agents on the other hand in connection with
the offering of the Notes shall be deemed to be in the same respective
proportions as the net proceeds from the sale of the Notes (before deducting
expenses) received by the Company and the total discounts and commissions
received by the Placement Agents in respect thereof bear to the aggregate
offering price of the Notes. The relative fault of the Company on the one hand
and of the Placement Agents on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Placement Agents and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(e) The Company and the Placement Agents agree that it would not be
just or equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Placement Agent shall be required to contribute
any amount in excess of the
<PAGE>
24
amount by which the total price at which the Notes resold by it in the initial
placement of such Notes were offered to investors exceeds the amount of any
damages that such Placement Agent has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 7 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations and warranties of the Company contained in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Placement Agent or any person controlling any Placement Agent or
by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Notes.
8. Termination. This Agreement shall be subject to termination by notice
given by you to the Company, if (a) after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i) through (iv), such event singly or
together with any other such event makes it, in your judgment, impracticable to
market the Notes on the terms and in the manner contemplated in the Final
Memorandum.
9. Miscellaneous. If, on the Closing Date or the Option Closing Date, as
the case may be, any one of the Placement Agents shall fail or refuse to
purchase Notes that it has agreed to purchase hereunder on such date, and the
aggregate principal amount of Notes which such defaulting Placement Agent or
Placement Agents agreed but failed or refused to purchase is not more than one-
tenth of the aggregate principal amount of Notes to be purchased on such date,
the other Placement Agents shall be obligated severally in the proportions that
the principal amount of Firm Notes set forth opposite their respective names in
Exhibit A bears to the aggregate principal amount of Firm Notes set forth
opposite the names of all such non-defaulting Placement Agents, or in such other
proportions as you may specify, to purchase the Notes which such defaulting
Placement Agent or Placement Agents
<PAGE>
25
agreed but failed or refused to purchase on such date; provided that in no event
shall the principal amount of Notes that any Placement Agent has agreed to
purchase pursuant to Section 3 be increased pursuant to this Section 9 by an
amount in excess of one-ninth of such principal amount of Notes without the
written consent of such Placement Agent. If, on the Closing Date or the Option
Closing Date, as the case may be, any Placement Agent or Placement Agents shall
fail or refuse to purchase Notes which it or they have agreed to purchase
hereunder on such date and the aggregate principal amount of Notes with respect
to which such default occurs is more than one-tenth of the aggregate principal
amount of Notes to be purchased on such date and arrangements satisfactory to
you and the Company for the purchase of such Notes are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Placement Agent or of the Company. In any such case either
you or the Company shall have the right to postpone the Closing Date or the
Option Closing Date, as the case may be, but in no event for longer than seven
days, in order that the required changes, if any, in the Final Memorandum or in
any other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Placement Agent from liability in
respect of any default of such Placement Agent under this Agreement.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
If this Agreement shall be terminated by the Placement Agents because
of any failure or refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement, the
Company will reimburse the Placement Agents for all out-of-pocket expenses
(including the fees and disbursements of its counsel) reasonably incurred by the
Placement Agents in connection with this Agreement or the offering contemplated
hereunder.
<PAGE>
26
This Agreement shall be governed by the laws of the State of New York.
The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
Very truly yours,
EXIDE CORPORATION
By /s/ Alan E. Gauthier
------------------------------------------
Name: Alan E. Gauthier
Title:
Accepted, December 11, 1995
MORGAN STANLEY & CO. INCORPORATED
By
----------------------------------
Name:
Title:
SALOMON BROTHERS INC
By
----------------------------------
Name:
Title:
BT SECURITIES CORPORATION
By
----------------------------------
Name:
Title:
<PAGE>
26
This Agreement shall be governed by the laws of the State of New York.
The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
Very truly yours,
EXIDE CORPORATION
By
-----------------------------------------
Name:
Title:
Accepted, December 11, 1995
MORGAN STANLEY & CO. INCORPORATED
By /s/ Candice Koederitz
----------------------------------
Name: Candice Koederitz
Title:
SALOMON BROTHERS INC
By
----------------------------------
Name:
Title:
BT SECURITIES CORPORATION
By
----------------------------------
Name:
Title:
<PAGE>
26
This Agreement shall be governed by the laws of the State of New York.
The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
Very truly yours,
EXIDE CORPORATION
By
----------------------------------------
Name:
Title:
Accepted, December 11, 1995
MORGAN STANLEY & CO. INCORPORATED
By
----------------------------------
Name:
Title:
SALOMON BROTHERS INC
By /s/ David Sullivan
----------------------------------
Name: David Sullivan
Title: Associate
BT SECURITIES CORPORATION
By
----------------------------------
Name:
Title:
<PAGE>
26
This Agreement shall be governed by the laws of the State of New York.
The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
Very truly yours,
EXIDE CORPORATION
By ___________________________________________
Name:
Title:
Accepted, December 11, 1995
MORGAN STANLEY & CO. INCORPORATED
By ___________________________________
Name:
Title:
SALOMON BROTHERS INC
By ___________________________________
Name:
Title:
BT SECURITIES CORPORATION
By /s/ Jeff L. Ott
___________________________________
Name: Jeff L. Ott
Title: Managing Director
<PAGE>
Exhibit A
---------
FIRM NOTES
----------
<TABLE>
<CAPTION>
Name of Placement Agents Principal Amount at Maturity of Notes
- ----------------------------------- -------------------------------------
<S> <C>
Morgan Stanley & Co. Incorporated $173,000,000
Salomon Brothers Inc $138,400,000
BT Securities Corporation $ 34,600,000
</TABLE>
<PAGE>
Exhibit B
---------
REGISTRATION RIGHTS AGREEMENT
[to be attached]
<PAGE>
Exhibit C
---------
Senior Note Indenture dated as of December 17, 1992, between the Company and
Bank of Montreal Trust Company, as trustee, as amended.
Senior Subordinated Deferred Coupon Debenture Indenture, dated as of December
17, 1992, between the Company and the Bank of New York, as trustee, as amended.
Credit Agreement dated as of August 30, 1994 (the "Credit Agreement"), among the
Company, various financial institutions, Bankers Trust Company, Bank of America
National Trust and Savings Association and Bank of Montreal, as Agents, and
Bankers Trust Company, as Administrative Agent.
First Amendment dated as of October 21, 1994, among the Company, the financial
institutions party to the Credit Agreement, Bankers Trust Company, Bank of
America National Trust and Savings Association and Bank of Montreal, as Agents,
and Bankers Trust Company, as Administrative Agent.
Recapitalization Amendment Agreement dated as of December 17, 1992, among the
Company, certain affiliated parties and certain banks.
Receivables Purchase Agreement dated as of February 17, 1994 among the Company
and Three Rivers Funding Corporation.
Asset Purchase Agreement, dated as of June 10, 1991, between the Company and
Yuasa Battery (America), Inc.
Battronics Purchase Agreement dated October 15, 1993 among the Company, Peter
Noznesky, 669073 Ontario Limited and 1036058 Ontario Inc.
Agreement dated July 22, 1994, between the Registrant and Corporacion Industrial
y Financiera de Banesto.
Share Purchase Agreement dated March 30, 1994, among Euro Exide Corporation
Limited, Brian Robert Lewis, Marlene Mary Lewis, Melanie Veronica Lewis and Guy
William Lewis.
Agreement dated September 30, 1994, among Gemala (Isle of Man) Limited, PT Sapta
Panji Manggala, and B.I.G. Batteries Group Limited. Deed dated September 30,
1994 among Euro Exide Corporation Limited, Gemala (Isle of Man) Limited and
B.I.G. Batteries Group Limited. Master Agreement dated September 30, 1994 among
Euro Exide Corporation Limited, Gemala (Isle of Man) Limited, B.I.G. Batteries
Group Limited and PT Sapta Panji Manggala.
<PAGE>
C-2
Master Agreement dated October 1, 1994, between Sears, Roebuck and Co. and the
Company.
Stock Purchase Agreement dated March 17, 1995 among the Company, Fiat S.p.A and
SICIND S.p.A. and the Warranty Agreement dated March 17, 1995 between the
Company and Fiat S.p.A.
Second Consent, Waiver and Agreement dated as of December 9, 1994, among the
Company, the financial institutions party to the Credit Agreement, Bankers Trust
Company, Bank of America National Trust and Savings Association and Bank of
Montreal, as Agents, and Bankers Trust Company, as Administrative Agent.
Third Amendment dated as of February 3, 1995, among the Company, the financial
institutions party to the Credit Agreement, Bankers Trust Company, Bank of
America National Trust and Savings Association and Bank of Montreal, as Agents,
and Bankers Trust Company, as Administrative Agent.
Fourth Amendment dated as of March 6, 1995, among the Company, the financial
institutions party to the Credit Agreement, Bankers Trust Company, Bank of
America National Trust and Savings Association and Bank of Montreal, as Agents,
and Bankers Trust Company, as Administrative Agent.
Fifth Amendment and Consent dated as of April 18, 1995, among the Company, the
financial institutions party to the Credit Agreement, Bankers Trust Company,
Bank of America National Trust and Savings Association and Bank of Montreal, as
Agents, and Bankers Trust Company, as Administrative Agent.
Sixth Amendment and Consent dated as of April 21, 1995, among the Company, the
lenders party to the Credit Agreement, Bankers Trust Company, Bank of America
National Trust and Savings Association and Bank of Montreal, as Agents, and
Bankers Trust Company, as Administrative Agent.
Seventh Amendment and Consent dated as of April 25, 1995, among the Company, the
lenders party to the Credit Agreement, Bankers Trust Company, Bank of America
National Trust and Savings Association and Bank of Montreal, as Agents, and
Bankers Trust Company, as Administrative Agent.
Eighth Amendment and Consent dated as of August 17, 1995, among the Company, the
lenders party to the Credit Agreement, Bankers Trust Company, Bank of America
National Trust and Savings Association and Bank of Montreal, as Agents, and
Bankers Trust Company, as Administrative Agent.
<PAGE>
C-3
Ninth Amendment and Consent dated as of November 22, 1995, among the Company,
the lenders party to the Credit Agreement, Bankers Trust Company, Bank of
America National Trust and Savings Association and Bank of Montreal, as Agents,
and Bankers Trust Company, as Administrative Agent.
Facilities Agreement dated February 28, 1995 among the Company, various
financial institutions and Bankers Trust Company, Bank of America National Trust
and Savings Association, Bank of Montreal and Dredner Bank Luxembourg S.A., as
Agents.
Senior Note Indenture dated as of April 28, 1995, between the Company and The
Bank of New York, as trustee.
First Supplemental Indenture dated as of August 16, 1995, between the Company
and The Bank of New York, as trustee.
Facilities Agreement, dated as of November 30, 1995, among the Company, various
financial institutions and Bankers Trust Company, Bank of America National Trust
and Savings Association, Bank of Montreal and Citibank International PLC, as
Underwriters and Bankers Trust Company, as Agent.
<PAGE>
Exhibit 99.2
===============================================================================
EXIDE CORPORATION,
as Issuer,
and
THE BANK OF NEW YORK,
as Trustee
____________________
INDENTURE
Dated as of December 15, 1995
____________________
2.90% Convertible Senior Subordinated Notes
Due 2005
===============================================================================
<PAGE>
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
Page
----
<S> <C>
INDENTURE................................................................ 1
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.................................. 6
CONVERSION NOTICE........................................................ 13
ASSIGNMENT............................................................... 15
OPTION TO ELECT REDEMPTION UPON A FUNDAMENTAL CHANGE..................... 17
Schedule A: Changes to Principal Amount of Global Security.............. 18
</TABLE>
<TABLE>
<CAPTION>
ARTICLE ONE
DEFINITIONS
<S> <C> <C>
SECTION 1.01. Definitions............................................... 19
SECTION 1.02. Rules of Construction..................................... 31
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION,
REGISTRATION AND EXCHANGE OF NOTES
SECTION 2.01. Form, Date and Denomination of Notes...................... 32
SECTION 2.02. Payments of Interest...................................... 33
SECTION 2.03. Restrictive Legends....................................... 34
SECTION 2.04. Execution and Authentication.............................. 38
SECTION 2.05. Registrar and Paying Agent................................ 39
SECTION 2.06. Paying Agent to Hold Money in Trust....................... 39
SECTION 2.07. Transfer and Exchange..................................... 40
SECTION 2.08. Book-Entry Provisions for Global Notes.................... 41
SECTION 2.09. Special Transfer Provisions............................... 43
SECTION 2.10. Mutilated, Destroyed, Lost or Stolen Notes................ 46
SECTION 2.11. Temporary Notes........................................... 46
SECTION 2.12. Cancellation of Notes Paid, Etc........................... 47
SECTION 2.13. CUSIP Numbers............................................. 47
</TABLE>
- ---------------
* This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
<PAGE>
ii
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
ARTICLE THREE
REDEMPTION OF NOTES
SECTION 3.01. Redemption Prices......................................... 47
SECTION 3.02. Notice to Trustee......................................... 48
SECTION 3.03. Notice of Redemption; Selection of Notes.................. 48
SECTION 3.04. Payment of Notes Called for Redemption.................... 49
SECTION 3.05. No Sinking Fund........................................... 50
SECTION 3.06. Conversion Arrangement on Call for Redemption............. 50
ARTICLE FOUR
SUBORDINATION OF NOTES
SECTION 4.01. Securities Subordinated to Senior Indebtedness............ 51
SECTION 4.02. No Payment on Notes in Certain Circumstances.............. 51
SECTION 4.03. Payment over of Proceeds upon Dissolution, Etc............ 52
SECTION 4.04. Subrogation............................................... 54
SECTION 4.05. Obligations of Company Unconditional...................... 54
SECTION 4.06. Notice to Trustee......................................... 55
SECTION 4.07. Reliance on Judicial Order or Certificate of
Liquidating Agent....................................... 56
SECTION 4.08. Trustee's Relation to Senior Indebtedness................. 56
SECTION 4.09. Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of the Senior Indebtedness....... 56
SECTION 4.10. Noteholders Authorize Trustee to Effectuate Subordination
of Notes................................................ 56
SECTION 4.11. Not to Prevent Event of Default........................... 57
SECTION 4.12. Trustee's Compensation Not Prejudiced..................... 57
SECTION 4.13. No Waiver of Subordination................................ 57
SECTION 4.14. Payments May Be Paid Prior to Dissolution................. 57
SECTION 4.15. Consent of Holders of Senior Indebtedness Under the
U.S. Credit Agreement................................... 58
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.01. Payment of Principal, Premium and Interest................ 58
SECTION 5.02. Offices for Notices and Payments, Etc..................... 58
SECTION 5.03. Appointments to Fill Vacancies in Trustee's Office........ 59
</TABLE>
<PAGE>
iii
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
SECTION 5.04. Provision as to Paying Agent.............................. 59
SECTION 5.05. Limitation on Senior Subordinated Indebtedness............ 60
SECTION 5.06. Calculation of Original Issue Discount.................... 61
SECTION 5.07. Notice of Defaults........................................ 61
SECTION 5.08. Compliance Certificates................................... 61
ARTICLE SIX
NOTEHOLDERS' LISTS AND
REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 6.01. Noteholders' Lists........................................ 61
SECTION 6.02. Preservation of Lists..................................... 61
ARTICLE SEVEN
REMEDIES OF THE TRUSTEE AND
NOTEHOLDERS IN THE EVENT OF DEFAULT
SECTION 7.01. Events of Default......................................... 62
SECTION 7.02. Payment of Notes on Default; Suit Therefor................ 64
SECTION 7.03. Application of Monies Collected by Trustee................ 66
SECTION 7.04. Proceedings by Noteholder................................. 67
SECTION 7.05. Proceedings by Trustee.................................... 68
SECTION 7.06. Remedies Cumulative and Continuing........................ 68
SECTION 7.07. Direction of Proceedings and Waiver of Defaults by
Majority Noteholders.................................... 69
SECTION 7.08. Notice of Defaults........................................ 69
SECTION 7.09. Undertaking to Pay Costs.................................. 70
ARTICLE EIGHT
CONCERNING THE TRUSTEE
SECTION 8.01. Duties and Responsibilities of Trustee.................... 70
SECTION 8.02. Reliance on Documents, Opinions, Etc...................... 72
SECTION 8.03. No Responsibility for Recitals, Etc....................... 73
SECTION 8.04. Trustee, Paying Agents, Conversion Agents or Registrar
May Own Notes........................................... 73
SECTION 8.05. Monies to Be Held in Trust................................ 73
SECTION 8.06. Compensation and Expenses of Trustee...................... 73
</TABLE>
<PAGE>
iv
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
SECTION 8.07. Officers' Certificate as Evidence......................... 74
SECTION 8.08. Eligibility of Trustee.................................... 74
SECTION 8.09. Resignation or Removal of Trustee......................... 74
SECTION 8.10. Acceptance by Successor Trustee........................... 76
SECTION 8.11. Succession by Merger, Etc................................. 76
ARTICLE NINE
CONCERNING THE NOTEHOLDERS
SECTION 9.01. Action by Noteholders..................................... 77
SECTION 9.02. Proof of Execution by Noteholders......................... 77
SECTION 9.03. Persons Who Are Deemed Absolute Owners.................... 78
SECTION 9.04. Company-Owned Notes Disregarded........................... 78
SECTION 9.05. Revocation of Consents; Future Holders Bound.............. 78
ARTICLE TEN
NOTEHOLDERS' MEETINGS
SECTION 10.01. Purposes of Meetings..................................... 79
SECTION 10.02. Call of Meetings by Trustee.............................. 79
SECTION 10.03. Call of Meetings by Company or Noteholders............... 80
SECTION 10.04. Qualifications for Voting................................ 80
SECTION 10.05. Regulations.............................................. 80
SECTION 10.06. Voting................................................... 81
SECTION 10.07. No Delay of Rights by Meeting............................ 81
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 11.01. Without Consent of Noteholders........................... 81
SECTION 11.02. With Consent of Noteholders.............................. 82
SECTION 11.03. Revocation and Effect of Consent......................... 83
SECTION 11.04. Notation on or Exchange of Notes......................... 84
SECTION 11.05. Trustee to Sign Amendments, Etc.......................... 84
</TABLE>
<PAGE>
v
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
ARTICLE TWELVE
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 12.01. Company May Consolidate, Etc., on Certain Terms.......... 84
SECTION 12.02. Successor Corporation to Be Substituted.................. 85
SECTION 12.03. Opinion of Counsel to Be Given Trustee................... 85
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 13.01. Discharge of Indenture................................... 85
SECTION 13.02. Deposited Monies to Be Held in Trust by Trustee.......... 86
SECTION 13.03. Paying Agent to Repay Monies Held........................ 86
SECTION 13.04. Return of Unclaimed Monies............................... 87
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 14.01. Indenture and Notes Solely Corporate Obligations......... 87
ARTICLE FIFTEEN
CONVERSION OF NOTES
SECTION 15.01. Right to Convert......................................... 87
SECTION 15.02. Exercise of Conversion Privilege; Issuance of
Common Stock on Conversion; No Adjustment for
Interest or Dividends.................................. 88
SECTION 15.03. Cash Payments in Lieu of Fractional Shares............... 90
SECTION 15.04. Conversion Rate.......................................... 90
SECTION 15.05. Adjustment of Conversion Rate............................ 90
SECTION 15.06. Effect of Reclassification, Consolidation, Merger
or Sale................................................ 98
SECTION 15.07. Taxes on Shares Issued................................... 98
SECTION 15.08. Reservation of Shares; Shares to Be Fully Paid;
Compliance with Governmental Requirements;
Listing of Common Stock................................ 99
SECTION 15.09. Responsibility of Trustee................................ 99
SECTION 15.10. Notice to Holders Prior to Certain Actions............... 100
SECTION 15.11. Simultaneous Adjustments................................. 101
</TABLE>
<PAGE>
vi
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
SECTION 15.12. Notice to Holders of Notes; Waiver....................... 101
SECTION 15.13. Successive Adjustments................................... 101
SECTION 15.14. Implementation of Stockholders' Rights Plan.............. 101
SECTION 15.15. Company Determination Final.............................. 102
SECTION 15.16. General Considerations................................... 102
ARTICLE SIXTEEN
REDEMPTION OF NOTES AT OPTION OF HOLDERS
SECTION 16.01. Option to Elect Redemption upon a Fundamental Change..... 102
SECTION 16.02. Deposit of Funds for Redemption.......................... 103
ARTICLE SEVENTEEN
MISCELLANEOUS PROVISIONS
SECTION 17.01. Provisions Binding on Company's Successors............... 103
SECTION 17.02. Official Acts by Successor Corporation................... 104
SECTION 17.03. Addresses for Notices, Etc............................... 104
SECTION 17.04. Governing Law............................................ 104
SECTION 17.05. Evidence of Compliance with Conditions Precedent;
Certificates to Trustee................................ 104
SECTION 17.06. Legal Holidays........................................... 104
SECTION 17.07. No Security Interest Created............................. 105
SECTION 17.08. Benefits of Indenture.................................... 105
SECTION 17.09. Table of Contents, Headings, Etc......................... 105
SECTION 17.10. Execution in Counterparts................................ 105
</TABLE>
EXHIBITS
Exhibit A -- Form of Certificate
Exhibit B -- Form of Certificate to be Delivered in Connection
with Transfers Pursuant to Regulation S
Exhibit C -- Form of Certificate to be Delivered in Connection
with Transfers to Non-QIB Accredited Investors
<PAGE>
INDENTURE dated as of December 15, 1995 between EXIDE CORPORATION, a
Delaware corporation (the "Company"), and THE BANK OF NEW YORK, a New York State
banking corporation, as trustee hereunder (the "Trustee").
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the issue of its 2.90% Convertible Senior Subordinated Notes due 2005 (the
"Notes"), in an aggregate principal amount at maturity not to exceed
$397,900,000 and, to provide the terms and conditions upon which the Notes are
to be authenticated, issued and delivered, the Company has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, the Notes, the certificate of authentication to be borne by the
Notes, the form of conversion notice, the form of assignment, and the form of
option to elect redemption upon a Fundamental Change are to be substantially in
the following forms, respectively:
[FORM OF FACE OF NOTE]
FORM OF LEGEND FOR GLOBAL NOTE: UNLESS THIS NOTE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY OR SUCH OTHER REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTION 2.09 OF THE INDENTURE.
<PAGE>
2
FOR UNITED STATES FEDERAL INCOME TAX PURPOSES, THIS NOTE BEARS ORIGINAL
ISSUE DISCOUNT. THE ISSUE PRICE WITH RESPECT TO EACH $1,000 OF PRINCIPAL
AMOUNT AT MATURITY OF THIS NOTE IS $__________, THE AMOUNT OF ORIGINAL
ISSUE DISCOUNT WITH RESPECT TO EACH $1,000 OF PRINCIPAL AMOUNT AT MATURITY
OF THIS NOTE IS $__________, THE ISSUE DATE IS __________ AND THE YIELD TO
MATURITY BASED ON SEMIANNUAL COMPOUNDING IS 6.75%. THE NOTE EVIDENCED
HEREBY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH
IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER
THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS
NOT A U.S. PERSON AND IS ACQUIRING THE NOTE EVIDENCED HEREBY IN AN OFFSHORE
TRANSACTION, (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THE
NOTE EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH
NOTE WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) (TAKING INTO ACCOUNT
THE PROVISIONS OF RULE 144(d) IN THE CASE OF SUCH STOCK) EXCEPT (A) TO
EXIDE CORPORATION OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES
TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE NOTE EVIDENCED HEREBY AND SUCH COMMON STOCK
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D) OUTSIDE
THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE) AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THE NOTE EVIDENCED HEREBY WITHIN THE TIME PERIOD REFERRED TO IN
RULE 144(k), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH
<PAGE>
3
ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT
THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE OR THE COMPANY, SUCH CERTIFICATIONS, LEGAL OPINIONS
OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM
THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THIS LEGEND WILL BE REMOVED AFTER THE EXPIRATION OF SUCH TIME PERIOD.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
EXIDE CORPORATION
2.90% CONVERTIBLE SENIOR SUBORDINATED NOTE DUE 2005
No. __ $__________
[CUSIP] [CINS] ______
Exide Corporation, a corporation duly organized and validly existing
under the laws of the State of Delaware (the "Company," which term includes any
successor corporation under the Indenture referred to on the reverse hereof),
for value received hereby promises to pay to _________ or registered assigns,
the principal sum of _______________ ($__________) on December 15, 2005 at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, in such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts, and to pay interest, semi-annually on June 15 and
December 15 of each year, commencing June 15, 1996 on said principal sum at said
office or agency, in like coin or currency, at the rate per annum of 2.90% of
the principal amount at maturity of this Note from the June 15 or the December
15, as the case may be, next preceding the date to which interest has been paid
or duly provided for, unless the date hereof is a date to which interest has
been paid or duly provided for, in which case from the date of this Note, or
unless no interest has been paid or duly provided for on the Notes, in which
case from __________ until payment of said principal sum has been made or duly
provided for. Notwithstanding the foregoing, if the date hereof is after any
June 1 or December 1, as the case may be, and before the following June 15 or
December 15, this Note shall bear interest from such June 15 or December 15;
provided, however, that if the Company shall default in the payment of interest
due on such June 15 or December 15, then
<PAGE>
4
this Note shall bear interest from the next preceding June 15 or December 15 to
which interest has been paid or duly provided for or, if no interest has been
paid or duly provided for on the Notes, from __________. The interest so
payable on any June 15 or December 15 will be paid to the Person in whose name
this Note (or one or more Predecessor Notes) is registered at the close of
business on the record date, which shall be the June 1 or December 1 (whether or
not a Business Day, as defined in the Indenture) next preceding such June 15 or
December 15, provided that any such interest not punctually paid or duly
provided for shall be payable as provided in the Indenture. Interest may, at
the option of the Company, be paid by check mailed to the registered address of
such Person, provided that a holder of Notes with an aggregate principal amount
at maturity in excess of $5 million will be paid by wire transfer in immediately
available funds, at the election of, and upon proper notification of wire
instructions by, such holder.
The aggregate principal amount of the Note in global form represented
hereby may from time to time be reduced or increased to reflect exchanges of a
part of this Note in global form for definitive Notes or exchanges of definitive
Notes for a part of this Note in global form or conversions or redemptions of a
part of this Note in global form or cancellations of a part of this Note in
global form or transfers of definitive Notes in return for a part of this Note
in global form or transfers of a part of this Note in global form effected by
delivery of definitive Notes, in each case, and in any such case, by means of
notations on Schedule A hereto of changes to principal amount. Notwithstanding
any provision of this Note to the contrary, (i) exchanges of a part of this Note
in global form for definitive Notes, (ii) exchanges of definitive Notes for a
part of this Note in global form, (iii) conversions or redemptions of a part of
this Note in global form, (iv) cancellations of a part of this Note in global
form, (v) transfers of definitive Notes in return for a part of this Note in
global form and (vi) transfers of a part of this Note in global form effected by
delivery of definitive Notes may be effected without the surrendering of this
Note in global form, provided that appropriate notations on Schedule A hereto
(Changes to Principal Amount of the Global Security) are made by the Trustee, or
the Custodian at the direction of the Trustee, to reflect the appropriate
reduction or increase, as the case may be, in the aggregate principal amount of
this Note in global form resulting therefrom or as a consequence thereof.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, including, without limitation, provisions subordinating the
payment of principal amount at maturity, Issue Price, accrued Original Issue
Discount, Redemption Price, Fundamental Change Redemption Price and interest in
respect of the Notes to the prior payment in full of all Senior Indebtedness as
defined in the Indenture and provisions giving the holder of this Note the right
to convert this Note into Common Stock of the Company on the terms and subject
to the limitations referred to on the reverse hereof and as more fully specified
in the Indenture. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
<PAGE>
5
This Note shall be governed by the laws of the State of New York.
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually signed
by the Trustee under the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
EXIDE CORPORATION
By:_____________________________________
Title:
By:_____________________________________
Title:
<PAGE>
6
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 2.90% Convertible Senior Subordinated Notes
described in the within- mentioned Indenture.
Dated: ____________, ____ THE BANK OF NEW YORK, as Trustee
By:_______________________________________
Authorized Signatory
<PAGE>
7
[FORM OF REVERSE OF NOTE]
EXIDE CORPORATION
2.90% CONVERTIBLE SENIOR SUBORDINATED NOTE
DUE 2005
This Note is one of a duly authorized issue of Notes of the Company,
designated as its 2.90% Convertible Senior Subordinated Notes due 2005 (herein
called the "Notes"), limited to the aggregate principal amount at maturity of
$397,900,000 all issued under and pursuant to an Indenture dated as of December
15, 1995 (herein called the "Indenture"), between the Company and The Bank of
New York (herein called the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of the Notes.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the Issue Price, and accrued Original Issue Discount
and accrued interest, if any, through the date of declaration on all Notes may
be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount at maturity of the Notes at the time outstanding,
evidenced as in the Indenture provided, to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or modifying in any
manner the rights of the holders of the Notes; provided, however, that, as
provided in the Indenture, no such supplemental indenture shall (i) affect
certain matters, without the consent of the holder of each Note so affected or
(ii) reduce the aforesaid percentage of Notes, the holders of which are required
to consent to any such supplemental indenture, without the consent of the
holders of all Notes then outstanding. It is also provided in the Indenture
that, prior to any declaration accelerating the maturity of the Notes, the
holders of a majority in aggregate principal amount at maturity of the Notes at
the time outstanding may on behalf of the holders of all of the Notes waive any
past default or Event of Default under the Indenture and its consequences except
a default in the payment of principal amount at maturity, Issue Price, accrued
Original Issue Discount, Redemption Price, Fundamental Change Redemption Price
or interest in respect of any of the Notes or a failure by the Company to
convert any Notes into Common Stock of the Company. Any such consent or waiver
by the holder of this Note (unless revoked as provided in the Indenture) shall
be conclusive and binding upon such holder and upon all future holders and
<PAGE>
8
owners of this Note and any Notes which may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this Note or such other Notes.
The indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, expressly subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness of the Company
as defined in the Indenture, whether outstanding at the date of the Indenture or
thereafter incurred, and this Note is issued subject to the provisions of the
Indenture with respect to such subordination. Each holder of this Note, by
accepting the same, agrees to and shall be bound by such provisions and
authorizes the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination so provided and appoints the Trustee
his attorney-in-fact for such purpose.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal amount at maturity, Issue
Price, accrued Original Issue Discount, Redemption Price, Fundamental Change
Redemption Price and interest in respect of this Note at the place, at the
respective times, at the rate and in the coin or currency herein prescribed.
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months. Accrual of Original Issue Discount shall be calculated
on the basis of a 360-day year of twelve 30-day months, compounded semi-
annually.
The Notes are issuable in registered form without coupons in
denominations of $1,000 principal amount at maturity and any integral multiple
thereof. At the office or agency of the Company referred to on the face hereof,
and in the manner and subject to the limitations provided in the Indenture, but
without payment of any service charge (but with the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed upon any
registration or exchange of Notes), Notes may be exchanged for a like aggregate
principal amount at maturity of Notes of other authorized denominations.
The Company may not redeem the Notes prior to December 15, 1998. On
or after that date, the Company may, at its option, redeem the Notes as a whole,
or from time to time in part, on any date prior to maturity, upon mailing a
notice of such redemption not less than thirty nor more than sixty days before
the date fixed for redemption to the holders of Notes at their last registered
addresses, all as provided in the Indenture, at the following Redemption Prices
per $1,000 principal amount at maturity (which prices reflect accrued Original
Issue Discount calculated to each such date), together in each case with accrued
interest to the date fixed for redemption. The Redemption Price of a Note
redeemed between
<PAGE>
9
such dates will include an additional amount reflecting the additional Original
Issue Discount accrued since the next preceding date in the table to the actual
Redemption Date.
(1) (2) (3)
Note Accrued Original Redemption Price
Redemption Date Issue Price Issue Discount (1) + (2)
--------------- ----------- ---------------- ----------------
December 15, 1998 723.29 67.72 788.01
December 15, 1999 723.29 89.31 812.60
December 15, 2000 723.29 115.60 838.89
December 15, 2001 723.29 143.69 866.98
December 15, 2002 723.29 173.71 897.00
December 15, 2003 723.29 205.79 929.08
December 15, 2004 723.29 240.07 963.36
At stated maturity 723.29 276.71 1,000.00
Notwithstanding the foregoing, if the date fixed for redemption is a June 15 or
December 15, then the interest payable on such date shall be paid to the holder
of record on the next preceding June 1 or December 1.
The Notes are not subject to redemption through the operation of any
sinking fund.
If a Fundamental Change (as defined in the Indenture) occurs at any
time prior to December 15, 2005, each holder of Notes shall have the right, at
such holder's option, to require the Company to redeem all or any part of such
holder's Notes on the date (the "Fundamental Change Redemption Date") (or if
such date is not a Business Day, the next succeeding Business Day) that is 45
days after the date of the Company's notice of such Fundamental Change. Such
redemption shall be made on the Fundamental Change Redemption Date at a price
(the "Fundamental Change Redemption Price") equal to the Issue Price plus
accrued Original Issue Discount to the Fundamental Change Redemption Date;
provided that, if the Applicable Price (as defined in the Indenture) is less
than the Reference Market Price (as defined in the Indenture), the Company shall
redeem such Notes at a price equal to the foregoing redemption price multiplied
by the fraction obtained by dividing the Applicable Price by the Reference
Market Price. In each case, the Company shall also pay accrued interest, if
any, on such Notes to the Fundamental Change Redemption Date; provided that if
such Fundamental Change Redemption Date is a June 15 or December 15, then the
interest payable on such date shall be paid to the holder of record of the Note
on the next preceding June 1 or December 1. The Company shall mail to the
Trustee and to all
<PAGE>
10
holders of record of the Notes a notice of the occurrence of a Fundamental
Change and of the redemption right arising as a result thereof on or before the
tenth day after the occurrence of such Fundamental Change. For a Note to be so
repaid at the option of the holder, the Company must receive at the office or
agency of the Company maintained for that purpose in the Borough of Manhattan,
The City of New York such Note with the form entitled "Option to Elect
Redemption Upon a Fundamental Change" on the reverse thereof duly completed,
together with such Notes duly endorsed for transfer, on or before the 30th day
after the date of such notice (or if such 30th day is not a Business Day, the
immediately preceding Business Day). All questions as to the validity,
eligibility (including time of receipt) and acceptance of any Note for
redemption shall be determined by the Company, whose determination shall be
final and binding.
Subject to the provisions of the Indenture, the holder hereof has the
right, at its option, at any time after 60 days following the latest date of
original issuance of any of the Notes through the close of business on December
15, 2005, or, as to all or any portion hereof called for redemption, prior to
the close of business on the Business Day immediately preceding the date fixed
for redemption (unless the Company shall default in payment due upon redemption
thereof), to convert the principal hereof or any portion of such principal which
is $1,000 principal amount at maturity or an integral multiple thereof, into
that number of fully paid and nonassessable shares of the Company's Common
Stock, as said shares shall be constituted at the date of conversion, obtained
by dividing the principal amount at maturity of this Note or portion thereof to
be converted by $1,000 and multiplying the result so obtained by 12.5473 (the
"Conversion Rate") or such Conversion Rate as adjusted from time to time as
provided in the Indenture, upon surrender of this Note, together with a
conversion notice attached hereto, to the Company at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, The City of New
York, and, unless the shares issuable on conversion are to be issued in the same
name as this Note, duly endorsed by, or accompanied by instruments of transfer
in form satisfactory to the Company duly executed by, the holder or by his duly
authorized attorney. No adjustments in respect of accrued Original Issue
Discount, interest or dividends will be made upon any conversion; provided,
however, that if this Note shall be surrendered for conversion during the period
from the close of business on any record date for the payment of interest to the
opening of business on the following interest payment date, this Note (unless it
or the portion being converted shall have been called for redemption during the
period from the close of business on any record date for the payment of interest
to the close of business on the following interest payment date) must be
accompanied by an amount, in New York Clearing House funds, equal to the
interest payable on such interest payment date on the principal amount at
maturity being converted. A holder who would otherwise be entitled to a
fractional share of Common Stock shall, at the election of the Company, receive
either an additional share of Common Stock or cash equal to the then current
market value of such fractional share.
<PAGE>
11
Any Notes called for redemption, unless surrendered for conversion on
or before the close of business on the Business Day immediately preceding the
date fixed for redemption, may be deemed to be purchased from the holder of such
Notes at an amount equal to the applicable Redemption Price, together with
accrued interest to the date fixed for redemption, by one or more investment
bankers or other purchasers who may agree with the Company to purchase such
Notes from the holders thereof and convert them into Common Stock of the Company
and to make payment for such Notes as aforesaid to the Trustee in trust for such
holders in accordance with Section 3.06.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, a new Note or Notes of authorized denominations for an equal aggregate
principal amount at maturity will be issued to the transferee in exchange
herefor, subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge imposed in connection therewith.
The Company, the Trustee, any Paying Agent, any conversion agent and
any Registrar may deem and treat the registered holder hereof as the absolute
owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by anyone
other than the Company or any Registrar), for the purpose of receiving payment
hereof, or on account hereof, for the conversion hereof and for all other
purposes, and neither the Company nor the Trustee nor any other Paying Agent nor
any other conversion agent nor any Registrar shall be affected by any notice to
the contrary. All payments made to or upon the order of such registered holder
shall, to the extent of the sum or sums paid, satisfy and discharge liability
for monies payable on this Note.
No recourse for the payment of the principal amount at maturity, Issue
Price, accrued Original Issue Discount, Redemption Price, Fundamental Change
Redemption Price or interest in respect of this Note, or for any claim based
hereon or otherwise in respect hereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in the Indenture or any
indenture supplemental thereto or in any Note, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company
or any successor corporation, whether by virtue of any constitution, statute or
rule of law or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as part of the consideration
for the issue hereof, expressly waived and released.
Unless otherwise defined herein, terms used in this Note have the
definitions ascribed to them in the Indenture. To the extent permitted by
applicable law, in the event of
<PAGE>
12
any inconsistency between the terms of this Note and the terms of the Indenture,
the terms of the Indenture shall control.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in UNIF GIFT MIN ACT --
common
TEN ENT -- as tenants by the ________________ Custodian
entireties (Cust)
JT TEN -- as joint tenants ___________________ under
with right of survivorship and (Minor)
not as tenants in common
Uniform Gifts to Minors Act
__________________(State)
Additional abbreviations may also be used
though not in the above list.
<PAGE>
13
CONVERSION NOTICE
To: Exide Corporation
The undersigned registered holder of this Note hereby irrevocably
exercises the option to convert this Note, or portion hereof (which is $1,000
principal amount at maturity or an integral multiple thereof) below designated,
into shares of Common Stock of Exide Corporation (or such other securities as
may be provided for in the Indenture) in accordance with the terms of the
Indenture referred to in this Note, and directs that the shares issuable and
deliverable upon the conversion, together with any check in payment for
fractional shares and any Notes representing any unconverted principal amount at
maturity hereof, be issued and delivered to the registered holder hereof unless
a different name has been indicated below. If shares or any portion of this
Note not converted are to be issued in the name of a Person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto. Any amount required to be paid by the undersigned on account of
interest accompanies this Note.
Sign exactly as name appears on the other
side of the Note:
Dated: ------------------------------------------
------------------------------------------
Signature(s)
<PAGE>
14
Fill in for registration of shares of
Common Stock and Notes to be
issued other than to and in the name of
the registered holder:
_________________________________
(Name)
_________________________________
(Street Address)
_________________________________
(City, State and Zip Code)
Please print name and address
Principal amount at maturity to be converted (if less
than all):
$_____,000
______________________________
Social Security or Other
Taxpayer Identification Number
<PAGE>
15
ASSIGNMENT
For value received __________________________________ hereby sell(s), assign(s)
and transfer(s) unto ________________________________
(Please insert name and social security or other
taxpayer identification number of
assignee)
the within Note and hereby irrevocably constitutes and appoints _______________
attorney to transfer the said Note on the books of the Company, with full power
of substitution in the premises.
In connection with any transfer of the within Note occurring within the time
period referred to in Rule 144(k) under the Securities Act as it applies to such
transfer, the undersigned confirms that, without using any general solicitation
or general advertising, such Note is being transferred:
[_] (A) To Exide Corporation or a subsidiary thereof; or
[_] (B) Pursuant to and in compliance with Rule 144A under the Securities
Act of 1933, as amended; or
[_] (C) To an Institutional Accredited Investor pursuant to and in
compliance with the Securities Act of 1933, as amended, and in
compliance with the provisions of Section 2.09(f) of the Indenture,
and that a certificate in the form of Exhibit C to the Indenture is
being furnished to the Trustee; or
[_] (D) Pursuant to and in compliance with Regulation S under the Securities
Act of 1933, as amended; or
[_] (E) Pursuant to and in compliance with Rule 144 under the Securities Act
of 1933, as amended.
and unless the box below is checked, the undersigned confirms that such Note is
not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act of 1933, as amended (an "Affiliate"):
[_] The transferee is an Affiliate of the Company.
<PAGE>
16
Dated: ___________________
______________________
Signature(s)
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of the Note in every particular without alteration
or enlargement or any change whatever.
TO BE COMPLETED BY PURCHASER IF (B) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: _________________ _______________________________________________
NOTICE: To be executed by an executive officer
<PAGE>
17
OPTION TO ELECT REDEMPTION
UPON A FUNDAMENTAL CHANGE
To: Exide Corporation
The undersigned registered holder of this Note hereby irrevocably
acknowledges receipt of a notice from Exide Corporation (the "Company") as to
the occurrence of a Fundamental Change with respect to the Company and requests
and instructs the Company to redeem this Note, or portion hereof (which is
$1,000 principal amount at maturity or an integral multiple thereof) below
designated, in accordance with the terms of the Indenture referred to in this
Note, at the Fundamental Change Redemption Price together with accrued interest
to such date, to the registered holder hereof.
Principal amount at maturity to be redeemed (if
less than all):
$_____,000
Dated: _____________________
____________________________
____________________________
Signature(s)
____________________________
Social Security or Other
Taxpayer Identification Number
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of the Note in every particular without alteration
or enlargement or any change whatever.
<PAGE>
18
Schedule A
Changes to Principal Amount of Global Security
<TABLE>
<CAPTION>
==========================================================================================================================
Principal Amount of
Securities by Which This
Global Security Is to Be
Reduced or Increased, and
Reason for Reduction or Remaining Principal Amount Notation
Date Increase of This Global Security Made by
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<S> <C> <C> <C>
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</TABLE>
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19
AND WHEREAS, all acts and things necessary to make the Notes, when
executed by the Company and authenticated and delivered by the Trustee, as in
this Indenture provided, the valid, binding and legal obligations of the
Company, and to constitute these presents a valid agreement according to its
terms, have been done and performed, and the execution of this Indenture and the
issue hereunder of the Notes have in all respects been duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes
are, and are to be, authenticated, issued and delivered, and in consideration of
the premises and of the purchase and acceptance of the Notes by the holders
thereof, the Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective holders from time to time of the Notes
(except as otherwise provided below), as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions.
Affiliate: The term "Affiliate" with respect to any specified Person,
means any other Person directly or indirectly controlling, controlled by or
under direct or indirect common control with, such specified Person. For the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," and "controlled by"), when used with respect to any
specified Person, means the power to direct or cause the direction of the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise.
Agent: The term "Agent" means any conversion agent, Registrar, Paying
Agent, authenticating agent or co-Registrar.
Agent Members: The term "Agent Members" has the meaning provided in
Section 2.08.
Applicable Price: The term "Applicable Price" means (i) in the event
of a Fundamental Change in which the holders of the Common Stock receive only
cash, the amount of cash received by the holder of one share of Common Stock and
(ii) in the event of any other Fundamental Change, the average of the last
reported sale price for the Common Stock (determined as set forth in subsection
(f) of Section 15.05) during the ten Trading Days (as defined in subsection (f)
of Section 15.05) prior to the record date for the
<PAGE>
20
determination of the holders of Common Stock entitled to receive cash,
securities, property or other assets in connection with such Fundamental Change,
or, if there is no such record date, the date upon which the holders of Common
Stock shall have the right to receive such cash, securities, property or other
assets in connection with the Fundamental Change.
Board of Directors: The term "Board of Directors" means the Board of
Directors of the Company or a committee of such Board duly authorized to act for
it hereunder.
Business Day: The term "Business Day" means a day, other than a
Saturday, a Sunday or other day, on which commercial banks located in The City
of New York, or in the City of the Principal Office of the Trustee, are
authorized by law to close.
Commission: The term "Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
Commodity Agreement: The term "Commodity Agreement" means any
agreement or arrangement designed to protect the Company or any of its
subsidiaries against fluctuations in the prices of commodities used by the
Company or any of its subsidiaries in the ordinary course of its business and
entered into with any bank.
Common Stock: The term "Common Stock" means any stock of any class of
the Company which has no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which is not subject to redemption by the Company.
Subject to the provisions of Section 15.06, however, shares issuable on
conversion of Notes shall include only shares of Common Stock, $.01 par value
per share (which is the class designated as Common Stock of the Company at the
date of this Indenture), or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company and which are
not subject to redemption by the Company; provided that if at any time there
shall be more than one such resulting class, the shares of each such class then
so issuable shall be substantially in the proportion to which the total number
of shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.
Company: The term "Company" means Exide Corporation, a Delaware
corporation, and subject to the provisions of Article Twelve shall include its
successors and assigns.
<PAGE>
21
Conversion Rate: The term "Conversion Rate" has the meaning provided
in Section 15.04.
Conversion Shares: The term "Conversion Shares" means shares of
Common Stock of the Company issuable upon conversion of a Note.
Currency Agreement: The term "Currency Agreement" means any foreign
exchange contract, currency swap agreement or other similar agreement or
arrangement designed to protect the Company or any of its subsidiaries against
fluctuations in currency values to or under which the Company or any of its
subsidiaries is a party or a beneficiary on the date of this Indenture or
becomes a party or a beneficiary hereafter.
Defaulted Interest: The term "Defaulted Interest" has the meaning
provided in Section 2.02.
Depositary: The term "Depositary" means The Depository Trust Company,
its nominees and their respective successors.
Event of Default: The term "Event of Default" means any event
specified in Section 7.01, continued for the period of time, if any, and after
the giving of the notice, if any, therein designated.
Exchange Act: The term "Exchange Act" means the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
Expiration Time: The term "Expiration Time" has the meaning provided
for in Section 15.05(l).
Fundamental Change: The term "Fundamental Change" means the
occurrence of any transaction or event in connection with which all or
substantially all of the Common Stock shall be exchanged for, converted into,
acquired for or constitute the right to receive consideration (whether by means
of an exchange offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization or otherwise) which is not all
or substantially all common stock listed (or, upon consummation of or
immediately following such transaction or event, which will be listed) on a
United States national securities exchange or approved for quotation on the
Nasdaq National Market or any similar United States system of automated
dissemination of quotations of securities prices.
Fundamental Change Redemption Date: The term "Fundamental Change
Redemption Date" has the meaning provided in Section 16.01(a).
<PAGE>
22
Fundamental Change Redemption Notice: The term "Fundamental Change
Redemption Notice" has the meaning provided in Section 16.01(b).
Fundamental Change Redemption Price: The term "Fundamental Change
Redemption Price" has the meaning provided in Section 16.01(a).
Global Notes: The term "Global Notes" has the meaning provided in
Section 2.01.
Guarantee: The term "Guarantee" means any obligation, contingent or
otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or
other obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation of such other Person (whether
arising by virtue of partnership arrangements, or by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for purposes
of assuring in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
Incur: The term "Incur" means, with respect to any Indebtedness, to
incur, create, issue, assume, Guarantee or otherwise become liable for or with
respect to, or become responsible for, the payment of, contingently or
otherwise, such Indebtedness; provided that neither the accrual of interest
(whether such interest is payable in cash or kind) nor the accretion of original
issue discount shall be considered an Incurrence of Indebtedness.
Indebtedness: The term "Indebtedness" means, with respect to any
Person at any date of determination (without duplication), (i) all indebtedness
of such Person for borrowed money, (ii) all obligations of such Person evidenced
by bonds, debentures, notes or other similar instruments, (iii) all obligations
of such Person in respect of letters of credit or other similar instruments
(including reimbursement obligations with respect thereto), (iv) all obligations
of such Person to pay the deferred and unpaid purchase price of property or
services, which purchase price is due more than six months after the date of
placing such property in service or taking delivery and title thereto or the
completion of such services, except Trade Payables, (v) all obligations of such
Person as lessee under capitalized leases, (vi) all Indebtedness of other
Persons secured by a lien on any asset of such Person, whether or not such
Indebtedness is assumed by such Person; provided that the amount of such
Indebtedness shall be the lesser of (A) the fair market value of such asset at
such date of determination and (B) the amount of such Indebtedness, (vii) all
Indebtedness of other
<PAGE>
23
Persons Guaranteed by such Person to the extent such Indebtedness is Guaranteed
by such Person, (viii) all obligations in respect of borrowed money under the
U.S. Credit Agreement and any Guarantees thereof and (ix) to the extent not
otherwise included in this definition, obligations under Currency Agreements,
Interest Rate Agreements and Commodity Agreements. The amount of Indebtedness
of any Person at any date shall be the outstanding balance at such date of all
unconditional obligations as described above and the maximum liability, upon the
occurrence of the contingency giving rise to the obligation, of any contingent
obligations at such date; provided that the amount outstanding at any time of
any Indebtedness issued with original issue discount is the face amount of such
Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such time as determined in conformity with
generally accepted accounting principles.
Indenture: The term "Indenture" means this instrument as originally
executed or, if amended or supplemented as herein provided, as so amended or
supplemented.
Institutional Accredited Investor: The term "Institutional Accredited
Investor" means an institution that is an "accredited investor" as that term is
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act.
Interest Rate Agreement: The term "Interest Rate Agreement" means any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement designed to protect the Company or any of
its subsidiaries against fluctuations in interest rates to or under which the
Company or any of its subsidiaries is a party or a beneficiary on the date of
this Indenture or becomes a party or a beneficiary hereafter.
Issue Price: The term "Issue Price" means with respect to any Note
(or any portion thereof), 72.329% of the principal amount at maturity of such
Note (or such portion thereof).
Legal Holiday: The term "Legal Holiday" has the meaning provided in
Section 17.06.
Nasdaq National Market: The term "Nasdaq National Market" means the
electronic inter-dealer quotation system operated by Nasdaq, Inc., a subsidiary
of the National Association of Securities Dealers, Inc.
Non-U.S. Person: The term "Non-U.S. Person" means a person who is not
a U.S. Person under Regulation S.
<PAGE>
24
Note or Notes: The term "Note" or "Notes" means any Note or Notes, as
the case may be, authenticated and delivered under this Indenture.
Noteholder: The term "Noteholder" or "holder of Notes," or other
similar terms, means any person in whose name at the time a particular Note is
registered on the books of the Company kept for that purpose in accordance with
the terms hereof.
Officers' Certificate: The term "Officers' Certificate," when used
with respect to the Company, means a certificate signed both (a) by 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 Controller, or Secretary or any Assistant Secretary.
Offshore Global Note: The term "Offshore Global Note" has the meaning
provided in Section 2.01.
Offshore Physical Notes: The term "Offshore Physical Notes" has the
meaning provided in Section 2.01.
Opinion of Counsel: The term "Opinion of Counsel" means an opinion in
writing signed by legal counsel, who may be an employee of or counsel to the
Company or other counsel acceptable to the Trustee.
Original Issue Discount: The term "Original Issue Discount" of any
Note means the difference between the Issue Price and the principal amount at
maturity of the Note as set forth on the face of the Note. For purposes of this
Indenture and the Notes, accrual of Original Issue Discount shall be calculated
on the basis of a 360-day year of twelve 30-day months, on a semi-annual bond
equivalent basis.
outstanding: The term "outstanding," when used with reference to
Notes, subject to the provisions of Section 9.04, means, as of any particular
time, all Notes authenticated and delivered by the Trustee under this Indenture,
except
(a) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Notes, or portions thereof, for the payment or redemption of which
monies in the necessary amount shall have been deposited in trust with the
Trustee or with any Paying Agent (other than the Company) or shall have
been set aside and segregated in trust by the Company (if the Company shall
act as its own Paying Agent), provided that if such Notes are to be
redeemed prior to the maturity thereof,
<PAGE>
25
notice of such redemption shall have been given as in Article Three or
Article Sixteen, as the case may be, provided, or provision satisfactory to
the Trustee shall have been made for giving such notice;
(c) Notes paid or Notes in lieu of or in substitution for which other
Notes shall have been authenticated and delivered pursuant to the terms of
Section 2.10 unless proof satisfactory to the Trustee is presented that any
such Notes are held by bona fide holders in due course; and
(d) Notes converted into Common Stock pursuant to Article Fifteen
hereof and Notes not deemed outstanding pursuant to Article Three.
Paying Agent: The term "Paying Agent" has the meaning provided in
Section 2.05. The term "Paying Agent" includes any additional Paying Agent.
Person: The term "Person" means a corporation, an association, a
partnership, an organization, an individual, a joint venture, a joint stock
company, a trust, a government or a political subdivision thereof or a
governmental agency, and shall include any successor (by merger or otherwise) of
such entity.
Physical Notes: The term "Physical Notes" has the meaning provided in
Section 2.01.
PORTAL Market: The term "PORTAL Market" means the Private Offerings,
Resales and Trading through Automated Linkages Market operated by the National
Association of Securities Dealers, Inc. or any successor thereto.
Predecessor Note: The term "Predecessor Note" of any particular Note
means every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purposes of this definition, any
Note authenticated and delivered under Section 2.10 in lieu of a lost, destroyed
or stolen Note shall be deemed to evidence the same debt as the lost, destroyed
or stolen Note that it replaces.
Principal Office: The term "Principal Office" or "principal office of
the Trustee," or other similar term, means the principal office of the Trustee
at which at any particular time its corporate trust business shall be
administered, which office is, at the date as of which this Indenture is dated,
located at 101 Barclay Street, Floor 21 West, New York, New York, Attn:
Corporate Trust Trustee Administration.
Private Placement Legend: The term "Private Placement Legend" means
the legend provided for in Section 2.03(a).
<PAGE>
26
Purchase Shares: The term "Purchase Shares" has the meaning provided
for in Section 15.05(l).
QIB: The term "QIB" means a "qualified institutional buyer" as
defined in Rule 144A.
Receivables Sales Agreement: The term "Receivables Sales Agreement"
means (i) the Receivables Purchase Agreement, dated as of August 31, 1989, among
the Company, the financial institutions party thereto as purchasers and Chemical
Bank, as agent for such purchasers together with all other agreements,
instruments and documents executed or delivered pursuant thereto or in
connection therewith (including, without limitation, any Guarantees and security
documents), in each case, as such agreements, instruments and documents may be
amended (including, without limitation, any amendment and restatement thereof),
supplemented, extended, renewed, replaced or otherwise modified from time to
time, including, without limitation, any agreement increasing the amount of,
extending the maturity of, or otherwise restructuring (including, but not
limited to, by the inclusion of additional sellers thereunder that are
subsidiaries of the Company and whose obligations are Guaranteed by the Company
thereunder or by the requirement of additional credit enhancement to support the
obligations thereunder) all or any portion of the purchase commitments under
such agreement or any successor agreement or agreements and (ii) any other
agreement providing for the purchase, factoring or other disposition of accounts
receivable of the Company or any subsidiary at a discount from the face amount
thereof, whether or not there is any recourse against the Company of any
subsidiary with respect thereto.
Redeemable Stock: The term "Redeemable Stock" is defined to mean any
class or series of capital stock of any Person that by its terms or otherwise is
(i) required to be redeemed prior to the Stated Maturity of the Notes, (ii)
redeemable at the option of the holder of such class or series of capital stock
at any time prior to the Stated Maturity of the Notes or (iii) convertible into
or exchangeable for capital stock referred to in clause (i) or (ii) above or
Indebtedness having a scheduled maturity prior to the Stated Maturity of the
Notes.
Redemption Price: With respect to any Note, the term "Redemption
Price" means the applicable Redemption Price as set forth in such Note,
including any accrued Original Issue Discount referred to therein.
Reference Market Price: The term "Reference Market Price" shall
initially mean $31.50 and in the event of any adjustment to the Conversion Rate
pursuant to Section 15.05, the Reference Market Price shall also be adjusted so
that the Reference Market Price after giving effect to any such adjustment shall
equal the Reference Market Price immediately prior to such adjustment multiplied
by a fraction, the numerator of which
<PAGE>
27
is the Conversion Rate immediately prior to such adjustment and the denominator
of which is the Conversion Rate after such adjustment.
Registrar: The term "Registrar" has the meaning provided in Section
2.05.
Regulation S: The term "Regulation S" means Regulation S under the
Securities Act.
Responsible Officer: The term "Responsible Officer," when used with
respect to the Trustee, means any officer in the Principal Office of the Trustee
assigned by the Trustee to administer its corporate trust matters.
Restricted Note: The term "Restricted Note" means any Note that bears
or is required to bear the legend set forth in Section 2.03.
Rule 144A: The term "Rule 144A" means Rule 144A as promulgated under
the Securities Act.
Securities Act: The term "Securities Act" means the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder.
Security Register: The term "Security Register" has the meaning
provided in Section 2.05.
Senior Indebtedness: The term "Senior Indebtedness" means the
following obligations of the Company, whether outstanding at the date hereof or
hereafter incurred or created:
(a) all Indebtedness and all other monetary obligations of the Company
under the U.S. Credit Agreement, any Interest Rate Agreement, Currency
Agreement or Commodity Agreement and the Company's guarantee of any
Indebtedness or monetary obligation of any of its subsidiaries under any
Interest Rate Agreement, Currency Agreement or Commodity Agreement,
(b) all monetary obligations of the Company under any Receivables Sale
Agreement,
(c) any principal of, premium, if any, and interest on the WSI
Agreement, the 10% Notes and the 10 3/4% Notes and all indebtedness of the
Company existing on the Closing Date secured by liens described in clause
(xiii) of the definition of Permitted Liens contained in the indenture with
respect to the 12 1/4% Debentures, including any refinancings thereof,
<PAGE>
28
(d) all other Indebtedness of the Company (other than the 12 1/4%
Debentures and the Notes), including principal and interest on such
Indebtedness, unless such Indebtedness, by its terms or by the terms of any
agreement or instrument pursuant to which such Indebtedness is issued, is
pari passu with, or subordinated in right of payment to, the Notes, and
(e) all fees, expenses and indemnities payable in connection with the
U.S. Credit Agreement, the 10% Notes and the 10 3/4% Notes, any Receivable
Sales Agreement and Currency Agreements, Interest Rate Agreements and
Commodity Agreements;
provided that the term "Senior Indebtedness" shall not include
(i) any Indebtedness of the Company that, when Incurred and without
respect to any election under Section 1111(b) of the United States
Bankruptcy Code, was without recourse to the Company, or was incurred in
violation of the Indenture,
(ii) any Indebtedness of the Company to a subsidiary of the Company or
to a joint venture in which the Company has an interest,
(iii) any repurchase, redemption or other obligation in respect of
Redeemable Stock,
(iv) any Indebtedness to any employee of the Company or any of its
Subsidiaries,
(v) any liability for federal, state, local or other taxes owed or
owing by the Company, or
(vi) any Trade Payables.
Senior Indebtedness will also include interest accruing subsequent to events of
bankruptcy of the Company and its subsidiaries at the rate provided for in the
document governing such Senior Indebtedness, whether or not such interest is an
allowed claim enforceable against the debtor in a bankruptcy case under federal
bankruptcy law.
Senior Note Indentures: The term "Senior Note Indentures" means the
Indenture, dated as of December 17, 1992, between the Company and Bank of
Montreal Trust Company, as trustee, relating to the 10 3/4 Notes, as it may be
amended or supplemented from time to time by one or more indentures supplemental
thereto entered into pursuant to the applicable provisions thereof, and the
Indenture, dated as of April 28, 1995, between the Company and The Bank of New
York, as trustee, relating to the 10% Notes, as
<PAGE>
29
it may be amended or supplemented from time to time by one or more indentures
supplemental thereto.
Senior Notes: The term "Senior Notes" means the 10% Notes and the 10
3/4% Notes.
Senior Subordinated Obligations: The term "Senior Subordinated
Obligations" means any principal of, premium, if any, or interest on the Notes
payable pursuant to the terms of the Notes or upon acceleration, including any
amounts received upon the exercise of rights of rescission or other rights of
action (including claims for damages) or otherwise, to the extent relating to
the purchase price of the Notes or amounts corresponding to such principal,
premium, if any, or interest on the Notes.
Stated Maturity: The term "Stated Maturity" means (i) with respect to
any debt security, the date specified in such debt security as the fixed date on
which the final installment of principal of such debt security is due and
payable and (ii) with respect to any scheduled installment of principal of or
interest on any debt security, the date specified in such debt security as the
fixed dated on which such installment is due and payable.
10% Notes: The term "10% Notes" means the 10% Senior Notes due 2005
of the Company.
10 3/4% Notes: The term "10 3/4% Notes" means the 10 3/4% Senior
Notes due 2002 of the Company.
Trade Payables: The term "Trade Payables" means, with respect to any
Person, any accounts payable or any other indebtedness or monetary obligation to
trade creditors created, assumed or Guaranteed by such Person or any of its
subsidiaries arising in the ordinary course of business in connection with the
acquisition of goods or services.
Trading Day: The term "Trading Day" means a day during which trading
in securities generally occurs on the New York Stock Exchange or, if the
applicable security is not listed on the New York Stock Exchange, on the
principal other national or regional securities exchange on which the applicable
security is then listed or, if the applicable security is not listed on a
national or regional securities exchange, on the Nasdaq National Market or, if
the applicable security is not quoted on the Nasdaq National Market, on the
principal other market on which the applicable security is then traded.
Transfer Agent: The term "Transfer Agent" has the meaning provided in
Section 2.09(e).
<PAGE>
30
Trigger Event: The term "Trigger Event" has the meaning provided in
Section 15.05(h).
Trust Indenture Act: The term "Trust Indenture Act" means the Trust
Indenture Act of 1939, as amended (15 U.S. Code (S)(S) 77aaa-77bbb), as in
effect on the date this Indenture was executed.
Trustee: The term "Trustee" means The Bank of New York and, subject
to the provisions of Article Eight hereof, shall also include its successors and
assigns as Trustee hereunder.
12 1/4% Debentures: The term "12 1/4% Debentures" means the 12 1/4%
Senior Subordinated Deferred Coupon Debentures due 2004 of the Company.
U.S. Credit Agreement: The term "U.S. Credit Agreement" means the
credit agreement, dated as of August 30, 1994, as amended, among the Company,
the Banks party thereto and the Bank Agents, together with all other agreements,
instruments and documents executed or delivered pursuant thereto or in
connection therewith (including, without limitation, any promissory notes,
Guarantees and security documents), in each case, as such agreements,
instruments and documents may be amended (including, without limitation, any
amendment and restatement thereof), supplemented, extended, renewed, replaced or
otherwise modified from time to time, including, without limitation, any
agreement increasing the amount of, extending the maturity of, refinancing or
otherwise restructuring (including, but not limited to, by the inclusion of
additional borrowers or Guarantors thereunder that are subsidiaries of the
Company and whose obligations are Guaranteed by the Company thereunder or by the
requirement of additional collateral or other credit enhancement to support the
obligations thereunder) all or any portion of the Indebtedness under such
agreement or any successor agreement or agreements; provided that, with respect
to any agreement providing for the refinancing of Indebtedness under the U.S.
Credit Agreement, such agreement shall be the U.S. Credit Agreement under the
Indenture only if a notice to that effect is delivered by the Company to the
Trustee and there shall be at any time only one instrument that is the U.S.
Credit Agreement under the Indenture.
U.S. Global Note: The term "U.S. Global Note" has the meaning
provided in Section 2.01.
U.S. Person: The term "U.S. Person" has the meaning provided in Rule
902 under the Securities Act.
U.S. Physical Notes: The term "U.S. Physical Notes" has the meaning
provided in Section 2.01.
<PAGE>
31
WSI Agreement: The term "WSI Agreement" means the Agreement, dated as
of May 21, 1990, between the Company and Wilmington Securities, Inc., a Delaware
corporation, together with all other agreements, instruments and documents
executed on or delivered pursuant thereto or in connection therewith (including,
without limitation, any promissory notes, Guarantees and security documents) in
each case, as such agreements, instruments and documents may be amended
(including, without limitation, any amendment and restatement thereof),
supplemented, extended, renewed, replaced or otherwise modified from time to
time, including, without limitation, any agreement increasing the amount of,
extending the maturity of, refinancing or otherwise restructuring (including,
but not limited to, by the inclusion of additional borrowers or guarantors
thereunder that are Subsidiaries of the Company and whose obligations are
Guaranteed by the Company thereunder or by the requirement of additional
collateral or other credit enhancement to support the obligations thereunder)
all or any portion of the Indebtedness under such agreement or any successor
agreement; provided that, with respect to any agreement providing for the
refinancing of Indebtedness under the WSI Agreement, such agreement shall be the
WSI Agreement under this Indenture only if a notice to that effect is delivered
by the Company to the Trustee and there shall be at any time only one instrument
that is the WSI Agreement under this Indenture.
SECTION 1.02. Rules of Construction. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in the plural
include the singular;
(v) provisions apply to successive events and transactions;
(vi) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(vii) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated.
<PAGE>
32
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION,
REGISTRATION AND EXCHANGE OF NOTES
SECTION 2.01. Form, Date and Denomination of Notes. The Notes and
the Trustee's certificate of authentication shall be substantially in the form
recited above. The Notes may have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have letters, notations, legends or endorsements required by
law, stock exchange agreements to which the Company is subject or usage. Any
portion of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note. The Company shall
approve the form of the Notes and any notation, legend or endorsement on the
Notes.
The Notes shall be issuable in registered form without coupons in
denominations of $1,000 principal amount at maturity and any integral multiple
thereof. Every Note shall be dated the date of its authentication, shall bear
interest from the applicable date indicated therein and shall be payable on the
dates specified on the face of the form of Note recited above.
The terms and provisions contained in the form of the Notes recited
above shall constitute, and are hereby expressly made, a part of this Indenture.
Each of the Company and the Trustee, by its execution and delivery of this
Indenture, expressly agrees to the terms and provisions of the Notes applicable
to it and to be bound thereby.
Notes offered and sold in reliance on Rule 144A shall be issued in the
form of permanent global Note(s) in registered form, substantially in the form
recited above (the "U.S. Global Note"), deposited with the Trustee, as custodian
for the Depositary, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount at maturity of
the U.S. Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the Depositary
or its nominee, as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued in the form of permanent global Note(s) in
registered form substantially in the form recited above (the "Offshore Global
Note") deposited with the Trustee, as custodian for the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount at maturity of the Offshore Global
Note may from time to time be increased or decreased by adjustments made in the
records of the Trustee, as custodian for the Depositary or its nominee, as
herein provided.
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33
Notes which are offered and sold to Institutional Accredited Investors
which are not QIBs (excluding Non-U.S. Persons) shall be issued in the form of
permanent certificated Notes in registered form in substantially the form
recited above (the "U.S. Physical Notes"). Notes issued pursuant to Section
2.08 in exchange for interests in the U.S. Global Note or the Offshore Global
Note shall be in the form of U.S. Physical Notes or in the form of permanent
certificated Notes in registered form substantially in the form recited above
(the "Offshore Physical Notes"), respectively.
The Offshore Physical Notes and U.S. Physical Notes are sometimes
collectively herein referred to as the "Physical Notes". The U.S. Global Note
and the Offshore Global Note are sometimes referred to as the "Global Notes."
The definitive Notes shall be typed, printed, lithographed or engraved
or produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Notes may
be listed, all as determined by the officers executing such Notes, as evidenced
by their execution of such Notes.
SECTION 2.02. Payments of Interest. The Person in whose name any
Note (or its Predecessor Note) is registered at the close of business on any
record date with respect to any interest payment date shall be entitled to
receive the interest payable on such interest payment date notwithstanding the
cancellation of such Note upon any transfer or exchange subsequent to the record
date and prior to such interest payment date. Interest may, at the option of
the Company, be paid by check mailed to the address of such Person on the
registry kept for such purposes, provided that with respect to any holder of
Notes with an aggregate principal amount at maturity equal to or in excess of $5
million, at the request of such holder on or prior to the record date in writing
(such writing to include appropriate wire instructions) the Company shall pay
interest on such holder's Notes by wire transfer in immediately available funds.
The term "record date" with respect to any interest payment date shall mean the
June 1 or December 1 preceding said June 15 or December 15, respectively.
Interest on the Notes shall be computed on the basis of a 360-day year of twelve
30-day months. Accrual of Original Issue Discount shall be calculated on the
basis of a 360-day year of twelve 30-day months, on a semi-annual bond
equivalent basis.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any said June 15 or December 15 (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Noteholder on
the relevant record date by virtue of its having been such Noteholder; and such
Defaulted Interest shall be paid by the Company, at its election in each case,
as provided in the paragraph below:
The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Notes (or their respective Predecessor Notes) are
registered at
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34
the close of business on a special record date for the payment of such Defaulted
Interest, which date shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to be
paid on each Note and the date of the proposed payment (which shall be not less
than 25 days after the receipt by the Trustee of such notice, unless the Trustee
shall consent to an earlier date), and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a special record date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such special record date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the special record date therefor to be
mailed, first-class postage prepaid to each Noteholder at his address as it
appears in the Note register, not less than 10 days prior to such special record
date. Notice of the proposed payment of such Defaulted Interest and the special
record date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on such special record date and
shall no longer be payable.
SECTION 2.03. Restrictive Legends. (a) (i) The U.S. Global Note and
each U.S. Physical Note shall bear the legend set forth below on the face
thereof until the expiration of the time period referred to in Rule 144(k) under
the Securities Act, as in effect from time to time, with respect to such Note,
and (ii) the Offshore Physical Notes and the Offshore Global Note shall bear the
legend set forth below on the face thereof until at least 41 days after the
Closing Date and receipt by the Company and the Trustee of a certificate
substantially in the form of Exhibit A hereto:
THE NOTE EVIDENCED HEREBY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS, AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3)
OR (7) UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED
<PAGE>
35
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE NOTE
EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT
RESELL OR OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY OR THE COMMON STOCK
ISSUABLE UPON CONVERSION OF SUCH NOTE WITHIN THE TIME PERIOD REFERRED TO
UNDER RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) IN THE
CASE OF SUCH STOCK) EXCEPT (A) TO EXIDE CORPORATION OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED
STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF
THE NOTE EVIDENCED HEREBY AND SUCH COMMON STOCK (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM THE TRUSTEE), (D) OUTSIDE THE UNITED STATES IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE) AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THE NOTE EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE NOTE
EVIDENCED HEREBY WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k), THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE
OR THE COMPANY, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL
BE REMOVED AFTER THE EXPIRATION OF SUCH TIME PERIOD. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
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36
(b) Unless a Conversion Share has been sold pursuant to a registration
statement, each stock certificate representing any Conversion Share shall bear
the legend set forth below:
THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT
AS SET FORTH IN THE FOLLOWING SENTENCE. THE HOLDER HEREOF AGREES THAT
UNTIL THE EXPIRATION OF THE TIME PERIOD REFERRED TO IN RULE 144(k) (1) IT
WILL NOT RESELL OR OTHERWISE TRANSFER THE COMMON STOCK EVIDENCED HEREBY
EXCEPT (A) TO EXIDE CORPORATION OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE
UNITED STATES TO A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN COMPLIANCE WITH RULE 144A, (C) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE TRANSFER AGENT A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN
BE OBTAINED FROM THE TRANSFER AGENT), (D) OUTSIDE THE UNITED STATES IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), OR (F) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER); (2) PRIOR TO SUCH TRANSFER (OTHER
THAN A TRANSFER PURSUANT TO CLAUSE (F) ABOVE), IT WILL FURNISH TO THE
TRANSFER AGENT SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) IT WILL DELIVER TO
EACH PERSON TO WHOM THE COMMON STOCK EVIDENCED HEREBY IS TRANSFERRED (OTHER
THAN A TRANSFER PURSUANT TO CLAUSE (F) ABOVE) A NOTICE
<PAGE>
37
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED
UPON THE EARLIER OF THE TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY
PURSUANT TO CLAUSE (F) ABOVE) OR THE EXPIRATION OF THE TIME PERIOD REFERRED
TO ABOVE OR UPON THE EARLIER SATISFACTION OF EXIDE CORPORATION AND THE
TRANSFER AGENT THAT THE COMMON STOCK HAS BEEN OR IS BEING OFFERED AND SOLD
IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT. AS USED HEREIN, THE
TERMS "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.
(c) Each Global Note shall also bear the following legend on the face
thereof:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTION 2.09 OF THE INDENTURE.
<PAGE>
38
SECTION 2.04. Execution and Authentication. Two Officers shall
execute the Notes for the Company by facsimile or manual signature in the name
and on behalf of the Company.
If an Officer whose signature is on a Note no longer holds that office
at the time the Trustee or authenticating agent authenticates the Note, the Note
shall be valid nevertheless.
A Note shall not be valid until the Trustee or authenticating agent
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
The Trustee or an authenticating agent shall upon receipt of a Company
Order authenticate for original issue Notes in the aggregate principal amount at
maturity of up to $397,900,000; provided that the Trustee shall be entitled to
receive an Officers' Certificate and an Opinion of Counsel of the Company in
connection with such authentication of Notes. The Opinion of Counsel shall, if
requested by the Trustee, be to the effect that:
(a) the form and terms of such Notes have been established by or
pursuant to a Board Resolution or an indenture supplemental hereto in
conformity with the provisions of this Indenture;
(b) such supplemental indenture, if any, when executed and delivered
by the Company and the Trustee, will constitute a valid and binding
obligation of the Company;
(c) such Notes, when authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute valid and binding obligations
of the Company in accordance with their terms and will be entitled to the
benefits of this Indenture, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and
(d) that the Company has been duly incorporated in, and is a validly
existing corporation in good standing under the laws of, a state of the
United States.
Such Company Order shall specify the amount of Notes to be authenticated and the
date on which the original issue of Notes is to be authenticated. The aggregate
principal amount at maturity of Notes outstanding at any time may not exceed the
amount set forth above except for Notes authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Notes
pursuant to Section 2.07, 2.10 or 2.11.
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39
The Trustee may appoint an authenticating agent to authenticate Notes.
An authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such authenticating agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate of the Company.
SECTION 2.05. Registrar and Paying Agent. The Company shall maintain
an office or agency where Notes may be presented for registration of transfer or
for exchange (the "Registrar"), an office or agency where Notes may be presented
for payment (the "Paying Agent") and an office or agency where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served, which shall be in the Borough of Manhattan, The City of New York. The
Company shall cause the Registrar to keep a register of the Notes and of their
transfer and exchange (the "Security Register"). The Company may have one or
more co-Registrars and one or more additional Paying Agents.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall give
prompt written notice to the Trustee of the name and address of any such Agent
and any change in the address of such Agent. If the Company fails to maintain a
Registrar, Paying Agent and/or agent for service of notices and demands, the
Trustee shall act as such Registrar, Paying Agent and/or agent for service of
notices and demands for so long as such failure shall continue. The Company may
remove any Agent upon written notice to such Agent and the Trustee; provided
that no such removal shall become effective until (i) the acceptance of an
appointment by a successor Agent to such Agent as evidenced by an appropriate
agency agreement entered into by the Company and such successor Agent and
delivered to the Trustee or (ii) notification to the Trustee that the Trustee
shall serve as such Agent until the appointment of a successor Agent in
accordance with clause (i) of this proviso. The Company, any Subsidiary of the
Company, or any Affiliate of any of them may act as Paying Agent, Registrar or
co-Registrar, and/or agent for service of notice and demands.
The Company initially appoints the Trustee as Registrar, Paying Agent,
authenticating agent and agent for service of notice and demands. If, at any
time, the Trustee is not the Registrar, the Registrar shall make available to
the Trustee on or before each Interest Payment Date and at such other times as
the Trustee may reasonably request, the names and addresses of the Noteholders
as they appear in the Security Register.
SECTION 2.06. Paying Agent to Hold Money in Trust. Not later than
each due date of the principal, premium, if any, and interest on any Notes, the
Company shall deposit with the Paying Agent money in immediately available funds
sufficient to pay such principal, premium, if any, and interest so becoming due.
The Company shall require each
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40
Paying Agent, if any, other than the Trustee to agree in writing that such
Paying Agent shall hold in trust for the benefit of the Noteholders or the
Trustee all money held by the Paying Agent for the payment of principal of,
premium, if any, and interest on the Notes (whether such money has been paid to
it by the Company or any other obligor on the Notes), and that such Paying Agent
shall promptly notify the Trustee of any default by the Company (or any other
obligor on the Notes) in making any such payment. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed, and the Trustee may at any time during the continuance
of any payment default, upon written request to a Paying Agent, require such
Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed. Upon doing so, the Paying Agent shall have no further
liability for the money so paid over to the Trustee. If the Company or any
subsidiary of the Company or any Affiliate of any of them acts as Paying Agent,
it will, on or before each due date of any principal of, premium, if any, or
interest on the Notes, segregate and hold in a separate trust fund for the
benefit of the Noteholders a sum of money sufficient to pay such principal,
premium, if any, or interest so becoming due until such sum of money shall be
paid to such Noteholders or otherwise disposed of as provided in this Indenture,
and will promptly notify the Trustee of its action or failure to act as required
by this Section 2.06. In addition, the Company may pay the principal of,
premium, if any, and interest on the Notes by its check payable in money of the
United States mailed to a Noteholders' registered address (as reflected in the
Security Register), provided that a holder of Notes with an aggregate principal
amount at maturity in excess of $5 million will be paid by wire transfer in
immediately available funds) at the election of such holder, as provided in
Section 2.02.
SECTION 2.07. Transfer and Exchange. The Notes are issuable only in
registered form. A Noteholder may transfer a Note by written application to the
Registrar stating the name of the proposed transferee and otherwise complying
with the terms of this Indenture. No such transfer shall be effected until, and
such transferee shall succeed to the rights of a Noteholder only upon,
registration of the transfer by the Registrar in the Security Register. Prior
to the registration of any transfer by a Noteholder as provided herein, the
Company, the Trustee, and any agent of the Company shall treat the Person in
whose name the Note is registered as the owner thereof for all purposes whether
or not the Note shall be overdue, and neither the Company, the Trustee, nor any
such agent shall be affected by notice to the contrary. Furthermore, any
Noteholder of or beneficial owner of an interest in a Global Note shall, by
acceptance of such Global Note, be deemed to have agreed that transfers of
beneficial interests in such Global Note may be effected only through a book-
entry system maintained by the Depositary (or its agent), and that ownership of
a beneficial interest in the Note shall be required to be reflected in a book
entry. When Notes are presented to the Registrar or a co-Registrar with a
request to register the transfer or to exchange them for an equal principal
amount at maturity of Notes of other authorized denominations, the Registrar
shall register the transfer or make the exchange as requested if its
requirements for such transactions are met. To permit registrations of
transfers and
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41
exchanges in accordance with the terms, conditions and restrictions hereof, the
Company shall execute and the Trustee shall authenticate Notes at the
Registrar's request. No service charge shall be made to any Noteholder for any
registration of transfer or exchange or redemption of the Notes, but the Company
may require payment by the Noteholder of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection therewith (other than
any such transfer taxes payable upon exchanges pursuant to Section 2.11).
The Registrar shall not be required (i) to issue, register the
transfer of or exchange any Note during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Notes selected for redemption under Section 3.03 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
SECTION 2.08. Book-Entry Provisions for Global Notes. (a) The U.S.
Global Note and Offshore Global Note initially shall (i) be registered in the
name of the Depositary for such Global Notes or the nominee of such Depositary,
(ii) be delivered to the Trustee as custodian for such Depositary and (iii) bear
legends as set forth in Section 2.03.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depositary, or the Trustee as its custodian, or under any
Global Note, and the Depositary may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a beneficial owner of any Note.
(b) Transfers of a Global Note shall be limited to transfers of such
Global Note in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in a Global Note may
be transferred in accordance with the applicable rules and procedures of the
Depositary and the provisions of Section 2.09. In addition, U.S. Physical Notes
and Offshore Physical Notes shall be transferred to all beneficial owners in
exchange for their beneficial interests in the U.S. Global Note or the Offshore
Global Note, respectively, if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for the U.S. Global Note or the
Offshore Global Note, as the case may be, and a successor depositary is not
appointed by the Company within 90 days of such notice or (ii) an Event of
Default has occurred and is
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42
continuing and the Registrar has received a request to the foregoing effect from
the Depositary.
(c) Any beneficial interest in one of the Global Notes that is
transferred to a Person who takes delivery in the form of an interest in the
other Global Note will, upon transfer, cease to be an interest in such Global
Note and become an interest in the other Global Note and, accordingly, will
thereafter be subject to all transfer restrictions, if any, and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(d) In connection with any transfer pursuant to paragraph (b) of this
Section 2.08 of a portion of the beneficial interests in the U.S. Global Note to
beneficial owners who are required to hold U.S. Physical Notes, the Registrar
shall reflect on its books and records the date and a decrease in the principal
amount at maturity of the U.S. Global Note in an amount equal to the principal
amount at maturity of the beneficial interest in the U.S. Global Note to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more U.S. Physical Notes of like tenor and amount.
(e) In connection with the transfer of the entire U.S. Global Note or
Offshore Global Note to beneficial owners pursuant to paragraph (b) of this
Section 2.08, the U.S. Global Note or Offshore Global Note, as the case may be,
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in the U.S. Global Note or Offshore Global Note, as the case may be, an
equal aggregate principal amount at maturity of U.S. Physical Notes or Offshore
Physical Notes, as the case may be, of authorized denominations.
(f) Any U.S. Physical Note delivered in exchange for an interest in
the U.S. Global Note pursuant to paragraph (b) or (d) of this Section 2.08
shall, except as otherwise provided by paragraph (f)(i)(A) or paragraph (d) of
Section 2.09, bear the legend regarding transfer restrictions applicable to the
U.S. Physical Note set forth in Section 2.03.
(g) The registered holder of a Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Noteholder is
entitled to take under this Indenture or the Notes.
(h) QIBs that are beneficial owners of interests in a Global Note may
receive Physical Notes (which shall bear the Private Placement Legend if
required by Section 2.03) in accordance with the procedures of the Depositary.
In connection with the execution, authentication and delivery of such Physical
Notes, the Registrar shall reflect on its books and records a decrease in the
principal amount of the relevant Global Note equal to
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the principal amount of such Physical Notes and the Company shall execute and
the Trustee shall authenticate and deliver one or more Physical Notes having an
equal aggregate principal amount.
SECTION 2.09. Special Transfer Provisions. (a) Transfers to QIBs.
The following provisions shall apply with respect to the registration of any
proposed transfer of a U.S. Physical Note or an interest in the U.S. Global Note
to a QIB (excluding Non-U.S. Persons):
(i) If the Note to be transferred consists of (A) U.S. Physical Notes,
the Registrar shall register the transfer if such transfer is being made by
a proposed transferor who has checked the box provided for on the form of
Note stating, or has otherwise advised the Company and the Registrar in
writing, that the sale has been made in compliance with the provisions of
Rule 144A to a transferee who has signed the certification provided for on
the form of Note stating, or has otherwise advised the Company and the
Registrar in writing, that it is purchasing the Note for its own account or
an account with respect to which it exercises sole investment discretion
and that it and any such account is a QIB within the meaning of Rule 144A,
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as
it has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A or (B) an interest in the U.S. Global
Note, the transfer of such interest may be effected only through the book
entry system maintained by the Depositary.
(ii) If the proposed transferee is an Agent Member, and the Note to be
transferred consists of U.S. Physical Notes, upon receipt by the Registrar
of the documents referred to in clause (i) and instructions given in
accordance with the Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and an increase
in the principal amount at maturity of the U.S. Global Note in an amount
equal to the principal amount at maturity of the U.S. Physical Notes to be
transferred, and the Trustee shall cancel the Physical Note so transferred.
(b) Transfers of Interests in the Offshore Global Note or Offshore
Physical Notes to U.S. Persons. The following provisions shall apply with
respect to any transfer of interests in the Offshore Global Note or Offshore
Physical Notes to U.S. Persons:
(i) prior to the removal of the Private Placement Legend from the
Offshore Global Note or Offshore Physical Notes pursuant to Section 2.03,
the Registrar shall refuse to register such transfer; and
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44
(ii) after such removal, the Registrar shall register the transfer of
any such Note without requiring any additional certification.
(c) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of a Note to a Non-U.S.
Person:
(i) The Registrar shall register any proposed transfer to any Non-U.S.
Person if the Note to be transferred is a U.S. Physical Note or an interest
in the U.S. Global Note only upon receipt of a certificate substantially in
the form of Exhibit B from the proposed transferor.
(ii) (A) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Note, upon receipt by the Registrar
of (1) the documents required by paragraph (i) and (2) instructions in
accordance with the Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and a decrease in
the principal amount at maturity of the U.S. Global Note in an amount equal
to the principal amount at maturity of the beneficial interest in the U.S.
Global Note to be transferred, and (B) if the proposed transferee is an
Agent Member, upon receipt by the Registrar of instructions given in
accordance with the Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and an increase
in the principal amount at maturity of the Offshore Global Note in an
amount equal to the principal amount at maturity of the U.S. Physical Notes
or the U.S. Global Note, as the case may be, to be transferred, and the
Trustee shall cancel the Physical Note, if any, so transferred or decrease
the amount of the U.S. Global Note.
(d) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement Legend
unless either (i) the Private Placement Legend is no longer required by Section
2.03 or (ii) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act.
(e) General. By its acceptance of any Note bearing the Private
Placement Legend or any Conversion Share bearing the legend set forth in Section
2.03(b), each Holder of or beneficial owner of an interest in such Note or
Conversion Share acknowledges the restrictions on transfer of such Note or
Conversion Shares set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note or Conversion Share only as
provided in this Indenture. The Registrar or transfer agent for the Company's
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45
Common Stock (the "Transfer Agent"), as applicable, shall not register a
transfer of any Note or Conversion Share unless such transfer complies with the
restrictions on transfer of such Note or Conversion Share set forth in this
Indenture. In connection with any transfer of Notes or Conversion Share to an
Institutional Accredited Investor, each such Noteholder or beneficial owner
agrees by its acceptance of the Notes or Conversion Shares to furnish the
Registrar or the Transfer Agent, as applicable, or the Company such
certifications, legal opinions or other information as such Person may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration requirements
of the Securities Act; provided that the Registrar shall not be required to
determine (but may rely on a determination made by the Company with respect to)
the sufficiency of any such certifications, legal opinions or other information.
(f) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Note to any Institutional Accredited Investor which is
not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Note, whether or
not such Note bears the Private Placement Legend, if (A) the requested
transfer is after the time period referred to in Rule 144(k) under the
Securities Act as in effect with respect to such transfer or (B) the
proposed transferee has delivered to the Registrar (1) a certificate
substantially in the form of Exhibit C hereto and (2) if requested by the
Company or the Trustee, an Opinion of Counsel acceptable to such Person
that such transfer is in compliance with the Securities Act.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Note, upon receipt by the Registrar
of (A) the documents, if any, required by paragraph (i), (B) if requested
by the Company or the Trustee, an opinion of counsel acceptable to such
Person that such transfer is in compliance with the Securities Act and (C)
instructions given in accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of the U.S. Global Note in an amount
equal to the principal amount of the beneficial interest in the U.S. Global
Note to be transferred, and the Company shall execute, and the Trustee
shall authenticate and deliver, one or more U.S. Physical Notes of like
tenor and amount.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.08 or this Section 2.09.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
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46
SECTION 2.10. Mutilated, Destroyed, Lost or Stolen Notes. In case
any temporary or definitive Note shall become mutilated or be apparently
destroyed, lost or stolen, the Company in its discretion may execute, and upon
its request the Trustee shall authenticate and deliver, a new Note, bearing a
number not contemporaneously outstanding, in exchange and substitution for the
mutilated Note, or in lieu of and in substitution for the Note so apparently
destroyed, lost or stolen. In every case the applicant for a substituted Note
shall furnish to the Company and to the Trustee such security or indemnity as
may be reasonably required by them to save each of them harmless, and, in every
case of destruction, loss or theft, the applicant shall also furnish to the
Company and to the Trustee evidence to their satisfaction of the destruction,
loss or theft of such Note and of the ownership thereof.
The Trustee may authenticate any such substituted Note and deliver the
same upon the receipt of such security or indemnity as the Trustee and the
Company may require. Upon the issuance of any substituted Note, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses connected
therewith. In case any Note which has matured or is about to mature or has been
called for redemption or is about to be converted into Common Stock shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a
substitute Note, pay or authorize the payment of or convert or authorize the
conversion of the same (without surrender thereof except in the case of a
mutilated Note) if the applicant for such payment or conversion shall furnish to
the Company and to the Trustee such security or indemnity as may be reasonably
required by them to save each of them harmless and, in case of destruction, loss
or theft, evidence satisfactory to the Company and the Trustee of the
destruction, loss or theft of such Note and of the ownership thereof.
Every substituted Note issued pursuant to the provisions of this
Section 2.10 by virtue of the fact that any Note is destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company, whether or
not the apparently destroyed, lost or stolen Note shall be found at any time,
and shall be entitled to all the benefits of (but shall be subject to all the
limitations set forth in) this Indenture equally and proportionately with any
and all other Notes duly issued hereunder. To the extent permitted by law, all
Notes shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment or
conversion of mutilated, destroyed, lost or stolen Notes 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 or
conversion of negotiable instruments or other securities without their
surrender.
SECTION 2.11. Temporary Notes. Pending the preparation of definitive
Notes, the Company may execute and the Trustee shall authenticate and deliver
temporary Notes (printed or lithographed). Temporary Notes shall be issuable in
any authorized denomination, and substantially in the form of the definitive
Notes but with such omissions,
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47
insertions and variations as may be appropriate for temporary Notes, all as may
be determined by the Company. Every such temporary Note shall be executed by
the Company and authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive
Notes. Without unreasonable delay the Company will execute and deliver to the
Trustee definitive Notes and thereupon any or all temporary Notes may be
surrendered in exchange therefor, at each office or agency maintained by the
Company pursuant to Section 5.02 and the Trustee shall authenticate and deliver
in exchange for such temporary Notes an equal aggregate principal amount at
maturity of definitive Notes. Such exchange shall be made by the Company at its
own expense and without any charge therefor. Until so exchanged, the temporary
Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Notes authenticated and delivered hereunder.
SECTION 2.12. Cancellation of Notes Paid, Etc. All Notes surrendered
for the purpose of payment, redemption, conversion, exchange or registration of
transfer, shall, if surrendered to the Company or any Paying Agent or any
Registrar or any conversion agent, be surrendered to the Trustee and promptly
canceled by it, or, if surrendered to the Trustee, shall be promptly canceled by
it, and no Notes shall be issued in lieu thereof except as expressly permitted
by any of the provisions of this Indenture. The Trustee shall return such
canceled Notes to the Company. If the Company shall acquire any of the Notes,
such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Notes unless and until the same are delivered
to the Trustee for cancellation.
SECTION 2.13. CUSIP Numbers. The Company in issuing the Notes may
use "CUSIP", "CINS" or other identification numbers (if then generally in use),
and the Company, or the Trustee on behalf of the Company, shall use CUSIP
numbers, CINS or other identification numbers, as the case may be, in notices of
redemption or exchange as a convenience to Holders; provided that any such
notice shall state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of
redemption or exchange and that reliance may be placed only on the other
identification numbers printed on the Notes; provided further that failure to us
CUSIP numbers, CINS or other identification numbers, as the case may be, in any
notice of redemption or exchange shall not affect the validity or sufficiency of
such notice.
ARTICLE THREE
REDEMPTION OF NOTES
SECTION 3.01. Redemption Prices. The Company may not redeem the
Notes prior to December 15, 1998. On or after that date, the Company may, at
its option, redeem all or from time to time any part of the Notes on any date
prior to maturity, upon
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48
notice as set forth in Section 3.03, and at the applicable Redemption Price
together with accrued interest to, but excluding, the date fixed for redemption;
provided that any semi-annual payment of interest becoming due on the date fixed
for redemption shall be payable to the holders of such Notes registered on the
relevant record date.
SECTION 3.02. Notice to Trustee. If the Company elects to redeem
Notes pursuant to Section 3.01, it shall notify the Trustee in writing of the
redemption date and the principal amount of Notes to be redeemed, as least 45
days before the redemption date (unless a shorter period shall be satisfactory
to the Trustee).
SECTION 3.03. Notice of Redemption; Selection of Notes. In case the
Company shall desire to exercise the right to redeem all or, as the case may be,
any part of the Notes pursuant to Section 3.01 for redemption, it or, at its
request, the Trustee in the name of and at the expense of the Company, shall
mail or cause to be mailed a notice of such redemption at least 30 and not more
than 60 days prior to the date fixed for redemption to the holders of Notes so
to be redeemed as a whole or in part at their last addresses as the same appear
on the registry books of the Company. Such mailing shall be by first class
mail. The notice if mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the holder receives such
notice. In any case, failure to give such notice by mail or any defect in the
notice to the holder of any Note designated for redemption as a whole or in part
shall not affect the validity of the proceedings for the redemption of any other
Note.
Each such notice of redemption shall identify the Notes to be redeemed
(including CUSIP or CINS number), specify the principal amount at maturity of
each Note to be redeemed, the date fixed for redemption, the Redemption Price at
which Notes are to be redeemed, the place or places of payment, that payment
will be made upon presentation and surrender of such Notes, that interest and
Original Issue Discount accrued to the date fixed for redemption will be paid as
specified in said notice, and that on and after said date interest and Original
Issue Discount thereon or on the portions thereof to be redeemed will cease to
accrue, unless the Company defaults in the payment of the Redemption Price.
Such notice shall also state the current Conversion Rate and the date on which
the right to convert such Notes or portions thereof into Common Stock will
expire. If fewer than all the Notes are to be redeemed, the notice of
redemption shall identify the Notes to be redeemed. In case any Note is to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount at maturity thereof to be redeemed and shall state that on and
after the date fixed for redemption, upon surrender of such Note, a new Note or
Notes in principal amount at maturity equal to the unredeemed portion thereof
will be issued.
No later than the Business Day prior to the redemption date specified
in the notice of redemption given as provided in this Section, the Company will
deposit with the Trustee or with one or more Paying Agents (or, if the Company
is acting as its own Paying
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49
Agent, set aside, segregate and hold in trust as provided in Section 5.04) an
amount of money sufficient to redeem on the redemption date all the Notes so
called for redemption (other than those theretofore surrendered for conversion
into Common Stock) at the appropriate Redemption Price, together with accrued
interest to the date fixed for redemption. If any Note called for redemption is
converted pursuant hereto, any money deposited with the Trustee or any Paying
Agent or so segregated and held in trust for the redemption of such Note shall
be paid to the Company upon its request, or, if then held by Company shall be
discharged from such trust.
If fewer than all the Notes are to be redeemed, the Trustee shall
select, by lot, pro rata or in such other manner as the Trustee shall deem
equitable and fair, the Notes or portions thereof (in integral multiples of
$1,000 principal amount at maturity) to be redeemed. If any Note selected for
partial redemption is converted in part after such selection, the converted
portion of such Note shall be deemed (so far as it may be) to be the portion to
be selected for redemption. The Notes (or portions thereof) so selected shall
be deemed duly selected for redemption for all purposes hereof, notwithstanding
that any such Note is converted as a whole or in part before the mailing of the
notice of redemption.
Upon any redemption of less than all Notes, the Company and the
Trustee may treat as outstanding any Notes surrendered for conversion during the
period of 15 days next preceding the mailing of a notice of redemption and need
not treat as outstanding any Note authenticated and delivered during such period
in exchange for the unconverted portion of any Note converted in part during
such period.
SECTION 3.04. Payment of Notes Called for Redemption. If notice of
redemption has been given as above provided, the Notes or portions of Notes with
respect to which such notice has been given shall, unless theretofore converted
into Common Stock pursuant to the terms hereof, become due and payable on the
date and at the place or places 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 Company shall default in the
payment of such Notes at the Redemption Price, together with interest accrued to
said date) Original Issue Discount and interest on the Notes or portions of
Notes so called for redemption shall cease to accrue and such Notes shall cease
after the date fixed for redemption to be convertible into Common Stock and,
except as provided in Sections 8.05 and 13.04, to be entitled to any benefit or
security under this Indenture, and the holders thereof shall have no right in
respect of such Notes except the right to receive the Redemption Price thereof
and unpaid interest to the date fixed for redemption. On presentation and
surrender of such Notes at a place of payment in said notice specified, the said
Notes or the specified portions thereof shall be paid and redeemed by the
Company at the applicable Redemption Price, together with interest accrued
thereon to the date fixed for redemption; provided that any semi-annual payment
of interest becoming due on the date
<PAGE>
50
fixed for redemption shall be payable to the holders of such Notes registered as
such on the relevant record date subject to the terms and provisions of Section
2.02 hereof.
Upon presentation of any Note redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the holder thereof, at
the expense of the Company, a new Note or Notes, of authorized denominations, in
principal amount at maturity equal to the unredeemed portion of the Note so
presented.
Notwithstanding the foregoing, the Trustee shall not redeem any Notes
or mail any notice of optional redemption during the continuance of a default in
payment of principal amount at maturity, Issue Price, accrued Original Issue
Discount, Redemption Price, Fundamental Change Redemption Price or interest in
respect of the Notes or of any Event of Default. If any Note called for
redemption shall not be so paid upon surrender thereof for redemption, the
Redemption Price and, to the extent legally permitted, interest, if any, in
respect thereof shall, until paid or duly provided for, bear interest from the
date fixed for redemption at the rate borne by the Note (treating the accrual of
Original Issue Discount as if it were interest) and such Note shall remain
convertible into Common Stock until the Redemption Price shall have been paid or
duly provided for.
SECTION 3.05. No Sinking Fund. The Notes shall not be entitled to
the benefit of any sinking fund.
SECTION 3.06. Conversion Arrangement on Call for Redemption. In
connection with any redemption of Notes, the Company may arrange for the
purchase and conversion of any Notes by an agreement with one or more investment
bankers or other purchasers to purchase such Notes by paying to the Trustee in
trust for the Noteholders, on or before the close of business on the date fixed
for redemption, an amount not less than the applicable Redemption Price,
together with interest accrued to the date fixed for redemption, of such Notes.
Notwithstanding anything to the contrary contained in this Article Three, the
obligation of the Company to pay the Redemption Price of such Notes, together
with interest accrued to the date fixed for redemption, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, a copy of which will be filed
with the Trustee prior to the date fixed for redemption, any Notes not duly
surrendered for conversion by the holders thereof may, at the option of the
Company, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such holders and (notwithstanding anything to the contrary
contained in Article Fifteen) surrendered by such purchasers for conversion, all
as of immediately prior to the close of business on the date fixed for
redemption, subject to payment of the above amount as aforesaid. At the
direction of the Company, the Trustee shall hold and dispose of any such amount
paid to it in the same manner as it would monies deposited with it by the
Company for the redemption of Notes. Without the Trustee's prior written
consent, no arrangement between the Company and such purchasers for the purchase
and conversion of any Notes
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51
shall increase or otherwise affect any of the powers, duties, responsibilities
or obligations of the Trustee as set forth in this Indenture, and the Company
agrees to indemnify the Trustee from, and hold it harmless against, any loss,
liability or expense arising out of or in connection with any such arrangement
for the purchase and conversion of any Notes between the Company and such
purchasers to which the Trustee has not consented in writing, including the
costs and expenses incurred by the Trustee in the defense of any claim or
liability arising out of or in connection with the exercise or performance of
any of its powers, duties, responsibilities or obligations under this Indenture.
ARTICLE FOUR
SUBORDINATION OF NOTES
SECTION 4.01. Securities Subordinated to Senior Indebtedness. The
Company and the Trustee each covenant and agree and each Holder, by its
acceptance of a Note, likewise covenants and agrees that all Securities shall be
issued subject to the provisions of this Article Four; and each Person holding
any Note, whether upon original issue or upon transfer, assignment or exchange
thereof, accepts and agrees that Senior Subordinated Obligations shall, to the
extent and in the manner set forth in this Article Four, be subordinated in
right of payment to the prior payment in full, in cash or cash equivalents, of
all amounts payable under Senior Indebtedness (including any interest accruing
subsequent to an event specified in Section 7.01(d) or 7.01(e) of this
Indenture, whether or not such interest is an allowed claim enforceable against
the debtor under the United States Bankruptcy Code).
SECTION 4.02. No Payment on Notes in Certain Circumstances. (a) No
direct or indirect payment by or on behalf of the Company of Senior Subordinated
Obligations, whether pursuant to the terms of the Notes or upon acceleration or
otherwise, shall be made if, at the time of such payment, there exists a default
in the payment of all or any portion of the obligations on any Senior
Indebtedness, and such default shall not have been cured or waived or the
benefits of this sentence waived by or on behalf of the holders of such Senior
Indebtedness.
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Noteholder when such payment is
prohibited by Section 4.02(a) of this Indenture, the Trustee shall promptly
notify the holders of Senior Indebtedness of such prohibited payment and such
payment shall be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, but only to the extent that, upon notice from the Trustee
to the holders of Senior Indebtedness
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52
that such prohibited payment has been made, the holders of the Senior
Indebtedness (or their representative or representatives or a trustee) within 30
days of receipt of such notice from the Trustee notify the Trustee of the
amounts then due and owing on the Senior Indebtedness, if any, and only the
amounts specified in such notice to the Trustee shall be paid to the holders of
the Senior Indebtedness and any excess above such amounts due and owing on
Senior Indebtedness shall be paid to the Company.
SECTION 4.03. Payment over of Proceeds upon Dissolution, Etc. (a)
Upon any payment or distribution of assets or securities of the Company, as the
case may be, of any kind or character, whether in cash, property or securities,
upon any dissolution or winding up or total or partial liquidation or
reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due or to
become due upon all Senior Indebtedness (including any interest accruing
subsequent to an event specified in Section 7.01(d) or 7.01(e) of this
Indenture, whether or not such interest is an allowed claim enforceable against
the debtor under the United States Bankruptcy Code) shall first be paid in full,
in cash or cash equivalents, before the Noteholders or the Trustee on behalf of
the Noteholders shall be entitled to receive any payment of the Noteholders
shall be entitled to receive any payment by the Company on account of Senior
Subordinated Obligations, or any payment to acquire any of the Notes for cash,
property or securities, or any distribution with respect to the Notes of any
cash, property or securities. Before any payment may be made by, or on behalf
of, the Company of any Senior Subordinated Obligations upon any such
dissolution, winding up, liquidation or reorganization, any payment or
distribution of assets or securities of the Company of any kind or character,
whether in cash, property or securities, to which the Noteholders or the Trustee
on behalf of the Noteholders would be entitled, but for the provisions of this
Article Four, shall be made by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person making such
payment or distribution, or by the Noteholders or the Trustee if received by
them or it, directly to the holders of Senior Indebtedness (pro rata to such
holders on the basis of the respective amounts of Senior Indebtedness held by
such holders) or their representatives, or to the trustee under the Senior Notes
Indenture, or to any trustee or trustees under any other indenture pursuant to
which any such Senior Indebtedness may have been issued, as their respective
interests appear, to the extent necessary to pay all such Senior Indebtedness in
full, in cash or cash equivalents after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of such Senior
Indebtedness.
(b) To the extent any payment of Senior Indebtedness (whether by or on
behalf of the Company, as proceeds of security or enforcement of any right of
setoff or otherwise) is declared to be fraudulent or preferential, set aside or
required to be paid to any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then if such payment is recovered by, or
paid over to, such receiver, trustee in bankruptcy, liquidating
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53
trustee, agent or other similar Person, the Senior Indebtedness or part thereof
originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred. To the extent the obligation
to repay any Senior Indebtedness is declared to be fraudulent, invalid, or
otherwise set aside under any bankruptcy, insolvency, receivership, fraudulent
conveyance or similar law, then the obligation so declared fraudulent, invalid
or otherwise set aside (and all other amounts that would come due with respect
thereto had such obligation not been so affected) shall be deemed to be
reinstated and outstanding as Senior Indebtedness for all purposes hereof as if
such declaration, invalidity or setting aside had not occurred.
(c) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of the Company of any kind or character, whether in cash, property
or securities, shall be received by the Trustee or any Noteholder at a time when
such payment or distribution is prohibited by Section 4.03(a) of this Indenture
and before all obligations in respect of Senior Indebtedness are paid in full,
in cash or cash equivalents, such payment or distribution shall be received and
held in trust for the benefit of, and shall be paid over or delivered to, the
holders of Senior Indebtedness (pro rata to such holders on the basis of the
respective amount of Senior Indebtedness held by such holders) or their
representatives, or to the trustees under the Senior Note Indentures, or to the
trustee or trustees under any other indenture pursuant to which any such Senior
Indebtedness may have been issued, as their respective interests appear, for
application to the payment of Senior Indebtedness remaining unpaid until all
such Senior Indebtedness has been paid in full, in cash or cash equivalents,
after giving effect to any concurrent payment, distribution or provision
therefor to or for the holders of such Senior Indebtedness.
(d) For purposes of this Section 4.03, the words "cash, property or
securities" shall not be deemed to include, so long as the effect of this clause
is not to cause the Securities to be treated in any case or proceeding or
similar event described in this Section 4.03 as part of the same class of claims
as the Senior Indebtedness or any class of claims pari passu with, or senior to,
the Senior Indebtedness for any payment or distribution, securities of the
Company or any other corporation provided for by a plan of reorganization or
readjustment that are subordinated, at least to the extent that the Securities
are subordinated, to the payment of all Senior Indebtedness then outstanding;
provided that (1) if a new corporation results from such reorganization or
readjustment, such corporation assumes the Senior Indebtedness and (2) the
rights of the holders of the Senior Indebtedness are not, without the consent of
such holders, altered by such reorganization or readjustment. The consolidation
of the Company with, or the merger of the Company with or into, another
corporation or the liquidation or dissolution of the Company following the sale,
conveyance, transfer, lease or other disposition of all or substantially all of
its property and assets to another corporation upon the terms and conditions
provided in Article Twelve of this Indenture shall not be deemed a dissolution,
winding up, liquidation or reorganization for the
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54
purposes of this Section 4.03 if such other corporation shall, as a part of such
consolidation, merger, sale, conveyance, transfer, lease or other disposition,
comply with the conditions stated in Article Twelve of this Indenture.
SECTION 4.04. Subrogation. (a) Upon the payment in full of all
Senior Indebtedness in cash or cash equivalents, the Noteholders shall be
subrogated to the rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company made on
such Senior Indebtedness until the principal of, premium, if any, and interest
on the Notes shall be paid in full; and, for the purposes of such subrogation,
no payments or distributions to the holders of the Senior Indebtedness of any
cash, property or securities to which the Holders or the Trustee on their behalf
would be entitled except for the provisions of this Article Four, and no payment
pursuant to the provisions of this Article Four to the holders of Senior
Indebtedness by Noteholders or the Trustee on their behalf shall, as between the
Company, its creditors other than holders of Senior Indebtedness, and the
Noteholders, be deemed to be a payment by the Company to or on account of the
Senior Indebtedness. It is understood that the provisions of this Article Four
are intended solely for the purpose of defining the relative rights of the
Noteholders, on the one hand, and the holders of the Senior Indebtedness, on the
other hand.
(b) If any payment or distribution to which the Noteholders would
otherwise have been entitled but for the provisions of this Article Four shall
have been applied, pursuant to the provisions of this Article Four, to the
payment of all amounts payable under Senior Indebtedness, then, and in such
case, the Noteholders shall be entitled to receive from the holders of such
Senior Indebtedness any payments or distributions received by such holders of
Senior Indebtedness in excess of the amount required to make payment in full, in
cash or cash equivalents, of such Senior Indebtedness of such holders.
SECTION 4.05. Obligations of Company Unconditional. (a) Nothing
contained in this Article Four or elsewhere in this Indenture or in the Notes is
intended to or shall impair, as among the Company and the Noteholders, the
obligation of the Company, which is absolute and unconditional, to pay to the
Noteholders the principal of, premium, if any, and interest on the Notes as and
when the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Noteholders and creditors
of the Company other than the holders of the Senior Indebtedness, nor shall
anything herein or therein prevent the Noteholders or the Trustee on their
behalf from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
Four of the holders of the Senior Indebtedness.
(b) Without limiting the generality of the foregoing, nothing
contained in this Article Four will restrict the right of the Trustee or the
Noteholders to take any action to declare the Notes to be due and payable prior
to their Stated Maturity pursuant to
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55
Section 7.01 of this Indenture or to pursue any rights or remedies hereunder;
provided, however, that all Senior Indebtedness then due and payable or
thereafter declared to be due and payable shall first be paid in full, in cash
or cash equivalents, before the Noteholders or the Trustee are entitled to
receive any direct or indirect payment from the Company of Senior Subordinated
Obligations.
SECTION 4.06. Notice to Trustee. The Company shall give prompt
written notice to the Trustee of any fact known to the Company that would
prohibit the making of any payment to or by the Trustee in respect of the Notes
pursuant to the provisions of this Article Four. The Trustee shall not be
charged with knowledge of the existence of any default or event of default with
respect to any Senior Indebtedness or any other facts that would prohibit the
making of any payment to or by the Trustee unless and until the Trustee shall
have received notice in writing at its Principal Office to that effect signed by
an Officer of the Company, or by a holder of Senior Indebtedness, holder of
Senior Notes, or trustee or agent therefor; and prior to the receipt of any such
written notice, the Trustee shall, subject to Article Eight, be entitled to
assume that no such facts exist; provided that if the Trustee shall not have
received the notice provided for in this Section 4.06 at least two Business Days
prior to the date upon which, by the terms of this Indenture, any monies shall
become payable for any purpose (including, without limitation, the payment of
the principal of, premium, if any, or interest on any Note), then,
notwithstanding anything herein to the contrary, the Trustee shall have full
power and authority to receive any monies from the Company and to apply the same
to the purpose for which they were received, and shall not be affected by any
notice to the contrary that may be received by it on or after such prior date
except for an acceleration of the Notes prior to such application. Nothing
contained in this Section 4.06 shall limit the right of the holders of Senior
Indebtedness to recover payments as contemplated by this Article Four. The
foregoing shall not apply if the Paying Agent is the Company. The Trustee shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself or itself to be a holder of any Senior Indebtedness (or a
trustee on behalf of, or other representative of, such holder) to establish that
such notice has been given by a holder of such Senior Indebtedness or a trustee
or representative on behalf of any such holder.
(b) In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Four, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article Four and, if such evidence is not
furnished to the Trustee, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
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56
SECTION 4.07. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets or securities
referred to in this Article Four, the Trustee and the Noteholders shall be
entitled to rely upon any order or decree may by any court of competent
jurisdiction in which bankruptcy, dissolution, winding up, liquidation or
reorganization proceedings are pending, or upon a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other similar Person making
such payment or distribution, delivered to the Trustee or to the Noteholders for
the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other Indebtedness of
the Company, the amount thereof payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
Four.
SECTION 4.08. Trustee's Relation to Senior Indebtedness. (a) The
Trustee and any Paying Agent shall be entitled to all the rights set forth in
this Article Four with respect to any Senior Indebtedness that may at any time
be held by it in its individual or any other capacity to the same extent as any
other holder of Senior Indebtedness and nothing in this Indenture shall deprive
the Trustee or any Paying Agent of any of its rights as such holder.
(b) With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Four, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness (except as provided in
Sections 4.02(c) and 4.03(c) of this Indenture) and shall not be liable to any
such holders if the Trustee shall in good faith mistakenly pay over or
distribute to Noteholders or to the Company or to any other Person cash,
property or securities to which any holders of Senior Indebtedness shall be
entitled by virtue of this Article Four or otherwise.
SECTION 4.09. Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of the Senior Indebtedness. No right of any present
or future holders of any Senior Indebtedness to enforce subordination as
provided in this Article Four will at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms of this Indenture, regardless of any knowledge
thereof that any such holder may have or otherwise be charged with. The
provisions of this Article Four are intended to be for the benefit of, and shall
be enforceable directly by, the holders of Senior Indebtedness.
SECTION 4.10. Noteholders Authorize Trustee to Effectuate
Subordination of Notes. Each Noteholder by his acceptance of any Notes
authorizes and expressly directs the
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57
Trustee on its behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article Four, and appoints the
Trustee its attorney-in-fact for such purposes, including, in the event of
dissolution, winding up, liquidation or reorganization of the Company (whether
in bankruptcy, insolvency, receivership, reorganization or similar proceedings
or upon an assignment for the benefit of creditors or otherwise) tending towards
liquidation of the property and assets of the Company, the filing of a claim for
the unpaid balance of its Notes in the form required in those proceedings. If
the Trustee does not file a proper claim or proof of indebtedness in the form
required in such proceeding at least 30 days before the expiration of the time
to file such claim or claims, each holder of Senior Indebtedness is hereby
authorized to file an appropriate claim for and on behalf of the Noteholders.
SECTION 4.11. Not to Prevent Event of Default. The failure to make a
payment on account of principal of, premium, if any, or interest on the
Securities by reason of any provision of this Article Four will not be construed
as preventing the occurrence of an Event of Default.
SECTION 4.12. Trustee's Compensation Not Prejudiced. Nothing in this
Article Four will apply to amounts due to the Trustee pursuant to other sections
of this Indenture.
SECTION 4.13. No Waiver of Subordination. Without in any way
limiting the generality of Section 4.09 of this Indenture, the holders of Senior
Indebtedness may, at any time and from time to time, without the consent of or
notice to the Trustee or the Noteholders, without incurring responsibility to
the Holders and without impairing or releasing the subordination provided in
this Article Four or the obligations hereunder of the Noteholders to the holders
of Senior Indebtedness, do any one or more of the following: (a) change the
manner, place or terms of payment or extent the time of payment of, or renew or
alter, Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding or secured; (b) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness; (c) release any Person liable in any
manner for the collection of Senior Indebtedness; and (d) exercise or refrain
from exercising any rights against the Company and any other Person.
SECTION 4.14. Payments May Be Paid Prior to Dissolution. Nothing
contained in this Article Four or elsewhere in this Indenture shall prevent (i)
the Company, except under the conditions described in Section 4.02 or 4.03 of
this Indenture, from making payments of principal of, premium, if any, and
interest on the Notes, or from depositing with the Trustee any money for such
payments, or (ii) the application by the Trustee of any money deposited with it
for the purpose of making such payments of principal of, premium, if any, and
interest on the Notes to the holders entitled thereto unless, at least two
Business Days prior to the date upon which such payment becomes due and payable,
the Trustee shall
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58
have received the written notice provided for in Section 4.02(b) of this
Indenture (or there shall have been an acceleration of the Notes prior to such
application) or in Section 4.06 of this Indenture. The Company shall give
prompt written notice to the Trustee of any dissolution, winding up, liquidation
or reorganization of the Company.
SECTION 4.15. Consent of Holders of Senior Indebtedness Under the
U.S. Credit Agreement. The provisions of this Article Four (including the
definitions contained in this Article and references to this Article contained
in this Indenture) shall not be amended in a manner that would adversely affect
the rights of the holders of Senior Indebtedness under the U.S. Credit
Agreement, and no such amendment shall become effective unless the holders of
Senior Indebtedness under the U.S. Credit Agreement shall have consented (in
accordance with the provisions of the U.S. Credit Agreement) to such amendment.
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.01. Payment of Principal, Premium and Interest. The
Company covenants and agrees that it will duly and punctually pay or cause to be
paid the principal amount at maturity, Issue Price, accrued Original Issue
Discount, Redemption Price, Fundamental Change Redemption Price and interest in
respect of each of the Notes at the places, at the respective times and in the
manner provided herein and in the Notes. Each installment of interest on the
Notes may be paid by mailing checks for the interest payable to or upon the
written order of the holders of Notes entitled thereto as they shall appear on
the registry books of the Company, provided that with respect to any holder of
Notes with an aggregate principal amount at maturity equal to or in excess of $5
million, at the request of such holder on or prior to the record date in writing
(such writing to include appropriate wire instructions) the Company shall pay
interest on such holder's Notes by wire transfer in immediately available funds.
SECTION 5.02. Offices for Notices and Payments, Etc. So long as any
of the Notes remain outstanding, the Company will maintain in the Borough of
Manhattan, The City of New York, an office or agency where the Notes may be
presented for payment, and an office or agency where the Notes may be presented
for registration of transfer and for exchange and conversion as provided for in
this Indenture and an office or agency where notices and demands to or upon the
Company in respect of the Notes or of this Indenture may be served. The Company
will give to the Trustee written notice of the location of each such office or
agency and of any change of location thereof. If the Company shall fail to
maintain any such office or agency or shall fail to give such notice of the
location or of any change in the location thereof, presentations and demands may
be made and notices may be served at the principal office of the Trustee and the
Company hereby appoints the Trustee at
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the principal office of the Trustee as its agent to receive all such
presentations, demands and notices.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York, for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
The Company hereby initially designates the Trustee as Paying Agent,
Registrar and conversion agent and the Principal Office of the Trustee at 101
Barclay Street, New York, New York 10286, as one such office or agency of the
Company for each of the aforesaid purposes.
So long as the Trustee is the Registrar, the Trustee agrees to mail,
or cause to be mailed, if and when required, the notice set forth in Section
8.09(a).
SECTION 5.03. Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 8.09, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 5.04. Provision as to Paying Agent. (a) If the Company
shall appoint a Paying Agent other than the Trustee or an affiliate of the
Trustee, 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 5.04:
(1) that it will hold all sums held by it as such agent for the
payment of the principal amount at maturity, Issue Price, accrued Original
Issue Discount, Redemption Price, Fundamental Change Redemption Price or
interest in respect of the Notes (whether such sums have been to it by the
Company or by any other obligor on the Notes) in trust for the benefit of
the holders of the Notes;
(2) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Notes) to make any payment of the principal
amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price, Fundamental Change Redemption Price or interest in
respect of the Notes when the same shall be due and payable; and
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(3) that at any time during the continuance of an Event of Default,
upon request of the Trustee, it will forthwith pay to the Trustee all sums
so held in trust.
The Company shall, before each due date of the principal amount at
maturity, Issue Price, accrued Original Issue Discount, Redemption Price,
Fundamental Change Redemption Price or interest in respect of the Notes, deposit
with the Paying Agent a sum sufficient to pay such amounts so becoming due, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of any failure to take such action.
(b) If the Company shall act as its own Paying Agent, it will, on or
before each due date of the principal amount at maturity, Issue Price, accrued
Original Issue Discount, Redemption Price, Fundamental Change Redemption Price
or interest in respect of the Notes, set aside, segregate and hold in trust for
the benefit of the holders of the Notes a sum sufficient to pay such amounts so
becoming due and will notify the Trustee of any failure to take such action and
of any failure by the Company (or by any other obligor under the Notes) to make
any payment of the principal amount at maturity, Issue Price, accrued Original
Issue Discount, Redemption Price, Fundamental Change Redemption Price or
interest in respect of the Notes when the same shall become due and payable.
(c) Anything in this Section 5.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose at obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by the Company or any Paying Agent hereunder
as required by this Section 5.04, such sums to be held by the Trustee upon the
trusts herein contained and upon such payment by the Company or any Paying Agent
to the Trustee, the Company or such Paying Agent shall be released from all
further liability with respect to such money.
(d) Anything in this Section 5.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 5.04 is subject to
Sections 13.03 and 13.04.
SECTION 5.05. Limitation on Senior Subordinated Indebtedness. The
Company will not Incur any Indebtedness, other than the Notes, that is expressly
made subordinate in right of payment to any Senior Indebtedness unless such
Indebtedness, by its terms or by the terms of any agreement or instrument
pursuant to which such Indebtedness is issued, is expressly made pari passu
with, or subordinated in right of payment to, the Notes pursuant to provisions
substantially similar to those contained in Article Four of the Indenture;
provided, however, that the foregoing limitation shall not apply to distinctions
between categories of Senior Indebtedness that exist by reason of any liens or
Guarantees arising or created in respect of some but not all Senior
Indebtedness. The Notes are hereby expressly made pari passu with the 12 1/4%
Debentures.
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SECTION 5.06. Calculation of Original Issue Discount. The Company
shall file with the Trustee promptly at the end of each calendar year a written
notice specifying the amount of original issue discount (including daily rates
and accrual periods) accrued on outstanding Notes as of the end of such year.
SECTION 5.07. Notice of Defaults. In the event that the Company
becomes aware of any default or Event of Default the Company, promptly after it
becomes aware thereof, will give written notice thereof to the Trustee.
SECTION 5.08. Compliance Certificates. The Company shall deliver to
the Trustee, within 45 days after the end of each fiscal quarter (90 days after
the end of the last fiscal quarter of each year), an Officers' Certificate
stating whether or not the signers know of any default or Event of Default that
occurred during such fiscal quarter. In the case of the Officers' Certificate
delivered within 90 days of the end of the Company's fiscal year, such
certificate shall contain a certification from the principal executive officer,
principal financial officer or principal accounting officer that a review has
been conducted of the activities of the Company and its subsidiaries and the
Company's and its subsidiaries' performance under this Indenture and that the
Company has complied with all conditions and covenants under this Indenture.
For purposes of this Section 5.08, such compliance shall be determined without
regard to any period of grace or requirement of notice provided under this
Indenture. If they do know of such a default or Event of Default, the
certificate shall describe any such default or Event of Default and its status.
The first certificate to be delivered pursuant to this Section 5.08 shall be for
the first fiscal quarter beginning after the execution of this Indenture.
ARTICLE SIX
NOTEHOLDERS' LISTS AND
REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 6.01. Noteholders' Lists. The Company covenants and agrees
that it will furnish or cause to be furnished to the Trustee, semi-annually, not
more than 15 days after each May 15 and November 15 in each year beginning with
May 15, 1996, and at such other times as the Trustee may request in writing,
within thirty days after receipt by the Company of any such request, a list in
such form as the Trustee may reasonably require of the names and addresses of
the holders of Notes as of a date not more than fifteen days prior to the time
such information is furnished, except that no such list need be furnished so
long as the Trustee is acting as Registrar.
SECTION 6.02. Preservation of Lists. The Trustee shall preserve, in
as current a form as is reasonably practicable, all information as to the names
and addresses of
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the holders of Notes contained in the most recent list furnished to it as
provided in Section 6.01 or maintained by the Trustee in its capacity as
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 6.01 upon receipt of a new list so furnished.
If the Trustee shall be required by law to disclose any information
contained in any list of Noteholders maintained by it, then each and every
holder of the Notes, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee nor any Paying Agent
nor the Registrar shall be held accountable by reason of the disclosure of any
such information, regardless of the source from which such information was
derived.
ARTICLE SEVEN
REMEDIES OF THE TRUSTEE AND
NOTEHOLDERS IN THE EVENT OF DEFAULT
SECTION 7.01. Events of Default. In case one or more of the
following Events of Default (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) shall have occurred and
be continuing:
(a) default in the payment of any installment of interest upon any of
the Notes as and when the same shall become due and payable, and
continuance of such default for a period of thirty days; or
(b) default in the payment of the principal amount at maturity, Issue
Price, accrued Original Issue Discount, Redemption Price, or Fundamental
Change Redemption Price in respect of any of the Notes as and when the same
shall become due and payable either at maturity, in connection with any
redemption pursuant to Article Three or Sixteen, by declaration or
otherwise; or
(c) failure on the part of the Company duly to observe or perform any
of the covenants or agreements on the part of the Company in the Notes or
in this Indenture (other than a covenant or agreement a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with) continued for a period of forty-five days after the date on which
written notice of such failure, requiring the Company to remedy the same,
shall have been given to the Company by the Trustee, or to the Company and
the Trustee by the holders of at least twenty-five
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63
percent in aggregate principal amount at maturity of the Notes at the time
outstanding; or
(d) the Company shall have commenced a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect
to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian, or other similar official of it or any
substantial part of its property, or shall have consented to any such
relief or to the appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced against it, or shall
make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due; or
(e) an involuntary case or other proceeding shall be commenced against
the Company seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of sixty
consecutive days;
then and in each and every such case (other than an Event of Default specified
in Section 7.01(d) or (e)), unless the principal of all of the Notes shall have
already become due and payable, either the Trustee or the holders of not less
than twenty-five percent in aggregate principal amount at maturity of the Notes
then outstanding hereunder, by notice in writing to the Company (and to the
Trustee if given by Noteholders), may declare due and immediately payable the
sum of the Issue Price plus accrued Original Issue Discount from the date of
original issue of the Notes to the date of declaration and the interest accrued
thereon, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture or in the Notes
contained to the contrary notwithstanding. If an Event of Default specified in
Section 7.01(d) or (e) occurs and is continuing, the Issue Price of the Notes
plus the Original Issue Discount accrued thereon to the occurrence of such Event
of Default shall be immediately due and payable. The acceleration referred to in
the preceding two sentences, however, is subject to the condition that if, at
any time after the Notes shall have been so declared due and payable, and before
any judgment or decree for the payment of the monies due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Notes and principal amount at maturity, Issue Price,
accrued Original Issue Discount, Redemption Price, and Fundamental Change
Redemption Price in respect of any and all Notes which shall have become due
otherwise than by acceleration (with interest on overdue installments of
interest (to the extent that payment of such interest is enforceable under
applicable law) and on such
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64
principal amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price and Fundamental Change Redemption Price at the rate borne by
the Notes (treating the accrual of Original Issue Discount as if it were
interest), to the date of such payment or deposit) and amounts due to the
Trustee pursuant to Section 8.06, and if any and all defaults under this
Indenture, other than the nonpayment of principal amount at maturity, Issue
Price, accrued Original Issue Discount, Redemption Price, Fundamental Change
Redemption Price and interest, in respect of the Notes which shall have become
due by acceleration, shall have been cured or waived pursuant to Section 7.07,
then and in every such case the holders of a majority in aggregate principal
amount at maturity of the Notes then outstanding, by written notice to the
Company and to the Trustee, may waive all defaults and Events of Default 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 Event of Default, or shall impair any right consequent thereon. The Trustee
shall not be charged with knowledge and shall not be deemed to have notice of
any default or Event of Default, except an Event of Default under Section
7.01(a) or (b) in cases where the Trustee is acting as Paying Agent, unless
written notice thereof stating that such notice is a "Notice of Default" shall
have been given to a Responsible Officer by the Company or a Noteholder or any
agent of a Noteholder; and, in the absence of such written notice, the Trustee
may conclusively assume that there is no default or Event of Default.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the holders of Notes, and the Trustee shall be restored respectively to
their several positions and rights hereunder, and all rights, remedies and
powers of the Company, the holders of Notes, and the Trustee shall continue as
though no such proceeding had been taken.
SECTION 7.02. Payment of Notes on Default; Suit Therefor. The
Company covenants that (a) in case default shall be made in the payment of any
installment of interest upon any of the Notes as and when the same shall become
due and payable, and such default shall have continued for a period of thirty
days, or (b) in case default shall be made in the payment of the principal
amount at maturity, Issue Price, accrued Original Issue Discount, Redemption
Price, or Fundamental Change Redemption Price in respect of any of the Notes as
and when the same shall have become due and payable, whether at maturity of the
Notes, in connection with any redemption of a Note pursuant to Article Three or
Sixteen, by declaration or otherwise, then, upon demand of the Trustee, the
Company will pay to the Trustee, for the benefit of the holders of the Notes,
the whole amount that then shall have become due and payable on all such Notes
for principal amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price, Fundamental Change Redemption Price, or interest, or both, as
the case may be, with interest upon the overdue principal amount at maturity,
Issue Price, accrued Original Issue Discount, Redemption Price and Fundamental
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Change Redemption Price and (to the extent that payment of such interest is
enforceable under applicable law) upon the overdue installments of interest at
the rate borne by the Notes (treating the accrual of Original Issue Discount as
if it were interest); and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including a reasonable
compensation to the Trustee, its agents, attorneys and counsel, and any expenses
or liabilities incurred by the Trustee hereunder other than through its
negligence or bad faith. Until such demand by the Trustee, the Company may pay
principal amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price, Fundamental Change Redemption Price and interest in respect of
the Notes to the registered holders, whether or not the Notes are overdue.
In case the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on the Notes
and collect in the manner provided by law out of the property of the Company or
any other obligor on the Notes wherever situated the amounts adjudged or decreed
to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Notes under Title
11 of the United States Code, or any other applicable 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 Company, the property of the Company or such other obligor, or
in the case of any other similar judicial proceedings relative to the Company or
other obligor upon the Notes, or to the creditors or property of the Company or
such other obligor, the Trustee, irrespective of whether the principal of the
Notes 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 7.02, shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the whole amount of principal amount at maturity, Issue
Price, accrued Original Issue Discount, Redemption Price, Fundamental Change
Redemption Price and interest owing and unpaid in respect of the Notes, and, in
case of any judicial proceedings, to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee and of the Noteholders allowed in such judicial proceedings relative to
the Company or any other obligor on the Notes, its or their creditors, or its or
their property, and to collect and receive any monies or other property payable
or deliverable on any such claims, and to distribute the same after the
deduction of any amounts due the Trustee under Section 8.06; and any receiver,
assignee or trustee in bankruptcy or reorganization liquidator, custodian or
similar official is hereby authorized by each of the Noteholders to make such
payments to the
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Trustee, and, if the Trustee shall consent to the making of such payments
directly to the Noteholders, to pay to the Trustee any amount due it for
compensation, expenses, advances and disbursements including counsel fees and
expenses incurred by it up to the date of such distribution. To the extent that
such payment of reasonable compensation, expenses, advances and disbursements
out of the estate in any such proceedings shall be denied for any reason,
payment of the same shall be secured by a lien on, and shall be paid out of, any
and all distributions, dividends, monies, securities and other property which
the holders of the Notes may be entitled to receive in such proceedings, whether
in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or adopt on behalf of any Noteholder any plan of
reorganization or arrangement, affecting the Notes or the rights of any
Noteholder, or to authorize the Trustee to vote in respect of the claim of any
Noteholder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Notes, may be enforced by the Trustee without the possession of
any of the Notes, or the production thereof in any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the holders of the Notes.
In any proceedings brought by the Trustee (and in 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 Notes, and it shall not be necessary to make any holders of the Notes
parties to any such proceedings.
SECTION 7.03. Application of Monies Collected by Trustee. Any monies
collected by the Trustee pursuant to this Article Seven shall be applied in the
order following, at the date or dates fixed by the Trustee for the distribution
of such monies, upon presentation of the Notes, and stamping thereon the
payment, if only partially paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys and counsel,
and of all other expenses and liabilities incurred, and all advances made,
by the Trustee except as a result of its negligence or bad faith;
Second: Subject to the provisions of Article Four, in case the
principal amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price or Fundamental Change Redemption Price in respect of the
outstanding Notes shall
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not have become due and be unpaid, to the payment of interest on the Notes
in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the
rate borne by the Notes (treating the accrual of Original Issue Discount as
if it were interest), such payments to be made ratably to the Persons
entitled thereto;
Third: Subject to the provisions of Article Four, in case the
principal amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price or Fundamental Change Redemption Price in respect of the
outstanding Notes shall have become due, by declaration or otherwise, and
be unpaid, to the payment of the whole amount then owing and unpaid upon
the Notes for principal amount at maturity, Issue Price, accrued Original
Issue Discount, Redemption Price, Fundamental Change Redemption Price and
interest with interest on the overdue principal amount at maturity, Issue
Price, accrued Original Issue Discount, Redemption Price and Fundamental
Change Redemption Price, and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest at the rate
borne by the Notes (treating the accrual of Original Issue Discount as if
it were interest); and in case such monies shall be insufficient to pay in
full the whole amounts so due and unpaid upon the Notes, then to the
principal amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price, Fundamental Change Redemption Price and interest without
preference or priority of principal amount at maturity, Issue Price,
accrued Original Issue Discount, Redemption Price or Fundamental Change
Redemption Price over interest, or of interest over principal amount at
maturity, Issue Price, accrued Original Issue Discount, Redemption Price or
Fundamental Change Redemption Price or of any installment of interest over
any other installment of interest, or of any Note over any other Note,
ratably to the aggregate of such principal amount at maturity, Issue Price,
accrued Original Issue Discount, Redemption Price, Fundamental Change
Redemption Price and accrued and unpaid interest;
Fourth: Subject to the provisions of Article Four, to the payment of
the remainder, if any, to the Company or any other Person lawfully entitled
thereto.
SECTION 7.04. Proceedings by Noteholder. No holder of any Note shall
have any right by virtue of or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture, or for the appointment of a receiver, trustee,
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 twenty-five percent in aggregate
principal amount at maturity of the Notes then outstanding shall have made
written request upon the Trustee to
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institute such action, suit or proceeding 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 sixty days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 7.07; it being
understood and intended, and being expressly covenanted by the taker and holder
of every Note with every other taker and holder of a Note and the Trustee, that
no one or more holders of Notes shall have any right in any manner whatever by
virtue of or by availing of any provision of this Indenture to affect, disturb
or prejudice the rights of any other holder of Notes, 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 outstanding Notes (except as
otherwise provided herein). For the protection and enforcement of this Section
7.04, each and every Noteholder and the Trustee shall be entitled to all such
relief as can be given either at law or in equity.
Notwithstanding any other provisions of this Indenture and any
provision of any Note, however, the right of any holder of any Note to receive
payment of the principal amount at maturity, Issue Price, accrued Original Issue
Discount, Redemption Price or Fundamental Change Redemption Price with respect
to such Note, on or after the respective due dates expressed in such Note, or to
institute suit for the enforcement of any such payment on or after such
respective dates against the Company shall not be impaired or affected without
the consent of such holder.
Anything in this Indenture or the Notes to the contrary
notwithstanding, the holder of any Note, without the consent of either the
Trustee or the holder of any other Note, in his own behalf and for his own
benefit may enforce, and may institute and maintain any proceeding suitable to
enforce, his rights of conversion as provided herein.
SECTION 7.05. Proceedings by Trustee. In case of an Event of Default
hereunder the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceeding 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 7.06. Remedies Cumulative and Continuing. Except as provided
in Section 2.10, all powers and remedies given by this Article Seven to the
Trustee or to the Noteholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or the holders of
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the Notes, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture, and no
delay or omission of the Trustee or of any holder of any of the Notes to
exercise any right or power accruing upon any default or 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 default or an acquiescence
therein; and, subject to the provisions of Section 7.04, every power and remedy
given by this Article Seven or by law to the Trustee or to the Noteholders may
be exercised from time to time, and as often as shall be deemed expedient, by
the Trustee or by the Noteholders.
SECTION 7.07. Direction of Proceedings and Waiver of Defaults by
Majority Noteholders. The holders of a majority in aggregate principal amount
at maturity of the Notes at the time outstanding determined in accordance with
Section 9.04 shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee; provided, however, (a) such
direction shall not be in conflict with any rule of law or with this Indenture
and (b) that (subject to the provisions of Section 8.01) the Trustee shall have
the right to decline to follow any such direction if the Trustee shall be
advised by counsel that the action or proceeding so directed may not lawfully be
taken or if the Trustee in good faith by its board of directors or executive
committee, or a trust committee of directors and/or Responsible Officers shall
determine that the action or proceedings so directed could involve the Trustee
in personal liability. Prior to any declaration accelerating the maturity of
the Notes, the holders of a majority in aggregate principal amount at maturity
of the Notes at the time outstanding may on behalf of the holders of all of the
Notes waive any past default or Event of Default hereunder and its consequences
except (i) a default in the payment of principal amount at maturity, Issue
Price, accrued Original Issue Discount, Redemption Price, Fundamental Change
Redemption Price or interest in respect of the Notes, (ii) a failure by the
Company to convert any Notes into Common Stock or (iii) a default in respect of
a covenant or provision hereof which under Article Eleven cannot be modified or
amended without the consent of the holders of all Notes then outstanding. Upon
any such waiver the Company, the Trustee and the holders of the Notes shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or Event of Default
or impair any right consequent thereon. Whenever any default or Event of
Default hereunder shall have been waived as permitted by this Section 7.07, said
default or Event of Default shall for all purposes of the Notes and this
Indenture be deemed to have been cured and to be not continuing; but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
SECTION 7.08. Notice of Defaults. The Trustee shall, within ninety
days after the occurrence of a default, mail to all Noteholders, as the names
and addresses of such holders appear upon the registry books of the Company,
notice of all defaults known to the Trustee, unless such defaults shall have
been cured or waived before the giving of such
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notice (the term "defaults," with respect to the Notes and the Indentures being
hereby defined to be an event or condition that, after the giving of notice or
the passage of time or both would become an Event of Default; and provided that,
except in the case of default in the payment of the principal amount at
maturity, Issue Price, accrued Original Issue Discount, Redemption Price,
Fundamental Change Redemption Price or interest in respect of any of the Notes,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Noteholders.
SECTION 7.09. Undertaking to Pay Costs. All parties to this
Indenture agree, and each holder of any Note by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; provided that the provisions of this Section 7.09 shall not
apply to any suit instituted by the Trustee, to any suit instituted by any
Noteholder, or group of Noteholders, holding in the aggregate more than ten
percent in principal amount at maturity of the Notes outstanding, or to any suit
instituted by any Noteholder for the enforcement of the payment of the principal
amount at maturity, Issue Price, accrued Original Issue Discount, Redemption
Price, Fundamental Change Redemption Price and interest in respect of any Note
on or after the due date expressed in such Note or to any suit for the
enforcement of the right to convert any Note in accordance with the provisions
of Article Fifteen.
ARTICLE EIGHT
CONCERNING THE TRUSTEE
SECTION 8.01. Duties and Responsibilities of Trustee. The Trustee,
prior to the occurrence of an Event of Default and after the curing of all
Events of Default which may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture. In case an
Event of Default has occurred (which has not been cured or waived) the Trustee
shall exercise such of the rights and powers vested in it by this Indenture,
using the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
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No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default which may have occurred:
(1) the duties and obligations of the Trustee 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
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but, in the case of any such
certificates or opinions which by any provisions 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 Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
(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 the direction
of the holders of not less than a majority in principal amount at maturity
of the Notes at the time outstanding determined as provided in Section 9.04
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; and
(d) whether or not therein provided, every provision of this Indenture
relating to the conduct or affecting the liability of, or affording
protection to, the Trustee shall be subject to the provisions of this
Section.
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 is reasonable ground for believing that the
redemption of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
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SECTION 8.02. Reliance on Documents, Opinions, Etc. Except as
otherwise provided in Section 8.01,
(a) the Trustee may rely and shall be protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, coupon or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by 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
Company;
(c) the Trustee may consult with counsel of its selection and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or omitted by it hereunder in
good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Noteholders pursuant to the provisions of this
Indenture, unless such Noteholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred by the Trustee 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 or rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all 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, bond, debenture, coupon or other paper
or document unless requested in writing to do so by the holders of not less
than a majority in principal amount at maturity of the Notes then
outstanding; provided, however, that if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, 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 expense or liability as a condition to so
proceeding; the reasonable expenses of every such examination shall
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be paid by the Company or, if paid by the Trustee or any predecessor
Trustee, shall be repaid by the Company 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 and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it with due
care hereunder.
SECTION 8.03. No Responsibility for Recitals, Etc. The recitals
contained herein and in the Notes (except in the Trustee's certificate of
authentication) shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the
Company of any Notes or the proceeds of any Notes authenticated and delivered by
the Trustee in conformity with the provisions of this Indenture.
SECTION 8.04. Trustee, Paying Agents, Conversion Agents or Registrar
May Own Notes. The Trustee, any Paying Agent, any conversion agent or
Registrar, in its individual or any other capacity, may become the owner or
pledgee of Notes with the same rights it would have if it were not Trustee,
Paying Agent, conversion agent or Registrar.
SECTION 8.05. Monies to Be Held in Trust. Subject to the provisions
of Section 13.04, all monies received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received. Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except to the extent otherwise agreed in writing by the Company and the Trustee.
SECTION 8.06. Compensation and Expenses of Trustee. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as shall be agreed upon in writing for
all services rendered by it hereunder in any capacity (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust), and the Company will pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all Persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify each of the Trustee and any predecessor
trustee for, and to hold it harmless against, any and all loss, damage, claim,
liability or expense, including taxes (other than taxes based on the income of
the Trustee or such predecessor trustee) incurred without negligence or bad
faith
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on the part of the Trustee or such predecessor trustee and arising out of or in
connection with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim of liability in the
premises. The obligations of the Company under this Section 8.06 to compensate
or indemnify the Trustee or such predecessor trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall be secured by a lien
prior to that of the Notes 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 Notes. The obligation of the Company under this Section shall
survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 7.01(d) or Section 7.01(e), the
expenses and the compensation for the services are intended to constitute
expenses of administration under Title 11 of the United States Bankruptcy Code
or any applicable federal or state law for the relief of debtors.
SECTION 8.07. Officers' Certificate as Evidence. Except as otherwise
provided in Section 8.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or 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 or omitted by it under the provisions of this
Indenture upon the faith thereof.
SECTION 8.08. Eligibility of Trustee. The Trustee hereunder shall at
all times be a corporation organized and doing business under the laws of the
United States or any State or Territory 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 fifty million dollars, subject to supervision or
examination by Federal, State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 8.08, 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 8.08, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.09.
SECTION 8.09. Resignation or Removal of Trustee. (a) The Trustee
may at any time resign by giving written notice of such resignation to the
Company and by mailing notice thereof to the holders of Notes at their addresses
as they shall appear on the books of
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the Company. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor Trustee. If
no successor trustee shall have been so appointed and have accepted appointment
within sixty days after the mailing of such notice of resignation to the
Noteholders, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee, or any Noteholder who
has been a bona fide holder of a Note or Notes for at least six months may,
subject to the provisions of Section 7.09, on behalf of himself 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:
(1) the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.08 and shall fail to resign after written request
therefor by the Company or by any such Noteholder, or
(2) the Trustee shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed, or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case the Company may remove the Trustee and appoint a
successor trustee 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. If no successor
Trustee shall have been so appointed and have accepted appointment within sixty
days after the mailing of such notice of removal to the Noteholders, the Trustee
so removed may petition any court of competent jurisdiction for the appointment
of a successor Trustee, or any Noteholder who has been a bona fide holder of a
Note or Notes for at least six months may, subject to the provisions of Section
7.09, any Noteholder who has been a bona fide holder of a Note or Notes for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee 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 at
maturity of the Notes at the time outstanding may at any time remove the Trustee
and nominate a successor trustee which shall be deemed appointed as successor
trustee unless within ten days after notice to the Company of such nomination
the Company objects thereto, in which case the Trustee so removed or any
Noteholder, upon the terms and conditions and otherwise as
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in subsection (a) of this Section 8.09 provided, may petition any court of
competent jurisdiction for an appointment of a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee to any of the provisions of this Section 8.09 shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 8.10.
SECTION 8.10. Acceptance by Successor Trustee. Any successor trustee
appointed as provided in Section 8.09 shall execute, acknowledge and deliver to
the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee herein; but, nevertheless, on the written request
of the Company or of the successor trustee, the trustee ceasing to act shall,
upon payment of any amounts then due it pursuant to the provisions of Section
8.06, execute and deliver an instrument transferring to such successor trustee
all the rights and powers of the trustee so ceasing to act. Upon request of any
such successor trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or collected by such
trustee to secure any amounts then due it pursuant to the provisions of Section
8.06.
No successor trustee shall accept appointment as provided in this
Section 8.10 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.08.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.10, the Trustee shall mail notice of its succession hereunder to
the holders of Notes at their addresses as they shall appear on the books of the
Company, at the expense of the Company.
SECTION 8.11. Succession by Merger, Etc. Any corporation into which
the Trustee may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee, shall be the
successor to the Trustee hereunder, provided such corporation shall be eligible
under the provisions of Section 8.08, without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Notes shall have been authenticated
but not delivered,
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any such successor to the Trustee may adopt the certificate of authentication of
any predecessor Trustee, and deliver such Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to
the Trustee appointed by such successor Trustee may authenticate such Notes
either in the name of any predecessor hereunder or in the name of the successor
trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the certificate
of the Trustee shall have; provided, however, that the right to adopt the
certificate of authentication of any predecessor Trustee or authenticate Notes
in the name of any predecessor Trustee shall apply only to its successor or
successors by merger, conversion or consolidation.
ARTICLE NINE
CONCERNING THE NOTEHOLDERS
SECTION 9.01. Action by Noteholders. Whenever in this Indenture it
is provided that the holders of a specified percentage in aggregate principal
amount at maturity of the Notes may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the taking of
any other action), the fact that at the time of taking any such action the
holders of such specified percentage have joined therein may be evidenced (a) by
any instrument or any number of instruments executed by Noteholders in Person or
by agent or proxy appointed in writing, or (b) by the record of the holders of
Notes voting in favor thereof at any meeting of Noteholders duly called and held
in accordance with the provisions of Article Ten, or (c) by a combination of
such instrument or instruments and any such record of such a meeting of
Noteholders. Whenever the Company or the Trustee solicits the taking of any
action by the holders of the Notes, the Company or the Trustee may fix in
advance of such solicitation, a date as the record date for determining holders
entitled to take such action. The record date shall be not more than 15 days
prior to the date of commencement of solicitation of such action.
SECTION 9.02. Proof of Execution by Noteholders. Subject to the
provisions of Sections 8.01, 8.02 and 10.05, proof of the execution of any
instrument by a Noteholder or his agent or proxy shall be sufficient if made in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Notes shall be proved by the registry of such Notes or by a
certificate of the Registrar.
The records of any Noteholders' meeting shall be proved in the manner
provided in Section 10.06.
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SECTION 9.03. Persons Who Are Deemed Absolute Owners. The Company,
the Trustee, any Paying Agent, any conversion agent and any Registrar may deem
the Person in whose name such Note shall be registered upon the books of the
Company to be, and may treat him as, the absolute owner of such Note (whether or
not such Note 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 amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price, Fundamental Change Redemption Price and interest in respect of
such Note, for conversion of such Note and for all other purposes; and neither
the Company nor the Trustee nor any Paying Agent nor any conversion agent nor
any Registrar shall be affected by any notice to the contrary. All such
payments so made to any holder for the time being, or upon his order, shall be
valid, and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for monies payable upon any such Note.
SECTION 9.04. Company-Owned Notes Disregarded. In determining
whether the holders of the requisite aggregate principal amount at maturity of
Notes have concurred in any direction, consent, waiver or other action under
this Indenture, Notes which are owned by the Company or any other obligor on the
Notes or by any Affiliate of any such Person shall be disregarded and deemed not
to be outstanding for the purpose of any such determination; provided that for
the purposes of determining whether the Trustee shall be protected in relying on
any such direction, consent, waiver or other action only Notes which a
Responsible Officer actually knows are so owned shall be so disregarded. Notes
so owned which have been pledged in good faith may be regarded as outstanding
for the purposes of this Section 9.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right to vote such Notes and that the
pledgee is not the Company, any other obligor on the Notes or any Affiliate of
the Company or any such other obligor. In the case of a dispute as to such
right, any decision by the Trustee taken upon the advice of counsel shall be
full protection to the Trustee. Upon request of the Trustee, the Company shall
furnish to the Trustee promptly an Officers' Certificate listing and identifying
all Notes, if any, known by the Company to be owned or held by or for the
account of any of the above described Persons; and, subject to Section 8.01, 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 Notes not
listed therein are outstanding for the purpose of any such determinations.
SECTION 9.05. Revocation of Consents; Future Holders Bound. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 9.01, of the taking of any action by the holders of the percentage in
aggregate principal amount at maturity of the Notes specified in this Indenture
in connection with such action, any holder of a Note which is shown by the
evidence to be included in the Notes the holders of which have consented to such
action may, by filing written notice with the Trustee at its Principal Office
and upon proof of holding as provided in Section 9.02, revoke such action so far
as concerns such Note. Except as aforesaid any such action taken by the holder
of any Note
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shall be conclusive and binding upon such holder and upon all future holders and
owners of such Note and of any Notes issued in exchange or substitution
therefor, irrespective of whether any notation in regard thereto is made upon
such Note or any Note issued in exchange or substitution therefor.
ARTICLE TEN
NOTEHOLDERS' MEETINGS
SECTION 10.01. Purposes of Meetings. A meeting of Noteholders may be
called at any time and from time to time pursuant to the provisions of this
Article Ten for any of the following purposes:
(1) to give any notice to the Company or to the Trustee or to give any
directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to
be taken by Noteholders pursuant to any of the provisions of Article Seven;
(2) to remove the Trustee and nominate a successor trustee pursuant to
the provisions of Article Eight;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.02; or
(4) to take any other action authorized to be taken by or on behalf of
the holders of any specified aggregate principal amount at maturity of the
Notes under any other provision of this Indenture or under applicable law.
SECTION 10.02. Call of Meetings by Trustee. The Trustee may at any
time call a meeting of Noteholders to take any action specified in Section
10.01, to be held at such time and at such place as the Trustee shall determine.
Notice of every meeting of the Noteholders, setting forth the time and the place
of such meeting and in general terms the action proposed to be taken at such
meeting and the establishment of any record date pursuant to Section 9.01, shall
be mailed to holders of Notes at their addresses as they shall appear on the
registry books of the Company. Such notice shall also be mailed to the Company.
Such notices shall be mailed not less than ten nor more than ninety days prior
to the date fixed for the meeting.
Any meeting of Noteholders shall be valid without notice if the
holders of all Notes then outstanding are present in person or by proxy or if
notice is waived before or after the meeting by the holders of all Notes
outstanding, and if the Company and the
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Trustee are either present by duly authorized representatives or have, before or
after the meeting, waived notice.
SECTION 10.03. Call of Meetings by Company or Noteholders. In case
at any time the Company, pursuant to a resolution of its Board of Directors, or
the holders of at least ten percent in aggregate principal amount at maturity of
the Notes then outstanding, shall have requested the Trustee to call a meeting
of Noteholders, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within ten days after receipt of such request, then the
Company or such Noteholders may determine the time and the place for such
meeting and may call such meeting to take any action authorized in Section
10.01, by mailing notice thereof as provided in Section 10.02.
SECTION 10.04. Qualifications for Voting. Subject to Section 9.04,
to be entitled to vote at any meeting of Noteholders a Person shall (a) be a
holder of one or more Notes on the record date pertaining to such meeting or (b)
be a Person appointed by an instrument in writing as proxy by such a holder of
one or more Notes. The only Persons who shall be entitled to be present or to
speak at any meeting of Noteholders shall be the Persons entitled to vote at
such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 10.05. Regulations. Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Noteholders, in regard to proof of the holding of
Notes and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Noteholders as provided in Section 10.03, in which case the
Company or the Noteholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority
in principal amount at maturity of the Notes represented at the meeting and
entitled to vote at the meeting.
Subject to the provisions of Section 9.04, at any meeting each
Noteholder or proxy holder shall be entitled to one vote for each $1,000
principal amount at maturity of Notes held or represented by it; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Note challenged as not outstanding and ruled by the chairman of the meeting to
be not outstanding. The chairman of the meeting shall have no right to vote
other than by virtue of Notes held by him or instruments in writing as aforesaid
duly
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designating him as the Person to vote on behalf of other Noteholders. Any
meeting of Noteholders duly called pursuant to the provisions of Section 10.02
or 10.03 may be adjourned from time to time by a majority of the aggregate
principal amount of Notes represented at the meeting, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.
SECTION 10.06. Voting. The vote upon any resolution submitted to any
meeting of Noteholders shall be by written ballot on which shall be subscribed
the signatures of the holders of Notes or of their representatives by proxy and
the principal amount at maturity of the Notes held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record in duplicate of
the proceedings of each meeting of Noteholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more Persons having knowledge of the facts and showing that
said notice was mailed as provided in Section 10.02 and attaching a copy of such
notice thereto. The record shall show the principal amount at maturity of the
Notes voting in favor of or against any resolution. The record shall be signed
and verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 10.07. No Delay of Rights by Meeting. Nothing in this
Article Ten contained shall be deemed or construed to authorize or permit, by
reason of any call of a meeting of Noteholders or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Noteholders under any of the provisions of this Indenture or of the Notes.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
-----------------------
SECTION 11.01. Without Consent of Noteholders. The Company, when
authorized by a resolution of its Board of Directors, and the Trustee may amend
or supplement this Indenture or the Notes without notice to or the consent of
any Noteholder:
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(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article Twelve of this Indenture;
(3) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the Trust Indenture Act;
(4) to make provision with respect to the conversion rights of
Noteholders pursuant to the requirements of Section 15.06;
(5) to provide for uncertificated Notes in addition to or in place of
certificated Notes; or
(6) to make any change that does not adversely affect the rights of
any Holder.
SECTION 11.02. With Consent of Noteholders. Subject to Sections 7.04
and 7.07 of this Indenture and without prior notice to the Noteholders, the
Company, when authorized by its Board of Directors (as evidenced by a Board
Resolution), and the Trustee may amend this Indenture and the Notes with the
written consent of the Noteholders of not less than a majority in principal
amount at maturity of the Notes then outstanding, and the Noteholders of not
less than a majority in principal amount of the Notes then outstanding by
written notice to the Trustee may waive future compliance by the Company with
any provision of this Indenture or the Notes.
Notwithstanding the provisions of this Section 11.02, without the
consent of each Noteholder affected, an amendment or waiver, including a waiver
pursuant to Section 7.07, may not:
(i) change the Stated Maturity of the principal of, or any installment
of interest on, any Note, or reduce the principal amount thereof or the
rate of interest thereon or any premium payable upon the redemption
thereof, or adversely affect any right of repayment at the option of any
Noteholder or change any place of payment where, or the currency in which,
any Note or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date);
(ii) reduce the percentage in principal amount of outstanding Notes
required for any such supplemental indenture, for any waiver of compliance
with certain provisions of this Indenture or certain defaults and their
consequences provided for in this Indenture;
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(iii) waive a default in the payment of principal of, premium, if any,
or interest on, any Note;
(iv) modify any of the provisions of this Section 11.02, except to
increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Noteholder of each outstanding Note affected thereby; or
(v) modify any of the provisions of Article Four in a manner adverse
to the Noteholders.
It shall not be necessary for the consent of the Noteholders under
this Section 11.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 11.02
becomes effective, the Company shall mail to the Noteholders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company will
mail supplemental indentures to Noteholders upon request. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.
SECTION 11.03. Revocation and Effect of Consent. Until an amendment
or waiver becomes effective, a consent to it by a Noteholder is a continuing
consent by the Noteholder and every subsequent Noteholder of a Note or portion
of a Note that evidences the same debt as the Note of the consenting Noteholder,
even if notation of the consent is not made on any Note. However, any such
Noteholder or subsequent Noteholder may revoke the consent as to its Note or
portion of its Note. Such revocation shall be effective only if the Trustee
receives the notice of revocation before the date the amendment, supplement or
waiver becomes effective. An amendment, supplement or waiver shall become
effective on receipt by the Trustee of written consents from the Noteholders of
the requisite percentage, if any, in principal amount of the outstanding Notes
and, in the case of amendments and supplements, the execution thereof by the
Company and the Trustee.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Noteholders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the last
two sentences of the immediately preceding paragraph, those Persons who are
Noteholders on such record date (or their duly designated proxies) and only
those Persons shall be entitled to consent to such amendment, supplement or
waiver or to revoke any consent previously given, whether or not such Persons
continue to be Noteholders after such record date. No such consent shall be
valid or effective for more than 90 days after such record date.
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After an amendment, supplement or waiver becomes effective, it shall
bind every Noteholder unless it is of the type described in any of clauses (i)
through (v) of Section 11.02. In case of an amendment or waiver of the type
described in clauses (i) through (v) of Section 11.02, the amendment or waiver
shall bind each Noteholder who has consented to it and every subsequent
Noteholder of a Note that evidences the same indebtedness as the Note of the
consenting Noteholder.
SECTION 11.04. Notation on or Exchange of Notes. If an amendment,
supplement or waiver changes the terms of a Note, the Trustee may require the
Noteholder to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Note about the changed terms and return it to the Noteholder and
the Trustee may place an appropriate notation on any Note thereafter
authenticated. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Note shall issue and the Trustee shall authenticate
a new Note that reflects the changed terms.
SECTION 11.05. Trustee to Sign Amendments, Etc. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Eleven is authorized or permitted by this
Indenture. Subject to the preceding sentence, the Trustee shall sign such
amendment, supplement or waiver if the same does not adversely affect the rights
of the Trustee. The Trustee may, but shall not be obligated to, execute any
such amendment, supplement or waiver that affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
ARTICLE TWELVE
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 12.01. Company May Consolidate, Etc., on Certain Terms.
Subject to the provisions of Section 12.02, nothing contained in this Indenture
or in any of the Notes shall prevent any consolidation or merger of the Company
with or into any other corporation or corporations (whether or not affiliated
with the Company), or successive consolidations or mergers in which the Company
or its successor or successors shall be a party or parties, or shall prevent any
sale, conveyance or lease (or successive sales, conveyances or leases) of all or
substantially all of the property of the Company, to any other corporation
(whether or not affiliated with the Company) authorized to acquire and operate
the same and which shall be organized under the laws of a State of the United
States or the District of Columbia; provided, however, and the Company hereby
covenants and agrees, that upon any such consolidation, merger, sale, conveyance
or lease, the due and punctual payment of the principal amount at maturity,
Issue Price, accrued Original Issue Discount, Redemption Price, Fundamental
Change Redemption Price and interest in respect
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of all of the Notes, 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 by the Company, shall be expressly assumed by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee by the corporation (if other than the Company) formed
by such consolidation, or into which the Company shall have been merged, or by
the corporation which shall have acquired or leased such property, and such
supplemental indenture shall provide for the applicable conversion rights set
forth in Section 15.06.
SECTION 12.02. Successor Corporation to Be Substituted. In case of
any such consolidation, merger, sale, conveyance or lease and upon the
assumption by the successor corporation, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal amount at maturity, Issue Price, accrued
Original Issue Discount, Redemption Price, Fundamental Change Redemption Price
and interest in respect of all of the Notes and the due and punctual performance
of all of the covenants and conditions of this Indenture to be performed by the
Company, such successor corporation shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the party of the
first part. In the event of any such consolidation, merger, sale or conveyance,
the Person named as the "Company" in the first paragraph of this Indenture or
any successor which shall thereafter have become such in the manner prescribed
in this Article Twelve may be dissolved, wound up and liquidated at any time
thereafter and such Person shall be released from its liabilities as obligor and
maker of the Notes and from its obligations under this Indenture.
In case of any such consolidation, merger, sale, conveyance or lease,
such changes in phraseology and form (but not in substance) may be made in the
Notes thereafter to be issued as may be appropriate.
SECTION 12.03. Opinion of Counsel to Be Given Trustee. The Trustee,
subject to Sections 8.01 and 8.02, shall receive an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, conveyance or lease and any such assumption complies with the provisions
of this Article Twelve.
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 13.01. Discharge of Indenture. When (a) the Company shall
deliver to the Trustee for cancellation all Notes theretofore authenticated
(other than any Notes which shall have been destroyed, lost or stolen and in
lieu of or in substitution for which other Notes shall have been authenticated
and delivered) and not theretofore canceled,
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or (b) all the Notes not theretofore canceled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit with the Trustee, in trust, funds
sufficient to pay at maturity or upon redemption all of the Notes (other than
any Notes which shall have been mutilated, destroyed, lost or stolen and in lieu
of or in substitution for which other Notes shall have been authenticated and
delivered) not theretofore canceled or delivered to the Trustee for
cancellation, including principal amount at maturity, Issue Price, accrued
Original Issue Discount, Redemption Price, Fundamental Change Redemption Price
and interest due or to become due to such date of maturity or redemption date,
as the case may be, and if in either case the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company, then this Indenture
shall cease to be of further effect (except as to (i) remaining rights of
registration of transfer, substitution and exchange and conversion of Notes,
(ii) rights hereunder of Noteholders to receive payments of principal amount at
maturity, Issue Price, accrued Original Issue Discount, Redemption Price,
Fundamental Change Redemption Price and interest in respect of the Notes and the
other rights, duties and obligations of Noteholders, as beneficiaries hereof
with respect to the amounts, if any, so deposited with the Trustee and (iii) the
rights, obligations and immunities of the Trustee hereunder), and the Trustee,
on demand of the Company accompanied by an Officers' Certificate and an Opinion
of Counsel as required by Section 17.05 and at the cost and expense of the
Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture; the Company, however, hereby agreeing to reimburse
the Trustee for any costs or expenses thereafter reasonably and properly
incurred by the Trustee and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in connection with
this Indenture or the Notes.
SECTION 13.02. Deposited Monies to Be Held in Trust by Trustee.
Subject to Article Four and Section 13.04, all monies deposited with the Trustee
pursuant to Section 13.01 shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent (including the Company if
acting as its own Paying Agent), to the holders of the particular Notes for the
payment or redemption of which such monies have been deposited with the Trustee,
of all sums due and to become due thereon for principal amount at maturity,
Issue Price, accrued Original Issue Discount, Redemption Price, Fundamental
Change Redemption Price and interest, if any.
SECTION 13.03. Paying Agent to Repay Monies Held. Upon the
satisfaction and discharge of this Indenture, all monies then held by any Paying
Agent of the Notes (other than the Trustee) shall, upon demand of the Company,
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 monies.
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SECTION 13.04. Return of Unclaimed Monies. Any monies deposited with
or paid to the Trustee for payment of the principal amount at maturity, Issue
Price, accrued Original Issue Discount, Redemption Price, Fundamental Change
Redemption Price or interest in respect of Notes and not applied but remaining
unclaimed by the holders of Notes for two years after the date upon which such
amounts shall have become due and payable, shall be repaid to the Company by the
Trustee on written demand and all liability of the Trustee shall thereupon cease
with respect to such monies; and the holder of any of the Notes shall thereafter
look only to the Company for any payment which such holder may be entitled to
collect.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 14.01. Indenture and Notes Solely Corporate Obligations. No
recourse for the payment of the principal amount at maturity, Issue Price,
accrued Original Issue Discount, Redemption Price, Fundamental Change Redemption
Price or interest in respect of any Note, or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any supplemental
indenture, or in any Note, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Notes.
ARTICLE FIFTEEN
CONVERSION OF NOTES
SECTION 15.01. Right to Convert. Subject to and upon compliance with
the provisions of this Article, the holder of any Note shall have the right, at
its option, at any time after 60 days following the latest date of original
issuance and prior to the close of business on December 15, 2005 (except that,
with respect to any Note or portion of a Note which shall be called for
redemption such right shall terminate, except as provided in Section 15.02 or
Section 3.06, at the close of business on the Business Day next preceding the
date fixed for redemption of such Note or portion of a Note and such right shall
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terminate with respect to any Note or portion thereof subject to a duly
completed and delivered election for redemption pursuant to Article Sixteen,
unless in each case the Company shall default in payment due upon redemption
thereof) to convert the principal amount at maturity of any such Note, or any
portion of such principal amount at maturity which is $1,000 or an integral
multiple thereof, into that number of fully paid and non-assessable shares of
Common Stock (as such shares shall then be constituted) obtained by dividing the
principal amount at maturity of the Note or portion thereof surrendered for
conversion by $1,000 and multiplying the result so obtained by the Conversion
Rate in effect at such time, by surrender of the Note so to be converted in
whole or in part in the manner provided in Section 15.02. A holder of Notes is
not, in such capacity, entitled to any rights of a holder of Common Stock until
such holder has converted his Notes.
SECTION 15.02. Exercise of Conversion Privilege; Issuance of Common
Stock on Conversion; No Adjustment for Interest or Dividends. In order to
exercise the conversion privilege, the holder of any Note to be converted in
whole or in part shall surrender such Note at an office or agency maintained by
the Company pursuant to Section 5.02, accompanied by the funds, if any, required
by the last paragraph of this Section, and shall give written notice of
conversion in the form provided on the Notes (or such other notice which is
acceptable to the Company) to the Company at such office or agency that the
holder elects to convert such Note or the portion thereof specified in said
notice. Such notice shall also state the name or names (with address) in which
the certificate or certificates for shares of Common Stock which shall be
issuable on such conversion shall be issued, and shall be accompanied by
transfer taxes, if required pursuant to Section 15.07. Each Note surrendered
for conversion shall, unless the shares issuable on conversion are to be issued
in the same name as the registration of such Note, be duly endorsed by, or be
accompanied by instruments of transfer in form satisfactory to the Company duly
executed by, the holder or his duly authorized attorney.
In order to exercise the conversion privilege with respect to any
interest in a Note in global form, the beneficial holder must complete the
appropriate instruction form for conversion pursuant to the Depositary's book-
entry conversion procedures, deliver by book-entry delivery an interest in such
Note in global form, furnish appropriate endorsements and transfer documents if
required by the Company or the Trustee or conversion agent, and pay the funds,
if any, required by the last paragraph of this Section 15.02 and any transfer
taxes, if required pursuant to Section 15.07.
As promptly as practicable after the surrender of such Note and the
receipt of such notice and funds and subject to compliance with any restrictions
on transfer if Conversion Shares are to be issued in a name other than that of
the Noteholder (as if such transfer were a transfer of the Note or Notes (or
portion thereof) so converted), if any, as aforesaid, the Company shall issue
and shall deliver at such office or agency to such holder, or on his written
order, a certificate or certificates for the number of full shares issuable
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upon the conversion of such Note or portion thereof in accordance with the
provisions of this Article and an additional share of Common Stock or cash equal
to the then fair market value of any fractional interest in respect of a share
of Common Stock arising upon such conversion, as provided in Section 15.03. In
case any Note of a denomination greater than $1,000 principal amount at maturity
shall be surrendered for partial conversion, and subject to Section 2.02, the
Company shall execute and the Trustee shall authenticate and deliver to or upon
the written order of the holder of the Note so surrendered, without charge to
it, a new Note or Notes in authorized denominations in an aggregate principal
amount at maturity equal to the unconverted portion of the surrendered Note.
Each conversion shall be deemed to have been effected on the date on
which such Note (or portion thereof) shall have been surrendered (accompanied by
the funds, if any, required by the last paragraph of this Section) and the
notice referred to in the first sentence of this Section 15.02 shall have been
received by the Company, as aforesaid, and the Person in whose name any
certificate or certificates for such Conversion Shares shall be issuable upon
such conversion shall be deemed to have become on said date the holder of record
of such Conversion Shares; provided, however, that with respect to any such
surrender on any date when the stock transfer books of the Company shall be
closed, the Person in whose name the certificates are to be issued shall be
deemed to be the record holder thereof for all purposes on the next succeeding
day on which such stock transfer books are open, but such conversion shall be at
the Conversion Rate in effect on the date upon which such Note shall have been
surrendered.
Except as described in this Section, holders of the Notes will not be
entitled to any payment or adjustment on account of accrued Original Issue
Discount or accrued and unpaid interest upon conversion of the Notes. The
Company's delivery of the fixed number of Conversion Shares of Common Stock into
which the Notes are convertible will be deemed to satisfy the Company's
obligation to pay the principal amount at maturity of the Notes and all accrued
interest and Original Issue Discount that has not previously been (or is not
simultaneously being) paid. The Common Stock is treated as issued first in
payment of accrued interest and Original Issue Discount and then in payment of
principal.
Any Note or portion thereof surrendered for conversion during the
period from the close of business on the record date for any interest payment
date to the opening of business on the following interest payment date shall
(unless such Note or portion thereof being converted shall have been called for
redemption during the period from the close of business on any record date for
the payment of interest to the close of business on the following interest
payment date) be accompanied by payment, in New York Clearing House funds of an
amount equal to the interest otherwise payable on such interest payment date on
the principal amount at maturity being converted; provided, however, that no
such payment need be made if there shall exist at the time of conversion a
default in the payment of interest on the Notes. An amount equal to such
payment shall be paid by the Company on such
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interest payment date to the holder of such Note at the close of business on
such record date; provided, however, that if the Company shall default in the
payment of interest on such interest payment date, such amount shall be paid to
the Person who made such required payment. Except as provided above in this
Section, no adjustment shall be made for Original Issue Discount or interest
accrued on any Note converted or for dividends on any shares issued upon the
conversion of such Note as provided in this Article.
SECTION 15.03. Cash Payments in Lieu of Fractional Shares. A
Noteholder who would otherwise be entitled to a fractional share of Common Stock
shall, at the election of the Company, receive either an additional share of
Common Stock or cash equal to the then current market value of such fractional
share. If more than one Note shall be surrendered for conversion at one time by
the same holder, the number of full shares which shall be issuable upon
conversion shall be computed on the basis of the aggregate principal amount at
maturity of the Notes (or specified portions thereof to the extent permitted
hereby) so surrendered. For these purposes, the current market value of a share
of Common Stock shall be the Closing Price on the first Business Day immediately
preceding the day on which the Notes (or specified portions thereof) are deemed
to have been converted and such Closing Price shall be determined as provided in
subsection (g) of Section 15.05.
SECTION 15.04. Conversion Rate. The Conversion Rate shall be as
specified in the form of Note hereinabove set forth, subject to adjustment as
provided in this Article.
SECTION 15.05. Adjustment of Conversion Rate. The Conversion Rate
shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall pay a dividend or make a distribution,
in shares of its Common Stock, on its Common Stock, the Conversion Rate in
effect at the opening of business on the date following the date fixed for
the determination of stockholders entitled to receive such dividend or
other distribution shall be increased by multiplying such Conversion Rate
by a fraction of which the denominator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for
such determination and the numerator shall be the sum of such number of
shares and the total number of shares constituting such dividend or other
distribution, such reduction to become effective immediately after the
opening of business on the day following the date fixed for such
determination. The Company will not pay any dividend or make any
distribution on shares of Common Stock held in the treasury of the Company.
If any dividend or distribution of the type described in this Section
15.05(a) is declared but is not so paid or made and not required to be so
paid or made, the Conversion Rate shall again be adjusted to the Conversion
Rate which would then be in effect if such dividend or distribution had not
been declared.
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(b) In case the Company shall issue rights or warrants to all holders
of its Common Stock entitling them (for a period expiring within 45 days
after the date fixed for determination of stockholders entitled to receive
such rights or warrants) to subscribe for or purchase Common Stock at a
price per share less than the Current Market Price per share of Common
Stock (as defined in Section 15.05(g) below) at the record date for the
determination of stockholders entitled to receive such rights or warrants,
the Conversion Rate in effect immediately prior thereto shall be adjusted
so that the same shall equal the rate determined by multiplying the
Conversion Rate in effect immediately prior to the date fixed for
determination of stockholders entitled to receive such rights or warrants
by a fraction the denominator of which shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for
determination of stockholders entitled to receive such rights or warrants
plus the number of shares which the aggregate offering price of the total
number of shares so offered would purchase at such Current Market Price and
the numerator of which shall be the number of shares of Common Stock
outstanding on the date fixed for determination of stockholders entitled to
receive such rights or warrants plus the number of additional shares of
Common Stock offered for subscription or purchase. Such adjustment shall
be made successively whenever any such rights or warrants are issued, and
shall become effective immediately after the opening of business on the day
following the record date for the determination of the stockholders
entitled to receive such rights or warrants. In determining whether any
rights or warrants entitle the holders to subscribe for or purchase shares
of Common Stock at less than such Current Market Price, and in determining
the aggregate offering price of such shares of Common Stock, there shall be
taken into account any consideration received by the Company for such
rights or warrants, the value of such consideration, if other than cash, to
be determined by the Board of Directors. To the extent that shares of
Common Stock are not delivered or required to be delivered after the
expiration of such rights or warrants, the Conversion Rate shall be
readjusted to the Conversion Rate which would then be in effect had the
adjustments made upon the issuance of such rights or warrants been made on
the basis of delivery of only the number of shares of Common Stock actually
delivered. If such rights or warrants are not so issued and not required
to be so issued, the Conversion Rate shall again be adjusted to be the
Conversion Rate which would then be in effect if such record date for the
determination of stockholders entitled to receive such rights or warrants
had not been fixed.
(c) In case outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the Conversion Rate in
effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately increased, and
conversely, in case outstanding shares of Common Stock shall be combined
into a smaller number of shares of Common Stock, the Conversion Rate in
effect at the opening of business on
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the day following the day upon which such combination becomes effective
shall be proportionately reduced, such reduction or increase, as the case
may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination
becomes effective.
(d) In case the Company shall distribute to all holders of its Common
Stock any shares of any class of capital stock of the Company (other than
Common Stock) or evidences of its indebtedness or assets (excluding cash
dividends or other distributions to the extent paid from retained earnings
of the Company) or rights or warrants to subscribe for or purchase any of
its securities (excluding those referred to in subsection (b) above) (any
of the foregoing hereinafter in this subsection the "Distributed
Securities"), then in each such case the Conversion Rate shall be adjusted
so that the same shall equal the rate determined by multiplying the
Conversion Rate in effect on the record date with respect to such
distribution by a fraction of which the determination shall be the Current
Market Price per share of the Common Stock on such record date less the
fair market value on such record date (as determined by the Board of
Directors of the Company, whose determination shall be conclusive, and
described in a certificate filed with the Trustee) of the Distributed
Securities applicable to one share of Common Stock and the numerator of
which shall be the Current Market Price per share of the Common Stock on
the record date for the determination of shareholders entitled to receive
such distribution; such adjustment shall become effective immediately prior
to the opening of business on the day following such record date.
Notwithstanding the foregoing, in the event the then fair market value (as
so determined) of the portion of the Distributed Securities applicable to
one share of Common Stock is equal to or greater than the Current Market
Price of the Common Stock on the relevant record date, in lieu of the
foregoing adjustment, adequate provision shall be made so that each
Noteholder shall have the right to receive upon conversion the amount of
Distributed Securities such holder would have received had such holder
converted each Note on such record date. In the event that such
distribution is not so paid or made, the Conversion Rate shall again be
adjusted to the Conversion Rate which would then be in effect if such
distribution had not been declared. If the Board of Directors determines
the fair market value of any distribution for purposes of this subsection
(d) by reference to the actual or when issued trading market for any
securities, it must in doing so consider the prices in such market over the
same period used in computing the Current Market Price of the Common Stock.
Notwithstanding the foregoing provisions of this subsection (d), no
adjustment shall be made thereunder for any distribution of Distributed
Securities if the Company makes proper provision so that each holder of a
Note who converts such Note (or any portion thereof) after the record date
for such distribution shall be entitled to receive upon such conversion, in
addition to the shares of Common Stock issuable upon such
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conversion, the amount and kind of Distributed Securities that such holder
would have been entitled to receive if such holder had, immediately prior
to such record date, converted such Note into Common Stock, provided that,
with respect to any Distributed Securities that are convertible,
exchangeable or exercisable, the foregoing provision shall only apply to
the extent (and so long as) the Distributed Securities receivable upon
conversion of such Note would be convertible, exchangeable or exercisable,
as applicable, without any loss of rights or privileges for a period of at
least 60 days following conversion of such Note.
(e) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock cash (excluding (x) any quarterly cash
dividend on the Common Stock to the extent the aggregate cash dividend per
share of Common Stock in any fiscal quarter does not exceed the greater of
(A) the amount per share of Common Stock of the next preceding quarterly
cash dividend on the Common Stock to the extent such preceding quarterly
dividend did not require any adjustment of the Conversion Rate pursuant to
this Section 15.05(e) (as adjusted to reflect subdivisions or combinations
of the Common Stock), and (B) 3.75% of the average of the last reported
sales price of the Common Stock (determined as provided in Section
15.05(g)) during the ten Trading Days (as defined in Section 15.05(g)) next
preceding the date of declaration of such dividend and (y) any dividend or
distribution in connection with the liquidation, dissolution or winding up
of the Company, whether voluntary or involuntary), then, in such case,
unless the Company elects to reserve such cash for distribution to the
holders of the Notes upon the conversion of the Notes so that any such
holder converting Notes will receive upon such conversion, in addition to
the shares of Common Stock to which such holder is entitled, the amount of
cash which such holder would have received if such holder had, immediately
prior to the record date for such distribution of cash, converted its Notes
into Common Stock, the Conversion Rate shall be adjusted so that the same
shall equal the rate determined by multiplying the Conversion Rate in
effect immediately prior to the close of business on such record date by a
fraction of which the denominator shall be such Current Market Price of the
Common Stock on the record date less the amount of cash so distributed (and
not excluded as provided above) applicable to one share of Common Stock and
the numerator of which shall be the Current Market Price of the Common
Stock on such record date; such adjustment to be effective immediately
prior to the opening of business on the day following the record date;
provided, however, that in the event the portion of the cash so distributed
applicable to one share of Common Stock is equal to or greater than the
Current Market Price of the Common Stock on the record date, in lieu of the
foregoing adjustment, adequate provision shall be made so that each
Noteholder shall have the right to receive upon conversion the amount of
cash such holder would have received had such holder converted each Note on
the record date. If such dividend or distribution is not so paid or made,
the
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Conversion Rate shall again be adjusted to be the Conversion Rate which
would then be in effect if such dividend or distribution had not been
declared.
If any adjustment is required to be made as set forth in this
subsection (e) as a result of a distribution that is a quarterly dividend,
such adjustment shall be based upon the amount by which such distribution
exceeds the amount of the quarterly cash dividend permitted to be excluded
pursuant hereto. If an adjustment is required to be made as set forth in
this subsection (e) above as a result of a distribution that is not a
quarterly dividend, such adjustment shall be based upon the full amount of
the distribution.
(f) In case a tender or exchange offer made by the Company or any
subsidiary of the Company for all or any portion of the Common Stock shall
expire and such tender or exchange offer shall involve the payment by the
Company or such subsidiary of consideration per share of Common Stock
having a fair market value (as determined by the Board of Directors or, to
the extent permitted by applicable law, a duly authorized committee
thereof, whose determination shall be conclusive, and described in a
resolution of the Board of Directors or such duly authorized committee
thereof, as the case may be, at the last time (the "Expiration Time")
tenders or exchanges may be made pursuant to such tender or exchange offer
(as it shall have been amended), that exceeds the Current Market Price of
the Common Stock on the Trading Day next succeeding the Expiration Time,
the Conversion Rate shall be adjusted so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately prior
to the Expiration Time by a fraction of which the denominator shall be the
number of shares of Common Stock outstanding (including any tendered or
exchanged shares) on the Expiration Time multiplied by the Current Market
Price of the Common Stock on the Trading Day next succeeding the Expiration
Time and the numerator of which shall be the sum of (x) the fair market
value (determined as aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in the
terms of the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares deemed so
accepted up to any such maximum, being referred to as the "Purchased
Shares") and (y) the product of the number of shares of Common Stock
outstanding (less any Purchased Shares) on the Expiration Time and the
Current Market Price of the Common Stock on the Trading Day next succeeding
the Expiration Time; such adjustment to become effective immediately prior
to the opening of business on the day following the Expiration Time. If
the Company is obligated to purchase shares pursuant to any such tender or
exchange offer, but the Company is permanently prevented by applicable law
from effecting any such purchases or all such purchases are rescinded, the
Conversion Rate shall again be adjusted to be the Conversion Rate which
would then be in effect if such tender or exchange offer had not been made.
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(g) For purposes hereof, the Current Market Price per share of Common
Stock at any date shall be deemed to be the average of the last reported
sale prices for the ten consecutive Trading Days (as defined below)
preceding the day before the record date with respect to any distribution,
issuance or other event requiring such computation. The "Closing Price"
with respect to any securities on any day shall mean the closing sale price
regular way on such day or, in case no such sale takes place on such day,
the average of the reported closing bid and asked prices, regular way, in
each case on the New York Stock Exchange, or, if such security is not
listed or admitted to trading on such exchange, on the principal national
security exchange or quotation system on which such security is quoted or
listed or admitted to trading, or, if not quoted or listed or admitted to
trading on any national securities exchange or quotation system, the
average of the closing bid and asked prices of such security on the over-
the-counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or a similar generally accepted reporting
service, or if not so available, in such manner as furnished by any New
York Stock Exchange member firm selected from time to time by the Board of
Directors for that purpose, or a price determined in good faith by the
Board of Directors, whose determination shall be conclusive and described
in a Board Resolution. The "fair market value" shall mean the amount which
a willing buyer under no compulsion to buy would pay a willing seller under
no compulsion to sell in an arm's length transaction. The "record date"
shall mean, with respect to any dividend, distribution or other transaction
or event in which the holders of Common Stock have the right to receive any
cash, securities or other property or in which the Common Stock (or other
applicable security) is exchanged for or converted into any combination of
cash, securities or other property, the date fixed for determination of
stockholders entitled to receive such cash, securities or other property
(whether such date is fixed by the Board of Directors or by statute,
contract or otherwise).
(h) Rights or warrants distributed by the Company to all holders of
Common Stock entitling the holders thereof to subscribe for or purchase
shares of the Company's capital stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a
specified event or events ("Trigger Event"):
(i) are deemed to be transferred with such shares of Common
Stock,
(ii) are not exercisable, and
(iii) are also issued in respect of future issuances of Common
Stock,
shall not be deemed distributed for purposes of this Section 15.05 until
the occurrence of the earliest Trigger Event. In addition, in the event of
any distribution of rights or
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warrants, or any Trigger Event with respect thereto, that shall have
resulted in an adjustment to the Conversion Rate under this Section 15.05,
(1) in the case of any such rights or warrants which shall all have been
redeemed or repurchased without exercise by any holders thereof, the
Conversion Rate shall be readjusted upon such final redemption or
repurchase to give effect to such distribution or Trigger Event, as the
case may be, as though it were a cash distribution, equal to the per share
redemption or repurchase price received by a holder of Common Stock with
respect to such rights or warrants (assuming such holder had retained such
rights or warrants), made to all holders of Common Stock as of the date of
such redemption or repurchase, and (2) in the case of any such rights or
warrants all of which shall have expired without exercise by any holder
thereof, the Conversion Rate shall be readjusted as if such issuance had
not occurred.
(i) No adjustment to the Conversion Rate shall be required unless such
adjustment would require an increase or decrease of at least 1% in such
rate; provided, however, that any adjustments which by reason of this
subsection (i) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under
this Article Fifteen shall be made by the Company and shall be made to the
nearest cent or to the nearest one hundredth of a share, as the case may
be. Anything in this Section 15.05 to the contrary notwithstanding, the
Company shall be entitled to make such increases in the Conversion Rate, in
addition to those required by this Section 15.05, as it in its discretion
shall determine to be advisable in order that any stock dividends,
subdivision of shares, distribution of rights to purchase stock or
securities, or any distribution of securities convertible into or
exchangeable for stock hereafter made by the Company to its stockholders
shall not be taxable. To the extent permitted by applicable law, the
Company from time to time may increase the Conversion Rate by any amount
for any period of time if the period is at least 20 days, the increase is
irrevocable during the period and the Board of Directors shall have made a
determination that such increase would be in the best interests of the
Company, which determination shall be conclusive. Whenever the Conversion
Rate is so increased, the Company shall mail to Noteholders and file with
the Trustee and the conversion agent a notice of the increase. The Company
shall mail the notice at least 15 days before the date the increased
Conversion Rate takes effect. The notice shall state the increased
Conversion Rate and the period it will be in effect.
(j) Whenever the Conversion Rate is adjusted, as herein provided, the
Company shall promptly file with the Trustee and any conversion agent other
than the Trustee an Officers' Certificate setting forth the Conversion Rate
after such adjustment and setting forth a brief statement of the facts
requiring such adjustment. Promptly after delivery of such certificate,
the Company shall prepare a notice of such adjustment of the Conversion
Rate setting forth the adjusted Conversion Rate and
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the date on which such adjustment becomes effective and shall mail such
notice of such adjustment of the Conversion Rate to each Noteholder at its
last address appearing on the Security Register provided for in Section
2.05 of this Indenture.
(k) In any case in which this Section 15.05 provides that an
adjustment shall become effective immediately after a record date for an
event, the Company may defer until the occurrence of such event (i) issuing
to the holder of any Note converted after such record date and before the
occurrence of such event the additional shares of Common Stock issuable
upon such conversion by reason of the adjustment required by such event
over and above the Common Stock issuable upon such conversion before giving
effect to such adjustment and (ii) paying to such holder any amount in cash
or additional shares in lieu of any fractional share pursuant to Section
15.03.
(l) In case of a tender or exchange offer made by a Person other than
the Company or any subsidiary for an amount which increases the offeror's
ownership of Common Stock to more than 25% of the Common Stock outstanding
and shall involve the payment by such Person of consideration per share of
Common Stock having a fair market value (as determined by the Board of
Directors, whose determination shall be conclusive, and described in a
resolution of the Board of Directors) at the last time (the "Expiration
Time") tenders or exchanges may be made pursuant to such tender or exchange
offer (as it shall have been amended) that exceeds the Current Market Price
of the Common Stock on the Trading Day next succeeding the Expiration Time,
and in which, as of the Expiration Time the Board of Directors is not
recommending rejection of the offer, the Conversion Rate shall be increased
so that the same shall equal the price determined by multiplying the
Conversion Rate in effect immediately prior to the Expiration Time by a
fraction of which the denominator shall be the number of shares of Common
Stock outstanding (including any tendered or exchange shares) on the
Expiration Time multiplied by the Current Market Price of the Common Stock
on the Trading Day next succeeding the Expiration Time and the numerator
shall be the sum of (x) the fair market value (determined as aforesaid) of
the aggregate consideration payable to stockholders based on the acceptance
(up to any maximum specified in the terms of the tender or exchange offer)
of all shares validly tendered or exchanged and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum,
being referred to as the "Purchase Shares") and (y) the product of the
number of shares of Common Stock outstanding (less any Purchased Shares) on
the Expiration Time and the Current Market Price of the Common Stock on the
Trading Day next succeeding the Expiration Time, such increase to become
effective immediately prior to the opening of business on the day following
the Expiration Time. In the event that such Person is obligated to
purchase shares pursuant to any such tender or exchange offer, but such
Person is permanently prevented by applicable law from effecting any such
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purchases or all such purchases are rescinded, the Conversion Rate shall
again be adjusted to be the Conversion Rate which would then be in effect
if such tender or exchange offer had not been made. Notwithstanding the
foregoing, the adjustment described in this Section 15.05(l) shall not be
made if, as of the Expiration Time, the offering documents with respect to
such offer disclose a plan or intention to cause the Company to engage in
any transaction described in Article Twelve.
SECTION 15.06. Effect of Reclassification, Consolidation, Merger or
Sale. If any of the following events occur, namely (i) any reclassification or
change of outstanding shares of Common Stock (other than a change in par value,
or from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination), (ii) any consolidation, merger or
combination of the Company with another Person as a result of which holders of
Common Stock shall be entitled to receive stock, securities or other property or
assets (including cash) with respect to or in exchange for such Common Stock, or
(iii) any sale or conveyance of the properties and assets of the Company as, or
substantially as, an entirety to any other Person as a result of which holders
of Common Stock shall be entitled to receive stock, securities or other property
or assets (including cash) with respect to or in exchange for such Common Stock,
then the Company or the successor or purchasing Person, as the case may be,
shall execute with the Trustee a supplemental indenture providing that each Note
shall be convertible into the kind and amount of shares of stock and other
securities or property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, combination, sale or conveyance
by a holder of a number of shares of Common Stock issuable upon conversion of
such Notes immediately prior to such reclassification, change, consolidation,
merger, combination, sale or conveyance. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each holder of Notes, at his address appearing on the
Note register provided for in Section 2.05 of this Indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, consolidations, mergers, combinations, and sales.
SECTION 15.07. Taxes on Shares Issued. The issuance of stock
certificates on conversions of Notes shall be made without charge to the
converting Noteholder for any U.S. tax in respect of the issue thereof. The
Company shall not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the issue and delivery of stock in any name
other than that of the holder of any Note converted, and the Company shall not
be required to issue or deliver any such stock certificate unless and until the
Person or Persons requesting the issue thereof shall have paid to the Company
the
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amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
SECTION 15.08. Reservation of Shares; Shares to Be Fully Paid;
Compliance with Governmental Requirements; Listing of Common Stock. The Company
shall provide, free from preemptive rights, out of its authorized but unissued
shares, sufficient shares to provide for the conversion of the Notes from time
to time as such Notes are presented for conversion.
Before taking any action which would cause an adjustment increasing
the Conversion Rate so that the shares of Common Stock issuable upon conversion
of the Notes would be issued for less than the par value of such Common Stock,
the Company will take all corporate action which may be necessary in order that
the Company may validly and legally issue fully paid and nonassessable shares of
such Common Stock at such adjusted Conversion Rate.
The Company represents, warrants and covenants that all shares of
Common Stock which may be issued upon conversion of Notes will upon issue be
fully paid and nonassessable by the Company and free from all taxes, liens and
charges with respect to the issue thereof.
The Company represents, warrants and covenants that if any shares of
Common Stock to be provided for the purpose of conversion of Notes hereunder
require registration with or approval of any governmental authority under any
Federal or State law before such shares may be validly issued upon conversion,
the Company will in good faith and as expeditiously as possible endeavor to
secure such registration or approval, as the case may be.
The Company further represents, warrants and covenants that if at any
time the Common Stock shall be listed on the New York Stock Exchange or any
other national securities exchange the Company will, if permitted by the rules
of such exchange, list and keep listed so long as the Common Stock shall be so
listed on such exchange, all Common Stock issuable upon conversion of the Notes.
SECTION 15.09. Responsibility of Trustee. The Trustee and any other
conversion agent shall not at any time be under any duty or responsibility to
any holder of Notes to determine whether any facts exist which may require any
adjustment of the Conversion Rate or with respect to the nature or extent or
calculation of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in
making the same. The Trustee and any other conversion agent shall not be
accountable with respect to the validity or value (or the kind or amount) of any
shares of Common Stock, or of any securities or property, which may at any
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time be issued or delivered upon the conversion of any Note; and the Trustee and
any other conversion agent make no representations with respect thereto.
Subject to the provisions of Section 8.01, neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company to issue,
transfer or deliver any shares of Common Stock or stock certificates or other
securities or property or cash upon the surrender of any Note for the purpose of
conversion or to comply with any of the duties, responsibilities or covenants of
the Company contained in this Article. Without limiting the generality of the
foregoing, neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 15.06 relating either to
the kind or amount of shares of stock or securities or property (including cash)
receivable by Noteholders upon the conversion of their Notes after any event
referred to in such Section 15.06 or to any adjustment to be made with respect
thereto, but, subject to the provisions of Section 8.01 may accept as conclusive
evidence of the correctness of any such provisions, and shall be protected in
relying upon, the Officers' Certificate (which the Company shall be obligated to
file with the Trustee prior to the execution of any such supplemental indenture)
with respect thereto.
SECTION 15.10. Notice to Holders Prior to Certain Actions. In case:
(a) the Company shall declare a dividend (or any other distribution)
on its Common Stock (other than in cash out of retained earnings); or
(b) the Company shall authorize the granting to the holders of its
Common Stock of rights or warrants to subscribe for or purchase any share
of any class or any other rights or warrants; or
(c) of any reclassification of the Common Stock of the Company (other
than a subdivision or combination of its outstanding Common Stock, or a
change in par value, or from par value to no par value, or from no par
value to par value), or of any consolidation or merger to which the Company
is a party and for which approval of any shareholders of the Company is
required, or of the sale or transfer of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
the Company shall cause to be filed with the Trustee and to be mailed to each
holder of Notes at his address appearing on the Note register, provided for in
Section 2.05 of this Indenture, as promptly as possible but in any event at
least fifteen days prior to the applicable date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution or rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to
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101
such dividend, distribution or rights are to be determined, or (y) the date on
which such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding-up is expected to become effective or occur, and the date
as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up.
SECTION 15.11. Simultaneous Adjustments. In the event that this
Article 15 requires adjustments to the Conversion Rate under more than one of
Section 15.05(a), 15.05(b), 15.05(c), 15.05(d), 15.05(e), 15.05(f) or 15.05(l),
and the record dates for the distributions giving rise to such adjustments shall
occur on the same date, then such adjustments shall be made by applying, first,
the provisions of Section 15.05(c), second, the provisions of Section 15.05(d),
third the provisions of Section 15.05(a) and, fourth, the provisions of Section
15.05(b) and fifth, Section 15.05(e) and Section 15.05(k) in whatever order
results in a higher Conversion Rate.
SECTION 15.12. Notice to Holders of Notes; Waiver. Except as
otherwise expressly provided herein, where this Indenture provides for notice to
holders of Notes of any event, such notice shall be sufficiently given to
holders of Notes if given in writing and mailed, first-class postage prepaid, to
each holder of a Note affected by such event, at the address of such holder as
it appears in the register, not earlier than the earliest date and not later
than the latest date prescribed for the giving of such notice.
In any case where notice to holders of Notes is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular holder of a Note shall affect the sufficiency of such notice with
respect to other holders of Notes. In case by reason of the suspension of
regular mail service or by reason of any other cause it shall be impracticable
to give such notice by mail, then such notification to holders of Notes as shall
be made with the approval of the Trustee shall constitute a sufficient
notification to such holders for every purpose hereunder.
Where this Indenture provides for notice in any manner such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 15.13. Successive Adjustments. After an adjustment to the
Conversion Rate under this Article Fifteen, any subsequent event requiring an
adjustment under this Article Fifteen shall cause an adjustment to the
Conversion Rate as so adjusted.
<PAGE>
102
SECTION 15.14. Implementation of Stockholders' Rights Plan. In the
event the Company implements a stockholders' rights plan, such rights plan must
provide that upon conversion of the Notes, the Noteholders will receive, in
addition to the Common Stock issuable upon such conversion, such rights whether
or not such rights have separated from the Common Stock at the time of such
conversion.
SECTION 15.15. Company Determination Final. Any determination that
the Company or the Board of Directors must make pursuant to Section 15.03,
15.05, 15.06, 15.11 or 15.12 is conclusive.
SECTION 15.16. General Considerations. Whenever successive
adjustments to the Conversion Rate are called for pursuant to this Article
Fifteen, such adjustments shall be made to the Current Market Price as may be
necessary or appropriate to effectuate the intent of this Article and to avoid
unjust or inequitable results as determined in good faith by the Board of
Directors.
ARTICLE SIXTEEN
REDEMPTION OF NOTES AT OPTION OF HOLDERS
SECTION 16.01. Option to Elect Redemption upon a Fundamental Change.
(a) If a Fundamental Change shall occur at any time prior to December 15, 2005,
each holder of Notes shall have the right, at such holder's option, to require
the Company to redeem any or all of such holder's Notes on the date (the
"Fundamental Change Redemption Date") (or if such date is not a Business Day,
the next succeeding Business Day) that is 45 days after the date of the
Company's notice of such Fundamental Change. Any redemption of such holder's
Notes in part shall be in the amount of $1,000 principal amount at maturity or
any integral multiple thereof. Any such redemption of Notes shall be made on
the Fundamental Change Redemption Date at a price (the "Fundamental Change
Redemption Price") equal to the Issue Price plus accrued Original Issue Discount
to the Fundamental Change Redemption Date; provided that, if the Applicable
Price with respect to a Fundamental Change is less than the Reference Market
Price, the applicable price with respect to any such redemption of Notes shall
be equal to the foregoing redemption price multiplied by the fraction obtained
by dividing the Applicable Price by the Reference Market Price. In each case,
the Company shall also pay accrued interest, if any, on such Notes to the
Fundamental Change Redemption Date; provided that, if such Fundamental Change
Redemption Date is between a June 1 and the next succeeding June 15 or between a
December 1 and the next succeeding December 15, then the interest payable on
such date shall be paid to the holder of record of the Note on the next
preceding June 15 or December 15. The Company shall mail to all holders of
record of the Notes a notice of the occurrence of a Fundamental Change and of
the redemption right arising as a result thereof on or before
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103
the 10th day after the occurrence of such Fundamental Change. The Company shall
promptly furnish the Trustee a copy of such notice. In the event of any
adjustment to the Conversion Rate, the Reference Market Price shall be changed
by multiplying the then existing Reference Market Price by a fraction, the
numerator of which is the Conversion Rate Prior to such adjustment and the
denominator of which is the Conversion Rate after such adjustment.
(b) For a Note to be so redeemed at the option of the holder, the
Company must receive at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, such Note with the
form entitled "Option to Elect Redemption Upon a Fundamental Change" on the
reverse thereof (a "Fundamental Change Redemption Notice") duly completed,
together with such Notes duly endorsed for transfer, on or before the 30th day
after the date of such notice (or if such 30th day is not a Business Day, the
immediately preceding Business Day). All questions as to the validity,
eligibility (including time of receipt), withdrawal and acceptance of any Note
for redemption shall be determined by the Company, whose determination shall be
final and binding.
A Fundamental Change Redemption Notice may be withdrawn by means of a
written notice of withdrawal delivered to the office of the Trustee at any time
prior to the close of business on the Fundamental Change Redemption Date to
which it relates specifying:
(1) the certificate number of the Note in respect of which such notice
of withdrawal is being submitted,
(2) the principal amount at maturity of the Note with respect to which
such notice of withdrawal is being submitted, and
(3) the principal amount at maturity, if any, of such Note which
remains subject to the original Fundamental Change Redemption Notice and
which has been or will be delivered for redemption by the Company.
SECTION 16.02. Deposit of Funds for Redemption. On or prior to the
date any Note is required to be paid pursuant to Section 16.01, the Company will
deposit with the Trustee or with one or more Paying Agents (or, if the Company
is acting as its own Paying Agent, set aside, segregate and hold in trust as
provided in Section 5.04) an amount of money sufficient to redeem on the
applicable Fundamental Change Redemption Date all the Notes to be repaid on such
date at the Fundamental Change Redemption Price, together with accrued interest
to the date fixed for redemption.
<PAGE>
104
ARTICLE SEVENTEEN
MISCELLANEOUS PROVISIONS
SECTION 17.01. Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements in this Indenture contained by
the Company shall bind its successors and assigns whether so expressed or not.
SECTION 17.02. Official Acts by Successor Corporation. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful sole successor
of the Company.
SECTION 17.03. Addresses for Notices, Etc. Any notice or demand
which by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the holders of Notes on the Company may be given or
served by being deposited postage prepaid by first class mail in a post office
letter box addressed (until another address is filed by the Company with the
Trustee) to:
Exide Corporation
645 Penn Street
Reading, Pennsylvania 19612-4205
Attention: Chief Financial Officer
Any notice, direction, request or demand hereunder to or upon the Trustee shall
be deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at the Principal Office of the Trustee, which office is, at the
date as of which this Indenture is dated, located at:
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Attn: Corporate Trust Trustee Administration
SECTION 17.04. Governing Law. This Indenture and each Note shall be
governed by the laws of the State of New York.
SECTION 17.05. Evidence of Compliance with Conditions Precedent;
Certificates to Trustee. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, if
requested by the Trustee, the
<PAGE>
105
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent have been complied
with.
SECTION 17.06. Legal Holidays. In any case where the date of
maturity of interest on or principal of the Notes or the date fixed for
redemption or repayment of any Note is not a Business Day (a "Legal Holiday"),
then payment of such interest on or principal of the Notes need not be made on
such date but may be made on the next succeeding day not a Legal Holiday 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 from and
after such date.
SECTION 17.07. No Security Interest Created. Nothing in this
Indenture or in the Notes, expressed or implied, shall be construed to
constitute a security interest under the Uniform Commercial Code or similar
legislation, as now or hereafter enacted and in effect, in any jurisdiction
where property of the Company or its subsidiaries is located.
SECTION 17.08. Benefits of Indenture. Nothing in this Indenture or
in the Notes, express or implied, shall give to any Person, other than the
parties hereto, any Paying Agent, any Registrar and their successors hereunder,
the holders of Notes and the holders of Senior Indebtedness, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 17.09. Table of Contents, Headings, Etc. The table of
contents and the titles and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 17.10. Execution in Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
<PAGE>
106
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly signed, all as of the date first written above.
EXIDE CORPORATION,
as Issuer
By: /s/ Alan E. Gauthier
-------------------------------------
Alan E. Gauthier
Chief Financial Officer
THE BANK OF NEW YORK,
as Trustee
By: /s/ Mary Jane Morrissey
-------------------------------------
Mary Jane Morrissey
Assistant Vice President
<PAGE>
EXHIBIT A
Form of Certificate
-------------------
____________, ____
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Re: Exide Corporation (the "Company")
2.09% Convertible Senior Subordinated Notes
due 2005 (the "Securities")
-------------------------------------------
Ladies and Gentlemen:
This letter relates to U.S. $_______________ principal amount at
maturity of Securities represented by a Note (the "Legended Note") which bears a
legend outlining restrictions upon transfer of such Legended Note. Pursuant to
Section 2.03 of the Indenture (the "Indenture") dated as of December 15, 1995
relating to the Securities, we hereby certify that we are (or we will hold such
Securities on behalf of) a person or persons outside the United States to whom
the Securities could be transferred in accordance with Rule 904 of Regulation S
promulgated under the U.S. Securities Act of 1933, as amended. Accordingly, you
are hereby requested to exchange the legended certificate for an unlegended
certificate representing an identical principal amount at maturity of
Securities, all in the manner provided for in the Indenture.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
-------------------------------------
Authorized Signature
<PAGE>
EXHIBIT B
Form of Certificate to be Delivered
in Connection with Transfers
Pursuant to Regulation S
_________, ____
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Re: Exide Corporation (the "Company")
2.09% Convertible Senior Subordinated Notes
due 2005 (the "Securities")
-------------------------------------------
Ladies and Gentlemen:
In connection with our proposed sale of U.S.$__________________
aggregate principal amount at maturity of the Securities, we confirm that such
sale has been effected pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended, and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the
United States;
(2) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the United
States in contravention of the requirements of Rule 904(b) of Regulation S; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative
<PAGE>
B-2
or legal proceedings or official inquiry with respect to the matters covered
hereby. Terms used in this certificate have the meanings set forth in
Regulation S.
Very truly yours,
[Name of Transferor]
By:
------------------------------------
Authorized Signature
<PAGE>
EXHIBIT C
Form of Certificate to be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
_________ __, 199_
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Re: Exide Corporation (the "Company")
2.09% Convertible Senior Subordinated Notes
due 2005 (the "Securities")
--------------------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of $___________ aggregate
principal amount of the Securities, we confirm that:
1. We understand that any subsequent transfer of the Securities is
subject to certain restrictions and conditions set forth in the Indenture
dated as of December 15, 1995 relating to the Securities (the "Indenture")
and the undersigned agrees to be bound by, and not to resell, pledge or
otherwise transfer the Securities except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended (the
"Securities Act").
2. We understand that the offer and sale of the Securities have not
been registered under the Securities Act, and that the Securities may not
be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are
acting as hereinafter stated, that if we should sell any Securities, we
will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified
institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you
and to the Company a signed letter substantially in the form of this
letter, (D) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act or (E) pursuant to the provisions of
Rule 144 under the Securities Act, and we further agree to provide to any
Person purchasing any of the
<PAGE>
C-2
Securities from us a notice advising such purchaser that resales of the
Securities are restricted as stated herein.
3. We understand that, on any proposed resale of any Securities, we
will be required to furnish to you and the Company such certifications,
legal opinions and other information as you and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Securities purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Securities, and we and any accounts for which we are acting are each able
to bear the economic risk of our or its investment.
5. We are acquiring the Securities purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
-----------------------------------
Authorized Signature
