As filed with the Securities and Exchange Commission on May 26,
1995 - Registration No. 33-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
______________
Ralston Purina Company
(Exact name of registrant as specified in its charter)
Missouri 43-
0470580
(State or other jurisdiction of
(I.R.S. Employer
incorporation or organization)
Identification No.)
Checkerboard Square
St. Louis, Missouri 63164
Tel. (314) 982-1000
(Address, including zip code, and telephone number, including
area code,
of registrant's principal executive offices)
_____________
J. M. Neville, Secretary
Ralston Purina Company
Checkerboard Square
St. Louis, Missouri 63164
Tel. (314) 982-1266
(Name, address, including zip code, and telephone number,
including
area code, of agent for service)
______________
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this
Registration Statement as determined in light of market
conditions.
______________
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box. [ ]
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, other than securities
offered only in connection
with dividend or interest reinvestment plans, please check the
following box. [x]<PAGE>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Amount Maximum Maximum
Title Of Securities To Be Offering Price Aggregate
Being Registered Registered Per Unit(1) Offering Price(1)
Amount of
Registration Fee
$137,932
Debt Securities and Warrants to
Purchase Debt Securities $396,925,000 100% $396,925,000(2)
(1) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457 (o) of the
Securities Act.
In U.S. dollars or equivalent thereof in one or more foreign (2)
currencies or composite currencies including European
Currency Units ("ECU").
The Registrant hereby amends this registration statement on
such date or dates as may be necessary to delay its effective
date until the registrant shall file a further amendment which
specifically states that this registration statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this registration statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
Pursuant to Rule 429 under the Securities Act of 1933, the
Prospectus contained herein constitutes a combined Prospectus
that also relates to $3,075,000 of securities registered pursuant
to the Registrant's registration statement on Form S-3, File No.
33-36236.
2<PAGE>
Subject to Completion
The information contained herein is subject to completion. A
registration statement relating to these securities has been
filed with the Securities and Exchange Commission. These
securities may not be sold nor may offers to buy be accepted
prior to the time the registration statement becomes effective.
This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of
these securities in any State in which such offer, solicitation
or sale would be unlawful prior to registration or qualification
under the securities laws of any such state.
3<PAGE>
PRELIMINARY PROSPECTUS DATED MAY 26, 1995
$400,000,000
RALSTON PURINA COMPANY
DEBT SECURITIES AND WARRANTS TO PURCHASE DEBT SECURITIES
____________________________
Ralston Purina Company (the "Company") may offer from time
to time in one or more series, either jointly or separately, for
proceeds of up to $400,000,000 (or the equivalent in one or more
foreign currencies or composite currencies including European
Currency Units ("ECU")) debt securities (the "Debt Securities")
or warrants to purchase Debt Securities (the "Warrants"). The
Debt Securities and Warrants may be offered directly, or through
agents designated from time to time, or through broker-dealers or
underwriters also to be designated. The Debt Securities and
Warrants (collectively, the "Offered Securities") may be offered
separately or as units with other securities, in separate series,
in amounts, at prices, and on terms, to be determined at the time
of sale and to be set forth in a supplement to this Prospectus (a
"Prospectus Supplement").
The designation, the specific aggregate principal amount,
denominations, offering price, maturity, interest rate (which
may be fixed or variable) and time of payment of interest, if
any, the coin or currency in which principal, premium, if any,
and interest, if any, will be payable, conversion, redemption and
sinking fund provisions, if any, of the Debt Securities, the
duration, offering price, if any, exercise price and
detachability of any Warrants, the name of each agent, broker-
dealer, underwriter or other purchaser, if any, in connection
with the sale of the Offered Securities and any listing on a
securities exchange are set forth in the accompanying Prospectus
Supplement.
If an agent of the Company or a broker-dealer, underwriter
or other purchaser is involved in the sale of the Offered
Securities in respect of which this Prospectus is being
delivered, the agent's commission or broker-dealer's or
underwriter's discount will be set forth in, or may be calculated
from, the Prospectus Supplement. The net proceeds to the Company
will be the purchase price less applicable commission in the case
of a sale through an agent, the purchase price in the case of a
broker-dealer or other purchaser or the public offering price
less discount in the case of an underwriter less, in each case,
other issuance expenses. See "Plan of Distribution" for possible
indemnification arrangements for agents, broker-dealers,
underwriters and other purchasers.
_____________________________________
4<PAGE>
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
________________________
The date of the Prospectus is May 26,1995.
5<PAGE>
AVAILABLE INFORMATION
The Company is subject to the information requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act) and in accordance therewith files reports, proxy statements
and other informational documents with the Securities and
Exchange Commission (the "Commission"). Such documents can be
inspected and copied at the public reference facilities
maintained by the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549 and at the
following regional offices of the Commission: Seven World Trade
Center, 13th Floor, New York, New York 10048 and Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such materials can be obtained from the
Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549 at prescribed rates. Such documents
can also be inspected at the offices of The New York Stock
Exchange, Inc., 20 Broad Street, New York, N.Y. 10005, the
Chicago Stock Exchange, 440 South LaSalle Street, Chicago,
Illinois 60605, and The Pacific Stock Exchange, Incorporated, 301
Pine Street, San Francisco, California 94104.
This Prospectus constitutes a part of a Registration
Statement filed by the Company with the Commission under the
Securities Act of 1933, as amended (the "Securities Act"),
relating to the securities offered hereby. This Prospectus omits
certain of the information contained in the Registration
Statement, and reference is hereby made to the Registration
Statement and to the exhibits relating thereto for further
information with respect to the Company and the securities
offered hereby. Any statements contained herein concerning the
provisions of any document 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.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, heretofore filed with the
Commission by the Company under the Exchange Act, are
incorporated herein by reference:
(i) Annual Report on Form 10-K for the fiscal year ended
September 30, 1994; (ii) Quarterly Reports on Form 10-Q for
the fiscal quarters ended December 31,
1994, and March 31, 1995, and
(iii) Current Report on Form 8-K dated April 21, 1995
and Current Report on
Form 8-K-A dated March 31, 1994 and filed October 21,
1994.
6<PAGE>
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 Offered Securities shall be deemed to be incorporated in this
Prospectus by reference and to be a part hereof from the date of
filing of 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 a copy of this Prospectus is delivered, upon written or oral
request of such person, a copy of any documents incorporated
herein by reference (other than exhibits to such documents unless
such exhibits are specifically incorporated by reference in such
documents). Such a request may be directed in writing to the
Investor Relations Department, Ralston Purina Company,
Checkerboard Square, St. Louis, Missouri 63164 or by telephone to
(314) 982-2374.
RALSTON PURINA COMPANY
The Company, incorporated in Missouri in 1894, is the
world's largest producer of dry dog and dry and soft-moist cat
foods as well as the world's largest manufacturer of dry cell
battery products. The Company is also a major producer of
dietary soy protein, fiber food ingredients and polymer products.
The Company is also presently the largest wholesale baker of
fresh delivered bread and sweet baked goods in the United States.
On April 12, 1995, the Company entered into a Purchase and Sale
Agreement with Interstate Bakeries Corporation and Interstate
Brands Corporation (collectively "Interstate") pursuant to which
the Company has agreed to sell all of the capital stock of
Continental Baking Company, its wholly owned subsidiary engaged
in the wholesale baking business. The transaction is expected to
close in July, 1995, subject to approval by Interstate's
shareholders and various regulatory clearances. The Company
maintains its principal executive offices at Checkerboard Square,
St. Louis, Missouri 63164, Tel. (314) 982-1000.
USE OF PROCEEDS
The net proceeds to be received by the Company from the sale
of the Offered Securities and Warrants will be added to the
7<PAGE>
general funds of the Company and may be used for possible
repayment of debt, future acquisitions, capital expenditures,
repurchase of the Company's stock, and such other purposes as may
be specified in the Prospectus Supplement.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed
charges for the Company for the periods indicated (dollars in
millions):
Six Months
Ended
March 31 Year Ended September 30
1995 (a) 1994(b) 1993 1992(c) 1991(d) 1990
Ratio of Earnings to
Fixed Charges(e) 3.1 2.4 2.8 2.7 3.2 3.3
_____________
(a) Excluding provisions for restructuring of the Company's
battery operations
in the six months ended March 31, 1995, earnings before
income taxes and
fixed charges were $412.6 and the ratio of earnings to fixed
charges
was 3.3.
(b) Excluding provisions for restructuring of the Company's
battery and bakery
operations in the year ended September 30, 1994, earnings
before income
taxes, extraordinary item and fixed charges were $766.1 and
the ratio of
earnings to fixed charges was 2.7.
(c) Excluding provisions for restructuring of the Company's
battery, agricultural
and bakery operations and gains on the sale of international
battery
products property in the year ended September 30, 1992,
earnings before
income taxes, extraordinary item and fixed charges were
$845.9 and the
ratio of earnings to fixed charges was 2.8.
(d) Excluding provisions for restructuring of the Company's
battery, bakery and
8<PAGE>
grocery products operations, and certain environmental costs,
in the year
ended September 30, 1991, earnings before income taxes and
fixed charges
were $924.7 and the ratio of earnings to fixed charges was
3.4.
(e) On April 12, 1995, the Company and Interstate jointly
announced the signing of a definitive sales agreement for
Interstate to acquire
Continental Baking Company (CBC), a wholly-owned subsidiary
of the Company.
The earnings and fixed charges of CBC are included in the
above ratios.
(f) For the purpose of this ratio, "Earnings" consists of
earnings before
income taxes, extraordinary items (which have occurred in
fiscal years
1992, 1993, 1994), cumulative effect of accounting changes
(1993)
and "fixed charges". "Fixed charges" consist of preferred
stock dividends,
interest and amortization of debt discount and expense on
all indebtedness
and a portion of net rental expense representative of the
interest factor.
DESCRIPTION OF DEBT SECURITIES
The following description of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to
which any Prospectus Supplement may relate. The particular terms
of the Debt Securities offered by any Prospectus Supplement and
the extent, if any, to which such general provisions do not apply
to such Debt Securities will be described in the Prospectus
Supplement relating to such Debt Securities.
The Debt Securities will be issued in one or more series
under an Indenture, dated as of May 26, 1995, between the Company
and The First National Bank of Chicago as Trustee (the
"Indenture"). A copy of the Indenture has been included as an
exhibit to the Registration Statement of which this Prospectus is
a part. The following summaries of certain provisions of the
Indenture do not purport to be complete and are subject to, and
are qualified in their entirety by reference to, all the
provisions of the Indenture, including the definition therein of
certain terms. Whenever particular Sections, Articles or defined
terms of the Indenture are referred to, it is intended that such
Sections, Articles or defined terms shall be incorporated herein
by reference.
9<PAGE>
General
The Indenture does not limit the amount of Debt Securities
which can be issued thereunder and provides that Debt Securities
of any series may be issued thereunder up to the aggregate
principal amount which may be authorized from time to time by the
Company. The Indenture does not limit the amount of other
indebtedness or securities which may be issued by the Company.
All Debt Securities will be unsecured and will rank pari passu
with all other unsecured and unsubordinated indebtedness of the
Company, unless they are specifically designated as subordinated.
Reference is made to the Prospectus Supplement for the
following terms to the extent they are applicable to the Debt
Securities offered thereby: (i) designation, aggregate principal
amount and denomination; (ii) the purchase price of such offered
Debt Securities (expressed as a percentage of the principal
amount thereof); (iii) date or dates of maturity; (iv) currency
or currencies for which Debt Securities may be purchased and
currency or currencies in which principal of and any interest may
be payable; (v) if the currency for which Debt Securities may be
purchased or in which principal of and any interest may be
payable is at the purchaser's election, the manner in which such
an election may be made; (vi) interest rate or rates (and the
method by which such rate or rates will be determined) and date
or dates on which interest will begin to accrue; (vii) the times
at which interest will be payable and regular record dates for
interest payment dates; (viii) the period or periods, if any,
within which, and the price or prices at which, such Offered
Securities may be redeemed at the option of the Company or
otherwise; (ix) any mandatory or optional sinking fund or
analogous provisions; (x) federal income tax consequences; (xi)
whether such offered Debt Securities are to be issued in whole or
in part in the form of one or more global Debt Securities
("Global Securities") and, if so, the identity of the depositary,
if any, for such Global Security or Securities; (xii) whether the
provisions of the Indenture relating to the defeasance of Debt
Securities shall apply to the Offered Securities; and (xiii) any
other specific terms of the Securities.
Registration, Payment and Denominations
Unless otherwise indicated in the Prospectus Supplement
relating thereto, the Debt Securities will be issued only in
fully registered form without coupons. Principal and interest
will be payable, and the Debt Securities will be transferable, at
the office or offices or agency or agencies maintained by the
Company for such purposes, provided that payment of interest on
any Debt Securities may be made at the option of the Company by
check mailed to the registered holders. Interest will be payable
on any interest payment date to the persons in whose name the
Debt Securities are registered at the close of business on the
record date with respect to such interest payment date. Unless
10<PAGE>
otherwise specified in the Prospectus Supplement and except as
provided in the Indenture, if the interest payment date is the
first day of a calendar month, the record date will be the
fifteenth day of the next preceding calendar month or, if such
interest payment date is the fifteenth day of a calendar month,
the record date will be the first day of such calendar month,
whether or not such record date is a Business Day.
The Debt Securities offered hereby will be issued in
denominations of $1,000 or any whole multiple of $1,000 or the
equivalent thereof in a foreign denominated or composite currency
or in ECUs, unless otherwise specified in the Prospectus
Supplement. (Section 2.7) No service charge will be made for any
transfer or exchange of the Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith (Section
2.8).
Debt Securities may also be issued under the Indenture upon
the exercise of Warrants issued by the Company. See "Description
of Warrants".
11<PAGE>
Global Securities
The Debt Securities of a series may be issued in whole or in
part in the form of one or more Global Securities that will be
deposited with, or on behalf of, a depositary (the "Depositary")
identified in the Prospectus Supplement relating to such series.
Each Global Security shall be registered in the name of the
Depositary for such Global Security or its nominee (Section
2.14). Unless and until it is exchanged in whole or in part for
the individual Debt Securities represented thereby, a Global
Security may not be transferred except as a whole by the
Depositary for such Global Security to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a
nominee of such successor Depositary (Section 2.14).
The specific terms of the depositary arrangement with
respect to any Global Securities will be described in the
Prospectus Supplement relating to such series. The Company
anticipates that the following provisions will apply to all
depositary arrangements.
Upon the issuance of a Global Security, the Depositary or
its nominee will credit the accounts of persons holding Debt
Securities through it with the respective principal amounts of
the Debt Securities represented by such Global Security. Such
accounts shall be designated by the underwriters with respect to
Debt Securities placed by underwriters for the Company.
Ownership of beneficial interests in a Global Security will be
limited to persons that have accounts with the Depositary
("participants") or persons that may hold interests through
participants. Ownership of beneficial interests by participants
in a Global Security will be shown on and the transfer of that
ownership interest will be effected only through, records
maintained by the Depositary, its nominee (with respect to
interests of participants) for such Global Security and on the
records of participants (with respect to interests of persons
other than participants). The laws of some jurisdictions require
that certain purchasers of securities take physical delivery of
such securities in definitive form. Such limits and such laws
may impair the ability to transfer beneficial interest in a
Global Security.
So long as the Depositary for a Global Security, or its
nominee, is the registered owner of such Global Security, such
Depositary or such nominee, as the case may be, will be
considered the sole owner or holder of the Debt Securities
represented by such Global Security for the purposes of receiving
payment on the Debt Security receiving notices and for all other
purposes under the Indenture governing such Debt Securities.
Except as provided above, owners of beneficial interests in a
Global Security will not be entitled to have Debt Securities of
the series represented by such Global Security registered in
12<PAGE>
their names and will not receive or be entitled to receive
physical delivery of Debt Securities of such series in definitive
form and will not be considered the owners or holders thereof
under the Indenture governing such Debt Securities.
Any payment of principal, premium or interest on Debt
Securities registered in the name of a Depositary or its nominee
represented by any such Global Security will be made to the
Depositary or its nominee, as the case may be, as the sole
registered owner of the Global Security representing such Debt
Securities. None of the Company, the Trustee, any agent of the
Company or the Trustee or any underwriter will have any
responsibility or liability for any aspect of the Depositary's
records relating to or payments made on account of beneficial
ownership interests in a Global Security representing any Debt
Securities or for maintaining, supervising or reviewing any of
the Depositary's records relating to such beneficial ownership
interests.
The Company expects that the Depositary for a series of Debt
Securities or its nominee, upon receipt of any payment of
principal, premium or interest, will credit immediately
participants' accounts with payments in amounts proportionate to
their respective beneficial interests in the principal amount of
such Global Security as shown on the records of such Depositary
or its nominee. The Company also expects that payments by
participants to owners of beneficial interests in a Global
Security held through such participants will be governed by
standing instructions and customary practices as is now the case
with securities held for customer accounts registered in "street
name", and will be the sole responsibility of such participants.
A Global Security may not be transferred except as a whole
by the Depositary to a nominee of the Depositary, except as
otherwise provided in the Indenture. A Global Security
representing Debt Securities is exchangeable only if (x) the
Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Security or if at any time
the Depositary ceases to be a clearing agency registered under
the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the Company fails to appoint a successor Depositary
within 90 days or (y) the Company in its sole discretion
determines that such Global Security shall be exchangeable or (z)
there shall have occurred and be continuing an Event of Default
or an event which with the giving of notice or lapse of time or
both would constitute an Event of Default with respect to the
Debt Securities represented by such Global Security. Any Global
Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for certificates in definitive form
representing Debt Securities issuable in such denominations and
in such names as the Depositary holding such Global Security
shall direct. Subject to the foregoing, the Global Security is
not exchangeable, except for a Global Security of like
13<PAGE>
denomination to be registered in the name of the Depositary or
its nominee.
Certain Covenants
Limitations on Liens. The Company covenants that it will
not have, nor will it permit any Domestic Subsidiary (defined as
a Subsidiary the majority of the operating assets of which are
located within, and the principal business of which is carried on
in, the United States of America, other than a subsidiary engaged
primarily in the business of purchasing accounts receivable,
making loans and advances against accounts receivable and
chattels and related types of financing or engaged primarily in
the business of owning, developing or leasing real property
(Section 1.1)) to have, any lien on its properties or assets or
upon any income or profits therefrom without equally and ratably
securing the Debt Securities. This restriction does not apply to
certain permitted liens, including (a) liens on property existing
at the time of acquisition thereof and certain purchase money
mortgages; (b) liens on property of any corporation existing at
the time such corporation becomes a Domestic Subsidiary; (c)
liens existing as of the date of the Indenture; (d) liens which
secure debt owing to the Company or a Domestic Subsidiary by a
Domestic Subsidiary; (e) liens arising from assignments of moneys
due under contracts with the United States; (f) liens on property
created in contemplation of the sale or disposition of such
property provided that after 120 days from the creation of such
lien such property shall not be owned by the Company or any
Domestic Subsidiary and any indebtedness secured by such mortgage
shall be without recourse to the Company or any Domestic
Subsidiary; (g) liens arising from judgments being appealed and
from certain pledges and deposits; and (h) any extension, renewal
or replacement of any lien referred to in the foregoing clauses
(a) through (g), inclusive (Section 3.6).
Limitations on Sale and Lease-back Transactions. The
Company covenants that it will not enter, nor will it permit any
Domestic Subsidiary to enter, into any sale and lease-back
transaction involving any Principal Property (as defined), other
than a sale by a Domestic Subsidiary to the Company and other
than transactions for temporary periods not exceeding five years
by the end of which period it is intended that the use of the
leased property by the lessee will be discontinued, unless the
Company, within 120 days after the transfer of title to such
Principal Property, applies to the redemption of Debt Securities
at the then applicable optional redemption price or the
redemption of other pari passu indebtedness maturing more than 12
months after its creation an amount equal to the net proceeds
received by the Company or such Domestic Subsidiary upon such
sale (Section 3.7). Under the Indenture, a Principal Property is
defined as a battery, protein or pet food manufacturing plant
owned by the Company or a Subsidiary as of May 26, 1995, (and any
14<PAGE>
future additions or improvements thereto) and located with the
United States of America (Section 1.1).
Exempted Transactions. Notwithstanding the foregoing
provisions, the Company or any Domestic Subsidiary may create
liens on its property or assets without equally and ratably
securing the Debt Securities or enter into sale and lease-back
transactions involving a Principal Property without redeeming
Debt Securities or other indebtedness if, after giving effect
thereto, the aggregate amount of indebtedness of the Company and
its Domestic Subsidiaries secured by liens otherwise prohibited
plus the aggregate amount of Attributable Debt (defined as the
present value, computed by discounting at the rate of interest
per annum borne by the offered Debt Securities, of the obligation
of a lessee for net rental payments during the remaining term of
any lease) in respect of such sale and lease-back
transactions does not exceed 5% of the Consolidated Net Tangible
Assets (defined as total assets less (a) all liabilities except
(i) notes payable; (ii) current maturities of long-term debt;
(iii) current maturities of obligations under capital leases;
(iv) long-term debt and long-term obligations under capital
leases; and (b) goodwill and intangible assets) of the Company
and its Domestic Subsidiaries (Sections 3.6 and 3.7).
Events of Default
An Event of Default with respect to any series of Debt
Securities is defined in the Indenture as being: (a) default for
30 days in payment of any installment of interest on the Debt
Securities of such series; (b) default in the payment of any
principal on the Debt Securities of such series; (c) default by
the Company in payment of any sinking fund installment with
respect to such series of Debt Securities; (d) default by the
Company in performance of any of the covenants or warranties in
the Indenture contained therein for the benefit of the Debt
Securities of such series which shall not have been remedied for
a period of 90 days after written notice to the Company by the
Trustee or to the Company and the Trustee by the Holders of not
less than 25% in principal amount of the Debt Securities of such
series then outstanding; and (e) certain events of bankruptcy,
insolvency or reorganization of the Company (Section 5.1). No
Event of Default described in clause (a), (b), (c) or (d) above
with respect to a particular series of Debt Securities
necessarily constitutes an Event of Default with respect to any
other series of Debt Securities.
The Indenture provides that if an Event of Default under
clause (a), (b), (c) or (d) above (but only if, in the case of
clause (d), the Event of Default is with respect to less than all
series of Debt Securities then outstanding) shall have occurred
and be continuing with respect to one or more series of the Debt
Securities, either the Trustee or the Holders of not less than
25% in aggregate principal amount of the then outstanding Debt
Securities of the series affected by such Event of Default (each
15<PAGE>
such series treated as a separate class) may declare the
principal of all the Debt Securities of such series, together
with accrued interest, to be due and payable immediately. If an
Event of Default under clause (d) (if the Event of Default under
clause (d) is with respect to all of the series of Debt
Securities then outstanding), or (e) above shall have occurred
and be continuing, either the Trustee or the Holders of not less
than 25% in the aggregate principal amount of all the Debt
Securities of such series then outstanding (each such series
treated as one class), may declare the principal of all the Debt
Securities in such series, together with accrued interest, to be
due and payable immediately. Upon certain conditions such
declaration (including a declaration caused by a default in the
payment of principal or interest, the payment for which has
subsequently been provided) may be annulled by the Holders of a
majority in principal amount of the Debt Securities of the series
then outstanding (each such series treated as a separate class)
or all Debt Securities treated as one class, as the case may be,
as were entitled to declare such default. In addition, past
defaults may be waived by the Holders of a majority in principal
amount of the Debt Securities of the series then outstanding
(each such series treated as a separate class) or all Debt
Securities treated as one class, as the case may be, as were
entitled to declare such default, except a default in the payment
of the principal of or interest on the Debt Securities or in
respect of a covenant or provision of the Indenture which cannot
be modified or amended without the approval of the Holder of each
Debt Security so affected (Sections 5.1 and 5.10).
The Indenture contains a provision entitling the Trustee,
subject to the duty of the Trustee during default to act with the
required standard of care, to be indemnified by the Holders of
Debt Securities before proceeding to exercise any right or power
under the Indenture at the request of the Holders of such Debt
Securities (Section 6.2). The Indenture also provides that the
Holders of a majority in principal amount of the outstanding Debt
Securities of all series affected (each series treated as a
separate class) may direct the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Debt Securities of such series
(Section 5.9).
The Indenture contains a covenant that the Company will file
annually with the Trustee a certificate as to the absence of any
default or specifying any default that exists (Section 3.5).
Satisfaction and Discharge
The Indenture shall be satisfied and discharged with respect
to any series of Debt Securities when: (1) either (A) all Debt
Securities of that series theretofore authenticated and delivered
have been delivered to the Trustee canceled or for cancellation;
or (B) all Debt Securities of that series not theretofore
16<PAGE>
delivered to the Trustee canceled or for cancellation (i) have
become due and payable, or (ii) will become due and payable at
their maturity within one year, or (iii) are to be called for
redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee and
the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee an amount
sufficient to pay and discharge the entire indebtedness of such
Debt Securities for principal and interest to the date of such
deposit (in the case of Debt Securities which have become due and
payable), or to the maturity or redemption date, as the case may
be; (2) the Company has paid or caused to be paid all other sums
payable under the Indenture by the Company with respect to the
Debt Securities of such series; and (3) the Company has delivered
to the Trustee an officer's certificate and an Opinion of Counsel
each stating that all conditions precedent provided in the
Indenture relating to the satisfaction and discharge thereof with
respect to the Debt Securities of such series have been complied
with. (Section 10.1)
Defeasance
Except as may otherwise be set forth in the Prospectus
Supplement relating to a series of Debt Securities, the Indenture
provides that the Company, at its option, (i) will be discharged
from any and all obligations in respect of the Debt Securities of
any series (except for certain obligations to register the
transfer or exchange of Debt Securities of such series, replace
stolen, lost or mutilated Debt Securities of such series,
maintain paying agencies and hold moneys for payment in trust) or
(ii) will not be subject to provisions of the Indenture
concerning limitations upon liens and sale and lease-back
transactions, and consolidation, merger and sale or lease of
assets (and any other obligation of the Company or restrictive
covenant applicable to such Debt Securities as specified in the
applicable Prospectus Supplement), in each case if the Company
deposits with the Trustee, in trust, money or U.S. Government
Obligations (as defined) (or another comparable instrument with
respect to the currency of the Debt Securities as selected by the
Company with the consent of the Trustee) which through the
payment of interest thereon and principal thereof in accordance
with their terms will provide money in an amount sufficient to
pay all the principal and interest on the outstanding Debt
Securities of such series on the dates such payments are due in
accordance with the terms of such Debt Securities. To exercise
such option, the Company is required, among other things to
deliver to the Trustee (1) an opinion of counsel or a ruling
published by the Internal Revenue Service to the effect that the
deposit and related defeasance would not cause the Holders of the
Debt Securities of such series to recognize income, gain or loss
for United States income tax purposes and (2) if the Debt
Securities of such series are then listed on any national
securities exchange, an Opinion of Counsel or a letter or other
document from such exchange, to the effect that such Securities
17<PAGE>
would not be delisted from such exchange as a result of the
exercise of such option (Section 13.2)
Modification, Waiver and Meetings
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than 50%
in principal amount of the Debt Securities of all series
then outstanding affected by such supplemental indenture (treated
as one class), to execute supplemental indentures adding any
provisions to or changing or eliminating any of the provisions of
the Indenture or modifying the rights of the Holders of Debt
Securities of each such series, except that no such supplemental
indenture may, without the consent of the Holders of all
outstanding Debt Securities (i) change the final maturity of the
principal of, or installment of interest, if any, on, any Debt
Security, or reduce the principal amount thereof or the interest
thereon or any amount payable upon redemption thereof, or change
the maturity of or reduce the amount of any payment to be made
with respect to any Coupon, or change the currency or currencies
in which the principal of or interest on such Debt Security is
denominated or payable, or reduce the amount of the principal of
a Discount Security that would be due and payable upon a
declaration of acceleration of the maturity thereof, or adversely
affect the right of repayment or repurchase, if any, at the
option of the Holder, or reduce the amount of, or postpone the
date fixed for, any payment under any sinking fund or analogous
provisions for any Debt Security, or impair the right to
institute suite for the enforcement of any payment on or after
the maturity thereof (or, in the case of redemption, on or after
the redemption date); or (ii) reduce the percentage in principal
amount of the outstanding Debt Securities of any series, the
consent of the Holders of which is required for any supplemental
indenture, or the consent of the Holders of which is required for
any waiver of compliance with certain provisions of the Indenture
or certain defaults thereunder and their consequences provided
for in the Indenture (Section 8.2).
The Holders of a majority in aggregate principal amount of
the outstanding Debt Securities of any series may on behalf of
all Holders of the Debt Securities of such series (i) waive any
past default under the Indenture with respect to such Debt
Securities, except a default in the payment of principal or
interest or a covenant or provision that cannot be modified or
amended without the consent of the Holders of each outstanding
Debt Security of such series, and (ii) waive compliance by the
Company with certain provisions of the Indenture, including the
provisions concerning limitations upon liens and sale and lease-
back transactions, in each case with respect to the Debt
Securities of such series. (Sections 5.10 and 3.9)
The Indenture contains provisions for convening meetings of
the Holders of Debt Securities of a series. (Section 7.6) A
meeting may be called at any time by the Trustee, and also, upon
18<PAGE>
request, by the Company or the Holders of at least 25% in
aggregate principal amount of the outstanding Debt Securities of
such series or of all series, as the case may be. (Section
7.6(c)) Any resolution passed or decision taken at any meeting
of Holders of Debt Securities of any series duly held in
accordance with the Indenture will be binding on all Holders of
Debt Securities of that series (Sections 7.5 and 7.6).
Consolidation, Merger and Sale of Assets
The Company covenants that it will not merge or consolidate
or sell or convey all or substantially all of its assets unless
the successor corporation is the Company or is a domestic
corporation which assumes the Company's obligations on the Debt
Securities and under the Indenture, and after giving effect to
such transaction the Company or the successor corporation would
not be in default under the Indenture (Section 9.1).
Concerning the Trustee
The First National Bank of Chicago is the trustee under an
Indenture dated as of January 31, 1992, with the Company and The
First National Bank of Chicago, with regard to the following
securities previously issued: (i) 8 5/8% Debentures due 2022 and
(ii) 8 1/8% Debentures due 2023. The Company maintains a deposit
account and conducts other banking transactions with the Trustee
in the ordinary course of business.
Governing Law
The Indenture and each Debt Security shall be deemed to be
contracts under the law of the State of New York and for all
purposes shall be construed in accordance with the law of such
state.
DESCRIPTION OF WARRANTS
The Company may issue Warrants for the purchase of Debt
Securities. Warrants may be issued independently or together with
any Debt Securities offered by any Prospectus Supplement and may
be attached to or separate from such Debt Securities. The
Warrants are to be issued under Warrant Agreements to be entered
into between the Company and a bank or trust company, as Warrant
Agent, all as set forth in the Prospectus Supplement relating to
the particular issue of Warrants. The Warrant Agent will act
solely as an agent of the Company in connection with the Warrant
Certificates and will not assume any obligation or relationship
of agency or trust for or with any holders of Warrant
Certificates or beneficial owners of Warrants. A copy of the form
of Warrant Agreement, including the form of Warrant Certificate
representing the Warrants will be filed as an exhibit to a Current
Report on Form 8-K of the Company with respect to each offering of
the Debt Securities and incorporated herein by reference. The
following summaries of certain provisions of the form of Warrant
Agreement and Warrant Certificate do not purport to be complete
19<PAGE>
and are subject to, and are qualified in their entirety by
reference to, all the provisions of the Warrant Agreement and the
Warrant Certificate.
General
If Warrants are offered, the Prospectus Supplement will
describe the Warrant Agreement and the terms of the Warrants,
including the following: (i) the offering price; (ii) the
currency for which Warrants may be purchased; (iii) the
designation, aggregate principal amount, currency and terms of
the Debt Securities purchasable upon exercise of the Warrants;
(iv) if applicable, the designation and terms of the Debt
Securities with which the Warrants are issued and the number of
Warrants issued with each such Debt Security; (v) if applicable,
the date on and after which the Warrants and the related Debt
Securities will be separately transferable; (vi) the principal
amount of Debt Securities purchasable upon exercise of one
Warrant and the price and currency at which such principal amount
of Debt Securities may be purchased upon such exercise; (vii) the
date on which the right to exercise the Warrants shall commence
and the date (the "Expiration Date") on which such right shall
expire; (viii) federal income tax consequences; (ix) whether the
Warrants represented by the Warrant Certificates will be issued
in registered or bearer form; and (x) any other terms of the
Warrants.
Warrant Certificates may be exchanged for new Warrant
Certificates of different denomination, may (if in registered
form) be presented for registration of transfer, and may be
exercised at the corporate trust office of the Warrant Agent or
any other office indicated in the Prospectus Supplement. Prior to
the exercise of their Warrants, holders of Warrants will not have
any of the rights of holders of the Debt Securities purchasable
upon such exercise, including the right to receive payments of
principal of, premium, if any, or interest, if any, on the Debt
Securities purchasable upon such exercise or to enforce covenants
in the Indenture.
Exercise of Warrants
Each Warrant will entitle the holder to purchase such
principal amount of Debt Securities at such exercise price as
shall in each case be set forth in, or calculable from, the
Prospectus Supplement relating to the Warrants. Warrants may be
exercised at any time up to 5:00 P.M. New York time on the
Expiration Date set forth in the Prospectus Supplement relating
to such Warrants. After the close of business on the Expiration
Date (or such later date to which such Expiration Date may be
extended by the Company), unexercised Warrants will become void.
Warrants may be exercised by delivery to the Warrant Agent
of payment as provided in the Prospectus Supplement of the amount
required to purchase the Debt Securities purchasable upon such
20<PAGE>
exercise together with certain information set forth on the
reverse side of the Warrant Certificate. Warrants will be deemed
to have been exercised upon receipt of the exercise price,
subject to the receipt within five business days of the Warrant
Certificate evidencing such Warrants. Upon receipt of such
payment and the Warrant Certificate properly completed and duly
executed at the corporate trust office of the Warrant Agent or
any other office indicated in the Prospectus Supplement, the
Company will, as soon as practicable, issue and deliver the Debt
Securities purchasable upon such exercise. If fewer than all of
the Warrants represented by such Warrant Certificate are
exercised, a new Warrant Certificate will be issued for the
remaining amount of Warrants.
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities to or through
underwriters, dealers, or agents, and also may sell the Offered
Securities to one or more other purchasers or through a
combination of any such methods of sale.
The Prospectus Supplement with respect to the Offered
Securities sets forth the terms of the offering (and, in certain
circumstances, any reoffering), including the name or names of
any underwriters, agents or other purchasers, the purchase price
in respect of the Offered Securities, the proceeds to the
Company, any initial public offering price, any discounts,
commissions and other items constituting compensation from the
Company and any discounts, concessions or commissions allowed or
reallowed or paid by any underwriters to other dealers.
The distribution of the Offered Securities may be effected
by one or more agents, broker-dealers, underwriters or other
purchasers from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, or in a
combination of such methods of sale, at a fixed price or prices,
which may be changed, or at market prices prevailing at the time
of sale, at prices related to such prevailing market prices or at
negotiated prices. If underwriters are used in the sale, the
Offered Securities will be acquired by the underwriters for their
own account and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time
of sale. The Offered Securities may be offered to the public
through underwriting syndicates represented by managing
underwriters or by underwriters without a syndicate. Unless
otherwise set forth in the Prospectus Supplement, the obligations
of an agent, broker-dealer, underwriter or other purchaser to
purchase Offered Securities will be subject to satisfaction of
certain conditions, and such underwriters will be obligated to
purchase all such Offered Securities if any are purchased. Any
initial public offering price and any discounts or concessions
allowed or realized or paid to dealers may be changed from time
21<PAGE>
to time. The Offered Securities may be sold directly by the
Company or through agents designated by the Company from time to
time. Any agent involved in the offer or sale of the Debt
Securities in respect of which this Prospectus is delivered will
be named, and any commissions payable by the Company to such
agent will be set forth, in the related Prospectus Supplement.
Unless otherwise indicated in the Prospectus Supplement, any
agent will be acting on a best efforts basis for the period of
its appointment.
If so indicated in the Prospectus Supplement, the Company
may authorize underwriters, dealers or other persons acting as
the Company's agents to solicit offers by certain institutions to
purchase from the Company at the offering price set forth in the
Prospectus Supplement pursuant to delayed delivery contracts
providing for payment and delivery on a future date. Such
contracts will be subject only to those conditions set forth in
the Prospectus Supplement and the Prospectus Supplement will set
forth the commissions payable for solicitation of such contracts.
Agents and underwriters may from time to time purchase and
sell the Offered Securities in the secondary market, but are not
obligated to do so, and there can be no assurance that there will
be a secondary market for the Offered Securities or liquidity in
the secondary market if one develops. From time to time, agents
and underwriters may make a market in the Offered Securities.
Underwriters, agents and other purchasers who participate in
the distribution of the Offered Securities may be entitled under
agreements which may be entered into by the Company to
indemnification by the Company against certain liabilities,
including liabilities under the Act, or to contribution with
respect to payments which the underwriters, agents or other
purchasers may be required to make in respect thereof. Such
underwriters, agents and other purchasers may be customers of,
engage in transactions with, or perform services for the Company
in the ordinary course of business.
22<PAGE>
LEGAL OPINIONS
The legality of the Offered Securities offered hereby will
be passed upon for the Company by James M. Neville, Vice
President, General Counsel and Secretary of Ralston Purina
Company, Checkerboard Square, St. Louis, Missouri 63164. At May
23, 1995 Mr. Neville was the beneficial owner of 26,951 shares of
Common Stock of the Company. Additionally, as of May 23, 1995,
423 shares of Common Stock, and 1,056 shares of Preferred Stock,
convertible under certain conditions into Common Stock, of the
Company were allocated to Mr. Neville's accounts under certain of
the Company's benefit plans.
EXPERTS
The financial statements incorporated in this Prospectus by
reference to Ralston Purina Company Annual Report on Form 10-K
for the year ended September 30, 1994, have been so incorporated
in reliance on the report of Price Waterhouse LLP independent
accountants, given on the authority of said firm as experts in
auditing and accounting.
23<PAGE>
$400,000,000
TABLE OF CONTENTS
PROSPECTUS RALSTON PURINA COMPANY
PAGE
------
Available Information 2
Incorporation of Certain
Documents by Reference 2
Ralston Purina Company 3 Debt Securities and
Warrants
Use of Proceeds 3 to Purchase Debt
Securities
Ratio of Earnings to
Fixed Charges 3
Description of Debt
Securities 5
Description of Warrants 11`
Plan of Distribution 12
Legal Opinions 12
Experts 12
No dealer, salesman or other
person
has been authorized to give
any
information or to make any
representation not contained
in this
prospectus and, with respect
to
particular Offered Securities,
the
Prospectus Supplement or, any
pricing
supplement relating thereto,
and, if
given or made, such
information or
representation must not be
relied
upon as having been authorized
by
the Company or any agent,
underwriter or dealer. This
24<PAGE>
Prospectus, the Prospectus
Supplement or any pricing
supplement
does not constitute an offer
to sell or
a solicitation of an offer to
buy any of
the securities offered hereby
in any
jurisdiction to any person to
whom it
is unlawful to make such offer
or
solicitation in such
jurisdiction.
-----------------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------
25<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses Of Issuance And Distribution.
An itemized statement of the amount of all expenses, other
than underwriting discounts and commissions, incurred by the
Company in connection with the issuance and distribution of the
Debt Securities and Warrants follows:
Securities and Exchange Commission Registration Fee
$137,932
Trustees' Fees and Expenses $
3,100*
Printing and Engraving Expenses $
2,500*
Rating Agency Fees $116,250*
Accounting Fees and Expenses 50,000*
$
Blue Sky Fees and Expenses $
20,000*
Miscellaneous Expenses $ 5,000*
---------------
--
Total $334,782
---------------
--
---------------
*All amounts estimated except Registration Fee.
26<PAGE>
Item 15. Indemnification Of Directors And Officers.
Under Section 351.355 of the Missouri General and Business
Corporation Law ("GBCL") and Company's Restated Articles of
Incorporation, the Company must indemnify any person (other than
a party plaintiff serving on his or her behalf or in the right of
the Company) who is or was a director, officer or employee of the
Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, to the
maximum extent permitted by law, against any and all expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement, actually and reasonably incurred by such person in
connection with any civil, criminal, administrative or
investigative action, proceeding or claim (including an action by
or in the right of the Company), by reason of the fact that such
person is or was serving in such capacity, provided that such
person's conduct is not finally adjudged to have been knowingly
fraudulent, deliberately dishonest or willful misconduct. The
Company's directors and executive officers also have
indemnification agreements with the Company pursuant to which the
Company agrees to indemnify such persons to the full extent
authorized or permitted by the GBCL. The agreements also provide
for indemnification to the extent not covered by the GBCL or
insurance policies purchased and maintained by the Company (e.g.
if the GBCL is amended to change the scope of indemnification).
Such indemnification would be co-extensive with the
indemnification currently permitted by the GBCL as described
above, but no indemnity would be paid (i) in respect to
remuneration paid to such person if it shall be finally adjudged
that such remuneration was in violation of law; (ii) on account
of any suit for an accounting of profits made from the purchase
or sale by such person of securities of the Company pursuant to
the provision of Section 16(b) of the Exchange Act or similar
provision of any state or local statutory law; (iii) on account
of such person's conduct which is finally judicially adjudged to
have been knowingly fraudulent, deliberately dishonest or willful
misconduct; or (iv) if a final decision by a court having
jurisdiction in the matter (all appeals having been denied or
none having been taken) shall determine that such indemnification
is not lawful.
The Company has directors' and officers' insurance which
protects each director or officer from liability for actions
taken in their capacity as directors or officers. This insurance
27<PAGE>
may provide broader coverage for such individuals than may be
required by the
provisions of the Company's Restated Articles of Incorporation.
The foregoing represents a summary of the general effect of
Missouri law and the Company's Restated Articles of Incorporation
for purposes of general description only. Additional information
regarding indemnification of directors and officers can be found
in the Missouri statutes, the Company's Restated Articles of
Incorporation and its pertinent insurance contracts.
The Underwriting Agreement General Terms and Provisions
filed as Exhibit 1 hereto provides for indemnification of the
Company's directors and officers against civil liabilities,
including liabilities under the Securities Act of 1933.
II-2
28<PAGE>
Item 16. Exhibits.
1 Form of Underwriting Agreement General Terms and
Provisions
4(a) Form of Indenture
4(b) Form of Note.*
4(c) Form of Debenture.*
4(d) Form of Extendible Note.*
4(e) Form of Warrant Agreement, including Form of
Warrant.*
5 Opinion of James M. Neville, Vice President,
General Counsel and Secretary.
12 Statement and Computation Showing the Ratio of
Earnings to Fixed Charges.
24(a) Consent of Price Waterhouse LLP
24(b) Consent of James M. Neville, Vice President,
General Counsel and Secretary. (included in Exhibit 5
above.)
25 Powers of Attorney (included on signature page on
II-5.)
26 Form T-1, Statement of Eligibility under the Trust
Indenture Act of 1939 of The First National Bank of
Chicago.
-------------------------------------------
*The form of security with respect to each particular offering of
securities registered hereunder, and the form of Warrant
Agreement, if any, will be filed as an exhibit to a Current
Report on Form 8-K of the Company and incorporated by reference
herein.
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, unless the
information required to be included in such post-effective
amendment is contained in a periodic report filed by
Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act and incorporated herein by reference;
To reflect in the prospectus any facts or events
(i) 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, unless the information required to
be included in such post-effective amendment is contained in
a periodic report filed by Registrant pursuant to Section 13
29<PAGE>
or Section 15(d) of the Exchange Act and incorporated herein
by reference; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for purposes of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to
the Securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-3
(3) To remove from the 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,
each filing of Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers,
and controlling persons of the Registrant pursuant to the
provisions described in Item 15 above, or otherwise, the
Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public
policy as expressed in the Act and is therefore, unenforceable.
In the event a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or
paid by a director, officer, or controlling person of the
Registrant in the successful defense of any action, suit, or
proceeding) is asserted against the Registrant by such director,
officer, or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed
by the final adjudication of such issue.
30<PAGE>
II-4
31<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 on Form
S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of St. Louis, State of Missouri, on
May 26, 1995.
RALSTON PURINA COMPANY
/s/ William P. Stiritz
By: William P. Stiritz,
Chairman of
the Board and Chief
Executive
Officer
--------------------------
Know all men by these presents, that each person whose
signature appears below constitutes and appoints J. M. Neville
and T. L. Grosch, 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 and 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 Securities and Exchange
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 and 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.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed below on May 25, 1995
by the following persons in the capacities indicated.
_________ SIGNATURE TITLE
William P. Stiritz
-------------------------------------- Chairman
of the Board, Chief
William P. Stiritz
Executive Officer, and
Director
32<PAGE>
James R. Elsesser
-------------------------------------- Vice
President and Chief
James R. Elsesser
Financial Officer
Anita M. Wray
-------------------------------------- Controller
Anita M. Wray
II-5
33<PAGE>
_________ SIGNATURE TITLE
David R. Banks
--------------------------------------
Director
David R. Banks
John H. Biggs
--------------------------------------
Director
John H. Biggs
Donald Danforth, Jr.
--------------------------------------
Director
Donald Danforth, Jr.
William H. Danforth
--------------------------------------
Director
William H. Danforth
David C. Farrell
--------------------------------------
Director
David C. Farrell
M. Darrell Ingram
--------------------------------------
Director
M. Darrell Ingram
John F. McDonnell
--------------------------------------
Director
John F. McDonnell
Katherine D. Ortega
--------------------------------------
Director
Katherine D. Ortega
William P. Stiritz
--------------------------------------
Director
William P. Stiritz
II-6
34<PAGE>
FORM OF
INDEX TO EXHIBITS
EXHIBIT
______ NUMBER EXHIBIT
1 Form of Underwriting Agreement General Terms and
Provisions
4(a) Form of Indenture
4(b) Form of Note*
4(c) Form of Debenture*
4(d) Form of Extendible Note*
4(e) Form of Warrant Agreement, including Form of
Warrant*
5 Opinion of James M. Neville, Vice President,
General Counsel and Secretary
12 Statement and Computation Showing the Ratio of
Earnings to Fixed Charges
24(a) Consent of Price Waterhouse LLP
24(b) Consent of James M. Neville, Vice President,
General Counsel and Secretary. See Exhibit 5 above.
25 Powers of Attorney (included on signature page on page
II-5)
26 Form T-1, Statement of Eligibility under the Trust
Indenture Act of 1939 of The First National Bank of
Chicago
_________________________
_____ _____ _____
*The form of security with respect to each particular offering of
securities registered hereunder, and the form of Warrant
Agreement, if any, will be filed as an exhibit to a Current
Report on Form 8-K of the Company and incorporated herein by
reference.
35<PAGE>
36<PAGE>
RALSTON PURINA COMPANY AND SUBSIDIARIES
STATEMENT AND COMPUTATION SHOWING THE RATIO
OF EARNINGS TO FIXED CHARGES
(dollars in millions)
ths Six Mon
Ended ---------------------------------------
--
March 31 Year ended September 30
---------------------------------------------
-----
1995(a)1994(b) 1993 1992(c) 1991(d)1990
-------- -------- ------ ------- -------- -
-----
Earnings Before
Extraordinary Item and
Cumulative Effect of
Accounting Changes $152.5 $218.4 $341.3 $320.7
$391.9 $396.3
Income Taxes 118.5 203.3 239.1 221.4
255.9 258.7
-------- ------- ------- ------- ------- ----
----
271.0 421.7 580.4 542.1
647.8 655.0
-------- ------- ------- ------- ------- ----
----
Fixed Charges
Preferred Stock
dividend, pre-tax 15.8 33.8 34.4 34.4
33.9 34.2
Interest incurred 96.9 223.0 241.3 246.9
217.8 213.0
Rentals 10.9 24.1 23.3 23.4
22.3 21.5
-------- ------- ------- -------
------- --------
Total fixed charges 123.6 280.9 299.0 304.7
274.3 268.4
-------- ------- ------- -------
------- --------
Less capitalized
interest and preferred
stock dividend (17.0) (36.4) (37.6) (38.4)
(43.3) (39.2)
-------- ------- ------- -------
------- --------
37<PAGE>
Earnings Before Income
Taxes, Extraordinary Item,
Cumulative Effect of
Accounting Changes and
Fixed Charges $377.6 $666.2 $841.8 $808.4 $878.8
$884.2
===== ===== ===== ===== ===== =====
Ratio of Earnings to
Fixed Charges (e)(f) 3.1 2.4 2.8
2.7 3.2 3.3
=== === === === ===
===
-------------------
(a) Excluding provisions for restructuring of the Company's
battery operations
in the six months ended March 31, 1995, earnings before
income taxes and
fixed charges were $412.6 and the ratio of earnings to fixed
charges
was 3.3.
(b) Excluding provisions for restructuring of the Company's
battery and bakery
operations in the year ended September 30, 1994, earnings
before income
taxes, extraordinary item and fixed charges were $766.1 and
the ratio of
earnings to fixed charges was 2.7.
(c) Excluding provisions for restructuring of the Company's
battery, agricultural
and bakery operations and gains on the sale of international
battery
products property in the year ended September 30, 1992,
earnings before
income taxes, extraordinary item and fixed charges were
$845.9 and the
ratio of earnings to fixed charges was 2.8.
(d) Excluding provisions for restructuring of the Company's
battery, bakery and
grocery products operations, and certain environmental
costs, in the year
ended September 30, 1991, earnings before income taxes and
fixed charges
were $924.7 million and the ratio of earnings to fixed
charges was 3.4.
(e) On April 12, 1995, the Company and Interstate Bakeries
Corporation (Interstate)
jointly announced the signing of a definitive sales
agreement for Interstate to acquire
38<PAGE>
Continental Baking Company (CBC), a wholly-owned subsidiary
of the Company.
The earnings and fixed charges of CBC are included in the
above ratios.
(f) For the purpose of this ratio, "Earnings" consists of
earnings before
income taxes, extraordinary items (which have occurred in
fiscal years 1992, 1993,
1994), cumulative effect of accounting changes (1993) and
"fixed charges". "Fixed
charges" consist of preferred stock dividends, interest and
amortization of debt
discount and expense on all indebtedness and a portion of net
rental expense
representative of the interest factor.
39<PAGE>
Exhibit 1
Ralston Purina Company
Debt Securities and Warrants to Purchase Debt Securities
UNDERWRITING AGREEMENT GENERAL TERMS AND PROVISIONS
1. Introductory. Ralston Purina Company, a Missouri
corporation ("Company"), proposes to issue and sell from time to
time, either jointly or separately, certain of its debt
securities ("Debt Securities") and warrants to purchase Debt
Securities ("Warrants") registered under the registration
statement referred to in Section 2(a). The Debt Securities will
be issued under an indenture, dated as of May 26, 1995,
("Indenture"), between the Company and The First National Bank of
Chicago, as Trustee, in one or more series, which series may vary
as to interest rates, maturities, redemption provisions, selling
prices and other terms, with all such terms for any particular
series of the Debt Securities being determined at the time of
sale. The Warrants will be to purchase Debt Securities issued
under the Indenture, in one or more series, which series may vary
as to duration, exercise prices, detachability, selling prices
and other terms, with all such terms for any particular series of
the Warrants being determined at the time of sale. Particular
series of the Debt Securities and Warrants will be sold, pursuant
to a Terms Agreement referred to in Section 3, for resale in
accordance with terms of offering determined at the time of sale.
The Debt Securities and Warrants involved in any such
offering, whether sold independently of each other or
collectively, are hereinafter referred to as the "Securities".
The firm or firms which agree to purchase the Securities are
hereinafter referred to as the "Underwriters" of such Securities,
and the representative or representatives of the Underwriters, if
any, specified in a Terms Agreement referred to in Section 3 are
hereinafter referred to as the "Representatives"; provided,
however, that if the Terms Agreement does not specify any
representative of the Underwriters, the term "Representatives",
as used in this Agreement (other than in Sections 2(b), 5(c) and
6 and the second sentence of Section 3), shall mean the
Underwriters.
2. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, each
Underwriter that:
(a) A registration statement on Form S-3 (File No. 33-
______), and any amendments thereto, with respect to the
Securities have (i) been prepared by the Company in
conformity with the requirements of the Securities Act of
1933 (the "Securities Act") and the rules and regulations
40<PAGE>
(the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, (ii)
been filed with the Commission under the Securities Act,
and (iii) become effective under the Securities Act. The
Indenture pursuant to which the Securities will be issued
has been qualified under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"). Copies of such
registration statement and any amendments thereto have been
delivered by the Company to the Representatives. As used
in this Agreement, "Registration Statement" means such
registration statement when it became effective under the
Securities Act, and as from time to time amended or
supplemented thereafter at the time of effectiveness of
such amendment or filing of such supplement with the
Commission (including all documents incorporated therein by
reference); "Basic Prospectus" means the prospectus
(including all documents incorporated therein by reference)
included in the Registration Statement; and "Prospectus"
means the Basic Prospectus, together with any amendment or
supplements thereto, as first filed with the Commission
pursuant to paragraph (2) or (5) of Rule 424(b) of the
Rules and Regulations. The Commission has not issued any
order preventing or suspending the use of the Basic
Prospectus or any Prospectus.
(b) The Registration Statement and any amendment thereto,
as of their respective effective dates, and the Prospectus,
as of its issue date, complied as to form in all material
respects with the requirements of the Securities Act and
the Trust Indenture Act and the applicable rules and
regulations of the Commission thereunder; and the
Registration Statement and any amendment thereto, as of
their respective effective dates (and, if an Annual Report
on Form 10-K of the Company has been filed subsequent to
the effective date of the Registration Statement, as of the
date of filing of the most recent such Annual Report on
Form 10-K), did not contain or will not contain, as the
case may be, an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading, and the Prospectus does not and will not as of
the Closing Date (as hereinafter defined) contain an untrue
statement of material fact or omit to state a material fact
necessary in order to make the statements therein, in light
of the circumstances under which they were made, not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of
the Securities through the Representatives expressly for
use in the Prospectus or as to any statement in or
omissions from the statement of eligibility and
qualifications on Form T-1 of the Trustee under the Trust
Indenture Act.
41<PAGE>
(c) The documents, if any, incorporated by reference in
the Prospectus, when they were filed with the Commission,
complied as to form in all material respects with the
requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the applicable rules and
regulations of the Commission thereunder, and none of such
documents, as of their respective filing dates, contained
an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary
to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in
the Prospectus when such documents are filed with the
Commission, as the case may be, will comply as to form in
all material respects with the requirements of the Exchange
Act and the applicable rules and regulations of the
Commission thereunder, and will not as of their respective
filing dates, 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; provided, however, that this representation and
warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of
the Securities through the Representatives expressly for
use in the Prospectus.
3. Purchase and Offering of Securities. The obligation of
the Underwriters to purchase the Securities will be evidenced by
an exchange of telegraphic or other written communications
("Terms Agreement") at the time the Company determines to sell
the Securities. Each Terms Agreement will incorporate by
reference the provisions of this Agreement, except as otherwise
provided therein, and will specify the firm or firms which will
be Underwriters, the names of any Representatives, the principal
amount to be purchased by each Underwriter, the public offering
price, the purchase price to be paid by the Underwriters and the
terms of the Securities not already specified in the Indenture,
including, but not limited to, interest rate, maturity,
denominations designations, any redemption provisions and any
sinking fund requirements and whether any of the Securities may
be sold to institutional investors pursuant to Delayed Delivery
Contracts (as defined below). Each Terms Agreement will also
specify the time and date of delivery and payment (such time and
date, or such other time not later than seven full business days
thereafter as the Representatives and the Company agree as the
time for payment and delivery, being herein and in each Terms
Agreement referred to as the "Closing Date"), the place of
delivery and payment and any details of the terms of offering
that should be reflected in the prospectus supplement relating to
the offering of the Securities. The obligations of the
Underwriters to purchase the Securities will be several and not
joint. It is understood that the Underwriters propose to offer
the Securities for sale as set forth in the Prospectus. Time
42<PAGE>
shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of
the obligation of each Underwriter hereunder. The Securities
delivered to the Underwriters on the Closing Date will be in
definitive, fully registered form, and may be issued pursuant to
the Book-Entry System described in the Prospectus, in such
denominations and registered in such names as the Underwriters
may request, against payment by such Underwriters of the purchase
price therefore by such means and in such funds as specified in
the Terms Agreement If a Terms Agreement provides for sales
of Securities pursuant to delayed delivery contracts, the Company
authorizes the Underwriters to solicit offers to purchase
Securities pursuant to delayed delivery contracts substantially
in the form of Annex I attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may
authorize or approve. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks,
insurance companies, pension funds, investment companies and
educational and charitable institutions. On the Closing Date,
the Company will pay, as compensation, to the Representatives for
the accounts of the Underwriters, the fee set forth in such Terms
Agreement in respect of the principal amount of Securities to be
sold pursuant to Delayed Delivery Contracts ("Contract
Securities"). The Underwriters will not have any responsibility
in respect of the validity or the performance of Delayed Delivery
Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities will be deducted from the
Securities to be purchased by the several Underwriters and the
aggregate principal amount of Securities to be purchased by each
Underwriter will be reduced pro rata in proportion to the
principal amount of Securities set forth opposite each
Underwriter's name in such Terms Agreement, except to the extent
that the Representatives determine that such reduction shall be
otherwise than pro rata and so advise the Company. The Company
will advise the Representatives not later than the business day
prior to the Closing Date of the principal amount of Contract
Securities.
4. Certain Agreements of the Company. The Company agrees
with the Several Underwriters that it will furnish to counsel for
the Underwriters one signed copy of the registration statement
relating to the Debt Securities and Warrants, including all
exhibits, in the form it became effective and of all amendments
thereto and that, in connection with each offering of Securities:
(a) The Company will advise the Representatives promptly
of any proposal to amend or supplement the Registration
Statement or the Prospectus and will afford the
Representatives a reasonable opportunity to comment on any
such proposed amendment or supplement; and will obtain the
prior consent of the Underwriter to the filing, which
consent shall not be unreasonably withheld or delayed; and
the Company will also advise the Representatives promptly
of the filing of any such amendment or supplement and of
43<PAGE>
the institution by the Commission of any stop order
proceedings in respect of the Registration Statement or of
any part thereof and will use its best efforts to prevent
the issuance of any such stop order and to obtain as soon
as possible its lifting, if issued.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any
event occurs as a result of which the Prospectus as then
amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Company promptly
will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or
an amendment which will effect such compliance.
(c) As soon as practicable, but not later than 16 months,
after the date of each Terms Agreement, the Company will
make generally available to its securityholders an earnings
statement covering a period of at least 12 months beginning
after the later of (i) the effective date of the
registration statement relating to the Debt Securities and
Warrants, (ii) the effective date of the most recent post-
effective amendment to the Registration Statement to become
effective prior to the date of such Terms Agreement and
(iii) the date of the Company's most recent Annual Report
on Form 10-K filed with the Commission prior to the date of
such Terms Agreement, which will satisfy the provisions of
Section 11(a) of the Act.
(d) The Company will furnish to the Representatives copies
of the Registration Statement, including all exhibits, any
related preliminary prospectus, any related preliminary
prospectus supplement, the Prospectus and all amendments
and supplements to such documents, in each case as soon as
available and in such quantities as are reasonably
requested.
(e) The Company will arrange for the qualification of the
Securities for sale and the determination of their
eligibility for investment under the laws of such
jurisdictions as the Representatives designate and will
continue such qualifications in effect so long as required
for the distribution.
(f) During the period of five years after the date of any
Terms Agreement, the Company will furnish to the
Representatives and, upon request, to each of the other
Underwriters, if any, as soon as practicable after the end
of each fiscal year, a copy of its annual report to
stockholders for such year, and the Company will furnish to
44<PAGE>
the Representatives (i) as soon as available, a copy of
each report or definitive proxy statement of the Company
filed with the Commission under the Securities Exchange Act
of 1934 or mailed to stockholders, and (ii) from time to
time, such other publicly available information concerning
the Company as the Representatives may reasonably request.
(g) Expenses. The Company agrees to pay (i) the costs
incident to the authorization, issuance, sale and delivery
of the Securities and any taxes payable in that connection;
(ii) the costs incident to the preparation, printing and
filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto; (iii)
the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-
effective amendments thereto (including, in each case,
exhibits), the Prospectus and any amendment or supplement
to the Prospectus, all as provided in this Agreement; (iv)
the costs of reproducing and distributing this Agreement;
(v) the costs of distributing the underwriting
documentation in connection with the organization of the
underwriting syndicate and selling group to the members
thereof by mail, telex or other means of communication;
(vi) the fees and expenses of filings, if any, with foreign
securities administrators and of qualifying the Debt
Securities and Warrants under the securities laws of the
several jurisdictions as provided in Section 4(e) and of
preparing, printing and distributing a Blue Sky memorandum
(including related fees and expenses of counsel to the
Underwriters); (vii) the cost of printing the Debt
Securities and the Warrants; (viii) the fees and expenses
of the Trustee and any agent of the Trustee and the fees
and disbursements of any counsel for the Trustee in
connection with the Indenture and the Debt Securities; (ix)
the fees and expenses of the Warrant Agent and any agent of
the Warrant Agent and the fees and disbursements of any
counsel for the Warrant Agent in connection with the
Warrant Agreement and the Warrants; (x) the fees paid to
rating agencies in connection with the rating of the
Securities; (xi) any costs and expenses of the depositary
with respect to the Securities and its nominee, including
its book-entry system; and (xii) all other costs and
expenses incident to the performance of the obligations of
the Company under this Agreement; provided that except as
provided in this Section 4(g) and in Section 8, the
Underwriters shall pay their own costs and expenses,
including the costs and expenses of their counsel, any
transfer taxes on the Debt Securities and the Warrants
which they may sell and the expenses of advertising any
offering of the Debt Securities and the Warrants made by
the Underwriters, and the Company shall pay the fees and
expenses of its counsel and any transfer taxes payable in
connection with its sale of Debt Securities and the
Warrants to the Underwriters.
45<PAGE>
(h) For a period beginning at the time of execution of a
Terms Agreement and ending 30 days after the Closing Date
relating to such Terms Agreement, without the prior consent
of the Representatives, the Company will not offer, sell,
contract to sell or otherwise dispose of any United States
dollar denominated, foreign currency denominated or ECU
debt securities issued or guaranteed by the Company and
having a maturity of more than one year from the date of
issue or warrants to purchase such debt securities.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for
the Securities will be subject to the accuracy of the
representations and warranties on the part of the Company herein,
to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following
additional conditions precedent:
(a) On the Closing Date, you shall have received a letter,
satisfactory in form and substance to you and your counsel,
dated the Closing Date and addressed to you, of Price
Waterhouse LLP, independent certified public accountants
for the Company, containing statements and information of
the type ordinarily included in accountants' comfort
letters with respect to the financial statements and
certain financial information contained in the Registration
Statement.
(b) No stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been
issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or any
Underwriter, shall be contemplated by the Commission.
(c) Neither the Company nor any of its subsidiaries shall
have sustained, since the date of the latest audited
financial statements included in the Prospectus, any (i)
loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus as of the date
thereof or (ii) since such date there shall not have been
any change in the capital stock or long-term debt of the
Company or any of its subsidiaries (otherwise than as set
forth or contemplated in the Prospectus) or any change in
or affecting, or any adverse development which affects, the
business, properties, financial position, stockholders'
equity or results of operations of the Company and its
subsidiaries as a whole, otherwise than as set forth or
contemplated in the Prospectus as of the date thereof, the
effect of which, in any such case described in clause (i)
46<PAGE>
or (ii), is, in the reasonable judgment of the
Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities being delivered
on the Closing Date on the terms and in the manner
contemplated herein or in the Prospectus.
(d) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the
following: (i) trading in securities generally on the New
York Stock Exchange, Inc. (the "NYSE"), the American Stock
Exchange or the over-the-counter market shall have been
suspended or minimum prices shall have been established on
either of such exchanges or such market by the Commission,
by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become
engaged in hostilities, there shall have been an escalation
in hostilities involving the United States or there shall
have been a declaration of a national emergency or war by
the United States or (iv) there shall have occurred such a
material adverse change in general economic, political or
financial conditions (or the effect of international
conditions on the financial markets in the United States
shall be such) as to make it in each such case, in the
judgment of a majority in interest of the several
Underwriters, impracticable or inadvisable to proceed with
the delivery of the Securities on the terms and in the
manner contemplated in the Prospectus.
(e) Subsequent to the execution and delivery of this
Agreement, (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities by a
nationally recognized statistical rating organization, as
that term is defined by the Commission for purposes of Rule
436(g) (2) of the Rules and Regulations, and (ii) no such
organization shall have publicly announced that it has
under surveillance or review, with possible negative
implications, its rating of any of the Company's debt
securities.
(f) The Representatives shall have received an opinion,
dated the Closing Date, of James M. Neville, Vice President
and General Counsel of the Company, to the effect that:
(i) Each of the Company, and Eveready Battery Company,
Inc., Continental Baking Company, VCS Holding Company,
Ralston Purina Overseas Battery Company and Protein
Technologies International, Inc. (together the
"Significant Subsidiaries"), has been duly incorporated
and is an existing corporation in good standing under
the laws of the jurisdiction of its incorporation, with
corporate power and authority to own its properties and
47<PAGE>
conduct its business as described in the Prospectus;
and each of the Company and the Significant
Subsidiaries is duly qualified to do business as a
foreign corporation in good standing in all other
jurisdictions in which it owns or leases substantial
properties or in which the conduct of its business
requires such qualification, except where the failure
to be so qualified or in good standing would not have a
material adverse effect on the Company;
(ii) The Indenture and the Warrant Agreement, if
applicable, have been duly authorized, executed and
delivered by the Company and the Indenture has been
duly qualified under the Trust Indenture Act; the
Securities have been duly authorized; the Securities
other than any Contract Securities have been duly
executed, authenticated, issued and delivered; the
Indenture and the Warrant Agreement, if applicable, and
the Securities other than any Contract Securities
constitute, and any Contract Securities, when executed,
authenticated, issued and delivered in the manner
provided in the Indenture and the Warrant Agreement, if
applicable, and sold pursuant to Delayed Delivery
Contracts, will constitute, valid and legally binding
obligations of the Company, enforceable in accordance
with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other
similar laws of general applicability relating to or
affecting creditors' rights and to general equity
principles; and the Indenture and the Warrant
Agreement, if applicable, and the Securities other than
any Contract Securities conform, and any Contract
Securities, when so issued and delivered and sold, will
conform, to the descriptions thereof contained in the
Prospectus;
(iii) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any
court is required for the consummation of the
transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in
connection with the issuance or sale of the Securities
by the Company, except such as have been obtained and
made under the Act and the Trust Indenture Act and such
as may be required under state securities laws;
(iv) The Company has an authorized capitalization as
set forth in the Prospectus and all of the issued
shares of capital stock of the Company and each
Significant Subsidiary have been duly and validly
authorized and issued and are fully paid and non-
assessable; all of the capital stock of each
Significant Subsidiary is owned directly or indirectly
by the Company, and, to the best knowledge of such
48<PAGE>
counsel, such capital stock is free and clear of any
mortgage, pledge, lien, encumbrance, claim or equity;
(v) The execution, delivery and performance of the
Indenture, the Warrant Agreement (if applicable), the
Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts and the
issuance and sale of the Securities and compliance with
the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions
of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or
body or any court having jurisdiction over the Company
or any subsidiary of the Company or any of their
properties or any agreement or instrument to which the
Company or any Significant Subsidiary is a party or by
which the Company or any Significant Subsidiary is
bound or to which any of the properties of the Company
or any Significant Subsidiary is subject, or the
charter or bylaws of the Company or any subsidiary of
the Company, and the Company has full power and
authority to authorize, issue and sell the Securities
as contemplated by the Terms Agreement (including the
provisions of this Agreement);
(vi) The Registration Statement has become effective
under the Act, and, to the best of the knowledge of
such counsel, no stop order suspending the
effectiveness of the Registration Statement or of any
part thereof has been issued and no proceedings for
that purpose have been instituted or are pending or
contemplated under the Act, and the registration
statement relating to the Debt Securities and Warrants,
as of its effective date, the Registration Statement
and the Prospectus, as of the date of the Terms
Agreement, and any amendment or supplement thereto, as
of its date, complied as to form in all material
respects with the requirements of the Act, the Trust
Indenture Act and the rules and regulations thereunder;
and all documents incorporated by reference therein
complied as to form when filed in all material respects
with the requirements of the Exchange Act and the
applicable rules and regulations; such counsel has no
reason to believe that (a) the Registration Statement
as of its effective date (or, if an Annual Report on
Form 10-K of the Company has been filed subsequent to
its effective date, as of the date of filing of the
most recent such Annual Report), contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, or that (b) the Prospectus as of its date
and as of the Closing Date, including any amendments or
supplements to the Prospectus (other than the financial
49<PAGE>
statements and related schedules therein, as to which
such counsel need express no opinion) contained or
contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to
make the statements therein, in light of the
circumstances in which they were made, not misleading;
and such counsel does not know of any legal or
governmental proceedings required to be described in
the Prospectus which are not described as required or
of any contracts or documents of a character required
to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the
Registration Statement which are not described and
filed as required; it being understood that such
counsel need express no opinion as to the financial
statements or other financial data contained in the
Registration Statement or the Prospectus; and
(vii) The Terms Agreement (including the provisions of
this Agreement) and any Delayed Delivery Contracts have
been duly authorized, executed and delivered by the
Company.
(g) The Representatives shall have received from counsel
for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the
Company, the validity of the Securities, the Registration
Statement, the Prospectus and other related matters as they
may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of
enabling them to pass upon such matters. In rendering such
opinion, counsel for the Underwriters may rely as to the
incorporation of the Company and all other matters governed
by Missouri law upon the opinion of James M. Neville
referred to above.
(h) The Representatives shall have received a certificate,
dated the Closing Date, of the President or any Vice
President and a principal financial or accounting officer
of the company in which such officers, to the best of their
knowledge after reasonable investigation, shall state that
the representations and warranties of the Company in this
Agreement are true and correct, that the Company has
complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or
prior to the Closing Date, that no stop order suspending
the effectiveness of the Registration Statement or of any
part thereof has been issued and no proceedings for that
purpose have been instituted or are contemplated by the
Commission and that, subsequent to the date of the most
recent financial statements in the Prospectus, there has
been no material adverse change in the financial position
or results of operations of the Company and its
50<PAGE>
subsidiaries except as set forth in or contemplated by the
Prospectus or as described in such certificate.
6. Indemnification and Contribution. (a) The Company
will indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or
several, or any action in respect thereof to which such
Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission
or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance
upon and in conformity with written information furnished
to the Company by any Underwriter through the
Representatives, if any, specifically for use therein.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company against any losses,
claims, damages or liabilities or any action in respect
thereof to which the Company may become subject, under the
Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus
or preliminary prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in
conformity with written information furnished to the
Company by such Underwriter through the Representatives, if
any, specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company
in connection with investigating or defending any such
51<PAGE>
loss, claim, damage, liability or action as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under
this Section 6 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party
of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any
liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case
any such action is brought against any indemnified party
and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however ,
that any indemnified party shall have the right to employ
separate counsel in any such action and to participate in
the defense thereof but the fees and expenses of such
counsel shall be at the expense of such indemnified party
unless (i) the employment thereof has been specifically
authorized by the indemnifying party in writing, (ii) such
indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to
it which are different from or additional to those
available to the indemnifying party and in the reasonable
judgment of such counsel it is advisable for such
indemnified party to employ separate counsel or (iii) the
indemnifying party has failed to assume the defense of such
action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party
notifies the indemnifying party in writing that it elects
to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have
the right to assume the defense of such action on behalf of
such indemnified party, it being understood, however, that
the indemnifying party shall not, in connection with any
one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate
firm or attorneys at any time for all such indemnified
parties, which firm shall be designated in writing by the
Representatives, if the indemnified parties under this
Section 6 consist of any Underwriter or any of their
respective controlling persons, or by the Company, if the
indemnified parties under this Section 6 consist of the
Company or any of the Company's directors, officer or
controlling persons.
52<PAGE>
(d) If the indemnification provided for in this Section 6
is unavailable or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above, then
each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law or if the indemnified party failed to give
the notice required under subsection (c) above, 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 Company on the one hand and the
Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages
or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters.
The relative fault 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 the Underwriters and the
parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement
or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant
to this subsection (d) was determined by pro rata
allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of
allocation which does not take account of the equitable
considerations referred to above in subsection (d). The
amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the
first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or
defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and
distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
53<PAGE>
(within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are
several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section
shall be in addition to any liability which the Company may
otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section shall be
in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each director of the Company,
to each officer of the Company who has signed the
Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase Securities
under a Terms Agreement and the aggregate principal amount of the
Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total
principal amount of the Securities, the Representatives may make
arrangements satisfactory to the Company for the purchase of such
Securities by other persons, including any of the Underwriters,
but if no such arrangements are made by the Closing Date, the
non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments under this Agreement
and such Terms Agreement, to purchase the Securities that such
defaulting Underwriters agreed but failed to purchase. If any
Underwriter or Underwriters so default and the aggregate
principal amount of the Securities with respect to which such
default or defaults occur exceeds 10% of the total principal
amount of the Securities and arrangements satisfactory to the
Representatives and the Company for the purchase of such
Securities by other persons are not made after such default, such
Terms Agreement will terminate without liability on the part of
any non-defaulting Underwriter or the Company, except as provided
in Section 8. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter
from liability for its default. The respective commitments of the
several Underwriters for the purposes of this Section shall be
determined without regard to reduction in the respective
Underwriters' obligations to purchase the principal amounts of
the Securities set forth opposite their names in a Terms
Agreement as a result of Delayed Delivery Contracts entered into
by the Company relating to such Securities.
54<PAGE>
The foregoing obligations and agreements set forth in this
Section will not apply if a Terms Agreement specified that such
obligations and agreements will not apply.
8. Survival of Certain Representations and Obligations .
The respective indemnities, agreements, representations,
warranties and other statements of the Company or its officers
and of the several Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless
of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company or any of
their respect representatives, officers or directors or any
controlling person and will survive delivery of and payment for
the Securities. If the obligations of the Underwriters with
respect to any offering of Securities are terminated pursuant to
Section 7 or if for any reason the purchase of the Securities by
the Underwriters under a Terms Agreement is not consummated, the
Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 4 and the respective
obligations of the Company and the Underwriters pursuant to
Section 6 shall remain in effect. If the Company shall fail to
tender the Securities for delivery to the Underwriters for any
reason permitted under this Agreement or the Underwriters shall
decline to purchase the Securities for any reason permitted under
this Agreement (including the termination under this Agreement),
the Company shall reimburse the Underwriters, severally, for all
out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the
offering of the Securities. If this Agreement is terminated
pursuant to Section 7 by reason of default of one or more
Underwriters, the Company shall not be obligated to reimburse any
defaulting Underwriter on account of those expenses.
9. Notices. All communications hereunder will be in
writing and, if sent to the Underwriters, will be mailed,
delivered or telegraphed and confirmed to them at their addresses
furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at
Checkerboard Square, St. Louis, Missouri 63164, Attention: James
R. Elsesser.
10. Successors. This Agreement will inure to the benefit
of and be binding upon the Company and such Underwriters as are
identified in Terms Agreements and their respective successors
and the officers and directors and controlling persons referred
to in Section 6, and no other person will have any right or
obligation hereunder.
11. Governing Law. This Agreement and each Terms Agreement
shall be governed by, and construed in accordance with, the laws
of the State of New York.
55<PAGE>
12. Counterparts. The Terms Agreement may be executed in
one or more counterparts and, if executed in more than one
counterpart, the executed counterparts shall each be deemed to be
an original but all such counterparts shall together constitute
one and the same instrument.
13. Headings. The headings are inserted for convenience of
reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
56<PAGE>
ANNEX I
(Three copies of this Delayed Delivery Contract should be
signed and returned to the address shown below so as
to arrive not later than 9:00 A.M., New York
time, on ___________ __, 199_*)
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering]
RALSTON PURINA COMPANY
Attention:
Gentlemen:
The undersigned hereby agrees to purchase from Ralston
Purina Company, a Missouri corporation ("Company"), and the
Company agrees to sell to the undersigned, [If one delayed
closing, insert --- as of the date hereof, for delivery on
_______________ ___, 19__ ("Delivery Date"),]
$___________________
principal amount of the Company's [Insert title of securities]
("Securities"), offered by the Company's Prospectus dated
________ ___, 199__ and a Prospectus Supplement dated ________ __
199__ relating thereto, receipt of copies of which is hereby
acknowledged, at ____% of the principal amount thereof plus
accrued interest, if any, and on the further terms and conditions
set forth in this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the
date hereof, for delivery on the dates set forth below,
Securities in the principal amounts set forth below:
Delivery Date Principal Amount
______________________ ____________________________
______________________ ____________________________
Each of such delivery dates is hereinafter referred to as a
"Delivery Date".]<PAGE>
Payment for the Securities that the undersigned has agreed
to purchase for delivery on --- the --- each --- Delivery Date
shall be made to the Company or its order by certified or
official bank _________________
* Insert date which is third full business day prior to Closing
Date under the Terms Agreement.<PAGE>
check in New York Clearing House (next day) funds at the office
of ________________________ at _M. on -- the --- such ---
Delivery Date upon delivery to the undersigned of the Securities
to be purchased by the undersigned --- for delivery on such
Delivery Date --- in definitive fully registered form and in such
denominations and registered in such names as the undersigned may
designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to ---
the --- such --- Delivery Date.
It is expressly agreed that the provisions for delayed
delivery and payment are for the sole convenience of the
undersigned; that the purchase hereunder of Securities is to be
regarded in all respects as a purchase as of the date of this
Contract; that the obligation of the Company to make delivery of
and accept payment for, and the obligation of the undersigned to
take delivery of and make payment for, Securities on --- the ---
each --- Delivery Date shall be subject only to the conditions
that (1) investment in the Securities shall not at --- the ---
such --- Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is
subject and (2) the Company shall have sold to the Underwriters
the total principal amount of the Securities less the principal
amount thereof covered by this and other similar Contracts. The
undersigned represents that its investment in the Securities is
not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which
governs such investment.
Promptly after completion of the sale to the Underwriters
the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a
copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding
upon the parties hereto and their respective successors, but will
not be assignable by either party hereto without the written
consent of the other.
It is understood that the acceptance of any such Contract is
in the Company's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis. If
this Contract is acceptable to the Company, it is requested that
the Company sign the form of acceptance below and mail or deliver
one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the
Company and the undersigned when such counterpart is so mailed or
delivered.
Yours very truly,
_______________________________
(Name of
Purchaser)<PAGE>
By ____________________________
_______________________________
(Title of
Signatory)
_______________________________
_______________________________
(Address of Purchaser)
Accepted, as of the above date.
RALSTON PURINA COMPANY
By _____________________________________
[Insert Title]
I-2<PAGE>
Exhibit 4(a)
UUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUU
_________________________________________________________________________
_____
RALSTON PURINA COMPANY
Issuer
AND
THE FIRST NATIONAL
BANK OF CHICAGO
Trustee
___________________
INDENTURE
Dated as of ____________, 1995
__________________
UUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUU<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of May 26, 1995
Trust Indenture Act Section Indenture
Section
S 310 (a)(1) . . . . . . . . . . . . . . . . . . . .
. . . . . . . . 6.9
(a)(2) . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 6.9
(a)(3) . . . . . . . . . . . . . . . . . . . . . . .
. . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . .
. . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 6.9
. . . . . . . . . . . . . (b)
. . . . . . . . . . . .
. . . 6.8,6.10
. . . . . . . . . . . . . . . . . . . . . . . . .
(c)
. . . Not Applicable
S 311 (a) . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 6.13
. . . . . . . . . . . . . . . . . . . . . . . . .
(b)
. . . 6.13
. . . . . . . . . . . . . . . . . . . . . . . . .
(c)
. . . Not Applicable
S 312 (a) . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 4.1, 4.4(a)
. . . . . . . . . . . . . . . . . . . . . . . . .
(b)
. . . 4.4(b)
. . . . . . . . . . . . .
(c) . . . . . . . . . . . .
. . . 4.4(c)
S 313 (a) . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 4.3
. . . . . . . . . . . . . . . . . . . . . . . . .
(b)
. . . 4.3
. . . . . . . . . . . . . . . . . . . . . . . . .
(c)
. . . 4.3
. . . . . . . . . . . . . . . . . . . . . . . . .
(d)
. . . 4.3
S 314 (a) . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 4.2,3.5
(b) . . . . . . . . . . . . . . . . . . . . . . . . .
. . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 11.5
(c)(2) . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 11.5
(c)(3) . . . . . . . . . . . . . . . . . . . . . . .
. . . . . Not Applicable
. . . . . . . . . . . . . . . . . . . . . . . . .
(d)
. . . Not Applicable
1<PAGE>
(e) . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 11.5
S 315 (a) . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 6.1
. . . . . . . . . . . . . . . . . . . . . . . . .
(b)
. . . 5.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 1 6.
(d)(1) . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 6.1(a)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 6.1(b)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 6.1(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 5.12
S 316 (a)(1)(A). . . . . . . . . . . . . . . . . . . . .
. . . . . . 5.9
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . .
. . . . 5.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . .
. . . . . Not Applicable
. . . . . . . . . . . . . . . . . . . . . . . . .
(b)
. . . 5.9
. . . . . . . . . . . . . . . . . . . . . . . . .
(c)
. . . Not Applicable
S 317 (a)(1) . . . . . . . . . . . . . . . . . . . .
. . . . . . . . 5.2
(a)(2) . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 5.2(a)
. . . . . . . . . . . . . . . . . . . . . . . . .
(b)
. . . 10.2
S 318 . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . 11.7
_____________________
Note: This reconciliation and tie shall not, for any
purpose, be deemed to be
a part of the Indenture.
TABLE OF CONTENTS
---------------
___ PAGE
PARTIES 1
RECITALS 1
Authorization of Indenture
1
2<PAGE>
Compliance with Legal Requirements 1
Purpose of and Consideration for Indenture
1
ARTICLE ONE
DEFINITIONS
Section 1.1 Certain Terms Defined
1
Authenticating Agent 1
Board of Directors 1
Business Day 2
Code 2
Commission 2
Component Currency 2
Conversion Date 2
Corporate Trust Office 2
Coupon 2
Coupon Security 2
Depositary 2
Discount Security 2
Dollar 2
Dollar Equivalent of the ECU 2
Dollar Equivalent of the Foreign Currency
2
Domestic Subsidiary 2
ECU 3
European Communities 3
3<PAGE>
PAGE
European Monetary System 3
Events of Default 3
Exchange Rate Officer's Certificate
3
Foreign Currency 3
Fully Registered Security
3
GAAP 3
Global Security 3
Holder, Holder of Securities, Securityholder
3
Indenture 3
Issuer 3
Market Exchange Rate 3
Officers' Certificate
3
Official ECU Exchange Rate
3
Opinion of Counsel 4
Original issue date 4
Outstanding 4
Paying Agent 4
Person 4
Place of Payment 4
4<PAGE>
Principal 5
Principal Property 5
Registered Holder 5
Registered Security 5
Responsible Officer 5
Security, Securities
5
Specified Amount 5
Subsidiary 5
Trustee 5
Trust Indenture Act 5
United States of America 5
Unregistered Security 5
Valuation Date 5
vice president 5
ARTICLE TWO
SECURITIES
PAGE
Section 2.1 Forms Generally
6
Section 2.2 Form of Trustee's Certificate of Authentication
6
Section 2.3 Amount Unlimited; Issuable in Series
7
Section 2.4 Authentication and Delivery of Securities
9
5<PAGE>
Section 2.5 Execution of Securities
10
Section 2.6 Certificate of Authentication
10
Section 2.7 Denomination and Date of Securities; Payments of
Interest 10
Section 2.8 Registration, Transfer and Exchange
12
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities 14
Section 2.10 Cancellation of Securities; Destruction Thereof
15
Section 2.11 Temporary Securities
15
Section 2.12 Currency and Manner of Payments in Respect of
Securities 15
Section 2.13 Compliance with Certain Laws and Regulations
18
Section 2.14 Securities Issuable in the Form of a Global
Security 18
Section 2.15 Appointment of Agents with Respect to Certain
Calculations 20
ARTICLE THREE
COVENANTS OF THE ISSUER
Section 3.1 Payment of Principal and Interest
20
6<PAGE>
Section 3.2 Offices for Payments, etc.
21
Section 3.3 Appointment to Fill a Vacancy in Office of Trustee
21
Section 3.4 Paying Agents 21
Section 3.5 Written Statement to Trustee
22
Section 3.6 Limitation on Liens
22
Section 3.7 Limitation on Sale and Lease-Back
24
Section 3.8 Additional Amounts
24
Section 3.9 Waiver of Certain Covenants
25
7<PAGE>
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
PAGE
Section 4.1 Securityholders Lists
26
Section 4.2 Reports by the Issuer
26
Section 4.3 Reports by the Trustee
26
Section 4.4 Preservation of Information; Communication to
Holders 26
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default
28
Section 5.2 Collection of Indebtedness by Trustee;
Trustee May Prove Debt 29
Section 5.3 Application of Proceeds
31
Section 5.4 Suits for Enforcement
32
8<PAGE>
Section 5.5 Restoration of Rights on Abandonment of
Proceedings 32
Section 5.6 Limitations on Suits by Securityholders
32
Section 5.7 Unconditional Right of Securityholders to
Institute Certain Suits 33
Section 5.8 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default
33
Section 5.9 Control by Securityholders
33
Section 5.10 Waiver of Past Defaults
34
Section 5.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances
34
Section 5.12 Right of Court to Require Filing of Undertaking
to Pay Costs 34
9<PAGE>
ARTICLE SIX
CONCERNING THE TRUSTEE
PAGE
Section 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default
35
Section 6.2 Certain Rights of the Trustee
36
Section 6.3 Trustee Not Responsible for Recitals, Disposition
of
Securities or Application of Proceeds Thereof
37
Section 6.4 Trustee and Agents May Hold Securities;
Collections, etc. 37
Section 6.5 Moneys Held by Trustee
37
Section 6.6 Compensation and Indemnification of Trustee and
Its
Prior Claim 37
Section 6.7 Right of Trustee to Rely on Officers' Certificate,
etc. 38
Section 6.8 Disqualification; Conflicting Interests
38
Section 6.9 Persons Eligible for Appointment as Trustee
38
10<PAGE>
Section 6.10 Resignation and Removal; Appointment of Successor
Trustee 38
Section 6.11 Acceptance of Appointment by Successor Trustee
39
Section 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee 40
Section 6.13 Preferential Collection of Claims Against Issuer
40
Section 6.14 Appointment of Authenticating Agent
40
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS;
SECURITYHOLDERS' MEETINGS
Section 7.1 Evidence of Action Taken by Securityholders
41
Section 7.2 Proof of Execution of Instruments and of Holding
of Securities 42
Section 7.3 Holders to be Treated as Owners
42
Section 7.4 Securities Owned by Issuer Deemed Not Outstanding
42
Section 7.5 Right of Revocation of Action Taken
43
Section 7.6 Holders' Meetings
43
11<PAGE>
Section 7.7 Qualifications for Voting
44
PAGE
Section 7.8 Regulations
44
Section 7.9 Voting
44
Section 7.10 No Delay of Rights by Meeting
45
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of
Securityholders 45
Section 8.2 Supplemental Indentures With Consent of
Securityholders 46
Section 8.3 Effect of Supplemental Indenture
47
Section 8.4 Documents to Be Given to Trustee
47
Section 8.5 Notation on Securities in Respect of Supplemental
Indentures 47
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
12<PAGE>
Section 9.1 Issuer May Consolidate, Etc., on Certain Terms
48
Section 9.2 Successor Corporation Substituted
48
Section 9.3 Opinion of Counsel to Trustee
49
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 10.1 Satisfaction and Discharge of Indenture
49
Section 10.2 Application of Trust Money
50
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
Section 11.1 Incorporators, Stockholders, Officers and
Directors
of Issuer Exempt from Individual Liability
50
Section 11.2 Provisions of Indenture for Sole Benefit of
Parties
and Securityholders 50
Section 11.3 Successors and Assigns of Issuer Bound by
Indenture 51
13<PAGE>
Section 11.4 Notices and Demands on Issuer, Trustee and
Securityholders 51
Section 11.5 Officers' Certificates and Opinions of Counsel;
Statements to be Contained Therein 51
Section 11.6 Payments Due on Saturdays, Sundays and Holidays
52
Section 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939 52
Section 11.8 New York Law to Govern
52
Section 11.9 Counterparts
53
Section 11.10 Effect of Headings
53
Section 11.11 Separability Clause
53
Section 11.12 No Security Interest Created
53
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 12.1 Applicability of Article
53
Section 12.2 Notice of Redemption; Partial Redemptions
53
14<PAGE>
Section 12.3 Payment of Securities Called for Redemption
54
Section 12.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption 55
Section 12.5 Mandatory and Optional Sinking Funds
55
Section 12.6 Repayment at the Option of the Holders
57
ARTICLE THIRTEEN
DEFEASANCE
Section 13.1 Applicability of Article
57
Section 13.2 Defeasance Upon Deposit of Moneys or
U. S. Government Obligations 57
Section 13.3 Deposited Moneys and U.S. Government
Obligations to be Held in Trust
58
15<PAGE>
PAGE
Section 13.4 Repayment to Issuer
58
Section 13.5 Reinstatement 58
TESTIMONIUM 59
SIGNATURES 59
ACKNOWLEDGMENTS 60
16<PAGE>
THIS INDENTURE, dated as of May 26, 1995, between RALSTON
PURINA COMPANY, a Missouri corporation (the "Issuer"), and The
First National Bank of Chicago, a national banking association
organized and existing under the laws of the United States of
America, as Trustee (the "Trustee"),
WITNESSETH:
WHEREAS, the Issuer has duly authorized the issue from time
to time of its unsecured debentures, notes or other evidences of
indebtedness to be issued in one or more series (the
"Securities") up to such principal amount or amounts as may from
time to time be authorized in accordance with the terms of this
Indenture and to provide, among other things, for the
authentication, delivery and administration thereof, the Issuer
has duly authorized the execution and delivery of this Indenture;
and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer and the Trustee
mutually covenant and agree for the equal and proportionate
benefit of the respective holders from time to time of the
Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. For all purposes of this
Indenture and any indenture supplemental hereto, except as
otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP;
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
17<PAGE>
Certain terms, used principally in Article Three or Article
Thirteen, are defined in those respective Articles.
"Authenticating Agent" has the meaning specified in Section
6.14.
"Board of Directors" means either the board of directors of
the Issuer, or any committee of that board duly authorized to act
hereunder or any director or directors and/or officer or officers
of the Issuer to whom that board or committee shall have
delegated its authority.
"Business Day" means, with respect to any Place of Payment,
except as may otherwise be provided in the form of Securities of
any particular series or pursuant to Section 2.3, each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a business
day or legal holiday on which the Corporate Trust Office or
banking institutions in that Place of Payment are authorized or
obligated by law to close.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities
Exchange Act of 1934, or if at any time after the execution and
delivery of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Component Currency" has the meaning specified in Section
2.12.
"Conversion Date" has the meaning specified in Section 2.12.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any
particular time, be principally administered, which office is, at
the date as of which this Indenture is dated, located at 1 First
National Plaza, Suite 0126, Chicago, Illinois 60670-0126.
"Coupon," means any interest appertaining to any Security.
"Coupon Security" means any Security authenticated and
delivered with one or more Coupons appertaining thereto.
"Depositary" means, unless otherwise specified by the Issuer
pursuant to either Section 2.3 or 2.14, with respect to
Securities of any series issuable or issued as a Global Security,
The Depository Trust Company, New York, New York, or any
successor thereto registered under the Securities and Exchange
Act of 1934, as amended, or other applicable statute or
regulation.
18<PAGE>
"Discount Security" means any Security which is issued with
"original issue discount" within the meaning of Section 1273(a)
of the Code and the regulations thereunder.
"Dollar" means the coin or currency of the United States of
America which as of the time of payment is legal tender for the
payment of public and private debts.
"Dollar Equivalent of the ECU" has the meaning specified in
Section 2.12.
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 2.12.
"Domestic Subsidiary" means any Subsidiary the majority of
the operating assets of which shall be located, and the principal
business of which shall be carried on, within the United States
of America, other than a Subsidiary engaged primarily in the
business of purchasing accounts receivable, making loans and
advances against accounts receivable and chattels and related
types of financing or engaged primarily in the business of
owning, developing or leasing real property.
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of the European
Communities.
"European Communities" means the European Economic
Community, the European Coal and Steel Community and the European
Atomic Energy Community.
"European Monetary System" means the European Monetary
System established by the Resolution of December 5, 1978 of the
Council of the European Communities.
"Event of Default" means any event or condition specified as
such in Section 5.1.
"Exchange Rate Officer's Certificate" means a telex or a
certificate setting forth the applicable Official ECU Exchange
Rate and the Dollar or Foreign Currency amounts payable on the
basis of such Official ECU Exchange Rate in respect of the
principal of and interest on Registered Securities, sent (in the
case of a telex) or signed (in the case of a certificate) by the
treasurer or any assistant treasurer of the Issuer, and delivered
to the Trustee.
"Foreign Currency" means a currency issued by the government
of any country other than the United States.
"Fully Registered Security" means any Security registered as
to principal and interest, if any.
19<PAGE>
"GAAP" means generally accepted accounting principles in the
United States as in effect on the date hereof.
"Global Security" means a Registered Security issued to
evidence all or a part of any series of Securities which is
executed by the Issuer and authenticated and delivered by the
Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and pursuant
to an Issuer order, which shall be registered in the name of the
Depositary or its nominee, including, without limitation, any
temporary or permanent Global Security.
"Holder", "Holder of Securities", "Securityholder" or other
similar terms mean the holder of an Unregistered Security or a
Registered Holder of a Registered Security and, when used with
respect to any Coupon, means the holder thereof.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as
so amended or supplemented or both, and shall include the forms
and terms of particular series of Securities established as
contemplated hereunder.
"Issuer" means Ralston Purina Company, and, subject to
Article Nine, its successors and assigns.
"Market Exchange Rate" has the meaning specified in Section
2.12.
"Officers' Certificate" means a certificate signed by the
president or any vice president and by the treasurer, secretary
or an assistant secretary of the Issuer, and delivered to the
Trustee. Each such certificate shall include the statements
provided for in Section 11.5.
"Official ECU Exchange Rate" applicable to any currency
with respect to any payment to be made hereunder means the
exchange rate between the ECU and such currency reported by the
Commission of the European Communities (currently based on the
rates in effect at 2:30 p.m., Brussels time, on the relevant
exchange markets) or if such exchange rate ceases to be so
reported, then such exchange rate shall be determined by the
Trustee using, in its sole discretion and without liability on
its part, quotations from one or more major banks in New York
City or such other quotations as the Trustee shall deem
appropriate, on the applicable record date.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel who may be an employee of or counsel to the Issuer.
Each such opinion shall include the statements provided for in
Section 11.5, if and to the extent required hereby.
"Original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the
20<PAGE>
date of any Security (or portion thereof) for which such Security
was issued (directly or indirectly) on registration of transfer,
exchange or substitution.
"Outstanding", when used with reference to Securities,
shall, subject to the provisions of Section 7.4, mean, as of any
particular time, all Securities authenticated and delivered by
the Trustee under this Indenture, except
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have
been deposited in trust with the Trustee or with any paying agent
(other than the Issuer) or shall have been set aside, segregated
and held in trust by the Issuer for the holders of such
Securities (if the Issuer shall act as its own paying agent),
provided that if such Securities, or portions thereof, are to be
redeemed prior to the maturity thereof, notice of such redemption
shall have been given as herein provided, or provision
satisfactory to the Trustee shall have been made for giving such
notice; and
(c) Securities in substitution for which other Securities
shall have been authenticated and delivered, or which shall have
been paid, pursuant to the terms of Section 2.9 (except with
respect to any such Security as to which proof satisfactory to
the Trustee is presented that such Security is held by a person
in whose hands such Security is a legal, valid and binding
obligation of the Issuer).
In determining whether the Holders of the requisite
principal amount of Outstanding Securities have performed any act
hereunder, the principal amount of a Discount Security that shall
be deemed to be Outstanding for such purpose shall be the amount
of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of
the maturity thereof pursuant to Section 5.1 and the principal
amount of a Security denominated in a Foreign Currency that shall
be deemed to be Outstanding for such purpose shall be the amount
calculated pursuant to Section 2.12.
"Paying Agent" means any Person (which may include the
Issuer) authorized by the Issuer to pay the principal of or
interest, if any, on any Security on behalf of the Issuer.
"Person" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of
21<PAGE>
and interest, if any, on the Securities of that series are
payable as specified pursuant to Section 3.2.
"Principal" whenever used with reference to the Securities
or any Security or any portion thereof, shall be deemed to
include "and premium, if any".
"Principal Property" means any battery, protein or pet food
manufacturing plant owned by the Issuer or any Subsidiary
(whether located on land owned or leased by the Issuer or a
Subsidiary) as of May 26, 1995, (and any future additions or
improvements thereto) and located within the United States of
America.
"Registered Holder" when used with respect to a Registered
Security means the person in whose name such Security is
registered in the Security register.
"Registered Security" means any Security registered in the
Security register.
"Responsible Officer" when used with respect to the Trustee
shall mean any officer in the Corporate Trust Services Division
(or any successor group) of the Trustee including any vice
president, assistant vice president, assistant secretary, or any
other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons
who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred at the Corporate Trust
Office because of his or her knowledge of and familiarity with
the particular subject.
"Security" or "Securities" has the meaning stated in the
first recital of this Indenture, or, as the case may be,
Securities that have been authenticated and delivered under this
Indenture.
"Specified Amount" has the meaning specified in Section
2.12.
"Subsidiary" means any corporation, of which more than 50%
of the Voting Stock is at the time owned directly or indirectly
by the Issuer or by the Issuer and its other Subsidiaries. The
term "'Voting Stock" means outstanding shares of stock having
voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power
because of default in dividends or some other default.
"Trustee" means the Person identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article
Six, any successor trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, and as in
22<PAGE>
force at the date as of which this Indenture was originally
executed.
"United States of America" means the United States of
America (including the states thereof and the District of
Columbia) and its possessions, which include Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"Unregistered Security" means any Security not registered as
to principal.
"Valuation Date" has the meaning specified in Section 2.12.
"vice president" when used with respect to the Issuer or the
Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title of
"vice president".
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series
and the Coupons, if any, shall be substantially in such form or
forms, including global form, (not inconsistent with this
Indenture) as shall be established by or pursuant to a resolution
of the Board of Directors or in one or more indentures
supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture (the provisions of which
shall be appropriate to reflect the terms of each series of
Securities, including the currency or denomination, which may be
Dollars, Foreign Currency or ECU) and may have imprinted or
otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this
Indenture, as may be required to comply with any law or with any
rules or regulations pursuant thereto, or with any rules of any
securities exchange or to conform to general usage, all as may be
determined by the officers executing such Securities and Coupons
(or any such Global Security), if any, as evidenced by their
execution of the Securities and Coupons, if any.
Unless otherwise specified as contemplated by Section 2.3,
Securities in unregistered form shall have Coupons attached.
The definitive Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or
may be produced in any other manner, all as determined by the
officers executing such Securities and Coupons, if any, as
evidenced by their execution of such Securities and Coupons, if
any.
23<PAGE>
SECTION 2.2 Form of Trustee's Certificate of Authentication.
(a) The Trustee's certificate of authentication on all
Securities shall be in substantially the following form:
This is one of the Securities of the series designated
herein and referred to in the within-mentioned Indenture.
The First National Bank of
Chicago,
as Trustee
By:______________________________
Authorized Officer
(b) If any Security of a series is issuable in global form
(a "Global Security"), such Global Security may provide that it
shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities represented thereby
may from time to time be reduced to reflect exchanges. Any
endorsement of a Global Security to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee and in such
manner as shall be specified in such Global Security. Any
instructions by the Issuer with respect to a Global Security,
after its initial issuance shall be in writing, but need not
comply with Section 11.5.
Global Securities may be issued in registered form in either
temporary or permanent form. Permanent Global Securities will be
issued in definitive form.
SECTION 2.3 Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a resolution of the Board
of Directors and set forth in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all
other Securities);
(2) any limit upon the aggregate principal amount of
the Securities of the series that may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
24<PAGE>
of, or in exchange for, or in lieu of, other Securities of
the series pursuant to Sections 2.8, 2.9, 2.11, 2.14, 8.5 or
12.3);
(3) the date or dates on which, or periods during
which, the Securities of the series may be issued, and the
date or dates (or method of determination thereof) on which
the principal of the Securities of such series is or may be
payable (which, if so provided in such board resolution or
supplemental indenture, may be determined by the Issuer from
time to time and set forth in the Securities of the series
issued from time to time);
(4) the rate or rates (or method of determination
thereof) at which the Securities of the series shall bear
interest, if any, and the date or dates from which such
interest shall accrue (which, in either case or both, if so
provided in such board resolution or supplemental indenture,
may be determined by the Issuer from time to time and set
forth in the Securities of the series issued from time to
time); and the interest payment dates on which such interest
shall be payable (or the method of determination thereof),
and, in the case of Registered Securities, the regular
record dates for the interest payable on such interest
payment dates;
(5) the place or places, if any, in addition to or
instead of the Corporate Trust Office of the Trustee (in the
case of Registered Securities) or the London office or
agency of the Trustee (in the case of Unregistered
Securities), where the principal and interest on Securities
of the series shall be payable, the extent to which, or the
manner in which, any interest payable on any Global Security
on an interest payment date will be paid, if other than in
the manner provided in Section 2.7; and the manner in which
any principal of any Global Security will be paid, if other
than as set forth elsewhere herein;
(6) the price or prices at which, the period or periods
within which and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in
part, at the option of the Issuer, pursuant to any sinking
fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem,
purchase or repay Securities of the series pursuant to any
sinking fund or analogous provisions or at the option of a
Holder thereof and the price or prices at which and the
period or periods within which and the terms and conditions
upon which Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such
obligation;
25<PAGE>
(8) the issuance as Registered Securities or
Unregistered Securities or both, and the rights of the
Holders to exchange Unregistered Securities for Registered
Coupon Securities or Fully Registered Securities of the
series or to exchange Registered Securities of the series
for Unregistered Securities of the series and the
circumstances under which any such exchanges, if permitted,
may be made;
(9) if other than denominations of $1,000 and any
multiple thereof, the denominations, which may be in
Dollars, any Foreign Currency or ECU, in which Securities of
the series shall be issuable;
(10) if other than Dollars, the Foreign Currency or
ECUs in which Securities of the series shall be denominated
or in which payment of the principal of and/or interest on
the Securities of the series may be made, and the particular
provisions applicable thereto and, if applicable, the amount
of Securities of the series which entitles the Holder of a
Security of the series or its proxy to one vote for purposes
of Section 7.8;
(11) whether the Securities of the series shall be
issued in whole or in part in the form of a Global Security
or Securities; the terms and conditions, if any, upon which
such Global Security or Securities may be exchanged in whole
or in part for other individual Securities; and the
Depositary for such Global Security or Securities;
(12) any trustees, authenticating or paying agents,
transfer agents or registrars or any other agents with
respect to the Securities of such series;
(13) if the principal of or interest on Securities of
the series are to be payable, at the election of the Issuer
or a Holder thereof, in a currency other than that in which
the Securities are denominated or payable without such
election in addition to or in lieu of the provisions of
Section 2.12, the period or periods within which and the
terms and conditions upon which, such election may be made
and the time and the manner of determining the exchange rate
or rates between the currency or currencies in which the
Securities are denominated or payable without such election
and the currency or currencies in which the Securities are
to be paid if such election is made;
(14) if the amount of payments of principal or interest
on the Securities of the series may be determined with
reference to an index, including, but not limited to, an
index based on a currency or currencies other than that in
which the Securities are denominated or payable, or any
other type of index, the manner in which such amounts shall
be determined;
26<PAGE>
(15) the application, if any, of Article Thirteen;
(16) whether provisions for payment of additional
amounts or tax redemptions shall apply and, if such
provisions shall apply, such provisions;
(17) whether the Securities of the series are to be
issued as Discount Securities and the amount of discount
with which such Securities may be issued and, if other than
the principal amount thereof, the portion of the principal
amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof
pursuant to Section 5.1;
(18) any addition to, or modification or deletion of,
any Events of Default or covenants provided for, or with
respect to, Securities of the series; and
(19) any other terms or conditions upon which the
Securities of the series are to be issued (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially
identical except as to denomination, rate of interest, maturity
and the date from which interest, if any shall accrue, which, as
set forth above, may be determined by the Issuer from time to
time as to Securities of a series if so provided in or
established pursuant to the authority granted in a resolution of
the Board of Directors or in any such indenture supplemental
hereto, and except as may otherwise be provided in or pursuant to
such resolution of the Board of Directors and (subject to Section
2.3) set forth in any officers' certificate, or in any such
indenture supplemental hereto. All Securities of any one series
need not be issued at the same time, and unless otherwise
provided, a series may be reopened for issuances of additional
Securities of such series.
SECTION 2.4 Authentication and Delivery of Securities . At
any time and from time to time after the execution and delivery
of this Indenture, the Issuer may deliver Securities of any
series having attached thereto appropriate Coupons, if any,
executed by the Issuer to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver such Securities
to or upon the written order of the Issuer, signed by both (a)
the chairman of its Board of Directors, or any vice chairman of
its Board of Directors, or its president or any vice president
and (b) by its treasurer or any assistant treasurer, secretary or
any assistant secretary without any further action by the Issuer.
In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive and (subject
to Section 6.1) shall be fully protected in relying upon:
27<PAGE>
(1) a certified copy of any resolution or resolutions
of the Board of Directors authorizing the action taken
pursuant to the resolution or resolutions delivered under
clause (2) below;
(2) a copy of any resolution or resolutions of the
Board of Directors relating to such series, in each case
certified by the secretary or an assistant secretary of the
Issuer;
(3) an executed supplemental indenture, if any;
(4) an Officers' Certificate setting forth the form and
terms of the Securities as required pursuant to Sections 2.1
and 2.3, respectively, and prepared in accordance with
Section 11.5;
(5) an Opinion of Counsel, prepared in accordance with
Section 11.5, which shall state:
(a) that the form or forms and terms of such
Securities have been established by or pursuant to a
resolution of the Board of Directors or by a
supplemental indenture as permitted by Sections 2.1 and
2.3 in conformity with the provisions of this
Indenture;
(b) that such Securities, when authenticated and
delivered by the Trustee and issued by the Issuer in
the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and
binding obligations of the Issuer;
(c) that all laws and requirements in respect of
the execution and delivery by the Issuer of the
Securities have been complied with;
(d) that the Indenture and any supplemental
indenture has been duly authorized, executed and
delivered by and constitutes the valid and binding
obligation of, the Issuer; and
(e) such other matters as the Trustee may
reasonably request.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee,
being advised by counsel, determines that such action may not
lawfully be taken by the Issuer or if the Trustee in good faith
by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would
expose the Trustee to personal liability to existing Holders.
28<PAGE>
SECTION 2.5 Execution of Securities. The Securities shall be
signed on behalf of the Issuer by both (a) the chairman of its
Board of Directors or any vice chairman of its Board of Directors
or its president or any vice president and (b) by its treasurer
or any assistant treasurer or its secretary or any assistant
secretary, under its corporate seal which may, but need not, be
attested. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. The seal
of the Issuer may be in the form of a facsimile thereof and may
be impressed, affixed, imprinted or otherwise reproduced on the
Securities. Typographical and other minor errors or defects in
any such reproduction of the seal or any such signature shall not
affect the validity or enforceability of any Security that has
been duly authenticated and delivered by the Trustee. Any
Coupons attached to any Unregistered Security shall be executed
on behalf of the Issuer by the manual or facsimile signature of
any such officer of the Issuer.
In case any officer of the Issuer who shall have signed any
of the Securities or Coupons shall cease to be such officer
before the Security or Coupon so signed shall be authenticated
and delivered by the Trustee or disposed of by the Issuer, such
Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such
Security or Coupon had not ceased to be such officer of the
Issuer; and any Security or Coupon may be signed on behalf of the
Issuer by such persons as, at the actual date of the execution of
such Security or Coupon, shall be the proper officers of the
Issuer, although at the date of the execution and delivery of
this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication . Only such
Securities and Coupons appertaining thereto as shall bear thereon
a certificate of authentication substantially in the form herein
before recited, executed by the Trustee by the manual signature
of one of its authorized officers, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate by the Trustee upon any Security
executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and
delivered hereunder and that the Holder is entitled to the
benefits of this Indenture.
The Trustee shall not authenticate or deliver any
Unregistered Security until any matured Coupons appertaining
thereto have been detached and canceled, except as otherwise
provided or permitted by this Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities shall be issuable in denominations as
shall be specified as contemplated by Section 2.3. In the absence
of any such specification with respect to the Securities of any
series, the Securities of such series shall be issuable in
29<PAGE>
denominations of $1,000 and any multiple thereof, which may be in
Dollars, any Foreign Currency or ECU, and shall be computed on
the basis of a 360-day year of twelve 30-day months. The
Securities shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plan as
the officers of the Issuer executing the same may determine with
the approval of the Trustee as evidenced by the execution and
authentication thereof.
Each Security shall be dated the date of its authentication,
shall bear interest from the date and shall be payable on the
dates, in each case, which shall be specified as contemplated by
Section 2.3.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any interest payment date shall be
paid, in the case of Registered Securities, to the person in
whose name that Security (or one or more predecessor Securities)
is registered at the close of business on the regular record date
for the payment of such interest and, in the case of Unregistered
Securities, upon surrender of the Coupon appertaining thereto in
respect of the interest due on such interest payment date at such
Place of Payment outside the United States specified pursuant to
Section 2.3..
The term "record date" as used with respect to any interest
payment date (except a date for payment of defaulted interest)
shall mean the date specified as such in the terms of the
Securities of any particular series, or, if no such date is so
specified, if such-interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar
month or, if such interest payment date is the fifteenth day of a
calendar month, the first day of such calendar month, whether or
not such record date is a Business Day.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any interest
payment date (called "defaulted interest" for the purpose of the
Section) shall forthwith cease to be payable to the Registered
Holder on the relevant regular record date by virtue of his
having been such Holder; and such defaulted interest may be paid
by the Issuer, at its election, as provided in clause (1) or
clause (2) below:
(1) The Issuer may elect to make payment of any
defaulted interest to the persons in whose names any such
Registered Securities (or their respective predecessor
Securities) are registered at the close of business on a
special record date for the payment of such defaulted
interest, which shall be fixed in the following manner. The
Issuer shall notify the Trustee in writing of the amount of
defaulted interest proposed to be paid on each Security of
such series and the date of the proposed payment, and at the
same time the Issuer shall deposit with the Trustee an
30<PAGE>
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 in respect
of Registered Securities of such series which shall be not
more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Issuer of such special
record date and, in the name and at the expense of the
Issuer, shall cause notice of the proposed payment of such
defaulted interest and the special record date thereof to be
mailed, first class postage prepaid, to each Registered
Holder at his address as it appears in the Security
register, not less than 10 days prior to such special record
date. Notice of the proposed payment of such defaulted
interest and the special record date therefor having been
mailed as aforesaid, such defaulted interest in respect of
Registered Securities of such series shall be paid to the
person in whose names such Securities (or their respective
predecessor Securities) are registered on such special
record date and such defaulted interest shall no longer be
payable pursuant to the following clause (2).
(2) The Issuer may make payment of any defaulted
interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which the Securities of that series
may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Issuer to the
Trustee of the proposed payment pursuant to this clause,
such payment shall be deemed practicable by the Trustee.
Any defaulted interest payable in respect of any Security of
any series which is an Unregistered Security shall be payable
pursuant to such procedures as may be satisfactory to the Trustee
in such manner that there is no discrimination as between the
Holders of Registered Securities and other Securities of the same
series, and notice of the payment date therefor shall be given by
the Trustee, in the name and at the expense of the Issuer, by
publication at least once in a newspaper of general circulation
in New York, New York and London, England.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
31<PAGE>
SECTION 2.8 Registration, Transfer and Exchange. The Issuer
will keep at each office or agency to be maintained for the
purpose as provided in Section 3.2 a register or registers in
which, subject to such reasonable regulations as it may
prescribe, it will register, and will register the transfer of,
Registered Securities as in this Article provided. Such register
shall be in written form in the English language or in any other
form capable of being converted into such form within a
reasonable time. At all reasonable times such register or
registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency to
be maintained for the purpose as provided in Section 3.2, the
Issuer shall execute and the Trustee shall authenticate and
deliver in the name of the transferee or transferees a new
Registered Security or Registered Securities of the same series
in authorized denominations for a like aggregate principal
amount.
Subject to Section 2.14, at the option of the Holder
thereof, Securities of a series, whether Registered Securities or
Unregistered Securities, which by their terms are registerable as
to principal only or as to principal and interest, may, to the
extent and under the circumstances specified pursuant to Section
2.3, be exchanged for Registered Coupon Securities or Fully
Registered Securities of such series, as may be issued by the
terms thereof. At the option of the Holder thereof, Securities of
a series, whether Registered Securities or Unregistered
Securities, which by their terms provide for the issuance of
Unregistered Securities, may, to the extent and under the
circumstances specified pursuant to Section 2.3, be exchanged for
Unregistered Securities of such series. Securities so issued in
exchange for other Securities shall be of any authorized
denomination and of like principal amount and stated maturity,
and shall be issued upon surrender of the Securities for which
they are to be exchanged and, in the case of Coupon Securities,
together with all unmatured Coupons and matured Coupons in
default appertaining thereto, at the office of Issuer provided
for in Section 2.3 and upon payment, if the Issuer shall require,
of charges provided therein. Unregistered Securities of any
series issued in exchange for Registered Securities of such
series between the regular record date for such Registered
Security and the next interest payment date will be issued
without the Coupon relating to such interest payment date, and
Unregistered Securities surrendered in exchange for Registered
Securities between such dates shall be surrendered without the
Coupon relating to such interest payment date. Whenever any
Securities are so surrendered for exchange, the Issuer shall
execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to
receive. Notwithstanding the foregoing, an Unregistered Security
will not be delivered in exchange for a Registered Security or
Securities unless the Trustee receives a certificate signed by
32<PAGE>
the person entitled to delivery of such Security or other items
or documents fulfilling such conditions as shall be required by
regulations of the United States Department of the Treasury, or
shall be notified by the Issuer that such a certificate shall not
be required by such regulations; provided, however, that no such
Unregistered Security shall be delivered by the Trustee if the
Trustee or such agent shall have, or shall have been notified in
writing by the Issuer that the Issuer has, actual knowledge that
such certificate is false.
Upon presentation for registration of any Unregistered
Securities of any series which by its terms is registerable as to
principal, at the office or agency of the Issuer to be maintained
as provided in Section 3.2, such Security shall be registered as
to principal in the name of the Holder thereof and such
registration shall be noted on such Security. Any Security so
registered shall be transferable on the registry books of the
Issuer upon presentation of such Security at such office or
agency for similar notation thereon, but such Security may be
discharged from registration by being in a like manner
transferred to bearer, whereupon transferability by delivery
shall be restored. Unregistered Securities shall continue to be
subject to successive registrations and discharges from
registration at the option of the Holders thereof.
Unregistered Securities shall be transferable by delivery,
except while registered as to principal. Registration of any
Coupon Security shall not effect the transferability by delivery
of the Coupons appertaining thereto which shall continue to be
payable to bearer and transferable by delivery.
All Securities and Coupons issued upon any transfer or
exchange of Securities shall be the valid obligations of the
Issuer, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities and Coupons
surrendered upon such transfer or exchange.
Every Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Issuer or the
Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the
Security registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Issuer may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
transfer or exchange of Securities, other than exchanges pursuant
to Sections 2.11, 8.5 or 12.3 not involving any transfer.
The Issuer shall not be required (i) to issue, register the
transfer of or exchange any Security during a period beginning at
the opening of business 15 days before the day of the selection
33<PAGE>
of Securities for redemption under Article Twelve or (ii) to
register the transfer of or exchange any Security so selected for
redemption in whole or in part.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing
the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such transfer or
exchange.
None of the Issuer, the Trustee or any Paying Agent will
have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial
ownership interests of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial
ownership interests.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or
Coupon shall become mutilated, defaced or be destroyed, lost or
stolen, the Issuer in its discretion may execute, and upon the
written request of any officer of the Issuer, the Trustee shall
authenticate and deliver, a new Security of the same series or
Coupon, bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated or defaced Security
or Coupon, or in lieu of and substitution for the Security or
Coupon so destroyed, lost or stolen; provided, however, that with
respect to any Unregistered Security, surrender of the
Unregistered Security to the Trustee shall occur at such office
or agency located outside of the United States as designated
herein or pursuant to Section 2.3. In every case the applicant
for a substitute Security or Coupon shall furnish to the Issuer
and to the Trustee and to any agent of the Issuer or the Trustee
such security or indemnity as may be required by them to
indemnify and defend and to save each of them harmless and, in
every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security
or Coupon and of the ownership thereof.
Upon the issuance of any substitute Security or Coupon, the
Issuer may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses
of the Trustee) connected therewith. In case any Security or
Coupon which has matured or is about to mature or has been called
for redemption in full shall become mutilated or defaced or be
destroyed, lost or stolen, the Issuer may, instead of issuing a
substitute Security or Coupon, pay or authorize the payment of
the same (without surrender thereof except in the case of a
mutilated or defaced Security or Coupon), if the applicant for
such payment shall furnish to the Issuer and to the Trustee and
any agent of the Issuer or the Trustee such security or indemnity
as any of them may require to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall
34<PAGE>
also furnish to the Issuer and the Trustee and any agent of the
Issuer or the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the
ownership thereof; provided, however, that with respect to any
Unregistered Security, such payment with respect to such
Unregistered Security shall be payable only outside of the United
States.
Every substitute Security of any series or Coupon issued
pursuant to the provisions of this Section by virtue of the fact
that any such Security or Coupon is destroyed, lost or stolen
shall constitute an additional contractual obligation of the
Issuer, whether or not the destroyed, lost or stolen Security or
Coupon shall be at any time enforceable by anyone and shall be
entitled to all the benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities of such series
or Coupons duly authenticated and delivered hereunder. All
Securities or Coupons shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or
payment of mutilated, defaced, destroyed, lost or stolen
Securities or Coupons and shall preclude any and all other rights
or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement
or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10 Cancellation of Securities; Destruction
Thereof. All Securities surrendered for payment, redemption,
registration of transfer or exchange, or for any future credit
against any payment in respect of a sinking or analogous fund
which have been otherwise acquired by Issuer and all Coupons
surrendered for payment or exchange, shall, if surrendered to the
Issuer or any agent of the Issuer or the Trustee, be delivered to
the Trustee for cancellation or, if surrendered to the Trustee,
shall be canceled by it; and no Securities or Coupons shall be
issued in lieu thereof, except as expressly permitted by any of
the provisions of this Indenture. The Trustee shall destroy
canceled Securities and Coupons held by it and deliver a
certificate of destruction to the Issuer. If the Issuer shall
acquire any of the Securities and Coupons, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness
represented by such Securities and Coupons unless and until the
same are delivered to the Trustee for cancellation.
SECTION 2.11 Temporary Securities . Pending the preparation
of definitive Securities for any series, the Issuer may execute
and the Trustee shall authenticate and deliver temporary
Securities for such series (printed, lithographed, typewritten or
otherwise reproduced, in each case in form satisfactory to the
Trustee). Temporary Securities of any series may be issued as
Registered Securities or Unregistered Securities with or without
Coupons attached thereto, of any authorized denomination, and
35<PAGE>
substantially in the form of the definitive Securities of such
series but with such omissions, insertions and variations as may
be appropriate for temporary Securities, all as may be determined
by the Issuer with the concurrence of the Trustee. Temporary
Securities may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Security shall
be executed by the Issuer and be authenticated by the Trustee
upon the same conditions and in substantially the same manner,
and with like effect, as the definitive Securities. Unless
otherwise specified in Section 2.3, without unreasonable delay
the Issuer shall execute and shall furnish definitive Securities
of such series and thereupon temporary Securities of such series
may be surrendered in exchange therefor without charge at each
office or agency to be maintained by the Issuer for that purpose
pursuant to Section 3.2, and the Trustee shall authenticate and
deliver in exchange for such temporary Securities of such series
a like aggregate principal amount of definitive Securities of the
same series of authorized denominations and, in the case of
Unregistered Securities, having attached thereto any appropriate
Coupons; provided, however, that any delivery of Securities shall
comply with the provisions of any board resolutions or
supplemental indentures issued pursuant to Section 2.3. Until so
exchanged, the temporary Securities of any series shall be
entitled to the same benefits under this Indenture as definitive
Securities of such series.
SECTION 2.12 Currency and Manner of Payments in Respect of
Securities.
(a) With respect to Registered Securities denominated in
Dollars or Foreign Currency and with respect to Registered
Securities denominated in ECU with respect to which the Holders
of such Securities have not made the election provided for in
paragraph (b) below, the following payment provisions shall
apply:
(1) Except as provided in subparagraph (a) (2) or in
paragraph (e) below, payment of the principal of any
Registered Security will be made at the Place of Payment by
delivery of a check in the currency in which the Security is
denominated on the payment date against surrender of such
Registered Security, and any interest on any Registered
Security will be paid at the Place of Payment by mailing a
check in the currency in which the Securities were issued to
the Person entitled thereto at the address of such Person
appearing on the Security register.
(2) Payment of the principal of and interest on such
Security may also, subject to applicable laws and
regulations, be made at such other place or places as may be
designated by the Issuer by any appropriate method.
36<PAGE>
(b) With respect to Registered Securities denominated in
ECU, the following payment provisions shall apply, except as
otherwise provided in paragraphs (e) and (f) below:
(1) The Board of Directors of the Issuer may provide
with respect to any series of such Securities that Holders
shall have the option to receive payments of principal of
and interest on such Security in any of the currencies which
may be designated for such election in such Security by
delivering to the Trustee a written election, to be in form
and substance satisfactory to the Trustee, not later than
the close of business on the record date immediately
preceding the applicable payment date. Such election will
remain in effect for such Holder until changed by the Holder
by written notice to the Trustee (but any such change must
be made not later than the close of business on the record
date immediately preceding the next payment date to be
effective for the payment to be made on such payment date
and no such change may be made with respect to payments to
be made on any Security with respect to which notice of
redemption has been given by the Issuer pursuant to Article
Twelve). Any Holder of any such Security who shall not have
delivered any such election to the Trustee not later than
the close of business on the applicable record date will be
paid the amount due on the applicable payment date in ECU as
provided in paragraph (a) of this Section 2.12. Payment of
principal shall be made on the payment date against
surrender of such Securities. Payment of principal and
interest shall be made at the Place of Payment by mailing at
such location a check in the applicable currency to the
Person entitled thereto at the address of such Person
appearing on the Security register.
(2) Payment of the principal of and interest on such
Security may also, subject to applicable laws and
regulations, be made at such other place or places as may be
designated by the Issuer by any appropriate method.
(c) Payment of the principal of and interest on any
Unregistered Security will be made at such place or places
outside the United States as may be designated by the Issuer by
any appropriate method only in the currency in which the Security
is denominated (except as provided in paragraph ( e) below) on
the payment date against surrender of the Unregistered Security,
in the case of payment of principal, or the relevant Coupon, in
the case of payment of interest. Except as provided in paragraph
(e) below, payment with respect to Unregistered Securities and
Coupons will be made by check, subject to any limitations on the
methods of effecting such payment as shall be specified in the
terms of the Security established as provided in Section 2.3 and
as shall be required under applicable laws and regulations.
Payment of the principal of and interest on Unregistered
Securities may also, subject to applicable laws and regulations,
37<PAGE>
be made at such other place or places as may be designated by the
Issuer by any appropriate method.
(d) Not later than the fourth Business Day after the record
date for each payment date, the Trustee will deliver to the
Issuer a written notice specifying, in the currency in which each
series of the Securities are denominated, the respective
aggregate amounts of principal of and interest on the Securities
to be made on such payment date, specifying the amounts so
payable in respect of the Registered and the Unregistered
Securities and in respect of the Registered Securities as to
which the Holders of Securities denominated in ECU shall have
elected to be paid in another currency as provided in paragraph
(b) above. If the Board of Directors has provided for the
election referred to in paragraph (b) above and if at least one
Holder has made such election, then not later than the eighth
Business Day following each record date the Company will deliver
to the Trustee an Exchange Rate Officer's Certificate in respect
of the Dollar or Foreign Currency payments to be made on such
payment date. The Dollar or Foreign Currency amount receivable by
Holders of Registered Securities denominated in ECU who have
elected payment in such currency as provided in paragraph (b)
above shall be determined by the Issuer on the basis of the
applicable Official ECU Exchange Rate set forth in the applicable
Exchange Rate Officer's Certificate.
(e) If the Foreign Currency in which any of the Securities
are denominated ceases to be used both by the government of the
country which issued such currency and for the settlement of
transactions by public institutions of or within the
international banking community, or if the ECU ceases to be used
both within the European Monetary System and for the settlement
of transactions by public institutions of or within the European
Communities, then with respect to each date for the payment of
principal of, premium, if any, and interest on the applicable
Foreign Currency or ECU denominated Securities occurring after
the last date on which the Foreign Currency or ECU was so used
(the "Conversion Date"), the Dollar shall be the currency of
payment for use on each such payment date. The Dollar amount to
be paid by the Issuer to the Trustee and by the Trustee or any
Paying Agent to the Holders of such Securities with respect to
such payment date shall be the Dollar Equivalent of the Foreign
Currency or, in the case of ECU, the Dollar Equivalent of the ECU
as determined by the Trustee as of the record date (the
"Valuation Date") in the manner provided in paragraphs (g) or (h)
below.
(f) If the Holder of a Registered Security denominated in
ECU elects payment in a specified Foreign Currency as provided
for by paragraph (b) and such Foreign Currency ceases to be used
both by the government of the country which issued such currency
and for the settlement of transactions by public institutions of
or within the international banking community, such Holder shall
receive payment in ECU, and if ECU ceases to be used both within
38<PAGE>
the European Monetary System and for the settlement of
transactions by public institutions of or within the European
Communities, such Holder shall receive payment in Dollars.
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Trustee as of each Valuation Date and shall be
obtained by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Valuation Date.
(h) The "Dollar Equivalent of the ECU" shall be determined
by the Trustee as of each Valuation Date and shall be the sum
obtained by adding together the results obtained by converting
the Specified Amount of each Component Currency into Dollars at
the Market Exchange Rate on the Valuation Date for such Component
Currency.
(i) For purposes of this Section 2.12 the following terms
shall have the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units or fractions thereof which such Component
Currency represented in the ECU on the Conversion Date. If after
the Conversion Date the official unit of any Component Currency
is altered by way of combination or subdivision, the Specified
Amount of such Component Currency shall be divided or multiplied
in the same proportion. If after the Conversion Date two or more
Component Currencies are consolidated into a single currency, the
respective Specified Amounts of such Component Currencies shall
be replaced by an amount in such single currency equal to the sum
of the respective Specified Amounts of such consolidated
Component Currencies expressed in such single currency, and such
amount shall thereafter be a Specified Amount and such single
currency shall thereafter be a Component Currency. If after the
Conversion Date any Component Currency shall be divided into two
or more currencies, the Specified Amount of such Component
Currency shall be replaced by specified amounts of such two or
more currencies, the sum of which, at the Market Exchange Rate of
such two or more currencies on the date of such replacement,
shall be equal to the Specified Amount of such former Component
Currency divided by the number of currencies into which such
Component Currency was divided, and such amounts shall thereafter
be Specified Amounts and such currencies shall thereafter be
Component Currencies.
"Market Exchange Rate" shall mean for any currency the noon
Dollar buying rate for that currency for cable transfers quoted
in New York City on the Valuation Date as certified for customs
purposes by the Federal Reserve Bank of New York. If such rates
are not available for any reason with respect to one or more
currencies for which an Exchange Rate is required, the Trustee
shall use, in its sole discretion and without liability on its
39<PAGE>
part, such quotation of the Federal Reserve Bank of New York as
of the most recent available date, or quotations from one or more
major banks in New York City or in the country of issue of the
currency in question, or such other quotations as the Trustee
shall deem appropriate. Unless otherwise specified by the
Trustee, if there is more than one market for dealing in any
currency by reason of foreign exchange regulations or otherwise,
the market to be used in respect of such currency shall be that
upon which a nonresident issuer of securities designated in such
currency would purchase such currency in order to make payments
in respect of such securities.
All decisions and determinations of the Trustee regarding
the Dollar Equivalent of the Foreign Currency, the Dollar
Equivalent of the ECU and the Market Exchange Rate shall be in
its sole discretion and shall, in the absence of manifest error,
be conclusive for all purposes and irrevocably binding upon the
Issuer and all Holders of the Securities. In the event that the
Foreign Currency ceases to be used both by the government of the
country which issued such currency and for the settlement of
transactions by public institutions of or within the
international banking community, the Issuer, after learning
thereof, will immediately give notice thereof to the Trustee (and
the Trustee will promptly thereafter give notice in the manner
provided in Section 11.4 to the Holders) specifying the
Conversion Date. In the event the ECU ceases to be used both
within the European Monetary System and for the settlement of
transactions by public institutions of or within the European
Communities, the Issuer, after learning thereof, will immediately
give notice thereof to the Trustee (and the Trustee will promptly
thereafter give notice in the manner provided in Section 11.4 to
the Holders) specifying the Conversion Date and the Specified
Amount of each Component Currency on the Conversion Date. In the
event of any subsequent change in any Component Currency as set
forth in the definition of Specified Amount above, the Issuer,
after learning thereof, will similarly give notice to the
Trustee. The Trustee shall be fully justified and protected in
relying on and acting upon the information so received by it from
the Issuer and shall not otherwise have any duty or obligation to
determine such information independently.
SECTION 2.13 Compliance with Certain Laws and Regulations .
If any Unregistered Securities are to be issued in any series of
Securities, the Issuer, Trustee, or any Paying Agent will use
reasonable efforts to provide for arrangements and procedures
designed pursuant to then applicable laws and regulations, if
any, to ensure that Unregistered Securities are sold or resold,
exchanged, transferred and paid only in compliance with such laws
and regulations and without adverse consequences to the Issuer.
SECTION 2.14. Securities Issuable in the Form of a Global
Security. (a) If the Issuer shall establish pursuant to Section
2.3 that the Securities of a particular series are to be issued
in whole or in part in the form of one or more Global Securities,
40<PAGE>
then the Issuer shall execute and the Trustee shall, in
accordance with Section 2.4 and the Issuer order delivered to the
Trustee thereunder, authenticate and deliver, such Global
Security or Securities, which (i) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount
of, the Outstanding Securities of such series to be represented
by such Global Security or Securities, (ii) shall be registered
in the name of the Depositary for such Global Security or
Securities or its nominee, (iii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary's
instruction and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or
in part for the individual Securities represented hereby, this
Global Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary."
(b) Notwithstanding any other provision of this Section 2.14
or of Section 2.8, unless the terms of a Global Security
expressly permit such Global Security to be exchanged in whole or
in part for individual Securities, a Global Security may be
transferred, in whole but not in part and in the manner provided
in Section 2.8, only to another nominee of the Depositary for
such Global Security, or to a successor Depositary for such
Global Security selected or approved by the Issuer or to a
nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security
notifies the Issuer that it is unwilling or unable to continue as
Depositary for such Global Security or if at any time the
Depositary for the Securities for such series shall no longer be
eligible or in good standing as a clearing agency registered
under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, the Issuer shall appoint a
successor Depositary with respect to such Global Security. If a
successor Depositary for such Global Security is not appointed by
the Issuer within 90 days after the Issuer receives such notice
or becomes aware of such ineligibility, the Issuer's election
pursuant to Section 2.3(11) shall no longer be effective with
respect to such Global Security and the Issuer will execute, and
the Trustee, upon receipt of an Issuer order for the
authentication and delivery of individual Securities of such
series in exchange for such Global Security, will authenticate
and deliver individual Securities of such series of like tenor
and terms in definitive form in an aggregate principal amount
equal to the principal amount of the Global Security in exchange
for such Global Security.
(ii) The Issuer may at any time and in its sole
discretion determine that the Securities of any series
issued or issuable in the form of one or more Global
Securities shall no longer be represented by such Global
41<PAGE>
Security or Securities. In such event the Issuer will
execute, and the Trustee, upon receipt of an Issuer order
for the authentication and delivery of individual Securities
of such series in exchange in whole or in part for such
Global Security, will authenticate and deliver individual
Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to
the principal amount of such Global Security or Securities
representing such series in exchange for such Global
Security or Securities.
(iii) If specified by the Issuer pursuant to Section
2.3 with respect to Securities issued or issuable in the
form of a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in
whole or in part for individual Securities of such series of
like tenor and terms in definitive form on such terms as are
acceptable to the Issuer and such Depositary. Thereupon the
Issuer shall execute, and the Trustee shall authenticate and
deliver, without service charge, (1) to each Person
specified by such Depositary a new Security or Securities of
the same series of like tenor and terms and of any
authorized denomination as requested by such Person in
aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and (2)
to such Depositary a new Global Security of like tenor and
terms and in a denomination equal to the difference, if any,
between the principal amount of the surrendered Global
Security and the aggregate principal amount of Securities
delivered to Holders thereof.
(iv) If the Registered Securities of any series shall
have been issued in the form of one or more Global
Securities and if an Event of Default with respect to the
Securities of such series shall have occurred and be
continuing, the Issuer will promptly execute, and the
Trustee, upon receipt of an Issuer order for the
authentication and delivery of definitive Securities of such
series, will authenticate and deliver Registered Securities
of such series in definitive form and in an aggregate
principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange
for such Global Security or Securities.
(v) In any exchange provided for in any of the
preceding four paragraphs, the Issuer will execute and the
Trustee will authenticate and deliver individual Securities
in definitive registered form in authorized denominations.
Upon the exchange of a Global Security for individual
Securities, such Global Security shall be canceled by the
Trustee. Securities issued in exchange for a Global
Security pursuant to this Section shall be registered in
such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to
42<PAGE>
instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the persons in whose names such
Securities are so registered.
SECTION 2.15 Appointment of Agents With Respect to
Certain Calculations. The Issuer may appoint an Agent or Agents
with respect to one or more Series of Securities which Agent or
Agents shall be authorized to determine the rate or rates of
interest applicable to the Securities of any Series from time to
time in effect, the amount of principal or premium, if any,
payable on the Securities of any Series and the rates of exchange
applicable to the Securities of any Series denominated in a
currency other than United States dollars from time to time in
effect, all in accordance with the terms of the Securities of
such Series. Wherever reference is made in this Indenture to any
such calculation by the Trustee, it shall be deemed to refer to
the calculation by such agent or agents. Such agent, upon
calculating the amounts so to be calculated pursuant to the terms
of the Securities of any Series shall communicate promptly in
writing the amounts so calculated to the Issuer and the Trustee.
Absent manifest error, all amounts so calculated shall be binding
on the Issuer, the Trustee and the Holders of the Securities of
such Series.
Any such agent may resign at any time by giving written
notice thereof to the Issuer and to the Trustee. The Issuer may
at any time terminate the agency of any such agent by giving
written notice thereof to such agent and to the Trustee. Upon
receiving such a notice of resignation or upon such a
termination, the Issuer may appoint a successor agent and shall
give notice of such appointment to all Holders of Securities in
the manner provided in Section 11.4.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest . The Issuer
covenants and agrees for the benefit of each series of Securities
that it will duly and punctually pay or cause to be paid the
principal of, premium, if any, and interest on, each of the
Securities of such series in accordance with the terms of the
Securities of such series, any Coupons appertaining thereto and
this Indenture.
The interest on Unregistered Securities shall be payable
only upon presentation and surrender of the several Coupons for
such interest installments as are evidenced thereby as they
severally mature. The interest on any temporary Unregistered
Security shall be paid, as to any installment of interest
evidenced by a Coupon attached thereto, if any, only upon
presentation and surrender of such Coupon, and, as to the other
43<PAGE>
installments of interest, if any, only upon presentation of such
Securities for notation thereon of the payment of such interest.
SECTION 3.2 Offices for Payments, etc. So long as any of the
Securities remain outstanding, the Issuer will maintain the
following for each series: an office or agency (a) where the
Securities may be presented for payment, (b) where the Securities
may be presented for registration of transfer and for exchange as
in this Indenture provided and (c) where notices and demands to
or upon the Issuer in respect of the Securities or of this
Indenture may be served; provided, however, that with respect to
any Securities which are issuable as Unregistered Securities, the
Issuer shall, subject to any laws and regulations thereto,
maintain an office or agency outside of the United States where
such Unregistered Securities can be presented and surrendered for
payment and no payment shall be by check mailed to any address in
the United States or by transfer to an account maintained with a
bank located in the United States; and, provided, further, if the
Securities are listed on any stock exchange the Issuer shall
maintain, or cause to be maintained, the officers required by the
rules and regulations of such exchanges. The Issuer will give to
the Trustee written notice of the location of any such office or
agency and of any change of location thereof. In case the Issuer
shall fail to so designate or 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 Corporate Trust Office.
SECTION 3.3 Appointment to Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner
provided in Section 6.10, a Trustee, so that there shall at all
times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall appoint
a Paying Agent other than the Trustee with respect to the
Securities of any series, it will cause such Paying Agent to
execute and deliver to the Trustee an instrument in which such
Agent shall agree with the Trustee, subject to the provisions of
this Section,
(a) that it will hold all sums received by it as such
Agent for the payment of the principal of or interest on the
Securities of such series or Coupons (whether such sums have
been paid to it by the Issuer or by any other obligor on the
Securities of such series or Coupons) in trust for the
benefit of the Holders of the Securities of such series or
of the Trustee, and upon the occurrence of an Event of
Default pay over all such sums received by it to the
Trustee,
(b) that it will give the Trustee notice of any failure
by the Issuer (or by any other obligor on the Securities of
44<PAGE>
such series) to make any payment of the principal of or
interest on the Securities of such series or Coupons when
the same shall be due and payable,
(c) pay any such sums so held in trust by it to the
Trustee upon the Trustee's written request at any time
during the continuance of the failure referred to in clause
(b) above, and
(d) that it will give the Trustee notice of any change
of address of any Holder of which it is aware.
The Issuer will, on or prior to each due date of the
principal of or interest on the Securities of such series or
Coupons, deposit with the Paying Agent a sum sufficient to pay
such principal or interest so becoming due, and (unless such
Paying Agent is the Trustee) the Issuer will promptly notify the
Trustee of any failure to take such action.
If the Issuer shall act as its own Paying Agent with respect
to the Securities of any series or Coupons, it will, on or before
each due date of the principal of or interest on the Securities
of such series or Coupons, set aside, segregate and hold in trust
for the benefit of the Holders of the Securities of such series
or Holders of such Coupons a sum sufficient to pay such principal
or interest so becoming due. The Issuer will promptly notify the
Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding,
the Issuer may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all
series of Securities or Coupons hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in
trust for any such series by the Issuer or any Paying Agent
hereunder, as required by this Section, such sums to be held by
the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section
is subject to the provisions of Sections 10.1, 10.2, 13.2 and
13.3.
SECTION 3.5 Written Statement to Trustee. The Issuer will
deliver to the Trustee on or before January 1 in each year
(beginning with 1996) brief certificates (which need not comply
with Section 11.5) from the principal executive, financial or
accounting officer of the Issuer as to his or her knowledge of
the Issuer's compliance with all conditions and covenants under
the Indenture (such compliance to be determined without regard to
any period of grace or requirement of notice provided under the
Indenture).
SECTION 3.6 Limitation on Liens. (a) So long as any of the
Securities remain Outstanding and unpaid, the Issuer will not
45<PAGE>
create, assume or suffer to exist and will not cause, suffer to
exist or permit any Domestic Subsidiary to create, assume or
suffer to exist, any mortgage, pledge, security interest or other
lien or encumbrance (herein referred to as a "mortgage") of or
upon any of its or their properties or assets, real or personal,
whether owned at the date of this Indenture or thereafter
acquired, or of or upon any income or profits therefrom, without
making effective provision, and the Issuer covenants that in any
such case it will make or cause to be made effective provision,
whereby the Securities then Outstanding shall be secured by such
mortgage, pledge, lien or encumbrance equally and ratably with
any and all other obligations and indebtedness thereby secured so
long as such indebtedness is so secured; provided, that the
foregoing covenant shall not apply to any mortgage of the
following character:
(i) mortgages on property existing at the time of
acquisition of such property (provided such mortgages are
limited to such property and improvements thereon) or to
secure the payment of all or any part of the purchase price
thereof or to secure any indebtedness incurred at the time
of, or within 90 days after, the acquisition of such
property for the purpose of financing all or any part of the
purchase price thereof;
(ii) mortgages on property of any corporation existing
at the time such corporation becomes a Domestic Subsidiary;
(iii) mortgages existing on the date of this Indenture;
(iv) mortgages executed by any Domestic Subsidiary and
exclusively securing indebtedness or evidences of
indebtedness incurred or issued by such Domestic Subsidiary
either to the Issuer or to any other Domestic Subsidiary;
(v) mortgages arising from assignments of moneys due
and to become due under contracts between the Issuer or any
Domestic Subsidiary and the United States of America or any
agency thereof;
(vi) mortgages on any property created, assumed or
otherwise brought into existence in contemplation of the
sale or other disposition of such property, whether directly
or indirectly by way of share disposition or otherwise;
provided that after 120 days from the creation of such
mortgage such property shall not be owned by the Issuer or
any Domestic Subsidiary and any indebtedness secured by such
mortgage shall be without recourse to the Issuer or any
Domestic Subsidiary;
(vii) mortgages arising by reason of any judgment,
decree or order of any court, so long as any appropriate
legal proceedings which may have been duly initiated for the
review of such judgment, decree or order shall not have been
46<PAGE>
finally terminated or so long as the period within which
such proceedings may be initiated shall not have expired; or
pledges or deposits to secure payment of workmen's
compensation or other insurance, good faith deposits in
connection with tenders, contracts (other than contracts for
the payment of money) or leases, deposits to secure public
or statutory obligations, deposits to secure or in lieu of
surety or appeal bonds, or deposits as security for the
payment of taxes; and
(viii) extensions, renewals or replacements, in whole
or in part, of any mortgage referred to in the foregoing
clauses (i) to (vii), inclusive, provided that the principal
amount of indebtedness secured thereby shall not exceed the
principal amount of indebtedness so secured at the time of
such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to all or
any part of the same property that secured the mortgage
extended, renewed or replaced (plus improvements on such
property).
(b) Notwithstanding the provisions contained in subdivision
(a) of this Section 3.6, the Issuer and its Domestic
Subsidiaries, or any of them, may create, assume or suffer to
exist mortgages without equally and ratably securing the
Securities, if, after giving effect thereto and to the retirement
of any indebtedness or obligations which are concurrently being
retired, the aggregate amount of all outstanding indebtedness of
the Issuer and its Domestic Subsidiaries secured by mortgages
which could not exist without equally and ratably securing the
Securities except for the provisions of this subdivision (b) plus
the aggregate amount of Attributable Debt in respect of Sale and
Lease-Back Transactions (as defined in Section 3.7) existing at
such time which could not have been entered into by the Issuer or
a Domestic Subsidiary except for the provisions of clause (a) of
Section 3.7 does not at such time exceed 5% of the Consolidated
Net Tangible Assets of the Issuer and its Domestic Subsidiaries.
The term "Attributable Debt" as used in this Article Three shall
mean, as of any particular time and with respect to any
particular series of Securities, the then present value (computed
by discounting at the rate of interest per annum borne by such
series of Securities compounded semi-annually) of the obligation
of a lessee for net rental payments during the remaining term of
any lease (including any period for which such lease has been
extended or may, at the option of the lessor, be extended). The
term "net rental payments" under any lease for any period shall
mean the sum of the rental and other payments required to be paid
in such period by the lessee thereunder, not including, however,
any amounts required to be paid by such lessee (whether or not
therein designated as rental or additional rental) on account of
sales, maintenance and repairs, insurance, taxes, assessments,
water rates or similar charges required to be paid by such lessee
thereunder or any amounts required to be paid by such lessee
thereunder contingent upon the amount of sales, maintenance and
47<PAGE>
repairs, insurance, taxes, assessments, water rates or similar
charges. The term "Consolidated Net Tangible Assets" as used in
this Article Three shall mean the total amount of assets (less
applicable reserves and other properly deductible items) of the
Issuer and its consolidated subsidiaries as shown on or reflected
in its balance sheet after deducting therefrom (i) all
liabilities, except for (i) notes and loans payable, (ii) current
maturities of long-term debt and (iii) current maturities of
obligations under capital leases, less all good will, trade
names, trademarks, patents, unauthorized debt discount and
expense and other similar intangibles, in all cases computed in
accordance with generally accepted accounting principles and
which under generally accepted accounting principles would appear
on a consolidated balance sheet of the Issuer and its Domestic
Subsidiaries.
In the event that the Issuer shall hereafter secure the
Securities pursuant to the provisions of this Section 3.6, the
Trustee is hereby authorized to enter into an indenture
supplemental hereto and to take such action, if any, as it may
deem advisable to enable it to enforce effectively the rights of
the holders of the Securities so secured.
SECTION 3.7 Limitation on Sale and Lease-Back . The Issuer
will not enter into any arrangements with any person, nor will
the Issuer permit any Domestic Subsidiary to enter into any
arrangements with any person other than the Issuer, providing for
the leasing by the Issuer or any Domestic Subsidiary of all or
any substantial portion of any Principal Property (except for
leases for temporary periods not to exceed five years by the end
of which it is intended that the use of the leased property by
the lessee will be discontinued), which property has been or is
to be sold or transferred by the Issuer or such Domestic
Subsidiary to such person with the intention of taking back a
lease of such Principal Property (herein referred to as a "Sale
and Lease-Back Transaction") unless the net proceeds of the sale
or transfer of the property to be leased are at least equal to
the fair value (as determined by the Board of Directors of the
Issuer) of such Principal Property and either
(a) the Issuer or such Domestic Subsidiary would, at
the time entering into such arrangement, be entitled,
without equally and ratably securing the Securities, to
create or assume a mortgage on such property securing
indebtedness in an amount at least equal to the Attributable
Debt in respect of such Sale and Lease-Back Transaction,
pursuant to subdivision (b) of Section 3.6, or
(b) the Issuer, within 120 days after the transfer of
title to such Principal Property, shall apply an amount
equal to the net proceeds derived from such sale or transfer
to the voluntary retirement of Securities in accordance with
the terms thereof or other indebtedness for borrowed money
of the Issuer which ranks pari passu with the Securities and
48<PAGE>
which by its terms matures at, or is extendable or renewable
at the option of the obligor to, a date more than 12 months
after the date of the creation of such indebtedness.
A Sale and Lease-Back Transaction shall not be deemed to
result in the creation of a mortgage.
SECTION 3.8 Additional Amounts. If the Securities of a
Series provide for the payment of additional amounts, the Issuer
will pay to the Holder of any Security of such Series or any
Coupon appertaining thereto additional amounts as provided
therein. Whenever in this Indenture there is mentioned, in any
context, the payment of the principal of or interest on, or in
respect of, any Security of any Series or payment of any related
Coupon or the net proceeds received on the sale or exchange of
any Security of any Series, such mention shall be deemed to
include mention of the payment of additional amounts provided for
in this Section to the extent that, in such context, additional
amounts are, were or would be payable in respect thereof pursuant
to the provisions of this Section and express mention of the
payment of additional amounts (if applicable) in any provisions
hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
If the Securities of a Series provide for the payment of
additional amounts, at least 10 days prior to the first interest
payment dated with respect to that Series of Securities (or if
the Securities of that Series will not bear interest prior to
maturity, the first day on which a payment of principal is made),
and at least 10 days prior to each date of payment of principal
or interest if there has been any change with respect to the
matters set forth in the below-mentioned Officer's Certificate,
the Issuer will furnish the Trustee and the Issuer's principal
Paying Agent or Paying Agents, if other than the Trustee, with an
Officer's Certificate instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal of or
interest on the Securities of that Series shall be made to
Holders of Securities of that Series or any related Coupons who
are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the
Securities of that Series. If any such withholding shall be
required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such
payments to such Holders of Securities of Coupons and the Issuer
will pay to the Trustee or such Paying Agent the additional
amounts required by this Section. The Issuer covenants to
indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably
incurred without negligence or bad faith on their part arising
our of or in connection with actions taken or omitted by any of
them in reliance on any Officers' Certificate furnished pursuant
to this Section.
49<PAGE>
SECTION 3.9 Waiver of Certain Covenants. Except as
otherwise specified as contemplated by Section 2.3 for the
Securities of such series, the Issuer may, with respect to the
Securities of any series, omit in any particular instance to
comply with any term, provision or condition set forth in Section
3.6 or 3.7 (and, if so specified pursuant to Section 2.3, any
other covenant not set forth herein and specified pursuant to
Section 2.3 to be applicable to the Securities of any series,
except as otherwise provided pursuant to Section 2.3) with
respect to the Securities of any series or if before the time for
such compliance the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities of such series
shall, by act of such Holders, either waive such compliance in
instance or generally waive compliance with such term, provision
or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the
obligations of the Issuer and the duties of the Trustee in
respect of any such term, provision or condition shall remain in
full force and effect.
50<PAGE>
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Securityholders Lists. If and so long as the
Trustee shall not be the Security registrar for the Registered
Securities of any series, the Issuer will furnish or cause to be
furnished to the Trustee a list in such form as the Trustee may
reasonably require of the names and addresses of the holders of
the Registered Securities of such series pursuant to Section 312
of the Trust Indenture Act (a) semi-annually not more than 15
days after each record date for the payment of interest on such
Registered Securities, as herein above specified, as of such
record date and on dates to be determined pursuant to Section 2.3
for non-interest bearing securities in each year, and (b) at such
other times as the Trustee may request in writing, within thirty
days after receipt by the Issuer of any such request as of a date
not more than 15 days prior to the time such information is
furnished. The Issuer shall also be required to furnish to the
Trustee at all such times as set forth above all information in
the possession or control of the Issuer or any of its Paying
Agents other than the Trustee as to the names and addresses of
the Holders of Unregistered Securities of all series; provided,
however, that the Issuer shall have no obligation to investigate
any matter relating to any Holders of Unregistered Securities of
any series.
SECTION 4.2 Reports by the Issuer. The Issuer covenants to:
(a) file with the Trustee, within 15 days after the issuer
is required to file the same with the Commission, copies of
the annual reports and of the information, documents, and
other reports which the Issuer may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934;
(b) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by
the Commission, such additional information, documents and
reports with respect to compliance by the Issuer with the
conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
and
(c) transmit to all Holders of Securities, in the manner
and to the extent provided in Section 4.3, within 30 days
after the filing thereof with the Trustee, such summaries of
any information, documents and reports required to be filed
by the Issuer pursuant to paragraphs (a) and (b) of this
Section and as may be required by rules and regulations
prescribed from time to time by the Commission.
51<PAGE>
SECTION 4.3 Reports by the Trustee. Any Trustee's report
required under Section 313(a) of the Trust Indenture Act shall be
transmitted on or before May 26 in each year following the date
hereof, so long as any Securities are outstanding hereunder, and
shall be dated as of a date convenient to the Trustee no more
than 60 nor less than 45 days prior thereto; and the Trustee
shall prepare and file all other reports required by Section 313
of the Trust Indenture Act, in the manner provided pursuant
thereto
SECTION 4.4 Preservation of Information; Communication to
Holders. (a) The Trustee shall preserve, in as current a form as
is reasonably practicable, all information as to the names and
addresses of Holders contained in the most recent list furnished
to the Trustee as provided in Section 4.1 received by it in the
capacity of Paying Agent (if so acting).
The Trustee may destroy any list furnished to it as provided
in Section 4.1 upon receipt of a new list so furnished, destroy
any information received by it as Paying Agent (if so acting)
hereunder upon delivering to itself as Trustee, not earlier than
45 days after an interest payment date, a list containing the
names and addresses of the Holders obtained from such information
since the delivery of the next previous list, if any, destroy any
list delivered to itself as Trustee which was complied from
information received by it as Paying Agent (if so acting)
hereunder upon the receipt of a new list so delivered.
(b) If three or more Holders (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a
Security for a period of at least six months preceding the date
of such application, and such application states that the
applicants desire to communicate with other Holders of Securities
of a particular series (in which case the applicants must hold
Securities of such series) or with all Holders of Securities with
respect to their rights under this Indenture or under the other
communication which such applicants propose to transmit, then the
Trustee shall, within five Business Days after the receipt of
such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 4.4(a), or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or of all Securities,
as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in
accordance with Section 4.4(a), and as to the approximate
cost of mailing to such Holders the form of proxy or other
communication, specified in such application.
52<PAGE>
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon written
request of such applicants, mail to the Holders of Securities of
such series or all Holders, as the case may be, whose names and
addresses appear in the information preserved at the time by the
Trustee in accordance with Section 4.4(a), a copy of the form of
proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within
five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of
the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be
contrary to the best interests of the Holders of Securities of
such series or all Holders, as the case may be, or would be in
violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after
having an opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order refusing
to sustain any of such objections or if after the entry of an
order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for a hearing, that all
the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such
material to all such Holders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding
the same, agrees with the Issuer and the Trustee that neither the
Issuer nor the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses
of the Holders in accordance with Section 4.4(b), regardless of
the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing of any
material pursuant to a request made under Section 4.4(b).
53<PAGE>
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default" with respect to
Securities of any series wherever used herein means each one of
the following events which shall have occurred and be continuing
(whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of any installment of
interest upon any of the Securities of such series as and
when the same shall become due and payable, and continuance
of such default for a period of 30 days; or
(b) default in the payment of all or any part of the
principal on any of the Securities of such series as and
when the same shall become due and payable either at
maturity, upon redemption, by declaration or otherwise; or
(c) default in the payment of any sinking fund
installment as and when the same shall become due and
payable by the terms of the Securities of such series; or
(d) default in the performance, or breach, of any
covenant or warranty of the Issuer in respect of the
Securities of such series (other than a covenant or warranty
in respect of the Securities of such series a default in
whose performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of such
default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the Issuer
by the Trustee or to the Issuer and the Trustee by the
Holders of at least 25% in principal amount of the
Outstanding Securities of such series affected thereby, a
written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(e) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Issuer
in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect,
or appointing a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official) of the Issuer
or for any substantial part of its property or ordering the
winding up or liquidation of its affairs, and such decree or
order shall remain unstayed and in effect for a period of 60
consecutive days; or
54<PAGE>
(f) the Issuer shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such law,
or consent to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Issuer or for any
substantial part of its property, or make any general
assignment for the benefit of creditors; or
(g) any other Event of Default provided in the
supplemental indenture or resolution of the Board of
Directors under which such series of Securities is issued or
in the form of Security for such series.
If an Event of Default described in clauses (a), (b), (c) or (d)
above (if the Event of Default under clause (d) is with respect
to less than all series of Securities then Outstanding) occurs
and is continuing with respect to one or more series of
Securities, then, and in each and every such case, unless the
principal of all of the Securities of such series shall have
already become due and payable, either the Trustee or the Holders
of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding hereunder (each such
series treated as a separate class and for purposes of any
Discount Securities, the determination of such Discount
Securities' portion of the principal amount shall be as specified
in the terms of such Discount Securities), by notice in writing
to the Issuer (and to the Trustee if given by the
Securityholders), may declare the entire principal of all
Securities of such series and the interest accrued thereon to be
due and payable immediately, and upon any such declaration the
same shall become immediately due and payable. If an Event of
Default described in clause (d) (if the Event of Default under
clause (d) is with respect to all series of Securities then
Outstanding), (e), (f) or (g) occurs and is continuing, then and
in each and every such case, unless the principal of all the
Securities shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate
principal amount of all the Securities then Outstanding hereunder
(treated as one class), by notice in writing to the Issuer (and
to the Trustee if given by Securityholders), may declare the
entire principal of all the Securities then Outstanding and
interest accrued thereon to be due and payable immediately, and
upon any such declaration the same shall become immediately due
and payable.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal of the
Securities of any series (or of all the Securities, as the case
may be) shall have been so declared due and payable, and before
any judgment or decree for the payment of the moneys due shall
have been obtained or entered as hereinafter provided, the Issuer
55<PAGE>
shall pay or shall deposit with the Trustee a sum sufficient to
pay all matured installments of interest upon all the Securities
of such series (or of all the Securities, as the case may be) (in
the currency in which the Securities are denominated) and the
principal of any and all Securities of such series (or of all the
Securities, as the case may be) which shall have become due
otherwise than by acceleration (with interest upon such principal
and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest, at the
same rate as the rate of Securities, as the case may be) to the
date of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its
agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee
except as a result of negligence or bad faith, and if any and all
Events of Default under the Indenture, other than the non-
payment of the principal of Securities which shall have become
due by acceleration, shall have been cured, waived or otherwise
remedied as provided herein---then and in every such case the
Holders of a majority in aggregate principal amount of all the
Securities of such series, (or of all the Securities, as the case
may be, treated as a single class); then outstanding, by written
notice to the Issuer and to the Trustee, may waive all defaults
with respect to such series (or with respect to all the
Securities, as the case may be) and rescind and annul such
declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee
May Prove Debt. The Issuer covenants that (a) in case default
shall be made in the payment of any installment of interest on
any of the Securities of any series when such interest shall have
become due and payable, and such default shall have continued for
a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the
Securities of any series when the same shall have become due and
payable, whether upon maturity of the Securities of such series
or upon any redemption or by declaration or otherwise---then upon
demand of the Trustee, the Issuer will pay to the Trustee for the
benefit of the Holders of the Securities of such series and the
Holders of any Coupons appertaining thereto the whole amount that
then shall have become due and payable on all Securities of such
series or such Coupons for principal of or interest, as the case
may be (with interest to the date of such payment upon the
overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue
installments of interest at the same rate as the rate of interest
specified in the Securities of such series); and in addition
thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including reasonable
compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and any expenses and
liabilities incurred, and all advances made, by the Trustee and
56<PAGE>
each predecessor Trustee except as a result of its negligence or
bad faith.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest on the Securities of any series to
the Registered Holders, whether or not the principal of and
interest on the Securities of such series are overdue.
In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of
an express trust, shall be entitled and empowered to institute
any action or proceedings at law or in equity for the collection
of the sums so due and unpaid, and may prosecute any such action
or proceedings to judgment or final decree, and may enforce any
such judgment or final decree against the Issuer or other obligor
upon such Securities and collect in the manner provided by law
out of the property of the Issuer or other obligor upon such
Securities, wherever situated, the moneys adjudged or decreed to
be payable.
In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Securities under Title 11 of
the United States Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property
or such other obligor, or in case of any other comparable
judicial proceedings relative to the Issuer or other obligor upon
the Securities of any series, or to the creditors or property of
the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of any Securities shall then be due and
payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and
empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid in respect
of the Securities of any series, and to file such other
papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim
for reasonable compensation to the Trustee and each
predecessor Trustee, and their respective agents, attorneys
and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee, except as a result of
negligence or bad faith) and of the Securityholders and the
Holders of any Coupons appertaining thereto allowed in any
judicial proceedings relative to the Issuer or other obligor
upon the Securities of any series, or to the creditors or
property of the Issuer or such other obligor,
57<PAGE>
(b) unless prohibited by applicable law and
regulations, to vote on behalf of the holders of the
Securities of any series in any election of a trustee or a
standby trustee in arrangement, reorganization, liquidation
or other bankruptcy or insolvency proceedings or person
performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute
all amounts received with respect to the claims of the
Securityholders and of the Trustee on their behalf; and any
trustee, receiver, or liquidator, custodian or other similar
official is hereby authorized by each of the Holders to make
payments to the Trustee, and, in the event that the Trustee
shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall
be sufficient to cover reasonable compensation to the
Trustee, each predecessor Trustee and their respective
agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of
negligence or bad faith and all other amounts due to the
Trustee or any predecessor Trustee pursuant to Section 6.6.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt
on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
of any series or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to
vote for the election of a trustee in bankruptcy or similar
person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities may be enforced by the
Trustee without the possession of any of the Securities or the
production thereof at any trial or other proceedings relative
thereto, and any such action or proceedings instituted by the
Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of
the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys,
shall be for the ratable benefit of the Holders of the Securities
and Holders of any Coupons in respect of which such action was
taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be a party), the Trustee
shall be held to represent all the Holders of the Securities and
Coupons appertaining thereto in respect to which such action was
taken, and it shall not be necessary to make any Holders of such
58<PAGE>
Securities and Coupons appertaining thereto parties to any such
proceedings.
SECTION 5.3 Application of Proceeds. Any moneys collected by
the Trustee pursuant to this Article in respect of the Securities
of any series shall be applied in the following order at the date
or dates fixed by the Trustee and, in case of the distribution of
such moneys on account of principal or interest, upon
presentation of the several Securities and any Coupons
appertaining thereto in respect of which moneys have been
collected and stamping (or otherwise noting) thereon the payment,
or issuing Securities of such series in reduced principal amounts
in exchange for the presented Securities of like series if only
partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable
to such series in respect of which moneys have been collected,
including reasonable compensation to the Trustee and each
predecessor Trustee and their respective agents and attorneys and
of all expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith, and all other amounts due to the Trustee
or any predecessor Trustee pursuant to Section 6.6;
SECOND: In case the principal of the Securities of such
series in respect of which moneys have been collected shall
not have become and be then due and payable, to the payment
of interest on the Securities of such series in default in
the order of the maturity of the 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 same rate as the rate of
interest specified in such Securities, such payments to be
made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities of such
series in respect of which moneys have been collected shall
have become and shall be then due and payable, to the
payment of the whole amount then owing and unpaid upon all
the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent
that payment of such interest is permissible by law and that
such interest has been collected by the Trustee) upon
overdue installments of interest at the same rate as the
rate of interest specified in the Securities of such series;
and in case such moneys shall be insufficient to pay in full
the whole amount so due and unpaid upon the Securities of
such series, then to the payment of such principal and
interest without preference or priority of principal over
interest or of interest over principal, or of any
installment of interest over any other installment of
interest, or of any Security of such series over any other
59<PAGE>
Security of such series, ratably to the aggregate of such
principal and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the
Issuer or any other person lawfully entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an Event of
Default has occurred, has not been waived and is continuing, the
Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this
Indenture or to enforce any other legal or equitable right vested
in the Trustee by this Indenture or by law.
SECTION 5.5 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee shall have proceeded to enforce
any right under this Indenture and such proceedings shall have
been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee, then and in every such case
the Issuer and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights,
remedies and powers of the Issuer, the Trustee and the
Securityholders shall continue as though no such proceedings had
been taken.
SECTION 5.6 Limitations on Suits by Securityholders. No
Holder of any Security of any series or Holder of any Coupon
shall have any right by virtue or by availing of any provision of
this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with
respect to this Indenture, or for the appointment of a trustee,
receiver, liquidator, custodian or other similar official or for
any other remedy hereunder, unless such Holder previously shall
have given to the Trustee written notice of default and of the
continuance thereof, as herein before provided, and unless also
the Holders of not less than 25% in aggregate principal amount of
the Securities of such series then Outstanding shall have made
written request upon the Trustee to institute such action or
proceedings in its own name as trustee hereunder and shall have
offered to the Trustee such reasonable indemnity, as it may
require against the costs, expenses and liabilities to be
incurred therein or thereby and the Trustee for 60 days after its
receipt of such notice, request and offer of indemnity shall have
failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been
given to the Trustee pursuant to Section 5.9; it being understood
and intended, and being expressly covenanted by the taker and
Holder of every Security or Holder of any Coupon appertaining
thereto and the Trustee, that no one or more Holders of
Securities of any series or one or more Holders of any Coupons
60<PAGE>
appertaining thereto shall have any right in any manner whatever,
by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any other such Holder
of Securities or any other Holders of such Coupons, or to obtain
or seek to obtain priority over or preference to any other such
Holder or to enforce any right under this Indenture, except in
the manner herein provided and for the equal, ratable and common
benefit of all Holders of Securities of the applicable series and
all the Holders of any Coupons appertaining thereto. For the
protection and enforcement of the provisions of this Section,
each and every Securityholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
SECTION 5.7 Unconditional Right of Securityholders to
Institute Certain Suits. Notwithstanding any other provision in
this Indenture and any provision of any Security or Coupon, the
right of any Holder of any Security and the right of the Holder
of any Coupon appertaining thereto to receive payment of the
principal of and interest on such Security on or after the
respective due dates expressed in such Security, or to institute
suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default. Except as provided in Section
5.6, no right or remedy herein conferred upon or reserved to the
Trustee or to the Securityholders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder
to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right
or power or shall be construed to be a waiver of any such Event
of Default or an acquiescence therein; and, subject to Section
5.6, every power and remedy given by this Indenture or by law to
the Trustee, to the Securityholders or to the Holder of any
Coupon appertaining thereto may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee, the
Securityholders or Holders of any Coupon.
SECTION 5.9 Control by Securityholders. The Holders of a
majority in aggregate principal amount of the Securities of each
series affected (with each series treated as a separate class) or
of the Holders of any Coupons appertaining thereto at the time
Outstanding shall have the right to direct the time, method, and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the
61<PAGE>
Trustee with respect to the Securities of such series by this
Indenture; provided that such direction shall not be otherwise
than in accordance with law and the provisions of this Indenture
and provided further that (subject to the provisions of Section
6.1) the Trustee shall have the right to decline to follow any
such direction if the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith by its board of
directors, the executive committee, or a trust committee of
directors or Responsible Officers of the Trustee shall determine
that the action or proceedings so directed would involve the
Trustee in personal liability or if the Trustee in good faith
shall so determine that the actions or forbearance's specified in
or pursuant to such direction would be unduly prejudicial to the
interests of Holders of the Securities of all series or of the
Holders of any Coupons appertaining thereto so affected not
joining in the giving of said direction, it being understood that
(subject to Section 6.1) the Trustee shall have no duty to
ascertain whether or not such actions or forebearances are unduly
prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the
Trustee and which is not inconsistent with such direction or
directions by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the Securities
of any series as provided in Section 5.1, the Holders of a
majority in aggregate principal amount of the Securities of such
series at the time Outstanding (each such series voting as a
separate class) may on behalf of the Holders of all the
Securities of such series waive any past default or Event of
Default described in clause (d) or (g) of Section 5.1 which
relates to less than all series of Securities then Outstanding,
except a default in respect of a covenant or provision hereof
which cannot be modified or amended except with the consent of
each Holder affected as provided in Section 8.2. Prior to a
declaration of acceleration of the maturity of the Securities of
any series as provided in Section 5.1, the Holders of Securities
of a majority in principal amount of all the Securities then
Outstanding (voting as one class) may on behalf of all Holders
waive any past default or Event of Default referred to in said
clause (d) or (g) which relates to all series of Securities then
Outstanding, or described in clause (e) or (f) of Section 5.1,
except a default in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the
Holder of each Security affected as provided in Section 8.2. In
the case of any such waiver, the Issuer, the Trustee and the
Holders of the Securities of each series affected shall be
restored to their former positions and rights hereunder,
respectively.
62<PAGE>
Upon any such waiver, such default shall cease to exist and
be deemed to have been cured and not to have occurred, and any
Event of Default arising therefrom shall be deemed to have been
cured and not to have occurred for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent
thereon.
SECTION 5.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances. The Trustee shall transmit to
the Securityholders of any series, as the names and addresses of
such Holders appear on the registry books, notice by mail of all
defaults which have occurred with respect to such series, such
notice to be transmitted within 90 days after the occurrence
thereof, unless such defaults shall have been cured before the
giving of such notice (the term "default" or "defaults" for the
purposes of this Section being hereby defined to mean any event
or condition which is, or with notice or lapse of time or both
would become, an Event of Default); provided that, except in the
case of default in the payment of the principal of or interest on
any of the Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board
of directors, the executive committee, or a trust committee of
directors or trustees or Responsible Officers of the Trustee in
good faith determines that the withholding of such notice is in
the interests of the Securityholders of such, series.
SECTION 5.12 Right of Court to Require Filing of Undertaking
to Pay Costs. All parties to this Indenture agree, and each
Holder of any Security and each Holder of any Coupon, by his
acceptance thereof, shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture or in any
suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant
in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Securityholder or
group of Securityholders of any series holding in the aggregate
more than 10% in aggregate principal amount of the Securities of
such series, or, in the case of any suit relating to or arising
under clause (d) of Section 5.1 (if the suit relates to
Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities Outstanding affected
thereby, or in the case of any suit relating to or arising under
clause (d) (if the suit under clause (d) relates to all the
Securities then Outstanding), (e), (f) or (g) of Section 5.1, 10%
in aggregate principal amount of all Securities Outstanding, or
to any suit instituted by any Securityholder for the enforcement
63<PAGE>
of the payment of the principal of or interest on any Security on
or after the due date expressed in such Security.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default. With respect to the Holders of
any series of Securities issued hereunder, the Trustee, prior to
the occurrence of an Event of Default with respect to the
Securities of a particular series and after the curing or waiving
of all Events of Default which may have occurred with respect to
such series, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case
an Event of Default with respect to the Securities of a series
has occurred (which has not been cured or waived), the Trustee
shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
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 with
respect to the Securities of any series and after the curing
or waiving of all such Events of Default with respect to
such series which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any Series shall be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the
opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but
in the case of any such statements, certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
64<PAGE>
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders pursuant to
Section 5.9 relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if
there shall be reasonable ground for believing that the repayment
of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and
subject to Sections 315 and 316 of the Trust Indenture Act.
SECTION 6.2 Certain Rights of the Trustee . In furtherance
of and subject to the Trust Indenture Act, and subject to Section
6.1:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
Officers' Certificate or any other certificate, statement,
instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, coupon, security or other
paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the
Issuer mentioned herein shall be sufficiently evidenced by
an Officers' Certificate (unless other evidence in respect
thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the
Trustee by a copy thereof certified by the secretary or an
assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice
or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good
faith and in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this
65<PAGE>
Indenture at the request, order or direction of any of the
Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to
the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action
taken or omitted by it in good faith and believed by it to
be authorized or within the discretion, rights or powers
conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default
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,
appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing to do so by
the Holders of not less than a majority in aggregate
principal amount of the Securities of all series affected
then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable
expenses of every such investigation shall be paid by the
Issuer or, if paid by the Trustee or any predecessor
Trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys not regularly in its
employ and the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent or
attorney appointed with due care by it hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals,
Disposition of Securities or Application of Proceeds Thereof.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the
statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes
no representation as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Issuer of any of
the Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities;
Collections, etc. The Trustee, any Paying Agent, Security
66<PAGE>
Registrar, or any agent of the Issuer or the Trustee, in its
individual or any other capacity, may become the owner or pledgee
of Securities or Coupons with the same rights it would have if it
were not the Trustee or such agent and, if operative, may
otherwise deal with the Issuer and receive, collect, hold and
retain collections from the Issuer with the same rights it would
have if it were not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee . Subject to the
provisions of Sections 10.1, 10.2, 13.2 and 13.3 hereof, all
moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except
to the extent required by mandatory provisions of law. Neither
the Trustee nor any agent of the Issuer or the Trustee shall be
under any liability for interest on any moneys received by it
hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and
Its Prior Claim. The Issuer covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to,
reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of
the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel
and of all agents and other persons not regularly in its employ)
except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Issuer also covenants to
indemnify the Trustee and each predecessor Trustee for, and to
hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder,
including the costs and expenses of defending itself against or
investigating any claim of liability in the premises. The
obligations of the Issuer under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. Such additional indebtedness shall
be a senior claim to that of the Securities upon all property and
funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities
or the Holders of particular Coupons, and the Securities are
hereby subordinated to such senior claim.
SECTION 6.7 Right of Trustee to Rely on Officers'
Certificate, etc. Subject to Sections 6.1 and 6.2, whenever in
the administration of the trusts of this Indenture the Trustee
67<PAGE>
shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof
be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted by it or under the provisions of this
Indenture upon the faith thereof.
SECTION 6.8 Disqualification; Conflicting Interests. If the
Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture.
SECTION 6.9 Persons Eligible for Appointment as Trustee. The
Trustee for each series of Securities hereunder shall at all
times be a corporation organized and doing business under the
laws of the United States of America or of any State or the
District of Columbia having a combined capital and surplus of at
least $50,000,000, and which is eligible in accordance with the
provisions of Section 310(a) of the Trust Indenture Act. If such
corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of a federal, state or
District of Columbia supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. Neither the Issuer nor any person directly or
indirectly controlling, controlled by, or under common control
with the Issuer shall serve as a Trustee upon any Securities. In
case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in
Section 6.10.
SECTION 6.10 Resignation and Removal; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees
hereafter appointed, may at any time resign with respect to one
or more or all series of Securities by giving written notice of
resignation to the Issuer and by mailing notice thereof by first
class mail to Holders of the applicable series of Securities at
their last addresses as then shall appear on the Security
register. Upon receiving such notice of resignation, the Issuer
shall promptly appoint a successor trustee or trustees with
respect to the applicable series by written instrument in
duplicate, executed by authority of the Board of Directors of the
Issuer, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee or
trustees. If no successor trustee shall have been so appointed
68<PAGE>
with respect to any series and have accepted appointment within
30 days after the mailing of such notice of resignation, the
resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may,
subject to the provisions of Section 5.12, 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:
(i) the Trustee shall fail to comply with the
provisions of Section 310 (b) of the Trust Indenture Act
with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder who
has been a bona fide Holder of a Security or Securities of
such series for at least six months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 310 (a) of the
Trust Indenture Act and shall fail to resign after written
request therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with
respect to any series of the Securities, or shall be
adjudged a bankrupt or insolvent, or a receiver or
liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then in any such case, the Issuer may remove the Trustee with
respect to the applicable series of Securities and appoint a
successor trustee for such series by written instrument, in
duplicate, executed by order of the Board of Directors of the
Issuer, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 315(e) of the Trust
Indenture Act of 1939, any Securityholder who has been a bona
fide Holder of a Security or Securities of such series for at
least six months may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor
trustee with respect to such series. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount
of the Securities of each series at the time Outstanding may at
any time remove the Trustee with respect to Securities of such
series and appoint a successor trustee with respect to the
69<PAGE>
Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer
the evidence provided for in Section 7.1 of the action in that
regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect
to any series and any appointment of a successor trustee with
respect to such series pursuant to any of the provisions of this
Section 6.10 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10 shall
execute and deliver to the Issuer and to its predecessor Trustee
an instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the predecessor Trustee with
respect to all or any applicable series shall become effective
and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties
and obligations with respect to such series of its predecessor
hereunder, with like effect as if originally named as trustee for
such series hereunder; but, nevertheless, on the written request
of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to
Sections 10.1, 10.2, 13.2 and 13.3, pay over to the successor
trustee all moneys at the time held by it hereunder and shall
execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Issuer 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 prior claim upon all property or funds
held or collected by such trustee to secure any amounts then due
it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the
predecessor Trustee and each successor trustee with respect to
the Securities of any applicable series shall execute and deliver
an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which
the predecessor Trustee is not retiring shall continue to be
vested in the predecessor Trustee, and shall add to or change any
of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute
such trustees co-trustees of the same trust and that each such
trustee shall be trustee of a trust or trusts under separate
indentures.
70<PAGE>
Upon acceptance of appointment by any successor trustee as
provided in this Section 6.11, the Issuer shall mail notice
thereof by first-class mail to the Holders of Securities of any
series for which such successor trustee is acting as trustee at
their last addresses as they shall appear in the Security
register. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called
for by Section 6.10. If the Issuer fails to mail such notice
within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be
mailed at the expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession
to Business of Trustee. Any corporation into which the Trustee
may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be eligible under the
provisions of Section 6.9, without the execution or filing of any
paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the
Securities of any series shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and
deliver such Securities so authenticated; and, in case at that
time any of the Securities of any series shall not have been
authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor Trustee
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 Securities of such series or in this Indenture
provided that the certificate of the Trustee shall have;
provided, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate
Securities of any series in the name of any predecessor Trustee
shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 6.13 Preferential Collection of Claims Against
Issuer. If and when the Trustee shall be or become a creditor of
the Issuer (or any other obligor upon the Securities), the
Trustee shall be subject to the provisions of Section 311 of the
Trust Indenture Act regarding the collection of claims against
the Issuer (or any such other obligor).
SECTION 6.14 Appointment of Authenticating Agent. As long
as any Securities of a series remain Outstanding, upon an Issuer
request, there shall be an authenticating agent (the
71<PAGE>
"Authenticating Agent") appointed, for such period as the Issuer
shall elect, by the Trustee for such series of Securities to act
as its agent on its behalf and subject to its direction in
connection with the authentication and delivery of each series of
Securities for which it is serving as Trustee. Securities of
each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by such
Trustee. Wherever reference is made in this Indenture to the
authentication and delivery of Securities of any series by the
Trustee for such series or to the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee for such
series by an Authenticating Agent for such series and a
certificate of authentication executed on behalf of such Trustee
by such Authenticating Agent, except that only the Trustee may
authenticate Securities upon original issuance and pursuant to
Section 2.9 hereof. Such Authenticating Agent shall at all times
be a corporation organized and doing business under the laws of
the United States of America or of any State, authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $10,000,000 and subject to
supervision or examination by Federal or State authorities. If
such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said
supervising or examining authority, then for purposes of this
Section, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which any Authenticating Agent may be
merged or converted, or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which any Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency business of
any Authenticating Agent, shall continue to be the Authenticating
Agent with respect to all series of Securities for which it
served as Authenticating Agent without the execution or filing of
any paper or any further act on the part of the Trustee for such
series or such Authenticating Agent. Any Authenticating Agent
may at any time, and, if it shall cease to be eligible, shall
resign by giving written notice of resignation to the applicable
Trustee and to the Issuer. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Issuer.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS; SECURITYHOLDERS' MEETINGS
72<PAGE>
SECTION 7.1 Evidence of Action Taken by Securityholders. (a)
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or
taken by a specified percentage in principal amount of the
Securityholders of any or all series may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such specified percentage of Securityholders in
person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to
the Trustee. Proof of execution of any instrument or of a writing
appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Sections 6.1 and 6.2) conclusive
in favor of the Trustee, the Issuer, if made in the manner
provided in this Article.
(b) The ownership of Registered Securities shall be proved
by the Security register.
(c) The amount of Unregistered Securities held by any Person
executing any instrument or writing as a Securityholder, the
numbers of such Unregistered Securities, and the date of his
holding the same may be proved by the production of such
Securities or by a certificate executed by any trust company,
bank, broker or member of a national securities exchange
(wherever situated), as depositary, if such certificate is in
form satisfactory to the Trustee, showing that at the date
therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Unregistered Securities
therein described; or such facts may be proved by the certificate
or affidavit of the Person executing such instrument or writing
as a Securityholder, if such certificate or affidavit is in form
satisfactory to the Trustee. The Trustee and the Issuer may
assume that such ownership of any Unregistered Security continues
until (i) another certificate or affidavit bearing a later date
issued in respect of the same Unregistered Security is produced,
or (ii) such Unregistered Security is produced by some other
person, or (iii) such Unregistered Security is surrendered in
exchange for a Registered Security, or (iv) such Unregistered
Security has been canceled in accordance with Section 2.10.
SECTION 7.2 Proof of Execution of Instruments and of Holding
of Securities. Subject to Sections 6.1 and 6.2, the execution of
any instrument by a Securityholder or his agent or proxy may be
proved 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 Securities shall be
proved by the Security register or by a certificate of the
registrar thereof. The Issuer may set a record date for purposes
of determining the identity of holders of Securities of any
series entitled to vote or consent to any action referred to in
Section 7.1, which record date may be set at any time or from
time to time by notice to the Trustee, for any date or dates ( in
73<PAGE>
the case of any adjournment or reconsideration) not more than 60
days nor less than five days prior to the proposed date of such
vote or consent, and thereafter, notwithstanding any other
provisions hereof, only holders of Securities of such series of
record on such record date shall be entitled to so vote or give
such consent or revoke such vote or consent.
SECTION 7.3 Holders to Be Treated as Owners. The Issuer, the
Trustee and any Agent of the Issuer or the Trustee may deem and
treat the person in whose name any Security shall be registered
upon the Security register for such series as the absolute owner
of such Security (whether or not such Security shall be overdue
and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of
the principal of and interest on such Security and for all other
purposes; and neither the Issuer nor the Trustee nor any Agent of
the Issuer or the Trustee shall be affected by any notice to the
contrary. All such payments so made to any such person, or upon
his order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for
moneys payable upon any such Security.
SECTION 7.4 Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Outstanding Securities of any or
all series have concurred in any direction, consent or waiver
under this Indenture, or are to be selected for any redemption or
optional repayment, Securities which are owned by the Issuer or
any other obligor on the Securities with respect to which such
determination is being made or by any person directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on
the Securities with respect to which such determination is being
made shall be disregarded and deemed not to be Outstanding for
the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver only Securities
which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the Issuer
or any other obligor upon the Securities or any person directly
or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on
the Securities. In case of a dispute as to such right, the advice
of counsel shall be full protection in respect of any decision
made by the Trustee in accordance with such advice. Upon request
of the Trustee, the Issuer shall furnish to the Trustee promptly
an Officers' Certificate listing and identifying all Securities,
if any, known by the Issuer to be owned or held by or for the
account of any of the above-described persons; and, subject to
Sections 6.1 and 6.2, the Trustee shall be entitled to accept
such Officers' Certificate as conclusive evidence of the facts
74<PAGE>
therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as
provided in Section 7.1, of the taking of any action by the
Holders of the percentage in aggregate principal amount of the
Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to
be included among the serial numbers of the Securities the
Holders of which have consented to such action may, by filing
written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as
concerns such Security. Except as aforesaid any such action taken
by the Holder of any Security shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such
Security and of any Securities issued in exchange or substitution
therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the
Holders of the percentage in aggregate principal amount of the
Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the Holders
of all the Securities affected by such action.
SECTION 7.6 Holders' Meetings.
(a) Purpose of Meetings . A meeting of Holders of any or
all series may be called at any time and from time to time
pursuant to the provisions of this Section 7.6 for any of the
following purposes:
(1) to give any notice to the Issuer or to the Trustee for
such series, or to give any directions to the Trustee for
such series, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action
authorized to be taken by Holders pursuant to any of the
provisions of Article Five;
(2) to remove the Trustee for such series and appoint a
successor Trustee pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of
Section 8.2; or
(4) to take any other action authorized to be taken by or
on behalf of the Holders of any specified aggregate
principal amount of the Outstanding Securities of any one or
more or all series, as the case may be, under any other
provision of this Indenture or under applicable law.
75<PAGE>
(b) Call of Meetings by Trustee. The Trustee for any
series may (but shall not be required to) at any time call a
meeting of Holders of such series to take any action specified in
Section 7.6(a), to be held at such time or times and at such
place or places as the Trustee for such series shall determine.
Notice of every meeting of the Holders of any series, setting
forth the time and the place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be given
to Holders of such series in the manner and to the extent
provided in Section 11.4. Such notice shall be given not less
than 20 days nor more than 90 days prior to the date fixed for
the meeting.
(c) Call of Meetings by Issuer or Holders. In case at any
time the Issuer, pursuant to a board resolution, or the Holders
of at least 25% in aggregate principal amount of the Outstanding
Securities of a series or of all series, as the case may be,
shall have requested the Trustee for such series to call a
meeting of Holders of any or all such series by written request
setting forth in reasonable detail the action proposed to be
taken at the meeting which action must be within the
contemplation of paragraphs (1) through (4) inclusive of Section
7.6(a), and the Trustee shall not have given the notice of such
meeting within 20 days after the receipt of such request, then
the Issuer or such Holders may determine the time or times and
the place or places for such meetings and may call such meetings
to take any action authorized in Section 7.6(a), by giving notice
thereof as provided in Section 7.6(b).
SECTION 7.7 Qualifications for Voting . To be entitled to
vote at any meeting of Holders a Person shall be (a) a Holder of
a Security of the series with respect to which such meeting being
held or (b) a Person appointed by an instrument in writing as
agent or proxy by such Holder. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders
shall be the Persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee for the series
with respect to which such meeting is being held and its counsel
and any representatives of the Issuer and its counsel.
SECTION 7.8 Regulations. Notwithstanding any other
provisions of this Indenture, the Trustee for any series may make
such reasonable regulations as it may deem advisable for any
meeting of Holders of such series, in regard to proof of the
holding of Securities of such series and of the appointment of
proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall
deem appropriate.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have
been called by the Issuer or by Holders of such series as
76<PAGE>
provided in Section 7.6, in which case the Issuer or the Holders
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 a majority
vote of the meeting.
Subject to the provisos in the definition of "Outstanding"
and to Section 7.4, at any meeting each Holder of a Security of
the series with respect to which such meeting is being held or
proxy therefor shall be entitled to one vote for each $1000
principal amount (or such other amount as shall be specified as
contemplated by Section 2.3) of Securities of such series held or
represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged
as not Outstanding and ruled by the chairman of the meeting to be
not Outstanding. The chairman of the meeting shall have no right
to vote other than by virtue of Outstanding Securities of such
series held by him or instruments in writing duly designating him
as the person to vote on behalf of Holders of Securities of such
series. Any meeting of Holders with respect to which a meeting
was duly called may be adjourned from time to time by a majority
of such Holders present and the meeting may be held as so
adjourned without further notice.
SECTION 7.9 Voting. The vote upon any resolution submitted
to any meeting of Holders with respect to which such meeting is
being held shall be by written ballots on which shall be
subscribed the signatures of such Holders or of their
representatives by proxy and the serial number or numbers of the
Securities 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 Holders shall be taken 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 setting forth a copy of the
notice of the meeting and showing that said notice was
transmitted as provided in Section 7.6(b). The record shall show
the serial numbers of the Securities 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
Issuer and the other to the Trustee to be preserved by the
Trustee.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
SECTION 7.10 No Delay of Rights by Meeting . Nothing
contained in this Article Seven shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of
77<PAGE>
Holders 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
any Holder under any of the provisions of this Indenture or of
the Securities of any series.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of
its Board of Directors, and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental
hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to
the Trustee as security for the Securities of one or more
series any property or assets;
(b) to evidence the succession of another corporation
to the Issuer, or successive successions, and the assumption
by the successor corporation of the covenants, agreements
and obligations of the Issuer pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as their
respective Boards of Directors and the Trustee shall
consider to be for the protection of the Holders of
Securities, and to make the occurrence, or the occurrence
and continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event
of Default permitting the enforcement of all or any of the
several remedies provided in this Indenture as herein set
forth; provided, that in respect of any such additional
covenant, restriction, condition or provision such
supplemental indenture may provide for a particular period
of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or
may provide for an immediate enforcement upon such an Event
of Default or may limit the remedies available to the
Trustee upon such an Event of Default or may limit the right
of the Holders of a majority in aggregate principal amount
of the Securities of such series to waive such an Event of
Default;
(d) to cure any ambiguity or to correct or supplement
any provision contained herein or in any supplemental
indenture which may be defective or inconsistent with any
other provision contained herein or in any supplemental
indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under
any supplemental indenture as the Board of Directors of the
78<PAGE>
Issuer may deem necessary or desirable and which shall not
in any material way adversely affect the interests of the
Holders of the Securities or the Holders of any Coupons;
(e) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 2.3;
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than the one trustee, pursuant
to the requirements of Section 6.11;
(g) to add or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities of any series in
unregistered form, registrable or not registrable, and with
or without Coupons, to permit Unregistered Securities to be
issued in exchange for Unregistered Securities, to permit
Unregistered Securities to be issued in exchange for
Unregistered Securities of other authorized denominations or
to permit the issuance of Securities of any series in
uncertificated form, provided that any such action shall not
adversely affect the interests of the Holders of Securities
of any series or any related Coupons in any material
respect; or
(h) to change or eliminate any of the provisions of
this Indenture, provided, that any such change or
elimination shall become effective only when there is no
Outstanding Security or Coupon of any series created prior
to the execution of such supplemental indenture which is
entitled to the benefit of such provision and as to which
such supplemental indenture would apply.
The Trustee is hereby authorized to join with the Issuer in
the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer,
assignment, mortgage or pledge of any property thereunder, but
the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed without the consent of the Holders
of any of the Securities at the time Outstanding, notwithstanding
any of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in
Article Seven) of the Holders of not less than a majority in
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aggregate principal amount of the Securities at the time
Outstanding of all series affected by such supplemental indenture
(treated as one class), the Issuer, when authorized by a
resolution of its Boards of Directors, and the Trustee may, from
time to time and at any time, enter into an indenture or
indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or
of modifying in any manner the rights of the Holders of the
Securities of each such series; provided, that no such
supplemental indenture shall (a) change the final maturity of the
principal of, or installment of interest, if any, on, any
Security, or reduce the principal amount thereof or the interest
thereon or any amount payable upon redemption thereof, or change
the maturity of or reduce the amount of any payment to be made
with respect to any Coupon, or change the currency or currencies
in which the principal of or interest on such Security is
denominated or payable, or reduce the amount of the principal of
a Discount Security that would be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to
Section 5.1, or adversely affect the right of repayment or
repurchase, if any, at the option of the Holder, or reduce the
amount of, or postpone the date fixed for, any payment under any
sinking fund or analogous provisions for any Security, or impair
the right to institute suit for the enforcement of any payment on
or after the maturity thereof (or, in the case of redemption, on
or after the redemption date); or (b) reduce the percentage in
principal amount of the outstanding Securities of any series, the
consent of the Holders of which is required for any supplemental
indenture, or the consent of the Holders of which is required for
any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences
provided for in this Indenture.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors of the Issuer authorizing
the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of
Securityholders as aforesaid and other documents, if any,
required by Section 7.1, the Trustee shall join with the Issuer
in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to,
enter into such supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee
of any supplemental indenture pursuant to the provisions of this
Section, the Issuer shall mail a notice thereof by first class
80<PAGE>
mail to the Holders of Securities of each series affected thereby
at their addresses as they shall appear on the registry books of
the Issuer, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Issuer to mail such
notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture . Upon the
execution of any supplemental indenture pursuant to the
provisions hereof, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders
of Securities of each series and Holders of Coupons affected
thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an
Officers' Certificate from the Issuer and an Opinion of Counsel
as conclusive evidence that any supplemental indenture executed
pursuant to this Article Eight complies with the applicable
provisions of this Indenture.
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures. Securities of any series authenticated
and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article may bear, upon the
direction of the Issuer, a notation in form satisfactory to the
Trustee for such series as to any matter provided for by such
supplemental indenture or as to any action taken at any such
meeting. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the
opinion of the Trustee and the Boards of Directors of the Issuer,
to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the
Securities of such series then outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms .
The Issuer covenants that it will not merge or consolidate with
any other corporation or sell or convey all or substantially all
of its assets to any Person, unless (i) either the Issuer shall
be the continuing corporation, or the successor corporation or
the Person which acquires by sale or conveyance substantially all
the assets of the Issuer (if other than the Issuer) shall be a
81<PAGE>
corporation organized under the laws of the United States of
America or any State thereof or the District of Columbia and
shall expressly assume the due and punctual payment of the
principal of and interest on all the Securities, according to
their tenor, and the due and punctual performance and observance
of all of the covenants and conditions of this Indenture to be
performed or observed by the Issuer, by supplemental indenture
satisfactory to the Trustee, executed and delivered to the
Trustee by such corporation, and (ii) the Issuer or such
successor corporation, as the case may be, shall not, immediately
after such merger or consolidation, or such sale or conveyance,
be in default in the performance of any such covenant or
condition.
SECTION 9.2 Successor Corporation Substituted . In case of
any such consolidation, merger, sale or conveyance, and following
such an assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Issuer,
with the same effect as if it had been named herein. Such
successor corporation may cause to be signed, and may issue
either in its own name or in the name of the Issuer prior to such
succession any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and
delivered to the Trustee; and, upon the order of such successor
corporation instead of the Issuer and subject to all the terms,
conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Securities of
the Issuer which previously shall have been signed and delivered
by the officers of the Issuer to the Trustee for authentication,
and any Securities which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee for that
purpose. All of the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued
as may be appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease) the Issuer or any successor
corporation which shall theretofore have become such in the
manner described in this Article shall be discharged from all
obligations and covenants under this Indenture and the Securities
and may be liquidated and dissolved.
SECTION 9.3 Opinion of Counsel to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an
Opinion of Counsel, prepared in accordance with Section 11.5, as
conclusive evidence that any such consolidation, merger, sale,
lease or conveyance, and any such assumption, and any such
82<PAGE>
liquidation or dissolution, complies with the applicable
provisions of this Indenture.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. This
Indenture, with respect to the Securities of any series (if all
series issued under this Indenture are not to be affected) shall
upon an Issuer request, cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange
of such Securities herein expressly provided for and rights to
receive payments of principal and interest on such Securities)
and the Trustee, at the expense of the Issuer, shall execute
proper instruments acknowledging satisfaction and discharge of
this Indenture, when
(1) either
(A) all Securities and the Coupons, if any, of such series
theretofore authenticated and delivered (other than (i)
Securities and Coupons of such series which have been destroyed,
lost or stolen and which have been replaced or paid as provided
in Section 2.9, (ii) Coupons appertaining to Unregistered
Securities surrendered for exchange for whose surrender is not
required or has been waived under Section 2.8, (iii) Coupons
appertaining to Unregistered Securities called for redemption and
maturing after the relevant redemption date, whose surrender has
been waived as provided in Section 12.3, and (iv) Securities and
Coupons of such series for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Issuer and thereafter repaid to the Issuer or discharged from
such trust have been delivered to the Trustee for cancellation;
or
(B) all Securities and Coupons, if any, of such series not
theretofore delivered to the Trustee for cancellation,
(i) have become due and payable, or
(ii) will become due and payable at their maturity
within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for
the giving of notice by the Trustee in the name, and at
the expense, of the Issuer,
and the Issuer, in the case of (i), (ii) or (iii) of this
subclause (B), has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for such
purpose an amount in the currency in which such Securities are
83<PAGE>
denominated (except as otherwise provided pursuant to Sections
2.3 or 2.12) sufficient to pay and discharge the entire
indebtedness on such Securities for principal and interest to the
date of such deposit (in the case of Securities which have become
due and payable) or to the maturity or redemption date, as the
case may be; provided, however, in the event a petition for
relief under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or state bankruptcy,
insolvency or other similar law, is filed with respect to the
Issuer within 91 days after the deposit and the Trustee is
required to return the deposited money to the Issuer, the
obligations of the Issuer under this Indenture with respect to
such Securities shall not be deemed terminated or discharged;
(2) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer with respect to the Securities of
the series in question; and
(3) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to such
series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Issuer to the Trustee under Section 6.6,
the obligations of the Trustee to any Authenticating Agent under
Section 6.14, the obligations of the Issuer under Section 3.1,
and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 10.2 shall survive. If, after the
deposit referred to in Section 10.1 has been made, (x) the Holder
of a Security is entitled to, and does, elect pursuant to Section
2.12, to receive payment in a currency other than that in which
the deposit pursuant to Section 10.1 was made, or (y) if a
Conversion Event occurs with respect to the currency in which the
deposit was made or elected to be received by the Holder pursuant
to Section 2.12, then the indebtedness represented by such
Security shall be fully discharged to the extent that the deposit
made with respect to such Security shall be converted into the
currency in which such payment is made.
SECTION 10.2. Application of Trust Money. Subject to the
provisions of the last paragraph of Section 13.4, all money
deposited with the Trustee pursuant to Section 10.1 shall be held
in trust and applied by it, in accordance with the provisions of
the Securities and Coupons, if any, and this Indenture, to the
payment, either directly or through any Paying Agent (including
the Issuer acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and
interest for whose payment such money has been deposited with the
Trustee.
84<PAGE>
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No
recourse under or upon any obligation, covenant or agreement
contained in this Indenture, in any Security or Coupon
appertaining thereto, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, as such or
against any past, present or future stockholder, officer or
director, as such, of the Issuer or of any successor, either
directly or through the Issuer or any successor, under any rule
of law, statute or constitutional provision or by the enforcement
of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released
by the acceptance of the Securities by the Holders thereof and as
part of the consideration for the issue of the Securities.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders. Nothing in this Indenture or in the
Securities, expressed or implied, shall give or be construed to
give to any Person, firm or corporation, other than the parties
hereto, any Paying Agent and their successors hereunder and the
Holders of the Securities and Coupons, if any, any legal or
equitable right, remedy or claim under this Indenture or under
any covenant or provision herein contained, all such covenants
and provisions being for the sole benefit of the parties hereto
and their successors and of the Holders of the Securities.
SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the
Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and
Securityholders. Any notice or demand which by any provision of
this Indenture is required or permitted to be given or served by
the Trustee, by the Holders of Securities, or by the Holders of
Coupons to or on the Issuer may be given or served by being
deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of
the Issuer is filed by the Issuer with the Trustee) to Ralston
Purina Company, Checkerboard Square, St. Louis, Missouri 63164.
Any notice, direction, request or demand by the Issuer or any
Securityholder to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or
made at the Corporate Trust Office.
Where this Indenture provides for notice to Holders of any
event, (1) if any of the Securities affected by such event are
Registered Securities, such notice shall be sufficiently given
85<PAGE>
(unless otherwise herein expressly provided) if in writing and
mailed by first-class mail, postage prepaid to such Registered
Holders as their names and addresses appear in the Security
register within the time prescribed and (2) if any of the
Securities affected by such event are Unregistered Securities,
such notice shall be sufficiently given (unless otherwise herein
expressly provided) if published once in a newspaper of general
circulation in New York, New York and London, England within the
time prescribed, and any other notice which is required by any
stock exchange on which the Securities are listed. Where this
Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be
filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon
such waiver. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in
any notice so mailed to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders, and any
notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to
the Issuer and Securityholders when such notice is required to be
given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice.
In the event of suspension of publication of any authorized
newspapers or by reason of any other cause it shall be
impracticable to give notice by publication, such notification as
shall be given with the approval of the Trustee shall constitute
sufficient notice for every purpose hereunder.
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or
demand by the Issuer to the Trustee to take any action under any
of the provisions of this Indenture, the Issuer shall furnish to
the Trustee an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent
have been complied with, except that in the case of any such
application or demand as to which the furnishing of such
documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture
and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture shall
include (a) a statement that the person making such certificate
86<PAGE>
or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based, (c) a statement that, in
the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition
has been complied with and (d) a statement as to whether or not,
in the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon
a certificate or opinion of or representations by counsel, unless
such officer knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to factual matters,
information with respect to which is in the possession of the
Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer; unless
such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of or
representations by an accountant or firm of accountants in the
employ of the Issuer, unless such officer or counsel, as the case
may be, knows that the certificate or opinion or representations
with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that
such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and
Holidays. If the date of maturity of interest on or principal of
the Securities of any series or Coupons appertaining thereto or
the date fixed for redemption or repayment of any such Security
or Coupon shall not be a Business Day, then payment of interest,
premium, if any, or principal need not be made on such date, but
may be made on the next succeeding Business Day with the same
force and effect as if made on the date of maturity or the date
fixed for redemption, and no interest shall accrue for the period
after such date.
87<PAGE>
SECTION 11.7 Conflict of Any Provision of Indenture with
Trust Indenture Act of 1939. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with
another provision included in this Indenture by operation of
Sections 310 to 317, inclusive, of the Trust Indenture Act of
1939 (an "incorporated provision"), such incorporated provision
shall control.
SECTION 11.8 New York Law to Govern. This Indenture and each
Security shall be deemed to be a contract under the laws of the
State of New York, and for all purposes shall be construed in
accordance with the laws of such State.
SECTION 11.9 Counterparts. This Indenture may be executed
in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one
and the same instrument.
SECTION 11.10 Effect of Headings . The Article and Section
headings herein and the Table of Contents are for convenience
only and shall not affect the construction hereof.
SECTION 11.11. Separability Clause. In case any provision
in this Indenture or in the Securities shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 11.12. No Security Interest Created. Nothing in
this Indenture or in the Securities or Coupons, express 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 Issuer or its Subsidiaries is or may be located.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of
this Article shall be applicable to the Securities of any series
which are redeemable before their maturity or to any sinking fund
for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 2.3 for Securities of such
series.
SECTION 12.2 Notice of Redemption; Partial Redemptions .
Notice of redemption to the Holders of Securities of any series
to be redeemed as a whole or in part at the option of the Issuer
shall be given by mailing notice of such redemption by first-
class mail, postage prepaid, at least 30 days and not more than
60 days prior to the date fixed for redemption to such Holders of
88<PAGE>
Securities of such series at their last addresses as they shall
appear upon the registry books. Any notice which is mailed in the
manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice.
Failure to give notice by mail, or any defect in the notice to
the Holder of any Security of a series designated for redemption
as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such
series.
The notice of redemption to each such Holder shall specify
the principal amount of each Security of such series held by such
Holder to be redeemed, the date fixed for redemption, the
redemption price, the place or places of payment, that payment
will be made upon presentation and surrender of such Securities,
and that, unless otherwise specified in such notice, Unregistered
Coupon Securities, if any, surrendered for payment must be
accompanied by all Coupons maturing subsequent to the redemption
date, failing which the amount of any such missing Coupon or
Coupons will be deducted from the sum due for payment, that such
redemption is pursuant to the mandatory or optional sinking fund,
or both, if such be the case, that interest accrued to the date
fixed for redemption will be paid as specified in such notice and
that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. In case any Security
of a series is to be redeemed in part, the notice of redemption
shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or
Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer
or, at the Issuer's request, by the Trustee in the name and at
the expense of the Issuer.
At least one Business Day prior to the redemption date
specified in the notice of redemption given as provided in this
Section, the Issuer will deposit with the Trustee or with one or
more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in
Section 3.4) an amount of money sufficient to redeem on the
redemption date all the Securities of such series so called for
redemption at the appropriate redemption price, together with
accrued interest to the date fixed for redemption. If less than
all the Outstanding Securities of a series are to be redeemed,
the Issuer will deliver to the Trustee at least 60 days prior to
the date fixed for redemption an Officers' Certificate stating
the aggregate principal amount of Securities to be redeemed.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall
deem appropriate and fair, Securities of such series to be
89<PAGE>
redeemed in whole or in part. Securities may be redeemed in part
in multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee
shall promptly notify the Issuer in writing of the Securities of
such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the
principal amount thereof to be redeemed. For all purposes of this
Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities of any series shall
relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the
Securities or portions of Securities specified in such notice
shall become due and payable on the date and at the place stated
in such notice at the applicable redemption price, together with
interest accrued to the date fixed for redemption, and on and
after said date (unless the Issuer shall default in the payment
of such Securities at the redemption price, together with
interest accrued to said date) interest on the Securities or
portions of Securities so called for redemption shall cease to
accrue and, except as provided in Sections 6.5 and 10.2, such
Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under this
Indenture, and the Holders thereof shall have no right in respect
of such Securities except the right to receive the redemption
price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a
place of payment specified in said notice, said Securities or the
specified portions thereof shall be paid and redeemed by the
Issuer at the applicable redemption price, together with interest
accrued thereon to the date fixed for redemption; provided that
any semiannual payment of interest becoming due on the date fixed
for redemption shall be payable to the Holders of such Securities
registered as such on the relevant record date subject to the
terms and provisions of Section 2.4 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until
paid or duly provided for, bear interest from the date fixed for
redemption at the rate of interest borne by the Security.
Upon presentation of any Security redeemed in part only and
the Coupons appertaining thereto, the Company shall execute and
the Trustee shall authenticate and deliver to or on the order of
the Holder thereof, at the expense of the Company, a new Security
or Securities and the Coupons appertaining thereto, of authorized
denominations, in principal amount equal to the unredeemed
portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption. Securities shall be
90<PAGE>
excluded from eligibility for selection for redemption if they
are identified by registration and certificate number in a
written statement signed by an authorized officer of the Issuer
and delivered to the Trustee at least 40 days prior to the last
date on which notice of redemption may be given as being owned of
record and beneficially by, and not pledged or hypothecated by,
either (a) the Issuer, or (b) an entity specifically identified
in such written statement directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds . The
minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of
such minimum amount provided for by the terms of Securities of
any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made
is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash,
the Issuer may at its option (a) deliver to the Trustee
Securities of such series theretofore purchased or otherwise
acquired (except upon redemption pursuant to the mandatory
sinking fund) by the Issuer or receive credit for Securities of
such series (not previously so credited) theretofore purchased or
otherwise acquired (except as aforesaid) by the Issuer and
delivered to the Trustee for cancellation pursuant to Section
2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so
credited) redeemed by the Issuer through any optional redemption
provision contained in the terms of such series. Securities so
delivered or credited shall be received or credited by the
Trustee at the sinking fund redemption price specified in such
Securities.
On or before the sixtieth day next preceding each sinking
fund payment date for any series, the Issuer will deliver to the
Trustee a written statement (which need not contain the
statements required by Section 11.5) signed by an authorized
officer of the Issuer (a) specifying the portion of the mandatory
sinking fund payment to be satisfied by payment of cash and the
portion to be satisfied by credit of Securities of such series,
(b) stating that none of the Securities of such series has
theretofore been so credited, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such
series have occurred (which have not been waived or cured) and
are continuing, (d) stating whether or not the Issuer intends to
exercise its right to make an optional sinking fund payment with
respect to such series and, if so, specifying the amount of such
optional sinking fund payment which the Issuer intends to pay on
or before the next succeeding sinking fund payment date and (e)
91<PAGE>
specifying such sinking fund payment date. Any Securities of such
series to be credited and required to be delivered to the Trustee
in order for the Issuer to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the
Trustee shall be delivered for cancellation pursuant to Section
2.10 to the Trustee with such written statement (or reasonably
promptly thereafter if acceptable to the Trustee). Such written
statement shall be irrevocable and upon its receipt by the
Trustee the Issuer shall become unconditionally obligated to make
all the cash payments or payments therein referred to, if any, on
or before the next succeeding sinking fund payment date. Failure
of the Issuer, on or before any such sixtieth day, to deliver
such written statement and Securities specified in this
paragraph, if any, shall not constitute a default but shall
constitute, on and as of such date, the irrevocable election of
the Issuer (i) that the mandatory sinking fund payment for such
series due on the next succeeding sinking fund payment date shall
be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that the
Issuer will make no optional sinking fund payment with respect to
such series as provided in this Section.
If the sinking fund payment or payments (mandatory or
optional or both) to be made in cash on the next succeeding
sinking fund payment date plus any unused balance of any
preceding sinking fund payments made in cash shall exceed $50,000
(or a lesser sum if the Issuer shall so request) with respect to
the Securities of any particular series, such cash shall be
applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the sinking fund
redemption price together with accrued interest to the date fixed
for redemption. If such amount shall be $50,000 or less and the
Issuer makes no such request then it shall be carried over until
a sum in excess of $50,000 is available. The Trustee shall
select, in the manner provided in Section 12.2, for redemption on
such sinking fund payment date a sufficient principal amount of
Securities of such series to absorb said cash, as nearly as may
be possible, and shall (if requested in writing by the Issuer)
inform the Issuer of the serial numbers of the Securities of such
series (or portions thereof) so selected. Securities of any
series which are (a) owned by the Issuer or an entity known by
the Trustee to be directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Issuer, as shown by the Security register, and not known to the
Trustee to have been pledged or hypothecated by the Issuer or any
such entity or (b) identified in an Officers' Certificate at
least 60 days prior to the sinking fund payment date as being
beneficially owned by, and not pledged or hypothecated by, the
Issuer or an entity directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Issuer shall be excluded from Securities of such series eligible
for selection for redemption. The Trustee, in the name and at the
expense of the Issuer (or the Issuer, if it shall so request the
Trustee in writing) shall cause notice of redemption of the
92<PAGE>
Securities of such series to be given in substantially the manner
provided in Section 12.2 (and with the effect provided in Section
12.3) for the redemption of Securities of such series in part at
the option of the Issuer. The amount of any sinking fund payments
not so applied or allocated to the redemption of Securities of
such series shall be added to the next cash sinking fund payment
for such series and, together with such payment, shall be applied
in accordance with the provisions of this Section. Any and all
sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity
is accelerated), which are not held for the payment or redemption
of particular Securities of such series shall be applied,
together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest on, the
Securities of such series at maturity.
At least one Business Day before each sinking fund payment
date, the Issuer shall pay to the Trustee in cash or shall
otherwise provide for the payment of all interest accrued to the
date fixed for redemption on Securities to be redeemed on the
next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or mail any
notice of redemption of Securities for such series by operation
of the sinking fund during the continuance of a default in
payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it
shall have received from the Issuer a sum sufficient for such
redemption. Except as aforesaid, any moneys in the sinking fund
for such series at the time when any such default or Event of
Default shall occur, and any moneys thereafter paid into the
sinking fund, shall, during the continuance of such default or
Event of Default, be deemed to have been collected under Article
Five and held for the payment of all such Securities. In case
such Event of Default shall have been waived as provided in
Section 5.10 or the default cured on or before the sixtieth day
preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund
payment date in accordance with this Section to the redemption of
such Securities.
SECTION 12.6 Repayment at the Option of the Holders.
Securities of any series which are repayable at the option of the
Holders thereof before their stated maturity shall be repaid in
accordance with the terms of the Securities of such series.
The repayment of any principal amount of Securities pursuant
to such option of the Holder to require repayment of Securities
before their stated maturity, for purposes of Section 10.1, shall
not operate as a payment, redemption or satisfaction of the
indebtedness represented by such Securities unless and until the
93<PAGE>
Issuer, at its option, shall deliver or surrender the same to the
Trustee with a directive that such Securities be canceled.
ARTICLE THIRTEEN
DEFEASANCE
SECTION 13.1. Applicability of Article. If, pursuant to
Section 2.3, provision is made for the defeasance of Securities
denominated and payable only in Dollars (except as provided
pursuant to Section 2.3) then the provisions of this Article
shall be applicable except as otherwise specified pursuant to
Section 2.3 for Securities of such series. Defeasance
provisions, if any, for Securities denominated in a Foreign
Currency or currencies or for Unregistered Securities may be
specified pursuant to Section 2.3.
SECTION 13.2. Defeasance Upon Deposit of Moneys or U.S.
Government Obligations. At the Issuer's option, either (a) the
Issuer shall be deemed to have been Discharged (as defined below)
from its obligations with respect to Securities of any series
("legal defeasance option") or (b) the Issuer shall cease to be
under any obligation to comply with any term, provision or
condition set forth in Sections 9.1, 3.6 and 3.7 with respect to
Securities of any series (and, if so specified pursuant to
Section 2.3, any other obligation of the Issuer or restrictive
covenant added for the benefit of such series pursuant to Section
2.3) ("covenant defeasance option") at any time after the
applicable conditions set forth below have been satisfied:
(1) the Issuer shall have deposited or caused to be
deposited irrevocably with the Trustee as trust funds in
trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of
such series (i) money (in the currency of the Securities)
in an amount, or (ii) U.S. Government Obligations (or
another comparable instrument with respect to the currency
of the Securities as selected by the Issuer with the
consent of the Trustee which consent shall not be
unreasonably withheld) which through the payment of
interest and principal in respect thereof in accordance
with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or
(iii) a combination of (i) and (ii), sufficient, in the
opinion (with respect to (i) and (ii)) of a nationally
recognized firm of independent public accountants
expressed in a written certification thereof delivered to
the Trustee, to pay and discharge each installment of
principal (including any mandatory sinking fund payments
)) of and interest on, the Outstanding Securities of such
series on the dates such installments of interest or
principal are due;
94<PAGE>
(2) such deposit shall not cause the Trustee with respect
to the Securities of that series to have a conflicting
interest as defined in Section 6.8 and for purposes of the
Trust Indenture Act with respect to the Securities of any
series, provided that the Issuer may remove the Trustee
and substitute a new Trustee if otherwise permitted by
Article Six;
(3) if the Securities of such series are then listed on
any national securities exchange, the Issuer shall have
delivered to the Trustee an Opinion of Counsel or a letter
or other document from such exchange to the effect that
the Issuer's exercise of its option under this Section
would not cause such Securities to be delisted;
(4) no Event of Default or event (including such deposit)
which, with notice or lapse of time or both, would become
an Event of Default with respect to the Securities of such
series shall have occurred and be continuing on the date
of such deposit and, with respect to the legal defeasance
option only, no Event of Default under Section 5.1(e) or
Section 5.1(f) shall have occurred and be continuing on
the 91st day after such date; and
(5) in the event of legal defeasance, the Issuer shall
have delivered to the Trustee an Opinion of Counsel or a
ruling from the Internal Revenue Service to the effect
that the Holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax
purposes as a result of such deposit, defeasance or
Discharge.
Notwithstanding the foregoing, if the Issuer exercises its
covenant defeasance option and an Event of Default under Section
5.1(e) or Section 5.1(f) or event which with the giving of notice
or lapse of time, or both, would become an Event of Default under
Section 5.1(e) or Section 5.1(f) shall have occurred and be
continuing on the 91st day after the date of such deposit, the
obligations of the Issuer referred to under the definition of
covenant defeasance option with respect to such Securities shall
be reinstated.
"Discharged" means that the Issuer shall be deemed to have
paid and discharged the entire indebtedness represented by, and
obligations under, the Securities of such series and to have
satisfied all the obligations under this Indenture relating to
the Securities of such series (and the Trustee, at the expense of
the Issuer, shall execute proper instruments acknowledging the
same), except (A) the rights of Holders of Securities of such
series to receive, from the trust fund described in clause (1)
above, payment of the principal of and interest on such
Securities when such payments are due, (B) the Issuer's
obligations with respect to the Securities of such series under
95<PAGE>
Sections 2.8, 2.9, 2.11, 3.2 and 13.3 and (C) the rights, powers,
trusts , duties and immunities of the Trustee hereunder.
SECTION 13.3. Deposited Moneys and U.S. Government,
Obligations to Be Held in Trust. All moneys and U.S. Government
Obligations deposited with the Trustee pursuant to Section 13.2
in respect of Securities of a series shall be held in trust and
applied by it, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Issuer acting as its own
Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon for
principal and interest, if any, but such money need not be
segregated from other funds except to the extent required by law.
SECTION 13.4. Repayment to Issuer . The Trustee and any
Paying Agent shall promptly pay or return to the Issuer upon
Issuer's request any moneys or U.S. Government Obligations or
comparable instruments in the currency of the Securities held by
them at any time that are not required for the payment of the
principal of and interest on the Securities of any series for
which money or U.S. Government Obligations or comparable
instruments in the currency of the Securities have been deposited
pursuant to Section 13.2.
Any money held by the Trustee or any Paying Agent under
this Article that remains unclaimed for two years after the
maturity of any series of Securities for which money or U.S.
Government Obligations or comparable instruments in the currency
of the Securities have been deposited pursuant to Section 13.2
shall be paid to the Issuer upon Issuer request and shall be
discharged from such trust and all liability of the Trustee with
respect to such trust money shall cease.
SECTION 13.5. Reinstatement. If the Trustee or Paying
Agent is unable to apply any money in accordance with Section
13.3 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Issuer's obligations under
this Indenture and the Securities shall be revived and reinstated
as though no deposit had occurred pursuant to Section 13.2 until
such time as the Trustee or Paying Agent is permitted to apply
all such money in accordance with Section 13.3; provided,
however, that if the Issuer makes any payment of interest on or
principal of any Security following the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the
Holders of such Securities to receive such payment form the money
held by the Trustee or Paying Agent.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
96<PAGE>
ATTEST: RALSTON PURINA COMPANY
By:______________________
By:_______________________ ______________________________
Secretary Ronald D. Winney
Treasurer
[CORPORATE SEAL]
ATTEST: THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:___________________ By:______________
Trust Officer Vice President
[CORPORATE SEAL]
97<PAGE>
STATE OF MISSOURI )
) ss.
COUNTY OF CITY OF ST. LOUIS )
On this _____ day of _______________, 1995, before me
personally came Ronald D. Winney, to me personally known, who,
being by me duly sworn, did depose and say that he resides at St.
Louis, Missouri, and that he is Treasurer of Ralston Purina
Company, one of the corporations described in and which executed
the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board
of Directors of said corporation; and that he signed his name
thereto by like authority.
[NOTARIAL SEAL]
____________________________
Notary Public
Notary Public, State of
Missouri
City of St. Louis
My Commission Expires
_______________
STATE OF ILLINOIS )
) ss.
COUNTY OF COOK )
On this _____ day of ____________, 1995, before me
personally came ________________________ to me personally Known,
who, being by me duly sworn, did depose any say that he resides
at ___________________________; that he is a Vice President of
The First National Bank of Chicago, one of the corporations
described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
________________________________
Notary Public
Notary Public, State of
Illinois
98<PAGE>
My Commission Exp:
_________________
99<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
_________________________________
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-
0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois
60670-0126
(Address of principal executive offices)
(Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
___________________________________
Ralston Purina Company
(Exact name of obligor as specified in its charter)
Missouri 43-0470580
(State or other jurisdiction of
(I.R.S. employer
incorporation or organization)
identification number)
Checkerboard Square
St. Louis, Missouri 63164
(Address of principal executive offices)
(Zip Code)
Debt Securities
(Title of Indenture Securities)
100<PAGE>
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4.A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6.The consent of the trustee required by
Section 321(b) of the Act.
101<PAGE>
7.A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8.Not Applicable.
Not Applicable. 9.
Pursuant to the requirements of the Trust Indenture Act
of 1939, as amended, the trustee, The First National
Bank of Chicago, a national banking association
organized and existing under the laws of the United
States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City
of Chicago and State of Illinois, on the 24th day of
May,1995.
The First National Bank of Chicago,
Trustee,
/s/ R. D. MANELLA
By
R. D. Manella
Vice President and Senior Counsel
* Exhibit 1,2,3 and 4 are herein incorporated by reference to
Exhibits bearing identical numbers in Item 12 of the Form T-1 of
The First National Bank of Chicago, filed as Exhibit 26 to the
Registration Statement on Form S-3 of The CIT Group Holdings,
Inc., filed with the Securities and Exchange Commission on
February 16, 1993 (Registration No. 33-58418).
102<PAGE>
_________ EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
May 24,
1995
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between
Ralston Purina Company and The First National Bank of Chicago,
the undersigned, in accordance with Section 321(b) of the Trust
Indenture Act of 1939, as amended, hereby consents that the
reports of examinations of the undersigned, made by Federal or
State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Very truly yours,
The First National Bank of
Chicago
/s/ R. D. MANELLA
By:
R. D. Manella
Vice President and Senior Counsel
103<PAGE>
_________ EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date:
3/31/95 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460
Page RC-1
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: _________ 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for March 31, 1995
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount
outstanding of the last business day of the quarter.
Schedule RC--Balance Sheet
Dollar Amounts in C400
ASSETS
Cash and balances due from depository institutions (from Schedule 1.
RC-A):
a. Noninterest-bearing balances and currency and coin(1)
b. Interest-bearing balances(2) . 0071
8,482,108 1.b.
Securities 2.
a. Held-to-maturity securities(from Schedule RC-B, column A)
b. Available-for-sale securities (from Schedule RC-B, column
D)............ 1773 540,011 2.b.
Federal funds sold and securities purchased under agreements to 3.
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs: .....
a. Federal Funds sold . ..... .....
0276
2,508,883 3.a.
b. Securities purchased under agreements to resell
0277 1,422,695 3.b.
Loans and lease financing receivables: 4.
a. Loans and leases, net of unearned income (from Schedule
RC-C) ....... ..... ..... .....
..... RCFD 2122 16,238,310
b. LESS: Allowance for loan and lease losses RCFD 3123
358,207 .......... 4.b. c. LESS: Allocated transfer
risk reserve .....RCFD 3128 0
4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) 2125
Assets held in trading accounts
15, 5. .
3545
13,257,798 ..... .. 5.
6.Premises and fixed assets (including capitalized leases)
Other real estate owned 7. (from
Schedule RC-M)
2150 13,166. 7. ..
104<PAGE>
8.Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) .. 2130
10,363 8.
Customers' liability to this bank on acceptances outstanding 9.
10. Intangible assets (from Schedule RC-M) 2143
11. Other assets (from Schedule RC-F) 2160
12. Total assets (sum of items 1 through 11) 2170
47,678,610... 12. ..
__________________ _
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
Legal Title of Bank: The First National Bank of Chicago Call
Date: 3/31/95 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460
Page RC-2
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: _________
0/3/6/1/8
Schedule RC-Continued
Dollar Amounts in
Thousands Bil Mil Thou
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) RCON 2200
14,675,401 13.a.
(1) Noninterest-bearing(1) RCON 6631
5,498,690 ..... ..... .....
13.a.(1)
(2) Interest-bearing .... RCON 6636
9,176,711 ..... ..... ..... .....
13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) RCFN
2200 11,809,64513.b.
(1) Noninterest bearing . RCFN 6631
304,669 ..... ..... ..... .....
13.b.(1)
(2) Interest-bearing .... RCFN 6636
11,504,976.................... 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased . RCFD 0278
2,072,830 14.a.
b. Securities sold under agreements to repurchase
RCFD 0279 1,484,16414.b.
15. a. Demand notes issued to the U.S. Treasury
RCON 2840 103,138 15.a.
105<PAGE>
b. Trading
Liabilities............................................................
............ ..... RCFD 3548 9,101,18615.b.
16. Other borrowed money:
a. With original maturity of one year or less
RCFD 2332 2,307,86016.a.
b. With original maturity of more than one year
RCFD 2
leases ..... . ..... ..... .....
RCFD 2910
278,10817.
18. Bank's liability on acceptance executed and outstanding
19. Subordinated notes and debentures RCFD
3200 1,225,000 19. .
20. Other liabilities (from Schedule RC-G) RCFD
2930 699,375 20.
21. Total liabilities (sum of items 13 through 20)
RCFD 2
22. Limited-Life preferred stock and related surplus
EQUITY CAPITAL
RCF
23. Perpetual preferred stock and related surplus
RCFD 3838 0 23. ..
.
24. Common stock ..... ... .....
RCFD 3230
200,85824.
25. Surplus (exclude all surplus related to preferred stock)
26. a. Undivided profits and capital reserves
RCFD 3632 447,916 26.a. b. Net unrealized holding gains
(losses) on available-for-sale
securities .............. RCFD 8434
[ 2,165)26.b...
27. Cumulative foreign currency translation adjustments
28. Total equity capital (sum of items 23 through 27) RCFD 3
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) RCFD
3300 47,678,61029.
Memorandum
To be reported only with the March Report of Condition.
1.Indicate in the box at the right the number of the statement below
that best describes the most
comprehensive level of auditing work performed for
the bank by independent external Number
auditors as of any date during 1993 . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . .. . . . .............. . . . . . .... M.1.
1 = Independent audit of the bank conducted RCFD
in accordance 4. = Directors' examination of 6724
the bank performed by other N/A
with generally accepted auditing standards by a
certified external auditors (may be required by state
chartering
public accounting firm which submits a report on the bank
authority)
2 = Independent audit of the bank's parent holding company 5
Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing
auditors<PAGE>
standards by a certified public accounting firm which 6 =
Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit
procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 =
No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
___________________ _
(1) Includes total demand deposits and noninterest-bearing time and
savings deposits.<PAGE>
EXHIBIT (5)(24b)
_____________________
The Board of Directors
Ralston Purina Company
Checkerboard Square
St. Louis, Missouri 63164
Gentlemen:
I am Vice President, General Counsel and Secretary of Ralston
Purina Company. I have acted as counsel to the Company in connection
with the Registration Statement on Form S-3 to be filed by the Company
with the Securities and Exchange Commission on ___________, 1995, for
the purpose of registering under the Securities Act of 1933,
$396,925,000 aggregate principal amount of the Company's debt
securities that may be sold from time to time pursuant to Rule 415 of
the Securities and Exchange Commission. In that capacity, I have
examined such matters of fact and law as I have deemed necessary or
appropriate for the purpose of this opinion.
Based on the foregoing examination, I am of the opinion that when
the Indenture in the form filed as an exhibit to the Registration
Statement has been duly executed by the parties thereto, debt
securities in any of the forms filed as exhibits to the Registration
Statement shall have been duly authorized and executed by the Company
pursuant to the terms of the Indenture, and when such debt securities
have been duly authenticated in accordance with the Indenture and duly
delivered to and paid for by the purchasers thereof, the debt
securities will constitute valid and binding obligations of the
Company.
The undersigned hereby consents to the filing of this Opinion as
Exhibit (5)(24b) to said Registration Statement, and to its use and to
the reference to the undersigned under the heading "Legal Opinion" in
the said Registration Statement.
Very truly yours,
James M. Neville
Vice President, General Counsel
and Secretary<PAGE>
EXHIBIT 24(A)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our
report dated November 4, 1994, except as to the "Subsequent Event"
note, which is dated as of November 15, 1994. which appears on page 88
of the Ralston Purina Company Annual Report to Shareholders 1994, which
is incorporated by reference in Ralston Purina Company's Annual Report
on Form 10-K for the year ended September 30, 1994. We also consent to
the incorporation by reference of our report on the Financial Statement
Schedules, which appears on page F-1 of such Annual Report on Form 10-
K. We also consent to the reference to us under the heading "Experts"
in such Prospectus.
PRICE WATERHOUSE LLP
Price Waterhouse LLP
One Boatmen's Plaza
St. Louis, Missouri
______________, 1995<PAGE>
