<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 16, 1997
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
IMC GLOBAL INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 36-3492467
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
</TABLE>
2100 SANDERS ROAD
NORTHBROOK, IL 60062
(847) 272-9200
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
MARSCHALL I. SMITH
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
IMC GLOBAL INC.
2100 SANDERS ROAD
NORTHBROOK, IL 60062
(847) 272-9200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------------
Copies to:
LARRY A. BARDEN
SIDLEY & AUSTIN
ONE FIRST NATIONAL PLAZA
CHICAGO, ILLINOIS 60603
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO OFFERING PRICE AGGREGATE
REGISTERED BE REGISTERED PER UNIT OFFERING PRICE(1)
<S> <C> <C> <C>
Debt Securities(2)......................................
Debt Warrants........................................... (5) (5) $160,000,000
Series Preferred Stock(3)...............................
Common Stock(4).........................................
Common Stock Warrants...................................
Currency Warrants.......................................
<CAPTION>
TITLE OF EACH CLASS OF
SECURITIES TO BE AMOUNT OF
REGISTERED REGISTRATION FEE
<S> <C>
Debt Securities(2)......................................
Debt Warrants........................................... $48,485(6)
Series Preferred Stock(3)...............................
Common Stock(4).........................................
Common Stock Warrants...................................
Currency Warrants.......................................
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee. The
aggregate initial public offering price of the securities registered hereby
will not exceed $160,000,000 in U.S. dollars or the U.S. dollar equivalent
in foreign currency or currency units.
(2) May be issued at an original issue discount.
(3) Includes such presently indeterminable number of shares of Series Preferred
Stock as may be issuable from time to time upon conversion of Debt
Securities.
(4) Includes such presently indeterminable number of shares of Common Stock as
may be issuable from time to time upon conversion of Debt Securities or
Preferred Stock.
(5) The amount to be registered and the proposed maximum offering price per unit
has been omitted pursuant to Rule 457(o) under the Securities Act of 1933.
(6) The registration fee has been calculated pursuant to Rule 457(o) under the
Securities Act of 1933.
------------------------------
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
constituting a part of this Registration Statement also relates to $140,000,000
principal amount of Debt Securities, Preferred Stock and Common Stock registered
by the Registrant under the Securities Act of 1933 in Registration Statement No.
33-50177 and this Registration Statement constitutes Post-Effective Amendment
No. 1 to such Registration Statement.
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.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. 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.
<PAGE>
SUBJECT TO COMPLETION DATED MAY 16, 1997
PROSPECTUS
[LOGO]
$300,000,000
DEBT SECURITIES, DEBT WARRANTS, SERIES PREFERRED STOCK,
COMMON STOCK, STOCK WARRANTS AND CURRENCY WARRANTS
------------------
IMC Global Inc. ("IMC" or the "Company") from time to time may offer (i)
unsecured debt securities, which may be either senior (the "Senior Debt
Securities") or subordinated (the "Subordinated Debt Securities"), and which may
be convertible into shares of common stock, par value $1.00 per share ("Common
Stock") of IMC (the "Convertible Debt Securities," and, together with the Senior
Debt Securities and the Subordinated Debt Securities, the "Debt Securities"),
(ii) warrants to purchase Debt Securities (the "Debt Warrants"), (iii) shares of
its series preferred stock, (the "Series Preferred Stock"), which may be
convertible into shares of Common Stock, (iv) shares of Common Stock, (v)
warrants to purchase shares of its Common Stock (the "Stock Warrants") and (vi)
warrants to receive from the Company the cash value in U.S. dollars of the right
to purchase ("Currency Call Warrants") or to sell ("Currency Put Warrants," and,
together with the Currency Call Warrants, the "Currency Warrants") such foreign
currency or currency units as shall be designated by the Company at the time of
the offering. The Debt Securities, Debt Warrants, Series Preferred Stock, Common
Stock, Stock Warrants and Currency Warrants (collectively, the "Securities") may
be offered either together or separately, and will be offered in amounts, at
prices and on terms to be determined at the time of offering. The Securities
offered pursuant to this Prospectus may be issued in one or more series or
issuances and will be limited to $300,000,000 aggregate public offering price
(or the equivalent in foreign currency or currency units).
The Senior Debt Securities will rank equally in right of payment with all
other Senior Indebtedness (as defined) of the Company. The Subordinated Debt
Securities will be subordinated in right of payment to all Senior Indebtedness
of the Company.
Certain specific terms of the particular Securities in respect of which this
Prospectus is being delivered (the "Offered Securities") are set forth in the
accompanying Prospectus Supplement (as supplemented by any applicable pricing
supplement relating thereto, the "Prospectus Supplement"), including, where
applicable, the initial public offering price of the Securities, the listing on
any securities exchange, other special terms, and (i) in the case of Debt
Securities, the specific designation, aggregate principal amount, original issue
discount, if any, authorized denominations, maturity, premium, if any, rate
(which may be fixed or variable), time and method of calculating payment of
interest, if any, the place or places where principal of, premium, if any, and
interest, if any, on such Debt Securities will be payable, the currency in which
principal of, premium, if any, and interest, if any, on, such Debt Securities
will be payable, whether such Debt Securities will be Senior Debt Securities or
Subordinated Debt Securities, any terms of redemption at the option of the
Company or the holder, any sinking fund provisions and any terms for conversion
or exchange into Common Stock, (ii) in the case of Debt Warrants and Stock
Warrants, the Debt Securities and Common Stock, respectively, for which each
such Warrant is exercisable, the exercise price, duration, detachability, and
call provisions, (iii) in the case of Series Preferred Stock, the specific title
and stated value, any dividend, liquidation, redemption, voting and other rights
and any terms for exchange for Debt Securities or conversion into Debt
Securities or Common Stock, (iv) in the case of Currency Warrants, the base
foreign currency or currency units, the formula for determining the cash
settlement value, if any, the procedures and conditions relating to exercise and
any circumstances under which there will be deemed to be an automatic exercise
and in the case of Common Stock, the number of shares of Common Stock and the
terms of the offering and sale thereof. If so specified in the applicable
Prospectus Supplement, Offered Securities may be issued in whole or in part in
the form of one or more temporary or permanent global securities.
--------------------------
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 Company may sell the Securities to or through underwriters or dealers,
and may also sell Securities directly to other purchasers or through agents. See
"Plan of Distribution." The Prospectus Supplement sets forth the names of any
underwriters, dealers or agents involved in the sale of the Offered Securities
in respect of which this Prospectus is being delivered and any applicable fee,
commission or discount arrangements with them.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
--------------------------
The date of this Prospectus is , 1997
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN
THE SECURITIES DESCRIBED IN THIS PROSPECTUS OR AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED
HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy and information statements and
other information filed by the Company can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the following Regional Offices of
the Commission; Midwest Regional Office, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511 and Northeast Regional Office, Seven World Trade
Center, Suite 1300, New York, New York 10048. Copies of such material can be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates. Reports, proxy and
information statements and other information concerning the Company may also be
inspected at the offices of the national securities exchanges on which the
Company's Common Stock is listed: The New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005, and The Chicago Stock Exchange, Incorporated,
440 South LaSalle Street, Chicago, Illinois 60605. The Company is subject to the
electronic filing requirements of the Commission. Accordingly, pursuant to the
rules and regulations of the Commission, certain documents, including annual and
quarterly reports and proxy statements, filed by the Company with the Commission
have been and will be filed electronically. The Commission maintains a Web site
at http://www.sec.gov containing reports, proxy and information statements and
other information regarding registrants, including the Company, that file
electronically with the Commission.
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"). This Prospectus omits certain of the information contained in
the Registration Statement in accordance with the rules and regulations of the
Commission. Reference is hereby made to the Registration Statement and related
exhibits for further information with respect to the Company and the Securities.
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 of the Company heretofore filed with the Commission
pursuant to the Exchange Act are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1996;
2. The Company's Quarterly Report on Form 10-Q for the fiscal quarters
ended September 30, 1996, December 31, 1996 and March 31, 1997;
3. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A/A-1 filed January 12, 1996; and
4. The description of the IMC Preferred Stock Purchase Rights contained
in the Company's Registration Statement on Form 8-A filed June 23, 1989, as
amended by Form 8-A/A filed September 18, 1995 and January 24, 1996.
2
<PAGE>
All reports and other documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Securities
offered hereby shall be deemed to be incorporated by reference into this
Prospectus or any Prospectus Supplement and to be a part hereof from the date of
filing of such reports and documents; provided, however, that the Report of the
Compensation Committee and the Performance Graph contained in any Proxy
Statement of the Company shall not be so deemed incorporated by reference. Any
statement contained in a document incorporated or deemed to be incorporated by
reference in this Prospectus or any Prospectus Supplement shall be deemed to be
modified or superseded for purposes of this Prospectus or any Prospectus
Supplement to the extent that a statement contained herein, therein or in any
other subsequently filed documents which also is or is deemed to be incorporated
by reference in this Prospectus or in such Prospectus Supplement modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus or any Prospectus Supplement.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of such person, a copy
(without exhibits other than exhibits specifically incorporated by reference) of
any or all documents incorporated by reference into this Prospectus. Requests
for such copies should be directed to Corporate Secretary, IMC Global Inc., 2100
Sanders Road, Northbrook, Illinois 60062, telephone number (847) 272-9200.
This Prospectus and the accompanying Prospectus Supplement include
"forward-looking statements" within the meaning of various provisions of the
Securities Act and the Exchange Act. All statements, other than statements of
historical facts, included or incorporated by reference in this Prospectus and
the Prospectus Supplement that address activities, events or developments that
the Company expects or anticipates will or may occur in the future, including
such things as future capital expenditures (including the amount and nature
thereof), business strategy and measures to implement strategy, competitive
strengths, goals, expansion and growth of the Company's and its subsidiaries'
business and operations, plans, references to future success as well as other
statements which include words such as "anticipate," "believe," "plan,"
"estimate," "expect" and "intend" and other similar expressions, constitute
forward-looking statements. These statements are based on certain assumptions
and analyses made by the Company in light of its experience and its perception
of historical trends, current conditions and expected future developments as
well as other factors it believes are appropriate in the circumstances. However,
whether actual results and developments will conform with the Company's
expectations and predictions is subject to a number of risks and uncertainties,
including any special considerations included or incorporated by reference in
this Prospectus and any Prospectus Supplement; general economic, market or
business conditions; conditions in and policies of the agriculture industry;
risks associated with investments and operations in foreign jurisdictions and
any future international expansion, including those related to economic,
political and regulatory policies of local governments and laws or policies of
the United States and Canada; changes in governmental laws and regulations
affecting environmental compliance, taxes and other matters impacting the
Company; the risks attendant with mining operations; the potential impacts of
increased competition in the markets the Company operates within; risk factors
reported from time to time in the reports filed by the Company with the SEC and
other factors, many of which are beyond the control of the Company and its
subsidiaries. Consequently, all of the forward-looking statements made in this
Prospectus and any Prospectus Supplement are qualified by these cautionary
statements, and there can be no assurance that the actual results or
developments anticipated by the Company will be realized or, even if
substantially realized, that they will have the expected consequences to or
effects on the Company and its subsidiaries or their business or operations.
3
<PAGE>
THE COMPANY
GENERAL
The Company is one of the world's leading producers of crop nutrients for
the international agricultural community and is one of the leading distributors
in the United States of crop nutrients and related products through its retail
and wholesale distribution networks. The Company mines, processes and
distributes potash in the United States and Canada, is a joint venture partner
in IMC-Agrico Company, a leading producer, marketer and distributor of phosphate
crop nutrients and is a leading producer and marketer of animal feed
ingredients. The Company believes that it is one of the lower-cost North
American producers of phosphate rock, concentrated phosphates and potash. The
Company's retail distribution network, which extends principally to corn and
soybean farmers in the Midwestern and Southeastern United States, is one of the
leading distributors of crop nutrients and related products in the United
States. The Company also manufactures nitrogen-based and other high-value crop
nutrients which are marketed on a wholesale basis principally in the Midwestern
and Southeastern United States. In addition, the Company sells specialty lawn
and garden, turf and nursery products on a national basis and ice-melter
products in the Midwest and Eastern snow-belt states. The Company's principal
executive office is located at 2100 Sanders Road, Northbrook, Illinois 60062,
telephone (847) 272-9200.
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Securities for
general corporate purposes, including working capital, the repayment or
refinancing of indebtedness, future acquisitions and/or capital expenditures.
Pending application of the net proceeds for specific purposes, such proceeds may
be invested in short-term or marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges of the
Company and its consolidated subsidiaries for the periods indicated.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED JUNE 30,
NINE MONTHS ENDED ------------------------------------------
MARCH 31, 1997 1996 1995 1994 1993
--------------------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges(a)................... 8.83 7.63 7.26 2.48 (1.10)
Ratio of earnings to fixed charges(b)................... 8.83 9.16 7.26 2.48 1.94
<CAPTION>
1992
---------
<S> <C>
Ratio of earnings to fixed charges(a)................... 4.41
Ratio of earnings to fixed charges(b)................... 4.41
</TABLE>
- ------------------------
(a) Earnings consist of pre-tax earnings from continuing operations but before
fixed charges. Fixed charges consist of interest on indebtedness, interest
capitalized as part of fixed assets, amortization of debt expense and rent
expense which is deemed representative of an interest factor.
(b) The ratio of earnings to fixed charges for the fiscal year ended June 30,
1996 excludes a charge of $98.6 million relating to the merger of The Vigoro
Corporation into a wholly-owned subsidiary of the Company. The ratio of
earnings to fixed charges for the fiscal year ended June 30, 1993 excludes a
charge of $169.1 million relating to the settlement of litigation resulting
from a May 1991 explosion at a nitroparaffins plant in Sterlington,
Louisiana.
4
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The following description of the terms 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 (the "Offered Debt Securities") and the
extent, if any, to which such general provisions may not apply thereto will be
described in the Prospectus Supplement relating to such Offered Debt Securities.
The Debt Securities may be issued from time to time in one or more series
and will constitute either Senior Debt Securities or Subordinated Debt
Securities. Senior Debt Securities will be issued under an Indenture, (the
"Senior Indenture"), between the Company and a trustee to be named prior to the
offering of any Senior Debt Securities, as Trustee (the "Senior Trustee"). The
Subordinated Debt Securities will be issued under an Indenture (the
"Subordinated Indenture"), between the Company and a trustee to be named prior
to the offering of any Subordinated Debt Securities, as Trustee (the
"Subordinated Trustee"). The Senior Indenture and the Subordinated Indenture are
referred to herein individually as an "Indenture" and, collectively, as the
"Indentures," and the Senior Trustee and the Subordinated Trustee are referred
to herein individually as the "Trustee" and collectively as the "Trustees."
The following summaries of certain provisions of the Debt Securities and the
Indentures do not purport to be complete and are subject to, and are qualified
in their entirety by reference to, all of the provisions of the Indentures,
including the definitions therein of certain terms. Certain capitalized terms
used herein are defined in the Indentures. The Indentures are substantially
identical, except for certain covenants of IMC and provisions relating to
subordination.
GENERAL
The Indentures do not limit the amount of debt securities which can be
issued thereunder and provide 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 IMC. The Indentures do not limit the amount of other
Indebtedness or securities, other than certain secured Indebtedness as described
below, which may be issued by IMC or its Subsidiaries. All Senior Debt
Securities will be unsecured and will rank on a parity with all other unsecured
and unsubordinated Indebtedness of IMC. All Subordinated Debt Securities will be
unsecured and will be subordinated in right of payment to the prior payment in
full of Senior Indebtedness (which term includes the Senior Debt Securities) of
IMC as described below under "Provisions Applicable Solely to Subordinated Debt
Securities--Subordination." In addition, creditors of Subsidiaries of IMC are
entitled to a claim on the assets of such Subsidiaries. Consequently, in the
event of a liquidation or reorganization of any Subsidiary, creditors of the
Subsidiary are likely to be paid in full before any distribution is made to IMC
and holders of Senior Debt Securities or Subordinated Debt Securities, except to
the extent that IMC is itself recognized as a creditor of such Subsidiary, in
which case the claims of IMC would still be subordinate to any security
interests in the assets of such Subsidiary and any Indebtedness of such
Subsidiary senior to that held by IMC.
Reference is made to the Prospectus Supplement for the following terms
thereof: (i) the title of the Offered Debt Securities and classification as
Senior Debt Securities or Subordinated Debt Securities; (ii) any limit upon the
aggregate principal amount of the Offered Debt Securities; (iii) if other than
100% of the principal amount, the percentage of the principal amount at which
the Offered Debt Securities will be offered; (iv) the date or dates on which the
principal of the Offered Debt Securities will be payable (or method of
determination thereof); (v) the rate or rates (which may be fixed or variable)
at which the Offered Debt Securities will bear interest (or method of
determination thereof), if any, the date or dates from which any such interest
will accrue and on which such interest will be payable, and the record dates for
the determination of the holders to whom interest is payable; (vi) if other than
U.S. dollars, the currency or units based on or relating to currencies in which
the Debt Securities are denominated and which the principal of, interest on and
any Additional Amounts (as defined below) will or may be payable;
5
<PAGE>
(vii) if other than as set forth herein, the place or places where the principal
of, interest on and any Additional Amounts payable in respect of the Offered
Debt Securities will be payable; (viii) the price or prices at which, the period
or periods within which and the terms and conditions upon which Offered Debt
Securities may be redeemed, in whole or in part, at the option of IMC; (ix)
whether the Offered Debt Securities are convertible into Common Stock and, if
so, the terms and conditions upon which such conversion will be effected
including the initial conversion price or conversion rate, the conversion period
and other conversion provisions in addition to or in lieu of those described in
the applicable Indenture; (x) the obligation, if any, of IMC to redeem,
repurchase or repay Offered Debt Securities, whether pursuant to any sinking
fund or analogous provisions or pursuant to other provisions set forth therein
or at the option of a holder thereof; (xi) whether the Offered Debt Securities
will be represented in whole or in part by one or more global notes registered
in the name of a depository or its nominee; (xii) whether and under what
circumstances IMC will pay additional amounts ("Additional Amounts") in respect
of certain taxes imposed on certain holders of Debt Securities or as otherwise
provided; and (xiii) any other terms or conditions not inconsistent with the
provisions of the Indenture upon which the Offered Debt Securities will be
offered. "Principal" when used herein includes, when appropriate, the premium,
if any, on the Debt Securities. For a description of the terms of the Offered
Debt Securities, reference must be made to both the Prospectus Supplement
relating thereto and to the description of Debt Securities set forth herein.
Unless otherwise provided in the Prospectus Supplement relating to any
Offered Debt Securities, principal, interest and Additional Amounts, if any,
will be payable, and the Debt Securities will be transferable or, if applicable,
convertible, at the office or offices or agency maintained by IMC for such
purposes; provided that payment of interest on registered Debt Securities may be
made by check mailed to the persons entitled thereto at the addresses of such
persons appearing on the Security register. In the case of registered Debt
Securities, interest on the Debt Securities 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 otherwise specified in the applicable Prospectus Supplement, Debt
Securities will be issued only in fully registered form without coupons in
minimum denominations of $1,000 and any integral multiple thereof. The Debt
Securities may be represented in whole or in part by one or more global notes
registered in the name of a depository or its nominee and, if so represented,
interests in such global note will be shown on, and transfers thereof will be
effected only through, records maintained by the designated depository and its
participants as described below. Where Debt Securities of any series are issued
in bearer form, the special restrictions and considerations, including special
offering restrictions and special Federal income tax considerations, applicable
to any such Debt Securities and to payment on and transfer and exchange of such
Debt Securities will be described in the applicable Prospectus Supplement.
Some of the Debt Securities may be issued as discounted Debt Securities
(bearing no interest or bearing interest at a rate which at the time of issuance
is below market rates) to be sold at a substantial discount below their stated
principal amount ("Original Issue Discount Securities"). Federal income tax
consequences and other special considerations applicable to any such Original
Issue Discount Securities will be described in the Prospectus Supplement
relating thereto.
If the purchase price of any Debt Securities is payable in one or more
foreign currencies or currency units or if any Debt Securities are denominated
in one or more foreign currencies or currency units or if the principal of or
interest, if any, on any Debt Securities is payable in one or more foreign
currencies or currency units, the restrictions, elections, certain Federal
income tax considerations, specific terms and other information with respect to
such issue of Debt Securities and such foreign currency or currency units will
be set forth in the applicable Prospectus Supplement.
Debt Securities may be presented for exchange, and registered Debt
Securities may be presented for transfer, in the manner, at the places or
subject to the restrictions set forth in the applicable Indenture, the Debt
Securities and the Prospectus Supplement relating thereto. Debt Securities in
bearer form and the
6
<PAGE>
coupons, if any, appertaining thereto will be transferable by delivery. No
service charge will be made for any transfer or exchange of Debt Securities, but
IMC may require payment of a sum sufficient to cover any tax or other
governmental change payable in connection therewith.
The Indentures require the annual filing by IMC with the Trustee of a
certificate as to compliance with certain covenants contained in the Indentures.
IMC will comply with Section 14(e) under the Exchange Act, and any other
tender offer rules under the Exchange Act which may then be applicable, in
connection with any obligation of IMC to purchase Offered Debt Securities at the
option of the holders thereof. Any such obligation applicable to a series of
Debt Securities will be described in the Prospectus Supplement relating thereto.
Unless otherwise described in a Prospectus Supplement relating to any
Offered Debt Securities, other than as described below under "--Limitation on
Liens", the Indentures do not contain any provisions that would limit the
ability of the Company to incur indebtedness or that would afford holders of
Debt Securities protection in the event of a sudden and significant decline in
the credit quality of the Company or a takeover, recapitalization or highly
leveraged or similar transaction involving the Company. Accordingly, IMC could
in the future enter into transactions that could increase the amount of
Indebtedness outstanding at that time or otherwise affect the Company's capital
structure or credit rating. Reference is made to the Prospectus Supplement
relating to the particular series of Debt Securities offered thereby for
information with respect to any deletions from, modifications of or additions to
the Events of Default described below or covenants of the Company contained in
the Indentures, including any addition of a covenant or other provision
providing event risk or similar protection.
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more temporary or permanent global securities (the "Global
Securities") that will be deposited with, or on behalf of, a Depositary
("Depositary") or its nominee identified in the applicable Prospectus
Supplement. In such a case, one or more Global Securities will be issued in a
denomination or aggregate denomination equal to the portion of the aggregate
principal amount of outstanding debt Securities of the series to be represented
by such Global Security or Global Securities. Unless and until it is exchanged
in whole or in part for Debt Securities in registered form, a Global Security
may not be registered for transfer or exchange 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 nominee to a successor Depositary or a
nominee of such successor Depositary and except in the circumstances described
in the applicable Prospectus Supplement.
The specific terms of the depositary arrangement with respect to any portion
of a series of Debt Securities to be represented by a Global Security will be
described in the applicable Prospectus Supplement. IMC expects that the
following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Security to be deposited with
or on behalf of a Depositary will be represented by a Global Security registered
in the name of such Depositary or its nominee. Upon the issuance of such Global
Security, and the deposit of such Global Security with or on behalf of the
Depositary of such Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
the Debt Securities represented by such Global Security to the accounts of
institutions that have accounts with such Depositary or its nominee
("participants"). The accounts to be credited will be designated by the
underwriters or agents of such Debt Securities or, if such Debt Securities are
offered and sold directly by the Company, by the Company. Ownership of
beneficial interests in such Global Security will be limited to participants or
Persons that may hold interests through participants. Ownership of beneficial
interests by participants in such Global Security will be shown on, and the
transfer of that ownership interests will be effected only through, records
maintained by the Depositary or its
7
<PAGE>
nominee for such Global Security. Ownership of beneficial interests in such
Global Security by Persons that hold through participants will be shown on, and
the transfer of that ownership interest within such participant will be effected
only through, records maintained by such participant. The laws of some
jurisdictions require that certain purchasers of securities take physical
delivery of such securities in certificated form. The foregoing limitations and
such laws may impair the ability to transfer beneficial interests in such Global
Securities.
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 all purposes under the
applicable Indenture. Unless otherwise specified in the applicable Prospectus
Supplement, owners of beneficial interests in such Global Security will not be
entitled to have Debt Securities of the series represented by such Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of Debt Securities of such series in certificate form and will
not be considered the Holders thereof for any purposes under the applicable
Indenture. Accordingly, each Person owning a beneficial interest in such Global
Security must rely on the procedures of the Depositary and, if such Person is
not a participant, on the procedures of the participant through which such
Person owns its interest, to exercise any rights of a Holder under the
applicable Indenture. IMC understands that under existing industry practices, if
IMC requests any action of Holders or an owner of a beneficial interest in such
Global Security desires to give any notice to take any action a Holder is
entitled to give or take under the applicable Indenture, the Depositary would
authorize the participants to give such notice or take such action, and
participants would authorize beneficial owners owning through such participants
to give such notice or take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
Principal of and any premium and interest on a Global Security will be
payable in the manner described in the applicable Prospectus Supplement.
CERTAIN COVENANTS
LIMITATION ON LIENS. The Senior Indenture provides that IMC will not, and
will not permit any of its Restricted Subsidiaries to, create, incur or
otherwise cause or suffer to exist or become effective any Liens of any kind
upon any Principal Property or any shares of stock or indebtedness of any
Restricted Subsidiary (whether such Principal Property, shares of stock or
indebtedness are now owned or hereafter acquired) unless all payments due under
the Senior Indenture and the Senior Debt Securities are secured on an equal and
ratable basis with the obligations so secured until such time as such obligation
is no longer secured by a Lien, except for Permitted Liens. See also "Exempted
Indebtedness" below.
The Subordinated Indenture provides that IMC will not, and will not permit
any of its Restricted Subsidiaries to, create, incur, or otherwise cause or
suffer to exist or become effective any Liens of any kind upon any Principal
Property or any shares of stock or indebtedness of any Restricted Subsidiary
(whether such Principal Property, shares of stock or indebtedness are now owned
or hereafter acquired) that secures any Indebtedness that is on a parity in
right of payment with the Subordinated Debt Securities unless all payments due
under the Subordinated Indenture and the Subordinated Debt Securities are
secured on an equal and ratable basis with the obligation so secured until such
time as such obligation is no longer secured by a Lien, except for Permitted
Liens. See also "Exempted Indebtedness" below.
LIMITATIONS ON SALE AND LEASEBACK TRANSACTIONS. The Indentures provide that
neither the Company nor any Restricted Subsidiary will enter into any sale and
leaseback transaction with respect to any Principal Property (except for
temporary leases of a term, including renewals, not exceeding five years) unless
either (a) the Company or such Restricted Subsidiary would be entitled, pursuant
to the provisions of the Indentures, to incur Indebtedness secured by a lien on
the property to be leased without equally and ratably securing the Debt
Securities, or (b) the Company within 180 days after the effective date of such
transaction applies to the voluntary retirement of its funded debt an amount
equal to the value of such
8
<PAGE>
transaction, defined as the greater of the net proceeds of the sale of the
property leased in such transaction or the fair value, in the opinion of the
Board of Directors, of the leased property at the time such transaction was
entered into. See also "Exempted Indebtedness" below.
EXEMPTED INDEBTEDNESS. Notwithstanding the foregoing limitations on Liens
and sale and leaseback transactions, the Company and its Restricted Subsidiaries
may issue, assume, or guarantee Indebtedness secured by a Lien without securing
the Debt Securities, or may enter into sale and leaseback transactions without
retiring funded debt, or enter into a combination of such transactions, if the
sum of the principal amount of all such Indebtedness and the aggregate value of
all such sale and leaseback transactions does not at any such time exceed 10% of
the consolidated total assets of the Company and its consolidated Subsidiaries
as shown in the audited consolidated balance sheet contained in the latest
annual report to the shareholders of the Company.
CONVERSION
The Indentures contain certain provisions regarding the conversion of Debt
Securities into Common Stock (or cash in lieu thereof). The specific terms
applicable to a series of Convertible Debt Securities, including the initial
conversion price or conversion rate, any adjustments to such conversion price or
conversion rate and the conversion period, and the conditions upon which such
conversion will be effected will be set forth in the Prospectus Supplement
relating thereto.
EVENTS OF DEFAULT AND REMEDIES
An Event of Default with respect to the Debt Securities of any series is
defined in each Indenture as: (i) default in the payment of any installment of
interest on or any Additional Amounts payable in respect of any of the Debt
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; (ii) default in the payment
of all or any part of the principal of any of the Debt Securities of such series
as and when the same shall become due and payable either at maturity, upon any
redemption, or otherwise; (iii) the failure by the Company to perform or observe
any of its other covenants, conditions or agreements contained in the Debt
Securities of such series or set forth in the applicable Indenture and
continuance of such failure for a period of 90 days after due notice by the
applicable Trustee or by the holders of at least 25% in principal amount of the
securities of that series then outstanding; or (iv) certain events of
bankruptcy, insolvency or reorganization involving IMC or its Subsidiaries as
more fully described in the Indentures. Additional Events of Default may be
added for the benefit of holders of certain series of Debt Securities which, if
added, will be described in the Prospectus Supplement relating to such Debt
Securities. The Indentures provide that the Trustee shall notify the holders of
Debt Securities of each series of any continuing default known to the Trustee
which has occurred with respect to that series within 90 days after the
occurrence thereof. The Indentures provide that notwithstanding the foregoing,
except in the case of default in the payment of the principal of, interest on or
any Additional Amounts payable in respect of any of the Debt Securities of such
series the Trustee may withhold such notice if the Trustee in good faith
determines that the withholding of such notice is in the interests of the
holders of Debt Securities of such series.
If an Event of Default of the type described in clause (iv) above shall
happen and be continuing, then the principal of (or, with respect to a series of
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series), accrued and unpaid interest on, and
any Additional Amounts payable in respect of the Debt Securities will become
immediately due and payable. If one or more Events of Default of the type
described in clauses (i) through (iii) with respect to any series of Debt
Securities at the time outstanding shall happen and be continuing, then either
the Trustee or the holders of not less than 25% of the principal amount of that
series of the Debt Securities then outstanding may declare the principal (or,
with respect to a series of Original Issue Discount Securities, such portion of
the principal amount as may be specified in the terms of such series), accrued
and unpaid interest on and any Additional Amounts payable in respect of the Debt
Securities of that series due and payable
9
<PAGE>
immediately. This provision is subject to the condition that if, after any
declaration of acceleration and before Stated Maturity of the principal with
respect to the Debt Securities of any series, all arrears of interest and any
Additional Amounts and the expenses of the Trustee, its agents or attorneys
shall be paid by or for the account of IMC, and all Defaults (other than the
payment of principal that has been declared due and payable) have been cured to
the satisfaction of the Trustee, then the Trustee shall, upon the written
request of the holders of a majority in principal amount of the Debt Securities
of the applicable series, waive such Default and rescind or annul the
declaration of acceleration; but no such waiver, rescission or annulment shall
extend to or affect any subsequent Default or impair any right consequent
thereon.
No holder of any Debt Security of any series will have the right to pursue a
remedy under the applicable Indenture or the Debt Securities, unless (1) such
holder gives the Trustee notice of a continuing Default with respect to the Debt
Securities of that series, (2) the holders of at least a majority of the Debt
Securities of the applicable series make a request to the Trustee to pursue the
remedy, (3) such holder or holders offered the Trustee security or indemnity
satisfactory to the Trustee against any loss, liability or expense and (4) the
Trustee does not comply with the request within 30 days after the receipt of the
request and the offer of security or indemnity. However, nothing contained in
the Indentures shall affect or impair the right of any holder of Debt Securities
to institute suit to enforce payment of the principal of, interest on and any
Additional Amounts payable in respect of such holder's Debt Securities on or
after the due dates expressed in such Debt Securities.
IMC must furnish to the Trustee a statement, detailing any Defaults of which
it is aware, within 5 days of the occurrence of any Default.
REPORTS
The Indentures provide that IMC will file with the Trustee copies of the
annual reports and other information, documents and reports which IMC is
required to file with the Commission pursuant to the Exchange Act. If IMC is not
required to file such reports and other information, the Indentures provide that
IMC shall file with the Trustee and cause to be mailed to the holders of Debt
Securities (i) annual reports containing the information required to be
contained in an Annual Report on Form 10-K, (ii) quarterly reports containing
the information required to be contained in a Quarterly Report on Form 10-Q and
(iii) promptly after the occurrence of an event required to be therein reported,
such other reports containing information required to be contained in a Current
Report on Form 8-K. IMC shall also comply with the requirements of Trust
Indenture Act 314(a).
SUCCESSOR COMPANY
The Indentures provide that IMC will not consolidate or merge with or into,
or sell, lease, convey or otherwise dispose of all or substantially all of its
assets or assign any of its obligations under the Debt Securities or applicable
Indenture unless (i) the entity formed by or surviving any such consolidation or
merger (if other than IMC), or to which such sale, lease, conveyance or other
disposition shall have been made (the "Surviving Entity"), is a corporation
organized and existing under the laws of the United States, any state thereof,
or the District of Columbia; (ii) the Surviving Entity assumes by supplemental
indenture all of the obligations of IMC under the Debt Securities and the
applicable Indenture; and (iii) immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing. With respect to the sale of assets, the phrase "all or substantially
all" as used in the Indentures varies according to the facts and circumstances
of the subject transaction, has no clearly established meaning under New York
law (which governs the Indentures) and is subject to judicial interpretation.
Accordingly, in certain circumstances there may be a degree of uncertainty in
ascertaining whether a particular transaction would involve a disposition of
"all or substantially all" of the assets of a person, and therefore it may be
unclear as to whether a disposition of assets comes within the terms of this
provision.
10
<PAGE>
DISCHARGE
Each Indenture provides that it will cease to be of further effect (except
that certain obligations will survive) with respect to a series of Debt
Securities when all outstanding Debt Securities of such series authenticated and
issued have been delivered (other than destroyed, lost or stolen Debt Securities
that have been replaced or paid) to the Trustee for cancellation and IMC has
paid all sums payable under such Indenture.
MODIFICATION OF THE INDENTURES
Each Indenture contains provisions permitting IMC and the applicable
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debt Securities of each series at the time
outstanding under such Indenture, to enter into supplemental indentures to amend
any of the provisions of each Indenture or any supplemental indenture with
respect to the Debt Securities of such series; provided that, unless consented
to by each holder of Debt Securities of such series, no such supplemental
indenture may (1) reduce the amount of Debt Securities whose holders must
consent to an amendment or a waiver; (2) reduce the rate of or change the time
for payment of interest or Additional Amounts, including default interest on any
Debt Security; (3) reduce the principal of or change the Stated Maturity of any
Debt Security or alter the provisions with respect to redemption; (4) make any
Debt Security payable in money other than that stated in the Debt Security; (5)
make any change in the types of amendment that need the approval of every
affected holder of Debt Securities; (6) with respect to the Senior Indenture,
affect the ranking of the Debt Securities; or (7) waive a Default in the payment
of principal of, any Additional Amounts payable in respect of or interest on, or
with respect to, any Debt Security.
The applicable Trustee and IMC may enter into supplemental indentures which
amend the applicable Indenture and the Debt Securities with respect to a
particular series without the consent of any holder of Debt Securities of such
series in order to: (a) cure any ambiguity, omission, defect or inconsistency;
(b) comply with such Indenture concerning the substitution of successor
corporations pursuant to a merger or consolidation; (c) comply with any
requirements of the Commission in connection with the qualification of such
Indenture under the Trust Indenture Act; (d) provide for uncertificated
securities; (e) make any change that does not materially adversely affect the
legal rights of any holder of Debt Securities under the applicable Indenture as
then in effect; (f) secure the Debt Securities and make intercreditor
arrangements with respect to any such Debt Securities (unless prohibited by such
Indenture); (g) provide for a replacement Trustee; or (h) add to the covenants
and agreements of IMC for the benefit of all the holders of all of the Debt
Securities with respect to a series and surrender any right or power reserved
for IMC in such Indenture.
DEFEASANCE AND COVENANT DEFEASANCE
Each Indenture provides that IMC may elect either (a) to terminate (and be
deemed to have satisfied) all its obligations with respect to such Debt
Securities (except for the obligations to register the transfer or exchange of
such Debt Securities, to replace mutilated, destroyed, lost or stolen Debt
Securities, to maintain an office or agency in respect of the Debt Securities,
to compensate and indemnify the Trustee and to punctually pay or cause to be
paid the principal of, interest on and any Additional Amounts payable in respect
of all Debt Securities of such series when due) ("defeasance") or (b) to be
released from its obligations with respect to certain covenants, including those
described above under "Certain Covenants-- Limitation on Liens" and
"--Limitations on Sale and Leaseback Transactions" above ("covenant
defeasance"), upon the deposit with the Trustee, in trust for such purpose, of
money and/or U.S. Government Obligations (as defined in the Indentures) which
through the payment of principal and interest in accordance with their terms
will provide money, in an amount sufficient (in the opinion of a nationally
recognized firm of independent public accountants) to pay the principal of,
interest on and any Additional Amounts payable in respect of the outstanding
Debt Securities of such series, and any mandatory sinking
11
<PAGE>
fund or analogous payments thereon, on the scheduled due dates therefor. Such a
trust may be established only if, among other things, IMC has delivered to the
Trustee an opinion of counsel (as specified in such Indenture) with regard to
certain matters, including an opinion to the effect that the holders of such
Debt Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and discharge and will be subject to
Federal income on the same amounts and in the same manner and at the same times
as would have been the case if such deposit and defeasance or covenant
defeasance, as the case may be, had not occurred. The Prospectus Supplement may
further describe these or other provisions, if any, permitting defeasance or
covenant defeasance with respect to the Debt Securities of any series.
CONCERNING THE TRUSTEE
Prior to the issuance of any Senior Debt Securities under the Senior
Indenture the Company will engage a qualified trustee to serve as Trustee under
the Senior Indenture. Prior to the issuance of any Subordinated Debt Securities
under the Subordinated Indenture, the Company will engage a qualified trustee to
serve as Trustee under the Subordinated Indenture. Any such Trustee will be an
"eligible trustee" under the Trust Indenture Act of 1939, as amended.
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
SUBORDINATION
The Subordinated Debt Securities will be subordinate and junior in right of
payment, to the extent set forth in the Subordinated Indenture, to all Senior
Indebtedness (as defined below) of IMC. If IMC should default in the payment of
any principal of, interest on or any Additional Amounts payable in respect of
any Senior Indebtedness when the same becomes due and payable, when at maturity
or at a date fixed for prepayment or by declaration or otherwise, then, upon
written notice of such default to IMC by the holders of such Senior Indebtedness
of any trustee therefor and subject to certain rights of IMC to dispute such
default and subject to proper notification of the Trustee, unless and until such
default shall have been cured or waived or shall have ceased to exist, no direct
or indirect payment (in cash, property, securities, by set-off or otherwise)
will be made or agreed to be made for principal of, interest on or any
Additional Amounts payable in respect of the Subordinated Debt Securities, or in
respect of any redemption, retirement, purchase or other acquisition of the
Subordinated Debt Securities other than those made in capital stock of IMC (or
cash in lieu of fractional shares thereof) pursuant to any conversion right of
the Subordinated Debt Securities or otherwise made in capital stock of IMC.
The term "Senior Indebtedness" is defined to mean Indebtedness (including
the Senior Debt Securities) of IMC outstanding at any time except (a) any
Indebtedness as to which, by the terms of the instrument creating or evidencing
the same, it provided that such Indebtedness is not senior in right of payment
to the Subordinated Debt Securities, (b) the Subordinated Debt Securities, (c)
any Indebtedness of IMC to a wholly-owned Subsidiary of IMC, (d) interest
accruing after the filing of a petition initiating certain events of bankruptcy
or insolvency unless such interest is an allowed claim enforceable against IMC
in a proceeding under federal or state bankruptcy laws and (e) trade payables.
If (i) without the consent of IMC a court shall enter an order for relief
with respect to IMC under the United States federal bankruptcy laws or a
judgment, order or decree adjudging IMC a bankrupt or insolvent, or enter an
order for relief for reorganization, arrangement, adjustment or composition of
or in respect of IMC under the United States federal or state bankruptcy or
insolvency laws or (ii) IMC shall institute proceedings for the entry of an
order for relief with respect to the Company under the United States federal
bankruptcy laws or for an adjudication of insolvency, or shall consent to the
institution of bankruptcy or insolvency proceedings against it, or shall file a
petition seeking, or seek or consent to reorganization, arrangement, composition
or similar relief under any applicable law, or shall consent to the filing of
such petition or to the appointment of a receiver, custodian, liquidator,
assignee, trustee, sequestrator or similar official in respect of IMC or of
substantially all of its property, or IMC shall make a general assignment for
12
<PAGE>
the benefit of creditors, then all Senior Indebtedness (including any interest
thereon accruing after the commencement of any such proceedings and any
Additional Amounts payable in respect thereof) will first be paid in full before
any payment or distribution, whether in cash, securities or other property, is
made on account of the principal of, interest on or any Additional Amounts
payable in respect of the Subordinated Debt Securities. In such event, any
payment of distribution on account of the principal of, interest on or any
Additional Amounts payable in respect of a Subordinated Debt Securities, whether
in cash, securities or other property (other than securities of IMC or any other
corporation provided for by a plan or reorganization or readjustment the payment
of which is subordinate, at least to the extent provided in the subordination
provisions with respect to the Subordinated Debt Securities, to the payment of
all Senior Indebtedness then outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), which would
otherwise (but for the subordination provisions) be payable or deliverable in
respect of the Subordinated Debt Securities will be paid or delivered directly
to the holders of Senior Indebtedness in accordance with the priorities then
existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings and any
Additional Amounts payable in respect thereof) has been paid in full. If any
payment or distribution on account of the principal of, interest on or any
Additional Amounts payable in respect of the Subordinated Debt Securities of any
character, whether in cash, securities or other property (other than securities
of IMC or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent
provided in the subordination provisions with respect to the Subordinated Debt
Securities, to the payment of all Senior Indebtedness then outstanding and to
any securities issued in respect thereof under any such plan or reorganization
or readjustment), shall be received by any holder of any Subordinated Debt
Securities in contravention of any of the terms of the Subordinated Indenture
and before all the Senior Indebtedness shall have been paid in full, such
payment or distribution of securities will be received in trust for the benefit
of, and will be paid over or delivered and transferred to, the holders of the
Senior Indebtedness then outstanding in accordance with the priorities then
existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay all such Senior
Indebtedness remaining unpaid to the extent necessary to pay all such Senior
Indebtedness in full. In the event of any such proceeding, after payment in full
of all sums owing with respect to Senior Indebtedness, the holders of
Subordinated Debt Securities, together with the holders of any obligations of
IMC ranking on a parity with the Subordinated Debt Securities, will be entitled
to be repaid from the remaining assets of IMC the amounts at that time due and
owing on account of unpaid principal of, interest on and any Additional Amounts
payable in respect of the Subordinated Debt Securities and such other
obligations before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any capital stock or obligations of
IMC ranking junior to the Subordinated Debt Securities and such other
obligations.
By reason of such subordination, in the event of the insolvency of IMC,
holders of Senior Indebtedness may receive more, ratably, than holders of the
Subordinated Debt Securities. In addition, other creditors of IMC who are not
holders of Subordinated Debt Securities or holders of Senior Indebtedness may
recover less, ratably, than holders of Senior Indebtedness and may recover more,
ratably, than holders of Subordinated Debt Securities. Such subordination will
not prevent the occurrence of an Event of Default or limit the right of
acceleration in respect of the Subordinated Debt Securities.
CERTAIN DEFINITIONS
"Additional Amounts" shall mean any additional amounts which are required by
a Debt Security, under circumstances specified therein, to be paid by IMC in
respect of certain taxes imposed on certain holders of such Debt Securities, or
as otherwise specified in the terms of such Debt Security, and which are owing
to such holders.
"Affiliate" shall mean another Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such first Person.
For the purposes of this definition, "control" (including,
13
<PAGE>
with correlative meanings, the terms "controlling," "controlled by" and "under
common control with"), as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of that Person, whether through the ownership of voting securities
or by contract or otherwise.
"Capitalized Lease Obligation" shall mean an obligation that is required to
be classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP, and the amount of Indebtedness represented by
such obligation shall be the capitalized amount of such obligation determined in
accordance with such principles; and the Stated Maturity thereof shall be the
date of the last payment of rent or any other amount due under such lease prior
to the first date upon which such lease may be terminated by the lessee without
payment of a penalty.
"Consolidated Net Worth" means the excess of assets over liabilities of the
Company and its consolidated Subsidiaries, plus Minority Interests, as
determined from time to time in accordance with GAAP.
"Default" shall mean any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Indebtedness" shall mean, with respect to any Person, at any date, any of
the following, without duplication, (i) any liability, contingent or otherwise,
of such Person (A) for borrowed money (whether or not the recourse of the lender
is to the whole of the assets of such Person or only to a portion thereof), (B)
evidenced by a note, bond, debenture or similar instrument or (C) for the
payment of money relating to a Capitalized Lease Obligation or other obligation
(whether issued or assumed) relating to the deferred purchase price of property;
(ii) all conditional sale obligations and all obligations under any title
retention agreement (even if the rights and remedies of the seller under such
agreement in the event of default are limited to repossession or sale of such
property), but excluding trade accounts payable arising in the ordinary course
of business; (iii) all obligations for the reimbursement of any obligor on any
letter of credit, banker's acceptance or similar credit transaction other than
entered into in the ordinary course of business; (iv) all indebtedness of others
secured by (or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on any asset or property
(including, without limitation, leasehold interests and any other tangible or
intangible property) of such Person, whether or not such indebtedness is assumed
by such Person or is not otherwise such Person's legal liability; provided, that
if the obligations so secured have not been assumed in full by such Person or
are otherwise not such Person's legal liability in full, the amount of such
indebtedness for the purposes of this definition shall be limited to the lesser
of the amount of such indebtedness secured by such Lien or the fair market value
of the assets of the property securing such Lien; (v) all indebtedness of others
(including all interest and dividends on any Indebtedness or preferred stock of
any other Person for the payment of which is) guaranteed, directly or
indirectly, by such Person or that is otherwise its legal liability or which
such Person has agreed to purchase or repurchase or in respect of which such
Person has agreed contingently to supply or advance funds; and (vi) obligations
in respect of Currency Agreements and Interest Swap Obligations (as such
capitalized terms are defined in the Indentures).
"Issue Date" shall mean the first date on which a Debt Security is
authenticated by the applicable Trustee pursuant to an Indenture.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien, charge or adverse claim affecting title or resulting in an encumbrance
against real or personal property or a security interest of any kind (including,
without limitation, any conditional sale or other title retention agreement or
lease in the nature thereof or any filing or agreement to file a financing
statement as debtor under the Uniform Commercial Code or any similar statute
other than to reflect ownership by a third party or property leased to IMC or
any of its Subsidiaries under a lease that is not in the nature of a conditional
sale or title retention agreement).
14
<PAGE>
"Minority Interest" is defined as any shares of stock of any class of a
Subsidiary that are not owned by the Company or a Subsidiary.
"Permitted Liens" shall mean, with respect to any Person: (i) Liens existing
on the Issue Date; (ii) Liens on property or assets of, or any shares of stock
of or secured debt of, any corporation existing at the time such corporation
becomes a Restricted Subsidiary of IMC or at the time such corporation is merged
into IMC or any of its Restricted Subsidiaries; (iii) Liens in favor of IMC or
any of its Restricted Subsidiaries; (iv) Liens in favor of governmental bodies
to secure progress or advance payments; (v) Liens securing industrial revenue or
pollution control bonds; (vi) Liens on Property to secure Indebtedness incurred
for the purpose of (a) financing all or any part of the purchase price of such
Property incurred prior to, at the time of, or within 180 days after, the
acquisition of such Property or (b) financing all or any part of the cost of
construction, improvement, development or expansion of any such Property; (vii)
statutory liens or landlords', carriers', warehouseman's, mechanics',
suppliers', materialmen's, repairmen's or other like Liens arising in the
ordinary course of business and with respect to amounts not yet delinquent or
being contested in good faith by appropriate proceedings, if a reserve or other
appropriate provisions, if any, as shall be required in conformity with GAAP
shall have been made therefor; (viii) Liens on current assets of Restricted
Subsidiaries securing Indebtedness of such Restricted Subsidiaries; and (ix) any
extensions, substitutions, replacements or renewals in whole or in part of a
Lien (an "existing Lien") enumerated in clauses (i) through (viii) above;
provided that the Lien may not extend beyond (A) the Property or Indebtedness
subject to the existing Lien and (B) improvements and construction on such
Property and the Indebtedness secured by the Lien may not exceed the
Indebtedness secured at the time by the existing Lien.
"Person" shall mean any individual, corporation, partnership, limited
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof, or any other entity.
"Principal Property" means any manufacturing plant or warehouse owned or
leased by the Company or any Subsidiary, the gross book value of which exceeds
one percent of Consolidated Net Worth, other than manufacturing plants and
warehouses which the Board of Directors by resolution declares, together with
all other plants and warehouses previously so declared, is not of material
importance to the total business conducted by the Company and its Restricted
Subsidiaries as an entirety.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person whether or not included in the
most recent consolidated and its Subsidiaries under GAAP.
"Restricted Subsidiary" shall mean (i) IMC, IMC-Canada and the Partnership,
and any intermediate holding company between either IMC, IMC-Canada or the
Partnership and IMC and (ii) any other Subsidiary of IMC that is not an
Unrestricted Subsidiary.
"Stated Maturity," when used with respect to any security or any installment
of interest thereon, shall mean the date specified in such security as the fixed
date on which the principal of such security or such installment of interest is
due and payable.
"Subsidiary" of any Person shall mean (i) any Person of which more than 50%
of the total voting power of shares of Capital Stock entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more of the Restricted Subsidiaries of that
Person or a combination thereof, and (ii) any partnership, joint venture or
other Person in which such Person or one or more of the Restricted Subsidiaries
of that Person or a combination thereof has the power to control by contract or
otherwise the board of directors or equivalent governing body or otherwise
controls such entity.
15
<PAGE>
"Unrestricted Subsidiary" means (i) any Subsidiary of IMC that at the time
of determination shall be designated an Unrestricted Subsidiary by the Board of
Directors of IMC in the manner provided below and (ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary of
IMC (including any newly-acquired or newly-formed Subsidiary) to be an
Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or
owns or holds any Property of, IMC or any other Subsidiary of IMC that is not a
Subsidiary of the Subsidiary so designated; provided, however, that the
Subsidiary to be so designated has total assets of $5,000 or less.
DESCRIPTION OF DEBT WARRANTS
The Company may issue, together with other Securities or separately, Debt
Warrants for the purchase of Debt Securities. The Debt Warrants are to be issued
under Debt Warrant Agreements (each a "Debt Warrant Agreement") to be entered
into between the Company and a bank or trust company, as Debt Warrant Agent (the
"Debt Warrant Agent"), all as set forth in the Prospectus Supplement relating to
Debt Warrants in respect of which this Prospectus is being delivered. The Debt
Warrant Agent will act solely as an agent of the Company in connection with the
Debt Warrants of such series and will not assume any obligations or relationship
of agency or trust for or with any holders or beneficial owners of Debt
Warrants. A copy of the form of Debt Warrant Agreement, including the form of
Warrant Certificates representing the Debt Warrants (the "Debt Warrant
Certificates"), reflecting the alternative provisions to be included in the Debt
Warrant Agreements that will be entered into with respect to particular
offerings of Debt Warrants, will be filed in an amendment to the Registration
Statement of which this Prospectus is a part or filed in a Current Report on
Form 8-K and incorporated by reference in the Registration Statement of which
this Prospectus is a part. The following summaries of certain provisions of the
Debt Warrant Agreement and the Debt Warrant Certificates do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the Debt Warrant Agreement and the Debt Warrant
Certificates, respectively, including the definitions therein of certain
capitalized terms not defined herein.
GENERAL
Reference is made to the Prospectus Supplement for the terms of Debt
Warrants in respect of which this Prospectus is being delivered, the Debt
Warrant Agreement relating to such Debt Warrants and the Debt Warrant
Certificates representing such Debt Warrants, including the following: (1) the
designation, aggregate principal amount and terms of the Debt Securities
purchasable upon exercise of such Debt Warrants and the procedures and
conditions relating to the exercise of such Debt Warrants; (2) the designation
and terms of any related Debt Securities with which such Debt Warrants are
issued and the number of such Debt Warrants issued with each such Debt Security;
(3) the date, if any, on and after which such Debt Warrants and the related Debt
Securities will be separately transferable; (4) the principal amount of Debt
Securities purchasable upon exercise of each Debt Warrant and the price at which
such principal amount of Debt Securities may be purchased upon such exercise;
(5) the date on which the right to exercise such Debt Warrants shall commence
and the date on which such right shall expire (the "Expiration Date"); (6) if
the Debt Securities purchasable upon exercise of such Debt Warrants are original
issue discount Debt Securities, a discussion of federal income tax
considerations applicable thereto; and (7) whether the Debt Warrants represented
by the Debt Warrant Certificates will be issued in registered or bearer form,
and, if registered, where they may be transferred and registered.
Debt Warrant Certificates will be exchangeable for new Debt Warrant
Certificates of different denominations and Debt Warrants may be exercised at
the corporate trust office of the Debt Warrant Agent or any other office
indicated in the Prospectus Supplement. Prior to the exercise of their Debt
Warrants, holders of Debt Warrants will not have any of the rights of holders of
the Debt Securities purchasable upon such exercise and will not be entitled to
payments of principal of (and premium, if any) or interest, if any, on the Debt
Securities purchasable upon such exercise.
16
<PAGE>
EXERCISE OF DEBT WARRANTS
Each Debt Warrant will entitle the holder to purchase for cash such
principal amount of Debt Securities at such exercise price as shall in each case
be set forth in, or to be determinable as set forth in the Prospectus Supplement
relating to the Debt Warrants offered thereby. Debt Warrants may be exercised at
any time up to the close of business on the Expiration Date set forth in the
applicable Prospectus Supplement. After the close of business on the Expiration
Date, unexercised Debt Warrants will become void.
Debt Warrants may be exercised as set forth in the Prospectus Supplement
relating to the Debt Warrants in respect of which this Prospectus is being
delivered. Upon receipt of payment and the Debt Warrant Certificate properly
completed and duly executed at the corporate trust office of the Debt Warrant
Agent or any other office indicated in the Prospectus Supplement, the Company
will, as soon as practicable, forward the Debt Securities purchasable upon such
exercise. If less than all of the Debt Warrants represented by such Debt Warrant
Certificate are exercised, a new Debt Warrant Certificate will be issued for the
remaining amount of Debt Warrants.
DESCRIPTION OF SERIES PREFERRED STOCK AND COMMON STOCK
IMC may issue, separately or together with or upon conversion of or exchange
for other Securities, Series Preferred Stock and Common Stock, all as set forth
in the accompanying Prospectus Supplement relating to the Series Preferred Stock
or Common Stock in respect of which this Prospectus is delivered. The following
summaries do not purport to be complete and are subject to, and are qualified in
their entirety by reference to, the following documents: (i) IMC's Restated
Certificate of Incorporation (the "Restated Certificate of Incorporation"), (ii)
IMC's By-laws, as amended to date (the "By-laws"), (iii) the Rights Agreement,
as amended (the "Rights Agreement"), between IMC and The First National Bank of
Chicago, as Rights Agent, pursuant to which shares of Series C Preferred Stock
are issuable, and (iv) with respect to any Series Preferred Stock, the
Certificate of Designation with respect to such Series Preferred Stock. A copy
of each of the Restated Certificate of Incorporation, By-laws and the Rights
Agreement are incorporated by reference as exhibits, and in the case of an
offering of Series Preferred Stock, the Certificate of Designation will be filed
in an amendment to the Registration Statement of which this Prospectus is a part
or filed in a Current Report on Form 8-K and incorporated by reference in the
Registration Statement of which this Prospectus is a part.
The total amount of the authorized capital stock of IMC consists of (i)
250,000,000 shares, $1.00 par value per share of Common Stock, of which
93,932,747 shares of Common Stock were issued and outstanding as of March 31,
1997 and (ii) 12,000,000 shares of Series Preferred Stock, par value $1.00 per
share. The Board of Directors has reserved 3,000,000 shares of Series C
Preferred Stock for issuance in connection with the Rights Plan described below.
The Board of Directors of IMC is authorized to create and issue one or more
series of Series Preferred Stock and to determine the rights and preferences of
each series, to the extent permitted by the Restated Certificate of
Incorporation.
SERIES PREFERRED STOCK
GENERAL. Under the Restated Certificate of Incorporation, IMC's Board of
Directors is authorized to create and issue up to 12,000,000 shares of Series
Preferred Stock in one or more series and to determine the rights and
preferences of each series, to the extent permitted by the Restated Certificate
of Incorporation. As of March 31, 1997, 3,000,000 shares of Series C Preferred
Stock were reserved for issuance. Reference is made to the applicable Prospectus
Supplement and the Certificate of Designation establishing such series of Series
Preferred Stock in respect of which this Prospectus is being delivered for the
terms of any series of Series Preferred Stock, including the specific title and
stated value, dividend, liquidation, redemption, voting and other rights with
respect to such series of Series Preferred Stock.
17
<PAGE>
Reference is made to the applicable Prospectus Supplement relating to the
Series Preferred Stock offered thereby for specific terms, including:
(i) The title and stated value of such Series Preferred Stock;
(ii) The number of shares of such Series Preferred Stock offered, the
liquidation preference per share and the initial offering price of such
Series Preferred Stock;
(iii) The dividend rate(s), period(s) and/or payment date(s) or method(s) of
calculation thereof applicable to such Series Preferred Stock;
(iv) The date from which dividends on such Series Preferred Stock shall
accumulate, if applicable;
(v) The procedures for any auction and remarketing, if any, for such Series
Preferred Stock;
(vi) The provisions for a sinking fund, if any, for such Series Preferred
Stock;
(vii) The provisions for redemption, if applicable, of such Series Preferred
Stock;
(viii) Any listing of such Series Preferred Stock on any securities exchange;
(ix) The terms and conditions, if applicable, upon which such Series
Preferred Stock will be convertible into Common Stock of the Company,
including the conversion price (or manner of calculation thereof);
(x) A discussion of Federal income tax considerations applicable to such
Series Preferred Stock;
(xi) The relative ranking and preferences of such Series Preferred Stock as
to dividend rights and rights upon liquidation, dissolution or winding
up of the affairs of the Company;
(xii) Any limitations on issuance of any series of Series Preferred Stock
ranking senior to or on a parity with such series of Series Preferred
Stock as to dividend rights and rights upon liquidation, dissolution or
winding up of the affairs of the Company; and
(xiii) Any other specific terms, preferences, rights (including, without
limitation, voting rights), limitations or restrictions of such Series
Preferred Stock.
LIQUIDATION PREFERENCE. Unless otherwise specified in the applicable
Prospectus Supplement, upon any liquidation, dissolution or winding up of IMC
whether voluntary or involuntary, the holders of any series of Series Preferred
Stock in respect of which this Prospectus is being delivered will have
preference and priority over the Common Stock and any other class of stock or
series of a class of stock of IMC ranking on liquidation junior to such series
of Series Preferred Stock, for payment out of the assets of IMC or proceeds
thereof, whether from capital or surplus, in the amount set forth in the
applicable Prospectus Supplement. After such payment, the holders of such series
of Series Preferred Stock will be entitled to no other payments. If, in the case
of any such liquidation, dissolution or winding up of IMC, the assets of IMC or
proceeds thereof shall be insufficient to make the full liquidation payment in
respect of such series of Series Preferred Stock and liquidating payments on any
other series of Series Preferred Stock ranking as to liquidation on a parity
with such series, then those assets and proceeds will be distributed among the
holders of such series of Series Preferred Stock and any such other series of
Series Preferred Stock ratably in accordance with the respective amounts which
would be payable on such shares of such series of Series Preferred Stock and
such other series of Series Preferred Stock if all amounts thereon were paid in
full. A sale of all or substantially all of IMC's assets or a consolidation or
merger of IMC with one or more corporations shall not be deemed to be a
liquidation, dissolution or winding up of IMC.
COMMON STOCK
GENERAL. The holders of outstanding shares of the Common Stock are entitled
to receive dividends, subject to the prior rights of any outstanding Series
Preferred Stock, out of assets legally available therefor
18
<PAGE>
at such times and in such amounts as the Board of Directors may from time to
time determine. The shares of Common Stock are neither redeemable nor
convertible, and the holders thereof have no preemptive or subscription rights
to purchase any securities of IMC. Each outstanding share of Common Stock is
entitled to one vote on all matters submitted to a vote of stockholders. There
is no cumulative voting. Upon any liquidation, dissolution or winding up of IMC,
whether voluntary or involuntary, remaining net assets, if any, of IMC shall be
distributed pro rata to the holders of the Common Stock.
CERTAIN PROVISIONS OF THE RESTATED CERTIFICATE OF INCORPORATION AND BY-LAWS.
The Restated Certificate of Incorporation and By-laws contain certain
provisions that are intended to enhance the likelihood of continuity and
stability in the composition of IMC's Board of Directors and which may have the
effect of delaying, deferring or preventing a future takeover or change in
control of IMC unless such takeover or change of control is approved by IMC's
Board of Directors. Such provisions may also render the removal of the current
Board of Directors and of management more difficult. The Restated Certificate of
Incorporation provides that before IMC may purchase outstanding shares of IMC's
Common Stock from a beneficial owner of 3% or more of the outstanding shares of
Common Stock at a price known by IMC to exceed the market price of the Common
Stock, a majority of the stockholders of IMC must have approved such purchase
unless the purchase is made by IMC on the same terms and as a result of an offer
to purchase any and all of IMC's outstanding Common Stock.
Pursuant to the Restated Certificate of Incorporation, the Board of
Directors of IMC is divided into three classes serving staggered three-year
terms. Directors can be removed from office only for cause and only by the
affirmative vote of the holders of a majority of the voting power of the then
outstanding shares of stock of IMC entitled to vote generally in the election of
directors (the "Voting Stock"), voting together as a single class. Vacancies on
the Board of Directors may only be filled by the remaining directors and not by
the stockholders, except in the case of newly created directorships, if the
remaining directors fail to fill any such vacancy, the stockholders may do so at
the next annual or special meting called for that purpose.
The By-laws establish an advance notice procedure with regard to the
nomination, other than by or at the direction of the Board of Directors, of
candidates for election as directors and with regard to certain matters to be
brought before an annual meeting of stockholders of IMC. In general, notice must
be received by IMC not less than 60 days prior to the annual meeting and must
contain certain specified information concerning the person to be nominated or
the matter to be brought before the meeting and concerning the stockholder
submitting the proposal.
The Restated Certificate of Incorporation also provides that in the case of
certain mergers, sales of assets, issuances of securities, liquidations or
dissolutions, or reclassifications or recapitalizations involving affiliated
holders of stock representing 20% or more of the voting power of the then
outstanding shares of Voting Stock, such transactions must be approved by 80% of
the combined voting power of the then outstanding Voting Stock, unless such
transactions are approved by a majority of the Disinterested Directors (as
defined in the Restated Certificate of Incorporation) of IMC unless certain
minimum price, form of consideration and procedural requirements are satisfied.
The Restated Certificate of Incorporation provides that the affirmative vote of
the holders of 80% of the total votes eligible to be cast in the election of
directors is required to amend, alter, change or repeal such provisions.
The requirement of a supermajority vote to approve certain corporate
transactions and certain amendments to the Restated Certificate of Incorporation
of IMC could enable a minority of IMC's stockholders to exercise veto powers
over such transactions and amendments.
Special meetings of stockholders may be called only by the Chairman of the
Board of IMC, the President of IMC or a majority of the Board of Directors. The
Restated Certificate of Incorporation provides that stockholders may act only at
an annual or special meeting and stockholders may not act by written consent.
19
<PAGE>
RIGHTS PLAN. On June 21, 1989, the Board of Directors of the Company
declared a dividend of one preferred share purchase right (a "Right") for each
outstanding share of Common Stock. The dividend was payable on July 12, 1989
(the "Record Date") to the stockholders of record on that date. Each Right
entitles the registered holder to purchase from the Company one two-hundredth of
a share of Junior Participating Preferred Stock, Series C, par value $1.00 per
share (the "Series C Preferred Shares"), of the Company, at a price of $75 per
one two-hundredth of a Preferred Share (the "Purchase Price"), subject to
adjustment.
Until the earlier to occur of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") has acquired beneficial ownership of 15% or more of the outstanding
shares of Common Stock or (ii) 10 business days (or such later date as may be
determined by action of the Board of Directors prior to such time as any Person
becomes an Acquiring Person) following the commencement of, or announcement of
an intention to make, a tender offer or exchange offer the consummation of which
would result in the beneficial ownership by a person or group of 15% or more of
such outstanding shares of Common Stock (the earlier of such dates being called
the "Distribution Date"), the Rights will be evidenced, with respect to any of
the Common Stock certificates outstanding as of the Record Date, by such
certificate with a notation incorporating the Rights Agreement by reference.
Notwithstanding the foregoing, if the Board of Directors of the Company
determines in good faith that a Person who would otherwise be an "Acquiring
Person" has become such inadvertently and such Person divests as promptly as
practicable a sufficient number of shares of Common Stock so that such Person
would no longer be an "Acquiring Person", then such Person shall not be deemed
to be an "Acquiring Person" for any purpose under the Rights Agreement.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on June 21, 1999 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or unless the Rights are earlier redeemed by the
Company, in each case, as described below.
In the event that, after a Distribution Date, the Company is acquired in a
merger or other business combination transaction or 50% or more of its
consolidated assets or earning power are sold or otherwise transferred, proper
provision will be made so that each holder of a Right will thereafter have the
right to receive, upon the exercise thereof at the then current exercise price
of the Right, that number of shares of common stock of the acquiring company
which at the time of such transaction will have a market value of two times the
exercise price of the Right. In the event that any person becomes an Acquiring
Person, proper provision will be made so that each holder of a Right, other than
Rights beneficially owned by the Acquiring Person and its affiliates and
associates (which will thereafter be void), will thereafter have the right to
receive upon exercise that number of shares of Common Stock having a market
value of two times the exercise price of the Right. The Board of Directors may
extend the 30-day period described above for up to an additional 60 days to
permit the taking of action that may be necessary to authorize sufficient
additional Common Stock to permit the issuance of Common Stock upon the exercise
in full of the Rights.
At any time after the acquisition by an Acquiring Person of beneficial
ownership of 15% or more of the outstanding Common Stock and prior to the
acquisition by such person or group of 50% or more of the outstanding Common
Stock, the Board of Directors of the Company may exchange the Rights (other than
Rights owned by such person or group which have become void), in whole or in
part for Common Stock at an exchange ratio of one-half of the number of shares
of Common Stock which each holder of a Right would have a right to receive upon
exercise of a Right after giving effect to the adjustment set forth in Section
11(a) (ii) of the Rights Agreement or one two-hundredth of a Series C Preferred
Share (or of a share of a class or series of the Company's preferred stock
having equivalent rights, preferences and privileges), per Right (subject to
adjustment).
Until a Right is exercised, the holder thereof, as such, will have no rights
as a stockholder of the Company, including, without limitation, the right to
vote or to receive dividends.
20
<PAGE>
DESCRIPTION OF STOCK WARRANTS
The Company may issue, together with other securities or separately, Stock
Warrants for the purchase of Common Stock. The Stock Warrants are to be issued
under Stock Warrant Agreements (each a "Stock Warrant Agreement") to be entered
into between the Company and a bank or trust company, as Stock Warrant Agent
(the "Stock Warrant Agent"), all as set forth in the Prospectus Supplement
relating to Stock Warrants in respect of which this Prospectus is being
delivered. The Stock Warrant Agent will act solely as an agent of the Company in
connection with the Stock Warrants of such series and will not assume any
obligations or relationship of agency or trust for or with any holders or
beneficial owners of Stock Warrants. A copy of the form of Stock Warrant
Agreement, including the form of Warrant Certificates representing the Stock
Warrants (the "Stock Warrant Certificates") reflecting the provisions to be
included in the Stock Warrant Agreement that will be entered into with respect
to particular offerings of Stock Warrants, will be filed in an amendment to the
Registration Statement of which this Prospectus is a part or filed in a Current
Report on Form 8-K and incorporated by reference in the Registration Statement
of which this Prospectus is a part. The following summaries of certain
provisions of the Stock Warrant Agreement and the Stock Warrant Certificates do
not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all the provisions of the Stock Warrant Agreement and
the Stock Warrant Certificates, respectively, including the definitions therein
of certain capitalized terms not defined herein.
GENERAL
Reference is made to the Prospectus Supplement for the terms of Stock
Warrants in respect of which this Prospectus is being delivered, the Stock
Warrant Agreement relating to such Stock Warrants and the Stock Warrant
Certificates representing such Stock Warrants, including the following: (1) the
offering price of such Stock Warrants, if any; (2) the procedures and conditions
relating to the exercise of such Stock Warrants; (3) the number of shares of
Common Stock purchasable upon exercise of each Stock Warrant and the initial
price at which such shares may be purchased upon exercise; (4) the date on which
the right to exercise such Stock Warrants shall commence and the date on which
such right shall expire (the "Expiration Date"); (5) a discussion of Federal
income tax considerations applicable to the exercise of Stock Warrants; (6) call
provisions of such Stock Warrants, if any; and (7) any other terms of the Stock
Warrants. The shares of Common Stock issuable upon the exercise of the Stock
Warrants will, when issued in accordance with the Stock Warrant Agreement, be
fully paid and nonassessable.
Prior to the exercise of their Stock Warrants, holders of Stock Warrants
will not have any of the rights of holders of the Common Stock purchasable upon
such exercise, and will not be entitled to any dividend payments on the Common
Stock purchasable upon such exercise.
EXERCISE OF STOCK WARRANTS
Each Stock Warrant will entitle the holder to purchase for cash such number
of shares of Common Stock at such exercise price as shall in each case be set
forth in, or be determinable as set forth in, the Prospectus Supplement relating
to the Stock Warrants offered thereby. Unless otherwise specified in the
applicable Prospectus Supplement, Stock Warrants may be exercised at any time up
to the close of business on the Expiration Date set forth in the applicable
Prospectus Supplement. After the close of business on the Expiration Date,
unexercised Stock Warrants will become void.
Stock Warrants may be exercised as set forth in the Prospectus Supplement
relating to the Stock Warrants in respect of which this Prospectus is being
delivered. Upon receipt of payment and the Stock Warrant Certificates properly
completed and duly executed at the corporate trust office of the Stock Warrant
Agent or any other office indicated in the Prospectus Supplement, the Company
will, as soon as practicable, forward a certificate representing the number of
shares of Common Stock purchasable upon such exercise. If less than all of the
Stock Warrants represented by such Stock Warrant Certificate are exercised, a
new Stock Warrant Certificate will be issued for the remaining amount of Stock
Warrants.
21
<PAGE>
ANTIDILUTION PROVISIONS
Unless otherwise specified in the applicable Prospectus Supplement, the
exercise price payable and the number of shares purchasable upon the exercise of
each Stock Warrant will be subject to adjustment in certain events, including
(1) the issuance of a stock dividend to holders of Common Stock or a
combination, subdivision or reclassification of Common Stock; (2) the issuance
of rights, warrants or options to all holders of Common Stock entitling the
holders thereof to purchase Common Stock for an aggregate consideration per
share less than the current market price per share of the Common Stock; or (3)
any distribution by the Company to the holders of its Common Stock of evidences
of indebtedness of the Company or of assets (excluding cash dividends or
distributions payable out of capital surplus and dividends and distributions
referred to in (1) above). No fractional shares will be issued upon exercise of
Stock Warrants, but the Company will pay the cash value of any fractional shares
otherwise issuable.
DESCRIPTION OF CURRENCY WARRANTS
The Company may issue, together with Debt Securities or Debt Warrants or
separately, Currency Warrants either in the form of Currency Put Warrants
entitling the holders thereof to receive from the Company the Cash Settlement
Value in U.S. dollars of the right to sell a specified amount of a specified
foreign currency or currency units for a specified amount of U.S. dollars, or in
the form of Currency Call Warrants entitling the holders thereof to receive from
the Company the Cash Settlement Value in U.S. dollars of the right to purchase a
specified amount of a specific foreign currency units for a specified amount of
U.S. dollars. The spot exchange rate of the applicable Base Currency, upon
exercise, as compared to the U.S. dollar, will determine whether the Currency
Warrants have a Cash Settlement Value on any given day prior to their
expiration.
The Currency Warrants are to be issued under a Currency Warrant Agreement to
be entered into between the Company and a bank or trust company, as Currency
Warrant Agent (the "Currency Warrant Agent"), all as set forth in the applicable
Prospectus Supplement. The Currency Warrant Agent will act solely as an agent of
the Company in connection with the Currency Warrants of such series and will not
assume any obligations or relationship of agency or trust for or with any
holders or beneficial owners of Currency Warrants. A copy of the form of
Currency Warrant Agreement, including the forms of global Warrant Certificates
representing the Currency Put Warrants and Currency Call Warrants (the "Currency
Warrant Certificates"), reflecting the provisions to be included in the Currency
Warrant Agreement that will be entered into with respect to particular offerings
of Currency Warrants, will be filed in an amendment to the Registration
Statement of which this Prospectus is a part or filed in a Current Report on
Form 8-K and incorporated by reference in the Registration Statement of which
this Prospectus is a part. The description of the Currency Warrants contained
herein and the following summaries of certain provisions of the Currency Warrant
Agreement and the Currency Warrant Certificates do not purport to be complete
and are subject to, and are qualified in their entirety by reference to, all the
provisions of the Currency Warrant Agreement and the Currency Warrant
Certificates, respectively, including the definitions therein of certain
capitalized terms not defined herein.
GENERAL
Reference is made to the Prospectus Supplement for the terms of Currency
Warrants in respect of which this Prospectus is being delivered, the Currency
Warrant Agreement relating to such Currency Warrants and the Currency Warrant
Certificates representing such Currency Warrants, including the following: (1)
whether such Currency Warrants will be Currency Put Warrants, Currency Call
Warrants, or both; (2) the formula for determining the Cash Settlement Value, if
any, of each Currency Warrant; (3) the procedures an conditions relating to the
exercise of such Currency Warrants; (4) the circumstances which will cause the
Currency Warrants to be deemed to be automatically exercised; (5) any minimum
number of Currency Warrants which must be exercised at any one time, other than
upon automatic exercise; and
22
<PAGE>
(6) the date on which the right to exercise such Currency Warrants will commence
and the date on which such right will expire (the "Expiration Date").
BOOK-ENTRY PROCEDURES AND SETTLEMENT
Except as may otherwise be provided in the applicable Prospectus Supplement,
the Currency Warrants will be issued in the form of global Currency Warrant
Certificates, registered in the name of a depositary or its nominee. Holders
will not be entitled to receive definitive certificates representing Currency
Warrants. A holder's ownership of a Currency Warrant will be recorded on or
through the records of the brokerage firm or other entity that maintains such
holder's account. In turn, the total number of Currency Warrants held by an
individual brokerage firm for its clients will be maintained on the records of
the depositary in the name of such brokerage firm or its agent. Transfer of
ownership of any Currency Warrant will be effected only through the selling
holder's brokerage firm.
EXERCISE OF CURRENCY WARRANTS
Each Currency Warrant will entitle the holder to receive the Cash Settlement
Value of such Currency Warrant on the applicable Exercise Date, in each case as
such terms will be defined in the applicable Prospectus Supplement. If not
exercised prior to 3:00 P.M., New York City time, on the third New York Business
Day preceding the Expiration Date, Currency Warrants will be deemed
automatically exercised on the Expiration Date.
PLAN OF DISTRIBUTION
GENERAL
IMC may sell the Securities (i) through underwriters or dealers; (ii)
directly to one or more other purchasers; (iii) through agents; or (iv) to both
investors and/or dealers through a specific bidding or auction process or
otherwise. The Prospectus Supplement with respect to the Offered Securities will
set forth the terms of the offering of such Offered Securities, including the
name or names of any underwriters, dealers or agents, the purchase price of such
Offered Securities and the proceeds to IMC from such sale, any underwriting
discounts and other items constituting underwriters' compensation, any initial
public offering price and any discounts, commissions or concessions allowed or
reallowed or paid to dealers, and any bidding or auction process. Any initial
offering price and any discounts, concessions or commissions allowed or
reallowed or paid to dealers may be changed from time to time.
If underwriters are used in an offering, the Offered Securities will be
acquired by the underwriters for their own account. The Offered Securities may
be sold 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 either
through underwriting syndicates represented by one or more managing underwriters
or directly by one or more of such firms. The specific managing underwriter or
underwriters, if any, will be set forth in the Prospectus Supplement relating to
the Offered Securities together with the members of the underwriting syndicate,
if any. Unless otherwise set forth in the Prospectus Supplement, the obligations
of the underwriters to purchase the Offered Securities will be subject to
certain conditions precedent and the underwriters will be obligated to purchase
all such Offered Securities if any are purchased.
Offered Securities may be sold directly by IMC or through agents designated
by IMC from time to time. The Prospectus Supplement will set forth the name of
any agent involved in the offer or sale of the Offered Securities in respect of
which the Prospectus Supplement is delivered and any commissions payable by IMC
to such agent. Unless otherwise indicated in the Prospectus Supplement, any such
agent is acting on a best efforts basis for the period of its appointment.
23
<PAGE>
Any underwriters, dealers, or agents participating in the distribution of
the Offered Securities may be deemed to be underwriters and any discounts or
commissions received by them on the sale or resale of the Offered Securities may
be deemed to be underwriting discounts and commissions under the Securities Act.
Agents, dealers or underwriters may be entitled, under agreements entered into
with IMC, to indemnification by IMC against certain liabilities, including
liabilities under the Securities Act, and to contribution with respect to
payments which the agents, dealers or underwriters may be required to make in
respect thereof. Agents, dealers and underwriters may engage in transactions
with or perform services for IMC in the ordinary course of business.
The Offered Securities, other than the Common Stock, will be a new issue or
issues of securities with no established trading market. Any Common Stock issued
by the Company pursuant to this Registration Statement will be listed. Unless
otherwise indicated in a Prospectus Supplement, IMC does not currently intend to
list any Offered Debt Securities or Warrants on any securities exchange. No
assurance can be given that the underwriters, dealers or agents, if any,
involved in the sale of the Offered Securities will make a market in such
Offered Securities. Whether or not any of the Offered Securities are listed on a
national securities exchange or the underwriters, dealers or agents, if any,
involved in the sale of the Offered Securities make a market in such Offered
Securities, no assurance can be given as to the liquidity of the trading market
for such Offered Securities.
DELAYED DELIVERY ARRANGEMENTS
If so indicated in the Prospectus Supplement, IMC may authorize underwriters
or other persons acting as IMC's agents to solicit offers by certain
institutions to purchase Offered Securities from IMC pursuant to contracts
providing for payment and delivery on a future date. Institutions with which
such contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all cases will be subject to the approval of
IMC. The obligations of any purchaser under any such contract will be subject to
the condition that the purchase of the Offered Securities shall not at the time
of delivery be prohibited under the laws of the jurisdiction to which such
purchaser is subject. The underwriters and such agents will not have any
responsibility in respect of the validity or performance of such contracts.
LEGAL MATTERS
Certain legal matters will be passed upon for IMC by Marschall I. Smith,
Esq., Senior Vice President and General Counsel of the Company. Mr. Smith is the
beneficial owner of shares of Common Stock and holds currently exercisable
options to purchase shares of Common Stock.
EXPERTS
The consolidated financial statements of the Company at June 30, 1996 and
for each of the three years in the period ended June 30, 1996, appearing in the
Company's Annual Report on Form 10-K which is incorporated by reference in this
Prospectus and Registration Statement have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon incorporated by
reference elsewhere herein which, as to the years 1995 and 1994, is based in
part on the report of Arthur Andersen LLP, independent auditors. The financial
statements referred to above are incorporated by reference in reliance upon such
reports given upon the authority of such firms as experts in accounting and
auditing.
24
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses in connection with the issuance
and distribution of the securities being registered, other than underwriting
discounts and commissions. All of the amounts shown are estimated, except the
SEC registration fee.
<TABLE>
<S> <C>
SEC registration fee.............................................. $ 48,485
Legal fees and expenses........................................... 100,000
Printing and engraving............................................ 100,000
Fees of accountants............................................... 100,000
Fees of trustees.................................................. 10,000
Blue sky fees and expenses........................................ 10,000
Rating agency fees................................................ 150,000
Miscellaneous..................................................... 10,000
---------
Total......................................................... $ 528,485
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law ("DGCL") permits a Delaware corporation
to indemnify any persons who are, or are threatened to be made, parties to any
threatened, pending or completed legal action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of such corporation), by reason of the fact that such person was an
officer or director of such corporation, or is or was serving at the request of
such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided that such officer or director acted in good faith and in a
manner he reasonably believed to be in or not opposed to the corporation's best
interests, and, for criminal proceedings, had no reasonable cause to believe his
conduct was illegal. A Delaware corporation may indemnify officers and directors
in an action by or in the right of the corporation under the same conditions,
except that no indemnification is permitted without judicial approval if the
officer or director is adjudged to be liable to the corporation in the
performance of his duty. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director actually and reasonably incurred.
The Company's Restated Certificate of Incorporation provides that the
Company will indemnify each officer and director of the Company to the fullest
extent permitted by applicable law. The Company's By-Laws provide that each
person who was or is made a party or is threatened to be made a party to or is
otherwise involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he or she is or was
a director or officer of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan, will be indemnified by the Company to the
full extent permitted by the DGCL. The indemnification rights conferred by the
Company's Restated Certificate of Incorporation are not exclusive of any other
right to which persons seeking indemnification may be entitled under any law,
By-Law, agreement, vote of stockholders or disinterested directors or otherwise.
The Company is authorized to purchase and maintain (and the Company maintains)
insurance on behalf of its directors and officers.
The form of Underwriting Agreement included as an exhibit to this
Registration Statement provides for indemnification of directors and officers of
the Company against certain liabilities.
25
<PAGE>
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------- --------------------------------------------------------------------------------------------------------
<S> <C>
1 Form of Underwriting Agreement.
3.1 Restated Certificate of Incorporation, as amended, (incorporated by reference to the Company's Current
Report on Form 8-K dated November 1, 1994).
3.2 Certificate of Amendment to Restated Certificate in Incorporation, dated October 23, 1995 (incorporated
by reference to Exhibit 3.2 of the Company's Registration Statement on Form 8-A/A-1 dated January 12,
1996).
3.3 By-Laws, amended as of March 4, 1996, and as currently in effect (incorporated by reference to Exhibit
4.4 to the Company's Post-Effective Amendment No. 1 on Form S-8 to Form S-4 (No. 333-0439)).
4.1 Rights Agreement dated June 21, 1989, amended as of August 17, 1995, with The First National Bank of
Chicago (incorporated by reference to the Company's Report on Form 8-A/A dated September 7, 1995).
4.2 Amendment to Rights Agreement, effective as of April 29, 1993 (incorporated by reference to Exhibit 3.2
to IMC's Registration Statement on Form 8-A/A-1 dated January 12, 1996).
4.3 Amendment to Rights Agreement, dated August 17, 1995 (incorporated by reference to Exhibit 1 to the
Company's Registration Statement on Form 8-A/A dated September 7, 1995).
4.4 Indenture dated as of December 1, 1991 between the Registrant and The Bank of New York, as Trustee,
relating to $100,000,000 aggregate principal amount of 9.45% Senior Debentures due 2011 (incorporated
by reference to Exhibit 4.4 to the Company's Form SE filed on December 3, 1991).
4.5 Form of Senior Debentures due 2011 (incorporated by reference to Exhibit 4.5 to the Company's Form SE
filed on December 3, 1991).
4.6 Indenture, dated as of October 1, 1993, between IMC Global Inc. and The Bank of New York, as successor
Trustee to NationsBank of Georgia, National Association (incorporated by reference to Exhibit 4.1 to
the Company's Registration Statement on Form S-3, No. 33-50177).
4.7 First Supplemental Indenture, dated as of October 1, 1993, between IMC Global Inc. and The Bank of New
York, as successor Trustee to NationsBank of Georgia, National Association (incorporated by reference
to Exhibit 4.1 to the Company's Current Report on Form 8-K dated October 12, 1993).
4.8 Second Supplemental Indenture, dated as of September 3, 1996, between IMC Global Inc. and The Bank of
New York, National Association, as successor Trustee to NationsBank of Georgia, National Association
(incorporated by reference to Exhibit 4.10 of the Company's Annual Report on Form 10-K for the fiscal
year ended June 30, 1996).
4.9 Form of Senior Debt Securities Indenture.
*4.10 Form of Senior Debt Securities
4.11 Form of Subordinated Debt Securities Indenture.
*4.12 Form of Subordinated Debt Securities
The instruments defining the rights of holders of certain long-term debt securities of IMC and its
subsidiaries are omitted pursuant to Item 601(b)(4)(iii)(A) of Regulation S-K. IMC hereby agrees to
furnish copies of these instruments to the SEC upon request.
</TABLE>
26
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------- --------------------------------------------------------------------------------------------------------
<S> <C>
*4.14 Form of Certificate of Designations of Preferred Stock.
*4.15 Form of Debt Warrant Agreement, including form of Debt Warrant Certificate.
*4.16 Form of Stock Warrant Agreement, including form of Stock Warrant Certificate.
5 Opinion of Marschall I. Smith, Esq., General Counsel to the Company.
12 Statement of Calculation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of Marschall I. Smith, Esq. (included in Exhibit 5).
24 Powers of Attorney.
</TABLE>
- ------------------------
* To be filed, if necessary, subsequent to the effectiveness of this
Registration Statement by an amendment to the Registration Statement or
incorporated by reference pursuant to a Current Report on Form 8-K in
connection with the offering of Securities.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial BONA FIDER offering thereof.
27
<PAGE>
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, 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 that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(d) The undersigned registrant hereby undertakes that:
(1) for purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
(e) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Securities and Exchange Commission under
Section 305(b)(2) of the Trust Indenture Act.
28
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Northbrook, Illinois, on May 16, 1997.
<TABLE>
<S> <C> <C>
IMC GLOBAL INC.
By: /s/ BRIAN J. SMITH
-----------------------------------------
Brian J. Smith
EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
* Chairman and Chief
- ------------------------------ Executive Officer and May 16, 1997
Wendell F. Bueche Director
* President (principal
- ------------------------------ operating officer) and May 16, 1997
Robert E. Fowler, Jr. Director
/s/ BRIAN J. SMITH Chief Financial Officer
- ------------------------------ (principal financial May 16, 1997
Brian J. Smith officer)
/s/ ANNE M. SCAVONE
- ------------------------------ Controller (principal May 16, 1997
Anne M. Scavone accounting officer)
*
- ------------------------------ Director May 16, 1997
Raymond F. Bentele
*
- ------------------------------ Director May 16, 1997
Rod F. Dammeyer
*
- ------------------------------ Director May 16, 1997
Dr. James M. Davidson
</TABLE>
29
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
*
- ------------------------------ Director May 16, 1997
Harold H. MacKay
*
- ------------------------------ Director May 16, 1997
David B. Mathis
*
- ------------------------------ Director May 16, 1997
Thomas H. Roberts, Jr.
*
- ------------------------------ Director May 16, 1997
Joseph P. Sullivan
*
- ------------------------------ Director May 16, 1997
Richard L. Thomas
*
- ------------------------------ Director May 16, 1997
Billie B. Turner
*
- ------------------------------ Director May 16, 1997
Clayton K. Yeutter
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/ MARSCHALL I. SMITH
-------------------------
Marschall I. Smith
ATTORNEY IN FACT
</TABLE>
30
<PAGE>
Exhibit 1
IMC GLOBAL INC.
Securities
UNDERWRITING AGREEMENT BASIC PROVISIONS
__________, 1997
1. INTRODUCTORY. IMC Global Inc., a Delaware corporation (the
"Company"), proposes to issue and sell from time to time senior debt securities,
subordinated debt securities, convertible subordinated debt securities
(collectively, "Debt Securities"), preferred stock and common stock registered
under the registration statement referred to in Section 2(a) ("Registered
Securities"). If specified in a Terms Agreement referred to in Section 3, the
Company proposes to grant to the underwriters an option to purchase up to that
amount of Registered Securities specified in such Terms Agreement (the "Option
Securities"). Debt Securities will be issued under one or more indentures (as
amended or supplemented from time to time, an "Indenture" and collectively, the
"Indentures"), more particularly described in a Terms Agreement, between the
Company and the trustees named therein (the "Trustee(s)"), 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 preferred stock will be issued in one or more series, which series may vary
as to voting rights, dividends, optional and mandatory redemption provisions,
liquidation preference and conversion provisions and other terms, with all such
terms for any particular series or issue of the preferred stock being determined
at the time of sale. The Registered Securities will be sold pursuant to a Terms
Agreement, for resale in accordance with terms of offering determined at the
time of sale.
The Registered Securities (together with the Option Securities)
involved in any such offering 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 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 shall mean the Underwriters.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants as of the date of this Agreement as follows:
(a) A registration statement on Form S-3 (File No. 333-______)
with respect to the Registered Securities has (i) been prepared by the
Company in conformity with the requirements of the Securities Act of
1933, as amended (the "Securities Act"), and the rules and regulations
(the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder and (ii) been filed with the
Commission under the Securities Act. Such registration statement has
become effective under the Securities Act. If any post-effective
amendment to such registration statement has been filed with the
Commission prior to the date of the applicable Terms Agreement, the
most recent such amendment has been declared effective by the
Commission. Copies of such registration statement and any amendments
thereto have been delivered by the Company to the Representatives. As
used in this Agreement, "Effective Time" means the respective date and
time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by
the Commission; and "Effective Date" means the respective applicable
date of the Effective Time. As provided in Section 4(a), a prospectus
supplement relating to the Securities, the terms of the offering
thereof and the other matters set forth therein has been prepared and
will be filed pursuant to Rule 424 under the Securities Act. In
addition, a preliminary prospectus supplement reflecting the terms of
the Securities, the terms of the offering thereof, and the other
matters set forth therein also may be prepared and filed pursuant to
Rule 424 under the Securities Act. Such prospectus supplement, in the
form filed on or after the date of this Agreement pursuant to Rule
424, is referred to in this Agreement as the "Prospectus Supplement",
and any such preliminary prospectus supplement in the form filed after
the date of this Agreement pursuant to Rule 424 is referred to as the
"Preliminary Prospectus Supplement." Any
<PAGE>
2
prospectus accompanied by a Preliminary Prospectus Supplement is
referred to in this Agreement, collectively with such Preliminary
Prospectus Supplement, as a "Preliminary Prospectus." The
registration statement referred to in this Section 2(a), as amended at
the time of the Terms Agreement, including the exhibits thereto (but
excluding the Statement of Qualification and Eligibility ("Form T-1"))
and the documents filed by the Company with the Commission pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), that are incorporated by reference therein pursuant to Item 12
of Form S-3 under the Securities Act (the "Incorporated Documents")
and the information, if any, deemed to be a part of the registration
statement pursuant to Rule 430A(b) under the Securities Act, is called
the "Registration Statement"; and the basic prospectus included
therein relating to all offerings of securities under the Registration
Statement, as supplemented by the Prospectus Supplement, is called the
"Prospectus", except that, if such basic prospectus is amended or
supplemented on or prior to the date on which the Prospectus
Supplement is first filed pursuant to Rule 424, the term "Prospectus"
shall refer to the basic prospectus as so amended or supplemented and
as supplemented by the Prospectus Supplement, in either case including
the Incorporated Documents. Notwithstanding the foregoing, any
prospectus supplement prepared or filed with respect to an offering
pursuant to the Registration Statement of securities other than the
Securities shall not be deemed to have supplemented the Prospectus.
The Commission has not issued any order suspending the effectiveness
of the Registration Statement, and no stop order has been initiated or
threatened by the Commission.
(b) On the Effective Date, the Registration Statement conformed
in all material respects to the requirements of the Securities Act and
the Rules and Regulations, and did not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
and on the date of the applicable Terms Agreement, and at the time of
filing of the Prospectus pursuant to Rule 424(b), the Prospectus will
conform in all material respects to the requirements of the Securities
Act and the Rules and Regulations, and will not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and on the
Effective Date and the Closing Date, respectively, the Indenture, if
any, described in the Terms Agreement conformed and will conform in
all material respects with the requirements of the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), and the applicable
rules and regulations thereunder; PROVIDED that no representation or
warranty is made as to (i) information contained in or omitted from
the Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company through
the Representatives by or on behalf of any Underwriter specifically
for inclusion therein or (ii) that part of the Registration Statement
which shall constitute the Form T-1 under the Trust Indenture Act.
(c) The Company and each of its subsidiaries (as defined in Rule
405 of the Rules and Regulations) have been duly incorporated and are
validly existing as corporations in good standing under the general
corporation laws of their respective jurisdictions of incorporation,
are duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses
requires such qualification and in which the failure to be so
incorporated, existing or qualified would reasonably be expected to
have a material adverse effect on the business, properties, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole, and have all power and
authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged; and none of the
subsidiaries of the Company, other than those so identified in the
Terms Agreement, is a "significant subsidiary," as such term is
defined in Rule 405 of the Rules and Regulations.
(d) All of the issued shares of capital stock of each significant
subsidiary of the Company have been duly and validly authorized and
issued and are fully paid, non-assessable and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims.
<PAGE>
3
(e) The execution, delivery and performance of the Terms
Agreement (including the provisions of this Agreement) by the Company
and the consummation of the transactions contemplated hereby and
thereby and compliance by the Company with the provisions of the
Indenture, if any, described in the Terms Agreement and the Securities
will not result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its significant subsidiaries is a party or
by which the Company or any of its significant subsidiaries is bound
or to which any of the property or assets of the Company or any of its
significant subsidiaries is subject, nor will such actions result in
any violation of the provisions of the charter or by-laws of the
Company or any of its significant subsidiaries or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its significant
subsidiaries or any of their properties or assets; and except for the
registration of the Securities under the Securities Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under the Trust Indenture Act or the Exchange Act,
and applicable state or foreign securities laws in connection with the
offer, sale and distribution of the Securities by the Underwriters, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of the Terms
Agreement (including the provisions of this Agreement) by the Company
and the consummation of the transactions contemplated hereby and
thereby or compliance by the Company with the provisions of the
Indenture, if any, described in the Terms Agreement.
(f) Except for the Registration Rights Agreement dated March 1,
1996 between the Company and certain former shareholders of The Vigoro
Corporation (the "Registration Rights Agreement"), there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to
include any securities owned or to be owned by such person in the
securities registered pursuant to the Registration Statement, or,
except as described in the Prospectus or Schedule B to the Terms
Agreement (or in Schedule B to any applicable Officers' Certificate
delivered pursuant to Section 6(g)), to require the Company to file
any other registration statement under the Securities Act (other than
a registration statement on Form S-8) with respect to any securities
of the Company owned or to be owned by such person or to require the
Company to include such securities in any securities being registered
pursuant to any other registration statement filed by the Company
under the Securities Act. Each of the persons who is a party to the
Registration Rights Agreement has waived such person's rights with
respect to including securities owned by such person in the
Registration Statement.
(g) The Indenture, if any, described in the Terms Agreement has
been duly authorized, executed and delivered by the Company and
(assuming the due authorization, execution and delivery thereof by the
Trustee under the Indenture) constitutes the valid and legally binding
obligation of the Company, enforceable against the Company in
accordance with its terms; the Debt Securities, if any, described in
the Terms Agreement have been duly authorized by the Company and, when
the terms of the Debt Securities and of their issuance and sale have
been duly established in accordance with the Indenture, this Agreement
and the Terms Agreement and the Debt Securities have been duly
executed, authenticated, issued and delivered in the manner provided
in the Indenture and paid for in accordance with this Agreement and
the Terms Agreement, the Debt Securities will be duly and validly
issued and delivered by the Company and will constitute valid and
legally binding obligations of the Company, enforceable against the
Company in accordance with their terms and entitled to the benefits of
the Indenture; if any Securities to be issued are convertible, the
shares of common stock issuable upon conversion thereof have been duly
authorized by the Company, have been duly reserved for issuance upon
conversion of the Securities and, when issued upon the conversion of
the Securities, will be duly and validly issued, fully paid and
non-assessable; the common stock and preferred stock, if any,
described in the Terms Agreement have been duly authorized by the
Company and, when issued and paid for pursuant to the Terms Agreement,
will be duly and validly issued, fully paid and non-assessable; no
further approval or
<PAGE>
4
authority of the stockholders or the Board of Directors of the
Company will be required for the issuance and sale of the Securities
as contemplated herein or the issuance of the shares of common stock
upon conversion of the Securities; and the Securities, the Indenture,
if any, described in the Terms Agreement and the capital stock of the
Company will conform in all material respects to the descriptions
thereof contained in the Registration Statement and the Prospectus.
(h) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, any 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, which would
reasonably be expected to have a material adverse effect on the
business, properties, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Prospectus;
and, since such date, there has not been any material 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 material adverse change in or affecting, or any
adverse development which materially affects, the business,
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus.
(i) The financial statements (including the related notes and
supporting schedules) included or incorporated by reference in the
Registration Statement or included or incorporated by reference in the
Prospectus present fairly in all material respects the financial
condition and results of operations of the entities purported to be
shown thereby, at the dates and for the periods indicated, and have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved, except as otherwise stated therein.
(j) Ernst & Young LLP, or such other independent accountants
acceptable to the Representatives, who have certified certain
financial statements of the Company and whose report appears or is
incorporated by reference in the Prospectus, are independent public
accountants as required by the Securities Act and the Rules and
Regulations during the periods covered by the financial statements on
which they reported contained in the Prospectus.
(k) The Company has no reason to believe that the Company and
each of its subsidiaries do not own or possess adequate rights to use
all material patents, patent applications, trademarks, service marks,
trade names, trademark registrations, service mark registrations,
copyrights and licenses necessary for the conduct of their respective
businesses in the manner described in the Prospectus and have no
reason to believe that the conduct of their respective businesses will
conflict with any such rights of others, and have not received any
notice of any claims of conflict with any such rights of others, which
claims are reasonably expected to have a material adverse effect on
the business, properties, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole.
(l) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which are reasonably expected to
have a material adverse effect on the business, properties, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole; and to the actual knowledge of
the Company, no such proceedings are threatened by governmental
authorities or by others.
(m) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statement by the
Securities Act or by the Rules and Regulations which have not been
filed as exhibits to the Registration Statement.
<PAGE>
5
(n) No relationship, direct or indirect, exists between or among
the Company on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other hand,
which is required to be described in the Prospectus and which is not
so described.
(o) Except as described in the Prospectus or Schedule C to the
Terms Agreement (or in Schedule C to any applicable Officers'
Certificate delivered pursuant to Section 6(g)), since the date as of
which information is given in the Prospectus, the Company has not (i)
issued or granted any rights to acquire any securities (other than
pursuant to employee benefit plans or other compensation plans
existing on the date of the Terms Agreement) or (ii) declared or paid
any dividend on its capital stock other than regular quarterly cash
dividends.
(p) Neither the Company nor any of its subsidiaries,
respectively,(i) is in violation of its charter or by-laws,(ii) is in
default, and no event has occurred which, with notice or lapse of time
or both, would constitute a default, in the due performance or
observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to
which any of its properties or assets is subject or (iii) is in
violation of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject or
has failed to obtain any license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership
of its property or to the conduct of its business except, in the case
of clauses (ii) and (iii), for those defaults, violations or failures
which, either individually or in the aggregate, are not reasonably
expected to have a material adverse effect on the business,
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole.
(q) The Company is not required to be registered, and is not
regulated, as an "investment company" as such term is defined under
the United States Investment Company Act of 1940.
3. PURCHASE AND OFFERING OF THE SECURITIES BY THE UNDERWRITERS. The
obligation of the Underwriters to purchase the Securities will be evidenced
by an exchange of a telegram, telex or other written communications ("Terms
Agreement") at each time the Company determines to sell the Securities.
Each Terms Agreement will be in the form of Annex II (A) or (B) attached
hereto and 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 amount to
be purchased by each Underwriter, the purchase price to be paid by the
Underwriters and certain terms of the Securities and whether any of the
Securities may be sold to institutional investors pursuant to Delayed
Delivery Contracts (as defined below). The Terms Agreement will also
specify the time and date of delivery and payment (such time and date being
herein and in the Terms Agreement referred to as the "Closing Date"), the
place of delivery and payment and any details of the terms of public
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. Debt Securities, if any, delivered to the Underwriters
on the Closing Date will be in definitive fully registered form, in such
denominations and registered in such names as the Underwriters may request.
If specified in a Terms Agreement, on the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions set forth in this Agreement, the
Company grants an option to the several Underwriters to purchase, severally
and not jointly, up to that amount of the Option Securities as shall be
specified in the Terms Agreement from the Company at the same price as the
Underwriters shall pay for the Registered Securities. Said option may be
exercised only to cover over-allotments in the sale of the Registered
Securities by the Underwriters and may be exercised in whole or in part at
any time on or before the thirtieth day after the date of the Terms
Agreement upon written or telegraphic notice by the Representatives to the
Company setting forth the amount of the Option Securities as to which the
several Underwriters are exercising the option. The amount of Option
Securities to be purchased by each Underwriter shall be the same percentage
of the total amount of the Option Securities to
<PAGE>
6
be purchased by the several Underwriters as such Underwriter is purchasing of
the Registered Securities, as adjusted by the Representatives in such manner as
the Representatives deem advisable to avoid fractional shares/units.
If the 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 Contract") with such changes therein as the Company may authorize
or approve. Delayed Delivery Contracts are to be made only 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 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 amount of Securities to be purchased
by each Underwriter will be reduced pro rata in proportion to the 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 amount of Contract Securities.
4. COVENANTS OF THE COMPANY. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus, including the Prospectus
Supplement, pursuant to Rule 424(b) within the time period prescribed
by the Rules and Regulations; to notify the Representatives, promptly
after it receives notice, of the time when the Registration Statement
or any amendment thereto becomes effective or promptly after the
filing of any supplement or amendment to the Prospectus (other than
any Incorporated Document or any amendment or supplement relating to
an offering of securities other than the Securities) and to furnish
the Representatives with copies thereof; to notify the
Representatives, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to
counsel for the Underwriters a copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed
with the Commission, including all exhibits filed therewith;
(c) To furnish promptly to each of the Representatives copies of
the Registration Statement, including all exhibits, any Preliminary
Prospectus, 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;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may be required by the Securities Act, in the
reasonable judgment of the Company or the Representatives, or
requested by the Commission;
(e) Prior to filing with the Commission any (i) amendment to the
Registration Statement or supplement to the Prospectus or (ii) any
Prospectus pursuant to Rule 424 of the Rules and
<PAGE>
7
Regulations (other than any Incorporated Document or any amendment or
supplement relating to an offering of securities other than the
Securities), to furnish a copy thereof to the Representatives and
counsel for the Underwriters;
(f) As soon as practicable but no later than 16 months after the
date of each Terms Agreement, to make generally available to its
security holders an earning statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Securities Act (including, at the option of the Company, Rule
158) covering a period of at least twelve months beginning on the
first day of the first fiscal quarter of the Company commencing after
the later of (i) the effective date of the Registration Statement,
(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;
(g) During the period, if any, specified in the Terms Agreement
after the date of such Terms Agreement, to furnish to the
Representatives copies of all materials furnished by the Company to
its stockholders and all public reports and financial statements
furnished by the Company to the principal national securities exchange
upon which the common stock of the Company may be listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder;
(h) Promptly from time to time, to take such action as the
Representatives reasonably may request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Securities; PROVIDED, HOWEVER, that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject;
and
(i) For the period specified in the Terms Agreement, to not, (A)
in the event of an offering of common stock, preferred stock or
convertible debt securities, (i) offer for sale, sell or otherwise
dispose of, directly or indirectly, any shares of common stock of the
Company or permit the registration under the Securities Act of any
shares of common stock of the Company (other than the Securities and
shares issued pursuant to employee benefit plans, qualified stock
option plans or other employee compensation plans), (ii) sell or grant
options, rights or warrants with respect to any shares of common stock
of the Company (other than the Securities and the grant of options
pursuant to employee benefit plans), or (iii) offer for sale, sell or
otherwise dispose of, directly or indirectly, any securities
convertible into or, exchangeable or exercisable for common stock of
the Company (other than the Securities), without, in any case, the
prior written consent of a majority of the Representatives; PROVIDED,
HOWEVER, the Company may, without such consent, offer and sell shares
of common stock of the Company in transactions exempt from the
registration requirements of the Securities Act, provided that the
purchasers in such transactions are prohibited from offering for sale,
selling or otherwise disposing of, directly or indirectly, any of the
shares of common stock of the Company so acquired by them for the
remainder of the period specified in the Terms Agreement and, (B) in
the event of an offering of Debt Securities, between the date of the
Terms Agreement and the date of delivery of the Debt Securities, offer
for sale, sell or cause to be offered for sale or sold, without the
prior written consent of a majority of the Representatives, any debt
securities which are substantially similar to the Securities.
5. EXPENSES. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Securities and any taxes
payable in connection therewith;(b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto;(c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-
<PAGE>
8
effective amendments thereto (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus and any Incorporated Documents, all as provided in this Agreement;
(d)the costs of reproducing and distributing this Agreement;(e) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of sale of the Securities, if necessary;
(f)any applicable stock exchange listing or other fees;(g) the fees and expenses
of filings, if any, with foreign securities administrators and of qualifying the
Securities under the securities laws of the several jurisdictions as provided in
Section 4(h) and of preparing, reproducing and distributing a Blue Sky
Memorandum (including related fees (in an amount not to exceed $10,000) and
disbursements of counsel to the Underwriters); (h) the fees paid to rating
agencies in connection with the rating of the Securities; (i) the costs of
printing and issuance of certificates, if any; (j) reasonable fees and
disbursements of the Trustee and any transfer agent; and (k) all other
reasonable costs and expenses incident to the performance of the obligations of
the Company under this Agreement; PROVIDED that except as provided in this
Section 5 and in Section 10, the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel, any transfer taxes
on the Securities which they may sell and the expenses of advertising any
offering of the Securities 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 Securities to the Underwriters.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and at the time of delivery of any Securities pursuant to a Terms Agreement, of
the representations and warranties of the Company contained in this Agreement,
to the performance by the Company of its obligations under this Agreement, and
to each of the following additional terms and conditions:
(a) The Prospectus as amended or supplemented shall have been filed
with the Commission pursuant to Rule 424(b) under the Securities Act within
the applicable time period prescribed for such filing by the Rules and
Regulations and in accordance with Section 4(a); no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the Company
on or prior to the Closing Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of the counsel for the
Underwriters, is material or omits to state a fact which, in the opinion of
such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Terms Agreement,
the Indenture, if any, described in the Terms Agreement, the Securities,
the Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the Terms Agreement and the transactions
contemplated hereby and thereby shall be satisfactory in all material
respects to counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Sidley & Austin, counsel to the Company, or other counsel to the
Company satisfactory to the Representatives, shall have furnished to the
Representatives their written opinion, as counsel to the Company, addressed
to the Underwriters and dated the Closing Date, and, if Option Securities
are purchased, at any date after the Closing Date as specified in a Terms
Agreement, additional opinions from such counsel, in form and substance
acceptable to the Representatives to the effect that:
(i) The Indenture, if any, described in the Terms Agreement has been
duly authorized, executed and delivered by the Company and duly
qualified under the Trust Indenture Act, and, assuming due
authorization, execution and delivery thereof by the Trustee,
constitutes a valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium
<PAGE>
9
and other similar laws relating to or affecting creditors' rights generally,
general equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing;
(ii) The Debt Securities, if any, described in the Terms Agreement
have been duly authorized by the Company, and when the Debt Securities
have been duly executed, authenticated, issued and delivered in the
manner provided in the Indenture and paid for in accordance with this
Agreement and the Terms Agreement or, in the case of Contract
Securities, in accordance with Delayed Delivery Contracts, the Debt
Securities will be duly and validly issued and delivered by the
Company and will constitute valid and legally binding obligations of
the Company, enforceable against the Company in accordance with their
terms and entitled to the benefits of the Indenture, subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing;
(iii) If any Securities to be issued are convertible into common
stock, the shares of common stock initially issuable upon conversion
of the Securities have been reserved for issuance upon such
conversion; and when certificates therefor have been duly executed,
countersigned, registered and delivered upon such conversion, will
constitute shares of common stock which have been duly authorized and
validly issued and are fully paid and non-assessable;
(iv) The common stock and preferred stock, if any, described in
the Terms Agreement; when certificates therefor have been duly
executed, countersigned, registered and delivered in accordance with
this Agreement and the Terms Agreement or, in the case of Contract
Securities, in accordance with Delayed Delivery Contracts, constitute
shares of common stock or preferred stock, as the case may be, which
have been duly authorized and validly issued and are fully paid and
non-assessable;
(v) The Registration Statement was declared effective under the
Securities Act as of the date specified in such opinion; any required
filing of the Prospectus pursuant to Rule 424(b) of the Rules and
Regulations has been made within the time period prescribed for such
filing by the Rules and Regulations; and, to the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge of such
counsel, no proceeding for that purpose is pending or threatened by
the Commission;
(vi) At the Effective Time, the Registration Statement (including
all documents incorporated by reference therein) complied, and on the
date of the Terms Agreement, the Prospectus (including all documents
incorporated by reference therein) complies, and any further
amendments or supplements thereto made by the Company on or prior to
the date of such opinion comply (other than, in each case, the
financial statements and related schedules and other financial and
statistical data included or incorporated by reference therein and the
Form T-1 under the Trust Indenture Act, as to which such counsel need
express no opinion) as to form in all material respects with the
requirements of the Securities Act the Exchange Act and the applicable
rules and regulations under said Acts;
(vii) The Securities, other than any Contract Securities, the
Indenture and the capital stock of the Company conform, and any
Contract Securities, when issued, delivered and sold, will conform,
in all material respects to the descriptions thereof contained or
incorporated by reference in the Registration Statement and the
Prospectus; and the provisions of the contracts, agreements and
instruments (as the same may be in effect on the Closing Date)
summarized in the Prospectus, any supplement thereto or any document
incorporated by reference therein, conform in all material respects to
the descriptions thereof in the Prospectus, any supplement thereto or
any document incorporated by reference therein;
<PAGE>
10
(viii) To such counsel's knowledge, there are no contracts or
other documents which are required to be filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been so filed.
(ix) The Terms Agreement, this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and delivered by the
Company; and
(x) The sale of the Securities by the Company, compliance by the
Company with all of the provisions of this Agreement, the Terms
Agreement, the Indenture, if any, described in the Terms Agreement,
any Delayed Delivery Contracts and the Securities and the consummation
by the Company of the transactions contemplated hereby and thereby
will not result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any agreement or
instrument scheduled in such opinion (as in effect on the date of such
opinion); and, except for the registration of the Securities under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Trust
Indenture Act, the Exchange Act and applicable state or foreign
securities laws in connection with the offer and sale of the
Securities by the Underwriters, to such counsel's knowledge, no
consent, approval, authorization or order of, or filing or
registration with, any court or any governmental agency or body is
required for the execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby.
In addition, such counsel shall state that in the course of the preparation of
the Registration Statement and the Prospectus, such counsel has considered the
information set forth therein in light of the matters required to be set forth
therein and such counsel has participated in conferences with officers and
representatives of the Company, including its independent public accountants
and, with respect to the Prospectus, representatives of and counsel for the
Representatives during the course of which the contents of the Registration
Statement and Prospectus and related matters were discussed and, although such
counsel shall not have independently checked the accuracy or completeness of, or
otherwise verified, and accordingly are not passing upon, and shall not assume
responsibility for, the accuracy, completeness or fairness of the statements
contained in or incorporated by reference in the Registration Statement and
Prospectus (except as set forth in subparagraph (vii) above), and that such
counsel has relied as to materiality, to a large extent, upon the judgment of
officers and representatives of the Company, as a result of such consideration
and participation, nothing has come to the attention of such counsel which
causes such counsel to believe that the Registration Statement, as of the
Effective Time or, if later, as of the date of the Company's most recent filing
of an Annual Report on Form 10-K (including such Annual Report on Form 10-K),
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 the Prospectus, as of the date of such opinion, includes
an untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except that, in each
case, such counsel need not express any belief as to the financial statements
and related schedules and other financial and statistical data included or
incorporated by reference in the Registration Statement or the Prospectus).
In rendering such opinion, such counsel may (i) state that their opinion
is limited to the federal laws of the United States, the laws of the State of
New York and the General Corporation Law of the State of Delaware and (ii)
rely as to matters of fact upon the representations contained in this
Agreement and the certificates of officers of the Company and it subsidiaries
and of public officials; PROVIDED that such counsel shall furnish copies
thereof to the Representatives.
<PAGE>
11
(e) The General Counsel or other counsel of the Company, shall have
furnished to the Representatives his written opinion, addressed to the
Underwriters and dated the Closing Date, and, if Option Securities are
purchased, at any date after the Closing Date as specified in a Terms Agreement,
additional opinions from such counsel, in form and substance satisfactory to the
Representatives to the effect that:
(i) The Company and each of its significant subsidiaries (as
defined in Rule 405 under the Securities Act and identified in the Terms
Agreement) have been duly incorporated and are validly existing as
corporations in good standing under the general corporation laws of their
respective jurisdictions of incorporation and have all corporate power and
authority necessary to own or hold their respective properties and conduct
the businesses in which they are engaged;
(ii) All of the issued shares of capital stock of each
significant subsidiary have been duly and validly authorized and issued and
are fully paid, non-assessable and (except for directors' qualifying
shares) owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(iii) To such counsel's knowledge, and other than as set
forth or contemplated in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its subsidiaries is
the subject which are reasonably expected to have a material adverse effect
on the business, properties, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a whole;
and, to such counsel's knowledge, no such proceedings are threatened by
governmental authorities or by others;
(iv) The sale of the Securities by the Company and the compliance
by the Company with all of the provisions of this Agreement, the Terms
Agreement, the Indenture, if any, described in the Terms Agreement, any
Delayed Delivery Contract and the Securities, and the consummation of the
transactions contemplated hereby and thereby will not result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such actions result
in any violation of the provisions of the charter or by-laws of the Company
or any significant subsidiary or of any statute or any order, rule or
regulation known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or any
of their properties or assets (except that such counsel need express no
opinion with respect to applicable state or foreign securities laws);
(v) To such counsel's knowledge, neither the Company nor any
significant subsidiary (A) is in violation of its charter or by-laws, (B)
is in default, and no event has occurred, which, with notice or lapse of
time or both, would constitute a default, in the due performance or
observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its
properties or assets is subject or (C) is in violation of any law,
ordinance, governmental rule, regulation or court decree to which it or its
property or assets may be subject or has failed to obtain any license,
permit, certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the conduct of its
business except, in the case of clauses (B) and (C), for those defaults,
violations or failures which, either individually or in the aggregate, are
not reasonably expected to have a material adverse effect on the business,
<PAGE>
12
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole; and
(vi) To such counsel's knowledge, except for the Registration
Rights Agreement, there are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to include any securities owned or to be owned by such
person in the securities registered pursuant to the Registration Statement,
or, except as described in the Prospectus or Schedule B to the Terms
Agreement, to require the Company to file any other registration statement
under the Securities Act (other than a registration statement on Form S-8)
with respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in any
securities being registered pursuant to any other registration statement
filed by the Company under the Securities Act.
In rendering such opinion, such counsel may (i) state that his opinion is
limited to the federal laws of the United States, the laws of the State of
Nebraska and the General Corporation Law of the State of Delaware and (ii) rely
as to matters of fact upon certificates of officers of the Company and its
subsidiaries and of public officials; PROVIDED that such counsel shall furnish
copies thereof to the Representatives and state that he believes that the
Underwriters and such counsel are justified in relying upon such certificates.
(f) The Company shall have furnished to the Representatives on the Closing
Date a letter of Ernst & Young LLP, addressed jointly to the Company and the
Underwriters and dated the Closing Date of the type described in the American
Institute of Certified Public Accountants' Statement on Auditing Standards No.
72, and covering such additional financial statement items and procedures
(including a review of interim financial statements specified in the American
Institute of Certified Public Accountants' Statement on Auditing Standards No.
71) as the Representatives may reasonably request and in form and substance
satisfactory to the Representatives.
(g) The Company shall have furnished to the Representatives a certificate,
dated the Closing Date, and on any later date, if any, on which Option
Securities are purchased, of its Chief Financial Officer or Treasurer and its
General Counsel or other counsel stating that:
(i) The representations and warranties of the Company in Section
2 of this Agreement are true and correct as of such date; the Company has
performed all of its agreements contained in this Agreement which are
required to be performed on or before the date of such certificate and the
conditions set forth in subsections 6(h) and (j) of this Agreement have
been fulfilled; and no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and
(ii) They have examined the Registration Statement and the
Prospectus and, in their opinion (A) as of the Effective Date, the
Registration Statement did not contain an untrue statement of a material
fact and did not omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and, as
of the date of such certificate, the Prospectus does not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and (B) since the Effective
Date no event has occurred which should have been set forth in a supplement
or amendment to the Registration Statement or Prospectus which has not been
set forth in such a supplement or amendment.
(h)(i) Neither the Company nor any of its subsidiaries shall have
sustained, since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any 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 and
(ii) since such date there shall not have been any material change
<PAGE>
13
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 in a supplement thereto) 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 taken as a whole, otherwise than as set forth or contemplated
in the Prospectus, the effect of which, in any such case described in
clause (i) or (ii), is, in the 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 or in a supplement thereto.
(i) Subsequent to the execution and delivery of the Terms 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
or (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.
(j) Subsequent to the execution and delivery of the Terms Agreement,
(i) no downgrading shall have occurred in the rating accorded the Company's
debt securities by any "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.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Securities), to which that Underwriter or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon,(i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) 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 shall reimburse each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred by that
Underwriter or controlling person in connection with investigating or defending
or preparing to defend against any such loss, claim, damage, liability or action
as such expenses are incurred; PROVIDED, HOWEVER, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or on behalf
of any Underwriter specifically for inclusion therein; and PROVIDED FURTHER,
that as to any Preliminary Prospectus or supplement thereto this indemnity
agreement shall not inure to the benefit of any Underwriter or any person
controlling that Underwriter on account of any loss, claim, damage, liability or
action arising from the sale of Securities to any person by that Underwriter if
that Underwriter failed to send or give a copy of the Prospectus, as the same
may be amended or supplemented, to that person within the time required by the
Securities Act, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in such
Preliminary Prospectus or supplement thereto was corrected in the Prospectus,
unless such failure resulted from non-compliance by the Company with Section
4(c). For purposes of the second proviso to the immediately preceding sentence,
the term Prospectus shall not be deemed to include the
<PAGE>
14
documents incorporated by reference therein, and no Underwriter shall be
obligated to send or give any supplement or amendment to any document
incorporated by reference in a Preliminary Prospectus or supplement thereto or
the Prospectus to any person other than a person to whom such Underwriter has
delivered such incorporated documents in response to a written request therefor.
The foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or to any controlling person of
that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, each of its directors (including any person who, with
his or her consent, is named in the Registration Statement as about to become a
director of the Company), each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of the Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company or any
such director, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon,(i) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or (ii) 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, but in each case only to the extent that the 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 through
the Representatives by or on behalf of that Underwriter specifically for
inclusion therein, and shall reimburse the Company and any such director,
officer or controlling person for any legal or other expenses reasonably
incurred by the Company or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred.
The foregoing indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company or any such director, officer or
controlling person.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of any claim or the commencement of any action, if a claim in
respect thereof is to be made against the indemnifying party under this Section
7, the indemnified party shall notify the indemnifying party in writing of the
claim or the commencement of that action; PROVIDED, HOWEVER, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 7. If any
such claim or action shall be brought against an indemnified party, and the
indemnified party shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; PROVIDED, HOWEVER,
that the Representatives shall have the right to employ counsel to represent
jointly the Representatives and those other Underwriters and their respective
controlling persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Underwriters against the Company
under this Section 7, if, in the reasonable judgment of the Representatives, if
there are legal defenses available to them which are different from or in
addition to those available to such indemnifying party (it being understood that
the Company shall not, in connection with any one such claim or action or
separate but substantially similar or related claims or actions in the same
jurisdiction arising out of the same allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm of attorneys
(other than local counsel which shall be engaged only for purposes of appearing
with such counsel in such jurisdictions in which such firm of attorneys is not
licensed to practice)), and in that event the fees and expenses of such separate
counsel shall be paid by the Company. Anything in this Section 7(c) to the
contrary notwithstanding, an indemnifying party shall not be liable for any
settlement of any claim or action effected without its written consent.
(d) If the indemnification provided for in this Section 7 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 7(a) or 7(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein (other than
by reason of the failure to give notice, as provided in the first sentence of
Section 7(c)), then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim,
<PAGE>
15
damage or liability, or action in respect thereof,(i) in such proportion as
shall be 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, 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 with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, 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 with respect
to such offering shall be deemed to be in the same proportion as the total
net proceeds from the offering of the Securities purchased under this
Agreement (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters
with respect to the Securities purchased under this Agreement, in each case
as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 7(d) were to be
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 into account the equitable considerations referred to in this
Section 7(d). The amount paid or payable by an indemnified party as a result
of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 7(d) shall be deemed to include, for
purposes of this Section 7(d), any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7(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 was offered to the public
exceeds the amount of any damages which such Underwriter has otherwise paid
or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 7(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) The Underwriters severally confirm that the statements with
respect to the public offering of the Securities set forth on the cover page of,
and under the caption "Underwriting" in, the Prospectus are correct and
constitute the only information furnished in writing to the Company by or on
behalf of the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
(f) The agreements contained in Sections 4(f), 4(g), 5 and this
Section 7 and the representations and warranties of the Company in Section 2 (as
made as of the date of this Agreement) shall survive the delivery of the
Securities and shall remain in full force and effect, regardless of any
termination or cancellation of the Terms Agreement incorporating the terms of
this Agreement or any investigation made by or on behalf of any indemnified
party.
8. DEFAULTING UNDERWRITERS. If any Underwriter defaults in the
performance of its obligations under a Terms Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Securities which
the defaulting Underwriter agreed but failed to purchase in the respective
proportions which the number of shares or principal amount of Securities set
opposite the name of each remaining non-defaulting Underwriter in Schedule A to
the Terms Agreement bears to the total number of shares or principal amount of
the Securities set opposite the names of all the remaining non-defaulting
Underwriters in Schedule A to the Terms Agreement; PROVIDED, HOWEVER, that the
remaining non-defaulting Underwriters shall not be obligated to purchase any
Securities on the Closing Date if the aggregate number of shares or principal
amount of the Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase on such date exceeds [9.09%] of the total number of
shares or principal amount of the Securities, and any remaining non-defaulting
Underwriter shall not be obligated to purchase more than [110%] of the number of
shares or principal amount of Securities set forth opposite its name on Schedule
A to the Terms Agreement. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters, or those other underwriters satisfactory to the
Representatives who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them, all the
Securities. If the remaining Underwriters or other
<PAGE>
16
underwriters satisfactory to the Representatives do not elect to purchase the
number of shares or principal amount which the defaulting Underwriter or
Underwriters agreed but failed to purchase, the Terms Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Company,
except that the Company will continue to be liable for the payment of expenses
to the extent set forth in Sections 5 and 10.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company for damages caused by its default. If
other underwriters are obligated or agree to purchase the Securities of a
defaulting or withdrawing Underwriter, either the Representatives or the Company
may postpone the Closing Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel for
the Underwriters may be necessary in the Registration Statement, the Prospectus
or any supplement thereto or in any other document or arrangement.
9. EFFECTIVE DATE AND TERMINATION. The obligations of the
Underwriters under the Terms Agreement may be terminated by the Representatives
by notice given to and received by the Company prior to delivery of any payment
for the Securities if, prior to that time, the events described in any of
Section 6(h), 6(i) or 6(j) shall have occurred.
10. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) the Company
shall fail to tender the Securities for delivery to the Underwriters for any
reason permitted under this Agreement or the Terms Agreement or (b) the
Underwriters shall decline to purchase the Securities for any reason permitted
under this Agreement or the Terms Agreement (including the termination of the
Terms Agreement pursuant to Section 9), the Company shall reimburse the
Underwriters for the reasonable fees and expenses of their counsel and for such
other out-of-pocket expenses as shall have been reasonably incurred by them in
connection with the Terms Agreement and the proposed purchase of the Securities,
and upon demand the Company shall pay the full amount thereof to the
Representatives. If the Terms Agreement is terminated pursuant to Section 8 by
reason of the default of one or more Underwriters, the Company shall not be
obligated to reimburse any Underwriter on account of those expenses.
11. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing and shall be deemed duly given if mailed or
transmitted by any standard form of telecommunication. Such notices shall be
directed as follows:
(a) if to the Underwriters, to their addresses furnished to the
Company in writing for the purpose of communications hereunder;
(b) if to the Company, to the address of the Company set forth in the
Registration Statement, Attention: General Counsel;
PROVIDED, HOWEVER, that any notice to an Underwriter pursuant to Section 7(c)
shall be given to such Underwriter at its address set forth in its acceptance
telex to the Representatives, which address will be supplied to any other party
hereto by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. The Terms Agreement
(including the provisions of this Agreement) shall inure to the benefit of and
be binding upon the Underwriters and the Company and their respective
successors. The Terms Agreement (including the provisions of this Agreement)
are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement also shall be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Securities Act and (B) the indemnity agreement of the Underwriters contained
in Section 7(b) of this Agreement shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 12, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained in this Agreement. No
purchaser of Securities from any Underwriter shall be deemed to be a successor
solely by reason of such purchase.
<PAGE>
17
13. DEFINITION OF THE TERM "BUSINESS DAY". For purposes of this
Agreement, "business day" means any day on which the NYSE is open for trading.
14. GOVERNING LAW. This Agreement and the Terms Agreement shall be
governed by and construed in accordance with the laws of Illinois (without
giving effect to the principles of choice of law).
15. COUNTERPARTS. The Terms Agreement may be executed in
counterparts and each such counterpart shall be deemed to be an original but all
such counterparts shall together constitute one and the same instrument.
16. HEADINGS. The headings herein 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.
<PAGE>
18
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 _________________, 19___.
DELAYED DELIVERY CONTRACT
[Insert date of
initial public
offering]
IMC GLOBAL INC.
c/o [Name and address
of Underwriter[s]]
Gentlemen:
The undersigned hereby agrees to purchase from IMC GLOBAL INC., a
Delaware 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 _____________________, 19__ and a
Prospectus Supplement dated ______________, 19__, relating thereto, receipt of
copies of which is hereby acknowledged, at __% of the principal amount thereof
plus accrued interest from _______________, 19__, 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.]
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 check in [New York Clearing House (next
day)] funds at the office of _________________ at 10:00 A.M. on the 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 such Delivery Date.
- -------------------------
* Insert date which is third full business day prior to Closing Date under
the Terms Agreement.
<PAGE>
2
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 -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)
By
---------------------------------
(Title of Signatory)
---------------------------------
---------------------------------
(Address of Purchaser)
Accepted, as of the above date,
IMC GLOBAL INC.
By ___________________________________________
Name:
Title:
<PAGE>
ANNEX II (A)
IMC GLOBAL INC.
("Company")
Debt Securities
TERMS AGREEMENT
---------------
___________,19__
IMC Global Inc.
2100 Sanders Road
Northbrook, Illinois 60062
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto and
for their respective accounts, we] [We] offer to purchase, on and subject to the
terms and conditions of the Underwriting Agreement Basic Provisions of the
Company attached hereto (the "Underwriting Agreement"), the following securities
("Securities") to be issued under an indenture, dated ________, 19__, between
the Company and _______________, as Trustee, on the following terms:
TITLE: [ %] [Floating Rate] [Senior] [Subordinated] [Notes] [Debentures]
Due ____
PRINCIPAL AMOUNT: [$]
INTEREST: [ % per annum, from , 19 , payable semiannually on
and commencing , 19 , to holders of record on the
preceding or , as the case may be.] [Zero
coupon]
MATURITY: , 19 .
OPTIONAL REDEMPTION:
SINKING FUND:
PERIOD DESIGNATED PURSUANT TO SECTION 4(G) OF THE UNDERWRITING
AGREEMENT:__ years.
PERIOD DESIGNATED PURSUANT TO SECTION 4(I) OF THE UNDERWRITING
AGREEMENT: __ days.
[CONVERSION PROVISIONS]:
[Other Terms]
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be
, 19 . Underwriters' fee is % of the principal amount of the Contract
Securities.]
PURCHASE PRICE: % of principal amount, plus accrued interest [, if any,]
from _____________, 19__.
EXPECTED REOFFERING PRICE: % of principal amount, subject to change by
the undersigned.
<PAGE>
CLOSING DATE: A.M. on , 19 , at
____________________ in New York [Clearing House (next day)] [Federal (same-
day)] funds.
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:]
The respective principal amounts of the Securities to be purchased by each of
the Underwriters are set forth opposite their names in Schedule A hereto.
[IF APPROPRIATE, INSERT--It is understood that we may, with your
consent, amend this offer to add additional Underwriters and reduce the
aggregate principal amount to be purchased by the Underwriters listed in
Schedule A hereto by the aggregate principal amount to be purchased by such
additional Underwriters.]
The significant subsidiaries (as defined in Rule 405 under the
Securities Act of 1933) of the Company are as follows:
The provisions of the Underwriting Agreement are incorporated herein
by reference [IF APPROPRIATE, INSERT--, except that the obligations and
agreements set forth in Section 8 ("Defaulting Underwriters") of the
Underwriting Agreement shall not apply to the obligations of the Underwriters to
purchase the above Securities].
The Securities will be made available for checking and packaging at
the office of _______________ at least 24 hours prior to the Closing Date.
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.]
<PAGE>
[Please signify your acceptance of the foregoing by return wire not
later than P.M. today.]
Very truly yours,
[Insert name(s) of Representatives
or Underwriters] [On behalf of [themselves][itself] and as
Representative[s] of the Several]
[As] Underwriters[s]
[By [Name of Representative]]
By
------------------------------
Name:
Title:
<PAGE>
SCHEDULE A
Principal
Underwriter Amount
----------- ---------
_________
Total. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [$]
<PAGE>
SCHEDULE B
<PAGE>
SCHEDULE C
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire],
dated , 19 , relating to [$] ____________ principal amount of our
[INSERT TITLE OF SECURITIES] (the "Terms Agreement"). We also confirm that,
to the best of our knowledge after reasonable investigation, the
representations and warranties of the undersigned contained in Section 2 of
the Underwriting Agreement Basic Provisions of the Company referred to in the
Terms Agreement (together with the Terms Agreement, the "Underwriting
Agreement"), are true and correct, no stop order suspending the effectiveness
of the Registration Statement (as defined in the Underwriting Agreement) or
of any part thereof has been issued and no proceedings for that purpose have
been instituted or, to the knowledge of the undersigned, are contemplated by
the Securities and Exchange Commission and, subsequent to the respective
dates of the most recent financial statements in the Prospectus (as defined
in the Underwriting Agreement), there has been (or in the case of a form of
prospectus filed pursuant to Rule 424(b)(2) or (5) there will be, as of the
date of such prospectus) no material adverse change in the financial position
or results of operations of the undersigned and its subsidiaries except as
set forth in or contemplated by the Prospectus.
Very truly yours,
IMC GLOBAL INC.
By
----------------------------
Name:
Title:
<PAGE>
ANNEX II (B)
IMC GLOBAL INC.
("Company")
Equity Securities
TERMS AGREEMENT
,19__
IMC Global Inc.
2100 Sanders Road
Northbrook, Illinois 60062
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto and
for their respective accounts, we] [We] offer to purchase, on and subject to the
terms and conditions of the Underwriting Agreement Basic Provisions of the
Company attached hereto (the "Underwriting Agreement"), the following securities
("Securities") on the following terms:
TITLE: [Common Stock] [Preferred Stock, Series ______]
NUMBER OF SHARES TO BE ISSUED: [________ shares]
[For Preferred Stock:
VOTING RIGHTS:
PREFERRED STOCK DIVIDENDS: [cash dividends of $ to $ per share
payable quarterly in arrears on _____ __, ______ __, _______ __ and _______ __.]
OPTIONAL REDEMPTION:
MANDATORY REDEMPTION/SINKING FUND:
LIQUIDATION PREFERENCE: [$ per share plus ].
NAME OF EXCHANGE OR MARKET: [New York Stock Exchange] [NASDAQ National
Market System] [American Stock Exchange]
PERIOD DESIGNATED PURSUANT TO SECTION 4(g) OF THE UNDERWRITING AGREEMENT:
__ years.
PERIOD DESIGNATED PURSUANT TO SECTION 4(i) OF THE UNDERWRITING AGREEMENT:
___ days.
[CONVERSION PROVISIONS]:
[Other Terms]
PRICE TO PUBLIC: $______ per share
<PAGE>
2
UNDERWRITING DISCOUNTS AND COMMISSION:
PROCEEDS TO COMPANY:
OVER-ALLOTMENT OPTION:
CLOSING DATE: A.M. on , 19 , at ____________________
in New York [Clearing House (next day)] [Federal (same-day)] funds.
NAME OF TRANSFER AGENT AND REGISTRAR:
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:]]
[For Common Stock:
NAME OF EXCHANGE OR MARKET: [New York Stock Exchange] [NASDAQ National
Market System] [American Stock Exchange]
PERIOD DESIGNATED PURSUANT TO SECTION 4(g) OF THE UNDERWRITING AGREEMENT:
__ years.
PERIOD DESIGNATED PURSUANT TO SECTION 4(i) OF THE UNDERWRITING AGREEMENT:
___ days.
[Other Terms]
PRICE TO PUBLIC: $______________ per share
UNDERWRITING DISCOUNTS AND COMMISSION:
PROCEEDS TO COMPANY:
OVER-ALLOTMENT OPTION:
CLOSING DATE: A.M. on , 19 , at ____________________
in New York [Clearing House (next day)] [Federal (same-day)] funds.
NAME OF TRANSFER AGENT AND REGISTRAR:
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:]]
The respective shares of the Securities to be purchased by each of the
Underwriters are set forth opposite their names in Schedule A hereto.
[IF APPROPRIATE, INSERT--It is understood that we may, with your consent,
amend this offer to add additional Underwriters and reduce the number of shares
to be purchased by the Underwriters listed in Schedule A hereto by the number of
shares to be purchased by such additional Underwriters.]
The significant subsidiaries (as defined in Rule 405 under the
Securities Act of 1933) of the Company are as follows:
The provisions of the Underwriting Agreement are incorporated herein
by reference [IF APPROPRIATE, INSERT--, except that the obligations and
agreements set forth in Section 8 ("Defaulting Underwriters") of the
Underwriting Agreement shall not apply to the obligations of the Underwriters to
purchase the above Securities].
The Securities will be made available for checking and packaging at
the office of at least 24 hours prior to the Closing Date.
<PAGE>
3
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.]
[Please signify your acceptance of the foregoing by return wire not
later than P.M. today.]
Very truly yours,
[Insert name(s) of Representatives
or Underwriters] [On behalf of [themselves][itself] and as
Representative[s] of the Several]
[As] Underwriters[s]
[By [Name of Representative]]
By
--------------------------
Name:
Title:
<PAGE>
SCHEDULE A
Number of
Underwriter Shares
----------- ---------
__________
Total. . . . . . . . . . . . . . . . . . . . . . . . . . . . . [$]
==========
<PAGE>
SCHEDULE B
<PAGE>
SCHEDULE C
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire],
dated , 19 , relating to ___________ shares of our
[INSERT TITLE OF SECURITIES](the "Terms Agreement"). We also confirm that,
to the best of our knowledge after reasonable investigation, the
representations and warranties of the undersigned contained in Section 2 of
the Underwriting Agreement Basic Provisions of the Company referred to in the
Terms Agreement (together with the Terms Agreement, the "Underwriting
Agreement"), are true and correct, no stop order suspending the effectiveness
of the Registration Statement (as defined in the Underwriting Agreement) or
of any part thereof has been issued and no proceedings for that purpose have
been instituted or, to the knowledge of the undersigned, are contemplated by
the Securities and Exchange Commission and, subsequent to the respective
dates of the most recent financial statements in the Prospectus (as defined
in the Underwriting Agreement), there has been (or in the case of a form of
prospectus filed pursuant to Rule 424(b)(2) or (5) there will be, as of the
date of such prospectus) no material adverse change in the financial position
or results of operations of the undersigned and its subsidiaries except as
set forth in or contemplated by the Prospectus.
Very truly yours,
IMC GLOBAL INC.
By
----------------------
Name:
Title:
<PAGE>
IMC GLOBAL INC.,
ISSUER
INDENTURE
DATED AS OF __________, 1997
_______________,
TRUSTEE
PROVIDING FOR THE ISSUANCE OF
SENIOR DEBT SECURITIES IN SERIES
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1. Definitions...............................................-1-
Section 1.2. Other Definitions........................................-11-
Section 1.3. Incorporation by Reference of Trust Indenture Act........-12-
Section 1.4. Rules of Construction...................................-13-
ARTICLE II
THE SECURITIES
Section 2.1. Terms and Forms.........................................-13-
Section 2.2. Execution and Authentication............................-18-
Section 2.3. Registrar, Paying Agent, Conversion
Agent, Depository and Securities Custodian........................-21-
Section 2.4. Securityholder Lists....................................-22-
Section 2.5. Transfer, Registration and Exchange.....................-22-
Section 2.6. Replacement Securities..................................-25-
Section 2.7. Outstanding Securities..................................-27-
Section 2.8. Treasury Securities.....................................-28-
Section 2.9. Temporary Securities....................................-28-
Section 2.10. Securities in Global Form...............................-29-
Section 2.11. Cancellation............................................-29-
Section 2.12. Defaulted Interest......................................-29-
Section 2.13. Persons Deemed Owners...................................-30-
ARTICLE III
REDEMPTION
Section 3.1. Applicability of Article................................-31-
Section 3.2. Notices to Trustee......................................-31-
Section 3.3. Selection of Securities to Be Redeemed..................-32-
Section 3.4. Notice of Redemption....................................-32-
Section 3.5. Effect of Notice of Redemption..........................-34-
Section 3.6. Deposit of Redemption Price.............................-34-
Section 3.7. Securities Redeemed in Part.............................-35-
-i-
<PAGE>
ARTICLE IV
COVENANTS
Section 4.1. Payment of Securities...................................-35-
Section 4.2. Maintenance of Office or Agency for
Notices and Demands...............................................-36-
Section 4.3. Money for Securities Payments to Be Held in Trust.......-38-
Section 4.4. Commission Reports; Reports to Trustee;
Reports to Holders................................................-39-
Section 4.5. Compliance Certificates.................................-40-
Section 4.6. Corporate Existence.....................................-41-
Section 4.7. Limitation on Liens.....................................-41-
Section 4.8. Limitations on Sale and Leaseback
Transactions............................................-42-
SECTION 4.9. Exempted Indebtedness...................................-42-
Section 4.10. Waiver of Stay; Extension of Usury Laws.................-43-
ARTICLE V
SUCCESSORS
Section 5.1. When Company May Merge, etc.............................-43-
Section 5.2. Successor Corporation Substituted.......................-44-
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.......................................-44-
Section 6.2. Acceleration............................................-46-
Section 6.3. Other Remedies..........................................-47-
Section 6.4. Waiver of Past Defaults.................................-47-
Section 6.5. Control by Majority.....................................-47-
Section 6.6. Limitation on Suits by Holders..........................-48-
Section 6.7. Rights of Holders to Receive Payment....................-48-
Section 6.8. Collection Suit by Trustee..............................-49-
Section 6.9. Trustee May File Proofs of Claim........................-49-
Section 6.10. Application of Money Collected..........................-49-
Section 6.11. Undertaking for Costs...................................-51-
Section 6.12. Discontinuance or Abandonment of Proceedings............-51-
ARTICLE VII
TRUSTEE
Section 7.1. Duties of Trustee.......................................-51-
-ii-
<PAGE>
Section 7.2. Rights of Trustee.......................................-53-
Section 7.3. Individual Rights of Trustee............................-54-
Section 7.4. Trustee's Disclaimer....................................-54-
Section 7.5. Notice of Defaults......................................-54-
Section 7.6. Reports by Trustee to Holders...........................-55-
Section 7.7. Compensation and Indemnity..............................-55-
Section 7.8. Replacement of Trustee..................................-56-
Section 7.9. Successor Trustee by Merger.............................-57-
Section 7.10. Eligibility; Disqualification...........................-57-
Section 7.11. Preferential Collection of Claims Against Company.......-57-
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.1. Discharge of Indenture; Defeasance......................-58-
Section 8.2. Conditions to Defeasance................................-58-
Section 8.3. Application of Trust Money..............................-60-
Section 8.4. Repayment to Company....................................-61-
Section 8.5. Reinstatement of Company's Obligations..................-61-
ARTICLE IX
AMENDMENTS AND WAIVERS
Section 9.l. Without Consent of Holders...............................-62-
Section 9.2. With Consent of Holders..................................-63-
Section 9.3. Compliance with Trust Indenture Act......................-64-
Section 9.4. Revocation and Effect of Consents and Waivers............-64-
Section 9.5. Notation on or Exchange of Securities....................-65-
Section 9.6. Trustee to Sign Amendments...............................-65-
ARTICLE X
REPAYMENT AT THE OPTION OF HOLDERS
Section 10.1. Applicability of Article................................-66-
ARTICLE XI
SINKING FUNDS
Section 11.1. Applicability of Article................................-66-
-iii-
<PAGE>
Section 11.2. Satisfaction of Sinking Fund Payments with Securities...-67-
Section 11.3. Redemption of Securities for Sinking Fund...............-68-
ARTICLE XII
CONVERSION OF SECURITIES
Section 12.1. Applicability of Article................................-68-
Section 12.2. Exercise of Conversion Privilege........................-68-
Section 12.3. Fractional Interests....................................-70-
Section 12.4. Adjustment of Conversion Price..........................-71-
Section 12.5. Continuation of Conversion Privilege in
Case of Merger, Consolidation or Sale of Assets...................-75-
Section 12.6. Notice of Certain Events................................-76-
Section 12.7. Taxes on Conversion.....................................-77-
Section 12.8. Company to Provide Stock................................-77-
Section 12.9. Disclaimer of Responsibility for Certain Matters........-78-
Section 12.10. Return of Funds Deposited for
Redemption of Converted Securities................................-79-
Section 12.11. Rights Issued in Respect of Common
Stock Issued upon Conversion......................................-79-
ARTICLE XIII
MISCELLANEOUS
Section 13.1. Trust Indenture Act Controls............................-79-
Section 13.2. Notices.................................................-80-
Section 13.3. Communication by Holders with Other Holders.............-81-
Section 13.4. Certificate and Opinion as to Conditions Precedent......-81-
Section 13.5. Statements Required in Certificate or Opinion...........-81-
Section 13.6. Rules by Trustee and Agents.............................-82-
Section 13.7. Legal Holidays..........................................-82-
Section 13.8. No Recourse Against Others..............................-82-
Section 13.9. Governing Law...........................................-82-
Section 13.10. No Adverse Interpretation of Other Agreements...........-83-
Section 13.11. Successors..............................................-83-
Section 13.12. Severability............................................-83-
Section 13.13. Multiple Originals......................................-83-
Section 13.14. Table of Contents; Headings.............................-83-
Section 13.15. Securities in Foreign Currencies........................-83-
-iv-
<PAGE>
CROSS-REFERENCE TABLE
TIA Section Indenture Section
----------- -----------------
310 (a)(1) ........................ 7.10
(a)(2) ........................ 7.10
(a)(3) ........................ N.A.
(a)(4) ........................ N.A.
(b) ........................ 7.8, 7.10, 13.2
(c) ........................ N.A.
311 (a) ........................ 7.11
(b) ........................ 7.11
(c) ........................ N.A.
312 (a) ........................ 2.4
(b) ........................ 13.3
(c) ........................ 13.3
313 (a) ........................ 7.6
(b)(1) ........................ N.A.
(b)(2) ........................ 7.6
(c) ........................ 7.6, 13.2
(d) ........................ 7.6
314 (a) ........................ 4.4, 13.2
(b) ........................ N.A.
(c)(1) ........................ 13.4
(c)(2) ........................ 13.4
(c)(3) ........................ N.A.
(e) ........................ 13.5
(f) ........................ N.A.
315 (a) ........................ 7.1(b)
(b) ........................ 7.5, 10.2
(c) ........................ 7.1(a)
(d) ........................ 7.1(c)
(e) ........................ 6.11
316 (a)(Last Sentence) ............ 2.8
(a)(1)(A) ..................... 6.5
(a)(1)(B) ..................... 6.4
(a)(2) ........................ N.A.
(b) ........................ 6.7
317 (a)(1) ........................ 6.8
(a)(2) ........................ 6.9
(b) ........................ 4.3
318 (a) ........................ 13.1
N.A. means not applicable.
-v-
<PAGE>
INDENTURE dated as of _____________, 1997 between IMC GLOBAL INC., a
Delaware corporation (the "Company"), and ______________, a national banking
association (the "Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Company's Securities
issued hereunder:
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.1. DEFINITIONS.
"Additional Amounts" means any additional amounts which are required
by a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes imposed
on certain Holders, or as otherwise specified in the terms of a Security
established pursuant to Section 2.1, and which are owing to such Holders.
"Affiliate" shall mean another Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such first Person. For the purposes of this definition, "control," (including,
with correlative meanings, the terms "controlling," "controlled by" and "under
common control with"), as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of that Person, whether through the ownership of voting securities
or by contract or otherwise. The Trustee may request and conclusively rely on
an Officers' Certificate to determine whether any Person is an Affiliate of the
Company.
"Agent" shall mean any Registrar or Paying Agent or authenticating
agent or co-registrar.
"Authorized Newspaper" means a newspaper printed in the official
language of the country of publication and customarily published at least once a
day on each Business Day in each calendar week and of general circulation in New
York, New York or in any other place as required in this Indenture, whether or
not such newspaper is published on Legal Holidays, or, with respect to the
Securities of any series, such other newspaper(s) as may be specified in or
pursuant to the Board Resolution of the Company or supplement to this Indenture
pursuant to which such series of Securities is issued. Whenever, under the
provisions of this Indenture or such Board Resolution, two or more
<PAGE>
publications of a notice or other communication are required or permitted, such
publications may be in the same or different newspapers. If, because of
temporary or permanent suspension of publication or general circulation of any
newspaper or for any other reason, it is impossible or impracticable to publish
any notices required by this Indenture or a Board Resolution in the manner
provided, then such publication in lieu thereof or such other notice as shall be
made with the approval of the Trustee shall constitute a sufficient publication
of such notice.
"Bankruptcy Law" shall mean Title 11, United States Code or any
similar federal or state law for the relief of debtors.
"Bearer Security" means any security in the form established pursuant
to Section 2.1 hereunder which is payable to bearer.
"Board" or "Board of Directors" shall mean the Board of Directors of
the Company or any authorized committee of such Board.
"Board Resolution" means a copy of the resolutions certified by the
Secretary or an Assistant Secretary of the Company as properly adopted by the
Board of Directors of the Company and in full force and effect and delivered to
the Trustee.
"Business Day" shall mean each day that is not a Legal Holiday.
"Capitalized Lease Obligation" shall mean an obligation that is
required to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with such principles; and the Stated
Maturity thereof shall be the date of the last payment of rent or any other
amount due under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty.
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" shall mean the common stock, $1.00 par value per share,
of the Company.
"Company" shall mean IMC Global Inc., a Delaware corporation, until a
successor replaces it in accordance
-2-
<PAGE>
with Article V and, thereafter, means the successor and, for purposes of any
provision contained herein and required by the TIA, each other obligor on the
indenture securities.
"Company Request" or "Company Order" shall mean a written request or
order signed in the name of the Company by the Chairman of the Board, the
President, the Chief Financial Officer or the Treasurer thereof or any other
officer specifically authorized to act by the Board of Directors of the Company,
and delivered to the Trustee.
"Consolidated Net Worth" shall mean the excess of assets over
liabilities of the Company and its consolidated Subsidiaries, plus Minority
Interests, as determined from time to time in accordance with GAAP.
"consolidation" shall mean, with respect to any Person, the
consolidation of the accounts of such Person if and to the extent the accounts
of such Person and each of its Subsidiaries (or, if such Person is the Company,
its Restricted Subsidiaries) would normally be consolidated with those of such
Person, all in accordance with GAAP. The term "consolidated" shall have a
similar meaning.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 13.2 or such other address as the Trustee may give
to the Company.
"coupon" shall mean any interest coupon appertaining to a Bearer
Security.
"Currency Agreement" shall mean any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect such Person or any of its Restricted Subsidiaries against fluctuations
in currency values.
"Default" shall mean any event that is, or after notice or passage of
time or both would be, an Event of Default as defined in Section 6.1 of this
Indenture.
"Depository" or "U.S. Depository" shall mean, with respect to the
Securities of any series issuable or issued in whole or in part in the form of
one or more global Securities, the Person designated as U.S. Depository pursuant
to Section 2.1, which must be a clearing agency registered under the Exchange
Act, and, if so provided pursuant to Section 2.1 with respect to the Securities
of any series, any successor to such Person. If at any time there is more than
one such Person, "Depository" or "U.S. Depository" shall mean, with respect to
any series of
-3-
<PAGE>
Securities, the qualifying entity which has been appointed with respect to the
Securities of that series.
"Eligible Obligations" shall mean obligations as a result of the
deposit of which (along with the simultaneous deposit, if any, of money or U.S.
Government obligations or both) the Securities will be rated in the highest
generic long-term debt rating category assigned by one or more nationally
recognized rating agencies to debt with respect to which the issuer thereof has
been released from its obligations to the same extent that the Company has been
released from its obligations under this Indenture pursuant to the defeasance
provision of this Indenture.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"GAAP" shall mean generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, consistently applied, that are applicable to the
circumstances as of the date of determination; provided that, for purposes of
calculating the Consolidated Net Worth of a Person (including all components
thereof), "GAAP" shall mean such generally accepted accounting principles as
described above in effect on the date of this Indenture.
"Holder," "Securityholders" or "Holders of Securities" or other
similar term shall mean, with respect to a Registered Security, the person in
whose name a particular Security shall be registered on the books of the
Registrar kept for that purpose in accordance with the terms hereof and, with
respect to a Bearer Security or any coupon, the bearer thereof, and the word
"majority," used in connection with the term "Holder," "Securityholders" or
"Holder of Securities" or other similar term, shall signify the "majority in
principal amount" whether or not so expressed.
"IMC" shall mean IMC Global Operations, Inc., a Delaware corporation
and a wholly-owned subsidiary of the Company.
"IMC-Canada" shall mean International Minerals & Chemical Corporation
(Canada) Limited, a corporation organized under the laws of Canada and a
wholly-owned subsidiary of the Company.
-4-
<PAGE>
"incur" shall mean, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "incurrence," "incurred," "incurrable," and "incurring"
shall have meanings correlative to the foregoing); provided that a change in
GAAP that results in an obligation of such Person that exists at such time
becoming Indebtedness shall not be deemed an incurrence of such Indebtedness.
"Indebtedness" shall mean, with respect to any Person, at any date,
any of the following, without duplication, (i) any liability, contingent or
otherwise, of such Person (A) for borrowed money (whether or not the recourse of
the lender is to the whole of the assets of such Person or only to a portion
thereof), (B) evidenced by a note, bond, debenture or similar instrument or (C)
for the payment of money relating to a Capitalized Lease Obligation or other
obligation (whether issued or assumed) relating to the deferred purchase price
of property; (ii) all conditional sale obligations and all obligations under any
title retention agreement (even if the rights and remedies of the seller under
such agreement in the event of default are limited to repossession or sale of
such property), but excluding trade accounts payable arising in the ordinary
course of business; (iii) all obligations for the reimbursement of any obligor
on any letter of credit, banker's acceptance or similar credit transaction other
than entered into in the ordinary course of business; (iv) all indebtedness of
others secured by (or for which the holder of such indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on any asset or
property (including, without limitation, leasehold interests and any other
tangible or intangible property) of such Person, whether or not such
indebtedness is assumed by such Person or is not otherwise such Person's legal
liability; provided, that if the obligations so secured have not been assumed in
full by such Person or are otherwise not such Person's legal liability in full,
the amount of such indebtedness for the purposes of this definition shall be
limited to the lesser of the amount of such indebtedness secured by such Lien or
the fair market value of the assets of the property securing such Lien; (v) all
indebtedness of others (including all interest and dividends on any Indebtedness
or preferred stock of any other Person for the payment of which is) guaranteed,
directly or indirectly, by such Person or that is otherwise its legal liability
or which such Person has agreed to purchase or repurchase or in
-5-
<PAGE>
respect of which such Person has agreed contingently to supply or advance funds;
and (vi) obligations in respect of Currency Agreements and Interest Swap
Obligations.
"Indenture", shall mean this Indenture as amended or supplemented from
time to time.
"Interest Swap Obligations" shall mean the obligations of any Person
pursuant to any interest rate swap agreement, interest rate collar agreement or
other similar agreement or arrangement designed to protect such Person or any of
its Subsidiaries against fluctuations in interest rates.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986,
as amended from time to time, or any successor federal income tax laws.
"Issue Date" shall mean the first date on which a Security is
authenticated by the Trustee pursuant to this Indenture.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on which
banking institutions are not required to be open in the City of or in a state
where a Place of Payment is located.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien, charge or adverse claim affecting title or resulting in an
encumbrance against real or personal property or a security interest of any kind
(including, without limitation, any conditional sale or other title retention
agreement or lease in the nature thereof or any filing or agreement to file a
financing statement as debtor under the Uniform Commercial Code or any similar
statute other than to reflect ownership by a third party or property leased to
the Company or any of its Subsidiaries under a lease that is not in the nature
of a conditional sale or title retention agreement).
"Maturity" when used with respect to any Security shall mean the date
on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Minority Interest" shall mean any shares of stock of any class of a
Subsidiary that are not owned by the Company or a Subsidiary.
-6-
<PAGE>
"Officer" shall mean the Chairman of the Board of Directors, the Vice
Chairman, the President, the Treasurer, any Assistant Treasurer, Controller,
Secretary, Assistant Secretary, or any Vice President of the Company.
"Officers' Certificate" shall mean, with respect to any Person, a
certificate signed by the Chairman of the Board of Directors, the Vice Chairman,
the President or any Vice President and by the Treasurer or any Assistant
Treasurer or the Secretary or any Assistant Secretary of such Person that shall
comply with applicable provisions of this Indenture.
"Opinion of Counsel" shall mean an opinion in writing signed by a
Person's legal counsel (who may be an employee of or counsel to such Person or
the Trustee) who is acceptable to the Trustee.
"Original Issue Discount Security" shall mean any Security which
provides that an amount less than its principal amount is due and payable upon
the acceleration of the maturity thereof after an Event of Default.
"Partnership" shall mean IMC-Agrico Company, a Delaware general
partnership.
"Periodic Offering" shall mean an offering of Securities of a series
from time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the maturity or
maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as contemplated by Section 2.1
with respect thereto, are to be determined by the Company, or one or more of the
Company's agents designated in an Officers' Certificate, upon the issuance of
such Securities.
"Permitted Liens" shall mean, with respect to any Person:
(i) Liens existing on the Issue Date;
(ii) Liens on property or assets of, or any shares of stock of or
secured debt of, any corporation existing at the time such corporation
becomes a Restricted Subsidiary of the Company or at the time such
corporation is merged into the Company or any of its Restricted
Subsidiaries;
(iii) Liens in favor of the Company or any of its Restricted
Subsidiaries;
-7-
<PAGE>
(iv) Liens in favor of governmental bodies to secure progress or
advance payments;
(v) Liens securing industrial revenue or pollution control
bonds;
(vi) Liens on Property to secure Indebtedness incurred for the
purpose of (i) financing all or any part of the purchase price of such
Property incurred prior to, at the time of, or within 180 days after, the
acquisition of such property or assets or (ii) financing all or any part of
the cost of construction, improvement, development or expansion of any such
Property;
(vii) Statutory liens or landlords', carriers', warehouseman's,
mechanics', suppliers', materialmen's, repairmen's or other like Liens
arising in the ordinary course of business and with respect to amounts not
yet delinquent or being contested in good faith by appropriate proceedings,
if a reserve or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made therefor;
(viii) Liens on current assets of Restricted Subsidiaries securing
Indebtedness of such Restricted Subsidiaries; and
(ix) any extensions, substitutions, replacements or renewals in
whole or in part of a Lien (an "existing Lien") enumerated in clauses
(i) through (viii) above; PROVIDED that the Lien may not extend beyond (A)
the Property or Indebtedness subject to the existing Lien and (B)
improvements and construction on such Property and the Indebtedness secured
by the Lien may not exceed the Indebtedness secured at the time by the
existing Lien.
"Person" shall mean any individual, corporation, partnership, limited
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof, or any other entity.
"Place of Payment" when used with respect to the Securities of any
series, means the place or places where the principal of and interest and any
Additional Amounts on the Securities of that series are payable as specified as
provided pursuant to Section 2.1.
"principal" of a debt security (including the Securities) shall mean
the principal of the security plus
-8-
<PAGE>
the premium, if any, payable on the security which is due or overdue or is to
become due at the relevant time.
"Principal Property" shall mean any manufacturing plant or warehouse
owned or leased by the Company or any Subsidiary whether owned or leased on the
date hereof or hereafter, the gross book value of which exceeds one percent of
Consolidated Net Worth, other than manufacturing plants and warehouses which the
Board of Directors by resolution declares are not of material importance to the
total business conducted by the Company and its Restricted Subsidiaries as an
entirety and which, when taken together with all other plants and warehouses as
to which such a declaration has been so made, is so declared by the Board of
Directors to be not of material importance to the total business conducted by
the Company and its Restricted Subsidiaries as an entirety.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person whether or not included in the
most recent consolidated balance sheet of such Person and its Subsidiaries under
GAAP.
"Redemption Date" when used with respect to any Security to be
redeemed shall mean the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price" shall mean the amount payable for the redemption of
any Security on the Redemption Date, and shall always include interest accrued
and unpaid to the Redemption Date and any Additional Amounts payable with
respect thereto, unless otherwise specifically provided.
"Registered Security" shall mean any Security registered on the books
of the Registrar kept for that purpose in accordance with the terms hereof.
"Responsible Officer," when used with respect to the Trustee, shall
mean any officer in the corporate trust department of the Trustee or any officer
of the Trustee customarily performing functions similar to those performed by
any officer in the corporate trust department of the Trustee with respect to a
particular corporate matter or any other officer to whom any corporate trust
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" shall mean (i) IMC, IMC-Canada and the
Partnership, and any intermediate holding company between either IMC, IMC-Canada
or the Partnership
-9-
<PAGE>
and the Company and (ii) any other Subsidiary of the Company that is not an
Unrestricted Subsidiary.
"Securities" shall mean the debt securities, as amended or
supplemented from time to time pursuant to this Indenture, that are issued under
this Indenture.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stated Maturity," when used with respect to any Security or any
installment of interest thereon, shall mean the date specified in such Security
as the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" of any Person shall mean (i) any Person of which more
than 50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by any Person or one or more of the Restricted
Subsidiaries of that Person or a combination thereof, and (ii) any partnership,
joint venture or other Person in which such Person or one or more of the
Restricted Subsidiaries of that Person or a combination thereof has the power to
control by contract or otherwise the board of directors or equivalent governing
body or otherwise controls such entity.
"TIA" or "Trust Indenture Act" shall mean the Trust Indenture Act of
1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of this
Indenture, except as provided in Sections 9.1 and 9.3 hereof.
"Transfer Agent" shall mean any Person, which may be the Company,
authorized by the Company to exchange or register the transfer of Securities.
"Trustee" shall mean the party named as such in this Indenture unless
a successor replaces it pursuant to the provisions hereunder, and thereafter
shall mean such successor.
"Unrestricted Subsidiary" shall mean (i) any Subsidiary of the Company
that at the time of determination shall be designated an Unrestricted Subsidiary
by the Board of Directors in the manner provided below and (ii) any Subsidiary
of an Unrestricted Subsidiary. The Board of Directors may designate any
Subsidiary of the Company (including any newly-acquired or newly-formed
Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns
-10-
<PAGE>
any capital stock of, or owns or holds any property of, the Company or any other
Subsidiary of the Company that is not a Subsidiary of the Subsidiary so
designated; provided, however, that the Subsidiary to be so designated has total
assets of $5,000 or less. Any such designation by the Board of Directors shall
be evidenced to the Trustee by promptly filing with the Trustee a copy of the
Board Resolutions giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
provisions.
"U.S. Government Obligations" shall mean securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as full faith and
credit obligation by the United States of America, that, in either case, are not
callable or redeemable at the option of the issuer thereof and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligations or a specific payment of
interest on or principal of any such U.S. Government Obligations held by such
custodian for the account of the holder of a depository receipt; PROVIDED that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt for
any amount received by the custodian in respect of the U.S. Government
Obligations or the specific payment of interest on or principal of the U.S.
Government Obligations evidenced by such depository receipt.
"Yield to Maturity" means the yield to maturity on a series of
Securities at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
SECTION 1.2. OTHER DEFINITIONS.
Defined in
Term Section
---- ----------
"Conversion Price"............................................. 12.4
"covenant defeasance option"................................... 8.1
"Date of Conversion"........................................... 12.2
"Events of Default"............................................ 6.1
"Last Sale Price".............................................. 12.3
"legal defeasance option"...................................... 8.1
-11-
<PAGE>
"mandatory sinking fund payment"............................... 11.1
"optional sinking fund payment"................................ 11.1
"Paying Agent"................................................. 2.3
"Rights"....................................................... 12.11
"Registrar".................................................... 2.3
"Sale/Leaseback Transaction"................................... 4.8
"Securities Custodian"......................................... 2.3
"Surviving Entity"............................................. 5.1
"Trading Day".................................................. 12.3
SECTION 1.3. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee," means the Trustee; and
"obligor" on the Securities means the Company, any other obligor upon
the Securities or any successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule under
the TIA have the meanings so assigned to them.
In addition, for purposes of Sections 311(b)(4) and 311(b)(6) of the
TIA, the following terms shall have the following meanings:
"cash transaction" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or securities in
-12-
<PAGE>
currency or in checks or other orders drawn upon banks' or bankers' acceptances
and payable upon demand.
"self-liquidating paper" means any draft, bill of exchange, acceptance
or obligation which is made, drawn, negotiated or incurred by the Company for
the purpose of financing the purchase, processing, manufacture, shipment,
storage or sale of goods, wares or merchandise and which is secured by documents
evidencing title to, possession of or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the sale of the goods,
wares or merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating or
incurring of the draft, bill of exchange, acceptance or obligation.
SECTION 1.4. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural and words in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE II
THE SECURITIES
SECTION 2.1. TERMS AND FORMS.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued
in one or more series of Securities and shall bear the title, interest, if any,
at the rates and from the dates, shall mature at the times, may be redeemable at
the prices and upon the terms, shall be denominated and payable at the place or
places and in the currency or currencies (which may be other than United States
dollars), including composite currencies, and
-13-
<PAGE>
shall contain or be subject to such other terms as shall be approved by or
pursuant to a Board Resolution of the Company or in one or more supplements to
this Indenture.
The Securities of each series hereunder shall be in one or more forms
approved from time to time by or pursuant to a Board Resolution of the Company
or in one or more supplements to this Indenture establishing the following:
(1) the title or designation of the Securities and the series in
which such Securities shall be included (which, unless such
Securities constitute part of a series of Securities previously
issued, shall distinguish the Securities of the series from all
other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of such title or the Securities of such series which may be
authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration or
transfer of, or in exchange for, or in lieu of, other Securities
of the series pursuant to Sections 2.5, 2.6, 2.9 or 3.7);
(3) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both;
any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of
the series may be exchanged for Registered Securities of the
series; and whether any Securities of the series are to be
issuable initially in global form and, if so, (i) whether
beneficial owners of interests in any such global Security may
exchange such interest for Securities of such series and of like
tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other
than in the manner specified in Section 2.9 and (ii) the name of
the Depository or the U.S. Depository, as the case may be, with
respect to any global Security;
(4) the date as of which any Bearer Securities of the series and any
temporary global Security representing outstanding Securities of
the
-14-
<PAGE>
series shall be dated if other than the date of original issuance
of the first Security of the series to be issued;
(5) if Securities of the series are to be issuable as Bearer
Securities, whether interest in respect of any portion of a
temporary Bearer Security in global form (representing all of
the outstanding Bearer Securities of the series) payable in
respect of any date or dates prior to the exchange of such
temporary Bearer Security for definitive Securities of the
series shall be paid to any clearing organization with
respect to the portion of such temporary Bearer Security
held for its account and, in such event, the terms and
conditions (including any certification requirements) upon
which any such interest payment received by a clearing
organization will be credited to the Persons entitled to
interest payable on such date or dates;
(6) the date or dates on which the principal of such Securities is
payable;
(7) the rate or rates at which such Securities shall bear interest,
if any, or the method in which such rate or rates are determined,
the date or dates from which such interest shall accrue, the
dates on which such interest shall be payable and the record date
for Holders entitled to the interest payable on Registered
Securities on any such date, whether and under what circumstances
Additional Amounts on such Securities shall be payable and, if
so, whether the Company has the option to redeem the affected
Securities rather than pay such Additional Amounts, and the basis
upon which interest shall be calculated if other than as
otherwise provided in this Indenture;
(8) the place or places, if any, in addition to or other than _____
_____ ____, or the City of Chicago, Illinois, where the principal
of and interest on or Additional Amounts, if any, payable in
respect of such Securities shall be payable;
(9) the period or periods within which, the price or prices at which
and the terms and
-15-
<PAGE>
conditions upon which such Securities may be redeemed, in whole
or in part, at the option of the Company;
(10) the obligation, if any, of the Company to redeem or purchase such
Securities pursuant to a sinking fund, at the option of a Holder
thereof or otherwise and the period or periods within which, the
price or prices at which and the terms and conditions upon which
such Securities shall be redeemed or purchased in whole or in
part, pursuant to such obligation, and any provisions for the
remarketing of such Securities;
(11) the denominations in which Registered Securities of the series,
if any, shall be issuable, and the denominations in which Bearer
Securities of the series, if any, shall be issuable, in either
case if other than as otherwise provided in this Indenture;
(12) if other than the principal amount thereof, the portion of the
principal amount of such Securities which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to
Section 6.2;
(13) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public or private debts, the coin or currency, including
composite currencies, in which payment of the principal of or
interest, if any, and any Additional Amounts in respect of such
Securities shall be payable and whether the Securities of the
series may be discharged other than as provided in Article VIII;
(14) if the principal of or interest, if any, and any Additional
Amounts in respect of such Securities are to be payable, at the
election of the Company or a Holder thereof, in a coin or
currency, including composite currencies, other than that in
which the Securities are stated to be payable, the period or
periods within which, and the terms and conditions upon which,
such election may be made;
(15) if the amount of payments of principal of or interest, if any, or
any Additional Amounts
-16-
<PAGE>
in respect of such Securities may be determined with reference to
an index, formula or other method based on a coin or currency
other than that in which the Securities are stated to be payable,
the manner in which such amounts shall be determined;
(16) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other
conditions, then the form and terms of such certificates,
documents or conditions;
(17) any terms which may be related to warrants issued by the Company
in connection with, or for the purchase of, Securities of such
series, including whether and under what circumstances the
Securities of any series may be used toward the exercise price of
any such warrants;
(18) whether the Securities of the series are to be convertible into
shares of common stock or other securities of the Company, and
the conversion price, conversion period and any conversion
provisions other than as provided in Article XII;
(19) any other events of default or covenants with respect to
Securities of such series; and
(20) any other terms of such Securities (which terms shall not be
inconsistent with the provisions of this Indenture).
If the form of the Security of any series is approved by or pursuant
to a Board Resolution, an Officers' Certificate delivered to the Trustee shall
state that all conditions precedent relating to the authentication and delivery
of such Security have been complied with and shall be accompanied by a copy of
the Board Resolution by or pursuant to which the form of such Security has been
approved. The Securities may have notations, legends or endorsements required
by law, stock exchange rule, agreements to which the Company is subject or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Company and the Trustee). Each Security shall be dated the date of its
authentication.
-17-
<PAGE>
Each Security may contain any other terms as are not inconsistent with the
provisions of this Indenture.
All Securities of any one series and coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except as to
denomination and the rate or rates of interest, if any, the time or times at
which the principal thereof may be payable, the date from which interest, if
any, shall accrue and except as may otherwise be provided in or pursuant to such
Board Resolution and set forth in the Officers' Certificate hereinabove
described 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 or
to establish additional terms of such series of Securities.
The Securities of each series may be issued as Registered Securities
without coupons or, if provided by the terms of the instrument establishing such
series of Securities, as Bearer Securities, with or without coupons and, in
either case, may be issued initially, temporarily or permanently in global form
(as provided in Section 2.10). Unless the form of a Security for a series
provides otherwise, the Registered Securities shall be issued in denominations
of $1,000 or integral multiples thereof and Bearer Securities shall be issuable
in the denomination of $5,000.
Except as otherwise specified as contemplated by this Section 2.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 2.2. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Securities and the coupons for the Company
by manual or facsimile signature. The Company's seal may be reproduced on the
Securities, but the Company's seal shall not be required to be included on the
Securities. Coupons shall bear the facsimile signatures of two Officers of the
Company.
If an Officer whose signature is on a Security or coupon no longer
holds that office at the time the Security is authenticated by the Trustee, the
Security and coupon shall nevertheless be valid.
The aggregate principal amount of Securities outstanding hereunder at
any time shall be unlimited except that such outstanding amount (exclusive of
any premium) may
-18-
<PAGE>
not exceed the amount authorized from time to time by the Board of Directors of
the Company and except as provided in Section 2.6. Upon receipt of a Company
Order for the authentication and delivery of Securities of a series, the Trustee
shall authenticate and deliver for original issue Securities of a series as to
which an Officers' Certificate of the Company or a supplemental indenture has
been delivered to the Trustee pursuant to Section 2.1.
No Security or any coupon appertaining thereto shall be valid until
the Trustee or the authenticating agent referred to below manually signs the
certificate of authentication on the Security. Each Registered Security shall
be dated the date of its authentication. Bearer Securities and any temporary
Bearer Security in global form shall be dated as specified in the Officers'
Certificate of the Company or in the supplements to this Indenture contemplated
by Section 2.1. The signature of the Trustee or the authenticating agent
referred to below shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate the Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate.
Except as permitted by Section 2.6, the Trustee shall not authenticate
and deliver any Bearer Security unless all appurtenant coupons for interest then
matured have been detached and cancelled.
The Trustee's authentication shall be in the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
, as Trustee
By:
Authorized officer
-19-
<PAGE>
If the forms and terms of the Securities of the series and any related coupons
have been established in or pursuant to one or more Officers' Certificates as
permitted by Section 2.1 and 2.2, in authenticating such Securities and
accepting the additional responsibilities under this Indenture relating to such
Securities the Trustee shall be entitled to receive, and (subject to Section
7.1) shall be fully protected in relying upon an Opinion of Counsel to the
effect that:
(a) the form and terms of such Securities and coupons, if any,
have been duly authorized and established pursuant to Sections 2.1 and 2.2
and comply with this Indenture, and
(b) such Securities, when authenticated and delivered by the
Trustee and issued by the Company, and such coupons, if any, when issued by
the Company, in the manner and subject to any conditions specified in such
Opinion of Counsel will constitute valid and legally binding obligations of
the Company, enforceable in accordance with their terms, subject to
customary exceptions,
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the Opinion of Counsel above may state:
(x) that the forms of such Securities have been, and the terms of
such Securities (when established in accordance with such procedures as may
be specified from time to time in a Company Order, all as contemplated by
and in accordance with a Board Resolution or any Officers' Certificate
pursuant to Section 2.1, as the case may be) will have been, duly
authorized by the Company and established in conformity with the provisions
of this Indenture; and
(y) that such Securities, together with the coupons, if any,
appertaining thereto, when (1) executed by the Company, (2) completed,
authenticated and delivered by the Trustee in accordance with this
Indenture, and (3) issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to customary exceptions.
-20-
<PAGE>
With respect to Securities of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company of any
of such Securities, the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Section 2.1 and this Section 2.2, as applicable,
at or prior to the time of the first authentication of Securities of such series
unless and until it has received written notification that such opinion or other
documents have been superseded or revoked. In connection with the
authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume that the Company's
instructions to authenticate and deliver such Securities do not violate any
rules, regulations or orders of any governmental agency or commission having
jurisdiction over the Company.
SECTION 2.3. REGISTRAR, PAYING AGENT, CONVERSION AGENT, DEPOSITORY AND
SECURITIES CUSTODIAN.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange (the "Registrar"), an
office or agency including the office or agency maintained by the Company
pursuant to Section 4.2 where Securities may be presented for payment (the
"Paying Agent") and, if applicable, an office or agency where the Securities may
be presented for conversion (the "Conversion Agent"). The Registrar shall keep
a register of the Securities and of their transfer and exchange. The Company
may appoint one or more co-registrars and one or more additional paying agents
or conversion agents. The term "Paying Agent" includes any additional paying
agent, and the term "Conversion Agent" includes any additional conversion agent.
The Company shall maintain a custodian ("Securities Custodian") with respect to
global Securities for so long as global Securities remain outstanding.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent, Depository, Securities Custodian or
co-registrar not a party to this Indenture, which agreement shall implement the
provisions of this Indenture that relate to such agent and incorporate the terms
of the TIA. The Company shall notify the Trustee of the name and address of any
such agent. If the Company fails to maintain a Registrar, Paying Agent,
Conversion Agent, if applicable, or Securities Custodian, if applicable, the
Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 7.7. The Company or any of its
-21-
<PAGE>
Subsidiaries may act as Paying Agent, Conversion Agent, Registrar, co-registrar
or Transfer Agent.
The Company initially appoints the Trustee as Registrar and Paying
Agent in connection with the Securities and the Trustee accepts such
appointment.
SECTION 2.4. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least seven Business Days before each interest payment date
(and in all events at intervals of not more than six months) and at such other
times as the Trustee may request in writing a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Securityholders. The Company and the Trustee shall otherwise comply with TIA
Section 312(a).
SECTION 2.5. TRANSFER, REGISTRATION AND EXCHANGE.
When a Registered Security is presented at an office or agency
maintained for that series pursuant to Section 4.2 in proper form for
registration of transfer with a request to register a transfer, the Registrar or
co-registrar at that office shall register the transfer as requested.
At the option of the Securityholder, Registered Securities of any
series may be exchanged upon surrender to the Registrar or a co-registrar for
Registered Securities of the same series of like aggregate principal amount,
stated maturity and tenor and of other authorized denominations upon surrender
at any office or agency maintained for that series pursuant to Section 4.2.
If so provided with respect to Securities of a series, at the option
of the Holder, Bearer Securities of any such series may be exchanged for
Registered Securities of the same series containing identical terms and
provisions, of any authorized denominations and aggregate principal amount, upon
surrender of the Bearer Securities to be exchanged at any office or agency
maintained for that series pursuant to Section 4.2, with all unmatured coupons
and all matured coupons in default thereto appertaining. If the Holder of a
Bearer Security is unable to produce any such unmatured coupon or coupons or
matured coupon or coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal
-22-
<PAGE>
to the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent for that series harmless. If thereafter the Holder
of such Security shall surrender to any Paying Agent for that series any such
missing coupon in respect of which such a payment shall have been made, such
Holder shall be entitled to receive the amount of such payment; provided,
however, that except as otherwise provided in Section 4.2, interest represented
by coupons shall be payable only upon presentation and surrender of those
coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency maintained for that series pursuant to
Section 4.2 in exchange for a Registered Security of the same series and like
tenor after the close of business at such office or agency on any record date
for the payment of interest and any Additional Amounts thereon and before the
opening of business at such office or agency on the relevant payment date
therefor, such Bearer Security shall be surrendered without the coupon relating
to such payment date or proposed date of payment, as the case may be (or if such
coupon is so surrendered with such Bearer Security, such coupon shall be
returned to the person so surrendering the Bearer Security), and interest will
not be payable on such payment date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Every Security presented or surrendered for registration of transfer
or exchange shall (if so required by the Company or the Registrar or
co-registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar duly executed by
the Holder thereof or his attorney duly authorized in writing. To permit
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Securities at the Registrar's or co-registrar's request.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 2.1, any global Security shall be exchangeable only if
(i) the Depository or U.S. Depository, as applicable, is at any time unwilling,
unable or ineligible to continue as Securities Depository and a successor
Depository, or U.S. Depository as applicable, is not appointed by the Company
within 90 days of the date the Company is so informed in writing, (ii) the
-23-
<PAGE>
Company executes and delivers to the Trustee a Company Order to the effect that
such global Security shall be so exchangeable, or (iii) an Event of Default has
occurred and is continuing with respect to the Securities. If the beneficial
owners of interests in a global Security are entitled to exchange such interests
for Securities of such series and of like tenor and principal amount of any
authorized form and denomination, as specified as contemplated by Section 2.1,
then without unnecessary delay but in any event not later than the earliest date
on which such interests may be so exchanged, the Company shall deliver to the
Trustee definitive Securities of that series in aggregate principal amount equal
to the principal amount of such global Security, executed by the Company. On or
after the earliest date on which such interests may be so exchanged, such global
Securities shall be surrendered from time to time by the U.S. Depository or such
other Depository as shall be specified in the Company Order with respect
thereto, and in accordance with instructions given to the Trustee and the U.S.
Depository or such other Depository, as the case may be, which instructions
shall be in writing but need not be accompanied by an Officers' Certificate of
the Company or an Opinion of Counsel, as shall be specified in the Company Order
with respect thereto to the Trustee, as the Company's agent for such purpose, to
be exchanged, in whole or in part, for definitive Securities of the same series
without charge. The Trustee shall authenticate and make available for delivery,
in exchange for each portion of such surrendered global Security, a like
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such global
Security to be exchanged which shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof (unless the Securities of the series are not issuable
both as Bearer Securities and as Registered Securities, in which case the
definitive Securities exchanged for the global Security shall be issuable only
in the form in which the Securities are issuable, as specified as contemplated
by Section 2.1); provided, however, that no such exchanges may occur (a) for a
period of 15 days next preceding the 15th day of any selection of Securities of
that series to be redeemed; pursuant to Section 3.3, or to exchange any
Securities of a series selected, called or being called for redemption in whole
or in part except in the case of any Security to be redeemed in part, the
portion thereof not so to be redeemed; and provided, further, that (unless
otherwise specified as contemplated by Section 2.1) no Bearer Security delivered
in exchange for a portion of a global Security shall be mailed or otherwise
delivered to any location in the United States. Promptly following any such
exchange in part, such global Security shall be
-24-
<PAGE>
returned by the Trustee to the U.S. Depository or such other Depository referred
to above in accordance with the instructions of the Company referred to above.
If a Registered Security is issued in exchange for any portion of a global
Security after the close of business at the office or agency where such exchange
occurs on any record date for the payment of interest or any Additional Amounts
thereon, and before the opening of business at such office or agency on the
relevant payment date therefor, interest and any Additional Amounts in respect
of such Registered Security will not be payable on such payment date, but will
be payable on such payment date only to the Person to whom interest or any
Additional Amounts in respect of such portion of such global Security is payable
in accordance with the provisions of this Indenture.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 2.9 or 9.5 not involving any transfer.
The Company shall not be required (a) to issue, register the transfer
of, or exchange any Securities of any series for a period of 15 days next
preceding the day of any selection of Securities of such series to be redeemed
pursuant to Section 3.3, or (b) to register the transfer of or exchange any
Securities of any series selected, called or being called for redemption in
whole or in part except, in the case of any Registered Security to be redeemed
in part, the portion thereof not so to be redeemed or (c) to exchange any Bearer
Security so selected for redemption except, to the extent provided with respect
to Securities of a series, that such a Bearer Security may be exchanged for a
Registered Security of that series, provided that such Registered Security shall
be immediately surrendered for redemption with written instruction for payment
consistent with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
endorsed thereon surrendered upon such registration of transfer or exchange.
SECTION 2.6. REPLACEMENT SECURITIES.
If the Holder of a mutilated or defaced Security or a Security with a
mutilated or defaced coupon
-25-
<PAGE>
appertaining to it surrenders such Security to the Trustee or if the Holder of a
Security presents evidence to the satisfaction of the Company and the Trustee of
the destruction, loss or theft of the Security or the destruction, loss or theft
of a coupon and surrenders the Security to which such coupon appertains with all
appurtenant coupons not so lost, stolen or wrongfully taken, the Company shall
issue and the Trustee shall authenticate a replacement Security of the same
series and of like tenor, with coupons corresponding to the coupons, if any,
appertaining to the surrendered Security, if the requirements set forth in the
next succeeding paragraph are met. If required by the Trustee or the Company,
an indemnity bond must be supplied by the Holder that is sufficient in the
judgment of the Trustee and the Company to protect the Company, the Trustee, any
Agent or any authenticating agent from any loss which any of them may suffer if
a Security is replaced.
Upon the issuance of any substitute Security, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith. 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
Company 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); provided, however, that the
applicant for such payment shall furnish to the Company and to the Trustee and
any agent of the Company 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 also furnish to the Company and
the Trustee and any agent of the Company or the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Security or coupon and of
the ownership thereof.
Every substitute Security of any series, with coupons, if any, issued
pursuant to the provisions of this Section 2.6 by virtue of the fact that any
Security is destroyed, lost or stolen or that a coupon appertaining to it is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Company, 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
duly
-26-
<PAGE>
authenticated and delivered hereunder. All Securities shall be held and owned
upon the express condition that, to the extent permitted by the law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.7. OUTSTANDING SECURITIES.
The Securities of any series outstanding at any time are all the
Securities of such series authenticated and delivered by the Trustee except for
those cancelled by it, those delivered to it for cancellation, those described
in this Section as not outstanding and in the case of any global Securities, the
principal amount by which such global Securities have been reduced by the
Trustee or the Securities custodian in accordance with this Indenture.
If any Security is replaced or paid pursuant to Section 2.6, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under
Section 4.1 or 8.1, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a Redemption Date or maturity date money sufficient to pay
all principal and interest payable on that date with respect to the Securities
of a particular series (or portions thereof) to be redeemed or maturing, as the
case may be (and in the case of any Security which is to be redeemed prior to
the Maturity thereof, notice of such redemption has been duly given or provision
satisfactory to the Trustee has been made for giving such notice), and the
Paying Agent is not prohibited from paying such money to Securityholders on that
date pursuant to the terms of this Indenture, then on and after that date such
Securities of that series (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
If any Security is cancelled by the Trustee or delivered to the
Trustee for cancellation, it ceases to be outstanding and interest on it ceases
to accrue.
-27-
<PAGE>
A Security of any series does not cease to be outstanding because the
Company or an Affiliate holds such Security, except as otherwise provided in
Section 2.8 hereof.
In determining whether the Holders of the requisite principal amount
of outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 6.1 and (ii) the
principal amount of a Security denominated in a foreign currency or currencies,
of the principal amount (or, in the case of an Original Issue Discount Security,
the United States dollar equivalent, determined pursuant to Section 13.15, of
such Security of the amount determined as provided in (i) above) of such
Security.
SECTION 2.8. TREASURY SECURITIES.
In determining whether the Holders of the required principal amount of
Securities (in the aggregate or with respect to a particular series, in each
case only as expressly provided herein) have concurred in any direction, waiver
or consent, any Securities owned by the Company or an Affiliate shall be
disregarded (including for purposes of determining the outstanding principal
amount of Securities or any series of Securities) except that for the purposes
of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent only Securities which the Trustee knows are so
owned shall be so disregarded.
SECTION 2.9. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon receipt of
the written order of the Company signed by two Officers. Temporary Securities
and, if Bearer Securities, temporary coupons shall be substantially in the form
of definitive Securities and, if Bearer Securities, definitive coupons, but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee, upon
receipt of the written order of the Company signed by two Officers, shall
authenticate definitive Securities in exchange for temporary Securities. Until
such exchange,
-28-
<PAGE>
temporary Securities shall be entitled to the same rights, benefits and
privileges as definitive Securities.
SECTION 2.10. SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable in global form, any such
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 Security in global
form to reflect the amount, or any increase or decrease in the amount or changes
in the rights of Holders, of outstanding Securities represented thereby shall be
made in such manner and by such Person or Persons as shall be specified therein.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities or coupons to the
Trustee for cancellation. The Registrar and the Paying Agent shall forward to
the Trustee any Securities surrendered to them for registration of transfer,
exchange or payment and any coupons surrendered for payment. The Trustee shall
cancel all Securities surrendered for registration of transfer, exchange,
payment replacement or cancellation and all coupons surrendered for payment and
shall destroy cancelled Securities in accordance with the usual destruction
procedures of the Trustee and deliver evidence of such destruction to the
Company, unless the Company directs the Trustee to return such cancelled
Securities to the Company by written order signed by two Officers. The Company
may not issue new Securities to replace Securities that it has redeemed or paid
or that have been delivered to the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest or any Additional
Amounts on any series of Registered Securities, and so long as the Trustee deems
the following procedure practicable, the Company shall pay the defaulted
interest and any Additional Amounts to Persons who are Holders of Registered
Securities of such series on a subsequent special record date in the following
manner. The Company shall fix the special record date (which shall be at least
five days before the payment date) for the payment of such defaulted interest
and any Additional Amounts on such Securities and the payment date for such
defaulted interest. At least 15 days before the special record date, the
Company (or the Trustee) shall mail each Holder of Registered Securities a
notice that states the special record date, the
-29-
<PAGE>
payment date and the amount of defaulted interest and any Additional Amounts to
be paid, provided the Company has made arrangements satisfactory to the Trustee
for payment of the aggregate amount to be paid on such payment date. On such
payment date the Trustee shall pay out of funds provided by the Company such
defaulted interest and any Additional Amounts. In case a Bearer Security of any
series is surrendered at the office or agency of the Company maintained pursuant
to Section 4.2 in a Place of Payment for such series in exchange for a
Registered Security of such series after the close of business at such office or
agency on any special record date and before the opening of business at such
office or agency on the related proposed date for payment of defaulted interest
and any Additional Amounts, such Bearer Security shall be surrendered without
the coupon relating to such proposed date of payment and defaulted interest and
any Additional Amounts will not be payable on such proposed date of payment in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon on or after such payment
date in accordance with the provisions of this Indenture. The Company may pay
defaulted interest and any Additional Amounts in any other lawful manner.
SECTION 2.13. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any Agent may deem and treat the Person
in whose name any Security shall be registered upon the register of Securities
kept by the Registrar as the absolute owner of such Registered Security (whether
or not such Security shall be overdue and notwithstanding any notation of the
ownership or other writing thereon made by anyone other than the Company, any
Registrar or co-registrar) for the purpose of receiving payments of principal
of, interest on or any Additional Amounts payable with respect to such
Registered Security and for all other purposes whatsoever and neither the
Company, the Trustee nor any Agent shall be affected by any notice to the
contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Security or coupon shall be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
-30-
<PAGE>
ARTICLE III
REDEMPTION
SECTION 3.1. APPLICABILITY OF ARTICLE.
This Article shall apply to the Securities of each series, if any,
that by their terms are subject to redemption at the option of the Company or
pursuant to the operation of a sinking fund or otherwise are required to be
redeemed pursuant to the terms of the Securities. If the terms of any Security
shall conflict with any provision of this Article III, the terms of such
Security shall govern.
SECTION 3.2. NOTICES TO TRUSTEE.
If the Company elects to redeem Securities pursuant to the optional
redemption provisions, if any, set forth in such Securities, it shall furnish to
the Trustee an Officers' Certificate setting forth the paragraph of the
Securities of the applicable series pursuant to which the redemption shall
occur, the Redemption Date, the principal amount of Securities to be redeemed
and the Redemption Price.
If Securities of any series by their terms are redeemable pursuant to
the operation of a sinking fund or pursuant to another mandatory redemption
provision of the Securities, the Company shall notify the Trustee by an
Officers' Certificate of the amount of the next sinking fund payment or amount
required to satisfy such mandatory redemption payment and the portion of such
payment which is to be satisfied by delivering and crediting Securities of the
same series pursuant to Section 3.6.
If the Company elects to reduce pursuant to the terms of such
Securities the principal amount of Securities to be redeemed, it shall notify
the Trustee by Officers' Certificate of the amount of the reduction and the
basis for it. If the Company elects to credit against any such redemption
Securities of the same series it has not previously delivered to the Trustee for
cancellation, it shall deliver the Securities with such Officers' Certificate.
The Company shall give each notice or Officers' Certificate provided
for in this Section at least 45 days (unless a shorter period shall be
satisfactory to the Trustee or a longer period required by Section 3.4) but not
more than 60 days before the applicable Redemption Date.
-31-
<PAGE>
If the Registrar is not the Trustee, the Company shall, concurrently
with each notice of redemption or repurchase, cause the Registrar to deliver to
the Trustee a certificate (upon which the Trustee may rely) setting forth the
principal amounts of Securities held by each Holder.
SECTION 3.3. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities of a series are to be redeemed, the
Trustee shall select the Securities to be redeemed on a pro rata basis, by lot
or by such method as the Trustee shall deem fair and appropriate. In the event
of partial redemption by lot, the particular Securities of a series to be
redeemed shall be selected, unless otherwise provided herein, not less than 30
nor more than 60 days prior to the Redemption Date by the Trustee from the
outstanding Securities not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected for
partial redemption, the principal amount thereof to be redeemed. Securities and
portions of Securities selected shall be in amounts of $1,000 or whole multiples
of $1,000; except that if all of the Securities of a Holder are to be redeemed,
the entire outstanding amount of Securities held by such Holder, even if not a
multiple or $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
SECTION 3.4. NOTICE OF REDEMPTION.
The Company shall give notice of a redemption at least 30 days but not
more than 60 days before the Redemption Date, with respect to Registered
Securities, by mailing a notice of redemption to each Holder of Registered
Securities of such series to be redeemed at such Holder's address as it appears
on the Securities register maintained by the Registrar and, with respect to
Bearer Securities, by publishing in an Authorized Newspaper notice of such
redemption on two separate days.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
-32-
<PAGE>
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(5) the paragraph of the Securities pursuant to which the Securities
called for redemption are being redeemed;
(6) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on
and after the Redemption Date and the only remaining right of the Holders
of such Securities is to receive payment of the Redemption Price upon
surrender to the Paying Agent of the Securities to be redeemed;
(7) if any Security is to be redeemed in part, the portion of the
principal amount (equal to $1,000 or any integral multiple thereof) of such
Security to be redeemed and that, on or after the Redemption Date, upon
surrender of such Security, a new Security or Securities of the same series
in aggregate principal amount equal to the unredeemed portion thereof will
be issued without charge to the Securityholder;
(8) if less than all of the Securities of a series are to be
redeemed, the identification of the particular Securities of such series
(or portion thereof) to be redeemed, as well as the aggregate principal
amount of Securities of such series to be redeemed and the aggregate
principal amount of Securities of such series estimated to be outstanding
after such partial redemption; and
(9) the CUSIP number, if any.
At the Company's request, the Trustee shall give the notice of
redemption in the name and at the expense of the Company. In such event, the
Company shall provide the Trustee with the information required by this Section
and shall provide notice of such redemption to the Trustee at least 45 days
prior to the Redemption Date (unless a shorter period shall be satisfactory to
the Trustee). If such notice is given by the Company, the Company shall provide
a copy of such notice given to the Holders to the Trustee and any Paying Agent
at least 2 days prior to the date such notice is given to such Holders, but in
any event at least 15 days prior to the Redemption Date (unless a shorter period
shall be satisfactory to the Trustee).
-33-
<PAGE>
SECTION 3.5. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Securities of the series called
for redemption become due and payable on the Redemption Date at the Redemption
Price. Upon surrender to any Paying Agent, such Securities shall be paid at the
Redemption Price, plus accrued interest to the Redemption Date and any
Additional Amounts with respect thereto; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable, in the case of Bearer Securities, to bearers of the coupons for such
interest and Additional Amounts upon surrender thereof and, in the case of
Registered Securities, to the Holders of such series of Securities, registered
as such, at the close of business on the relevant record date for the payment of
such installment of interest and Additional Amounts.
Notice of redemption shall be deemed to be given when mailed or
published, as the case may be, whether or not the Holder receives the notice.
In any event, failure to give such notice, or any defect therein, shall not
affect the validity of the proceedings for the redemption of the Securities.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of each missing
coupon or coupons may be waived by the Company and the Trustee if there shall be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent for such Security harmless. If thereafter the Holder
of such Security shall surrender to the Trustee or any Paying Agent for such
Security any such missing coupon in respect of which a deduction shall have been
made from the Redemption Price, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest (and any Additional
Amounts) represented by coupons shall be payable only upon presentation and
surrender of these coupons at an office or agency located outside of the United
States except as otherwise provided in Section 4.2.
SECTION 3.6. DEPOSIT OF REDEMPTION PRICE.
At least one Business Day prior to the Redemption Date, the Company
shall irrevocably deposit with the Trustee or with the Paying Agent (or if the
Company or a Subsidiary of the Company is acting as the Paying Agent, set aside,
segregate and hold in trust, as provided herein) in
-34-
<PAGE>
immediately available funds money sufficient to pay the Redemption Price of and
accrued and unpaid interest on all Securities to be redeemed on that date.
If the Company complies with the preceding paragraph, interest on the
Securities to be redeemed will cease to accrue on the applicable Redemption
Date, whether or not such Securities are presented for payment. If any Security
called for redemption shall not be so paid upon surrender for redemption because
of the failure of the Company to comply with the preceding paragraph, interest
will be paid on the unpaid principal, from the Redemption Date until such
principal is paid, and, to the extent lawful, on any interest not paid on such
unpaid principal, in each case at the rate provided in the Securities for the
applicable series.
If any Security by its terms permits any sinking fund payment
obligation to be satisfied by delivering and crediting Securities, the Company
shall deliver such Securities to the Trustee for crediting against such payment
obligation in accordance with the terms of such Securities and this Indenture.
SECTION 3.7. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder at the expense of
the Company a new Security of the same series equal in principal amount to the
unredeemed portion of the Security surrendered.
If a Security in global form is surrendered upon redemption in part,
the Company shall execute, and the Trustee shall authenticate and deliver to the
U.S. Depository or other Depository for such Security in global form as shall be
specified in the Company Order to the Trustee with respect thereto, without
service charge, a new Security in global form in a denomination equal to and in
exchange for the unredeemed portion of the principal of the Security in global
form so surrendered.
ARTICLE IV
COVENANTS
Subject to the provisions of Section 8.1, so long as Securities are
outstanding hereunder, the Company covenants for the benefit of the
Securityholders that:
SECTION 4.1. PAYMENT OF SECURITIES.
-35-
<PAGE>
The Company will punctually pay the principal of, interest and
Additional Amounts, if any, on the Securities on the dates and in the manner
provided in the Securities, any coupons appertaining thereto and this Indenture.
Principal, interest and any Additional Amounts shall be considered paid on the
date due if the Paying Agent (other than the Company or any of its Subsidiaries)
holds on that date money sufficient to pay all principal, interest and any
Additional Amounts then due.
Any interest due on and any Additional Amounts payable in respect of
Bearer Securities on or before their maturity, in respect of the principal of
such a Security, 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 Company shall pay interest on overdue principal and, to the extent
lawful, interest on overdue installments of interest or Additional Amounts, if
any, at the rate borne by such Securities.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any record date established
to determine the Person to whom interest or any Additional Amounts are payable
on the next following interest payment date therefor and before the opening of
business (at such office or agency) on such interest payment date, such Bearer
Security shall be surrendered without the coupon relating to such interest
payment date, and interest will not be payable on such interest payment date in
respect of the Registered Security issued in exchange of such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY FOR NOTICES AND DEMANDS.
The Company shall maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of that series may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served.
-36-
<PAGE>
If Securities of a series are issuable as Bearer Securities, the
Company shall maintain, subject to any laws or regulations applicable thereto,
an office or agency in a Place of Payment for such series that is located
outside the United States where Securities of such series and the related
coupons may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Securities of such series); provided, however,
that if the Securities of such series are listed on The International Stock
Exchange of the United Kingdom and the Republic of Ireland Limited or the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Company will maintain a
Paying Agent in London, Luxembourg or any other city so required located outside
the United States, as the case may be, so long as the Securities of such series
are listed on such exchange. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Bearer Securities of
that series) at the place specified for that purpose pursuant to Section 2.1.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal or interest or Additional Amounts on Bearer Securities shall be made
at any office or agency of the Company in the United States or by check mailed
to any address in the United States or by transfer to an account maintained with
a bank located in the United States; provided, however, payment of principal of
and interest in U.S. dollars (including Additional Amounts payable in respect
thereof) on any Bearer Security may be made at the office of the Paying Agent in
the City of _____________, State of ________ if (but only if) payment of the
full amount of such principal, interest or Additional Amounts at all offices
outside the United States maintained for that purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or
-37-
<PAGE>
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of
any such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 4.3. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before each due date of the
principal of, or interest or Additional Amounts on, any of the Securities of
that series, segregate and hold in trust for the benefit of the Person entitled
thereto a sum sufficient to pay the principal or interest or Additional Amounts
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and shall promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of,
or interest or Additional Amounts on, any Securities of that series, deposit
with any Paying Agent a sum sufficient to pay the principal or interest and
Additional Amounts so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, interest or Additional Amounts, and
(unless such Paying Agent is the Trustee) the Company shall promptly notify the
Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of or
interest or any Additional Amounts on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any Default by the Company in the
making of any payment of principal or interest or any Additional Amounts on
the Securities of that series; and
(3) at any time during the continuance of any such Default, upon the
written request of the Trustee,
-38-
<PAGE>
forthwith pay to the Trustee all sums so held in trust by such Paying
Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
terms as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Except as otherwise provided in the form of Securities of any
particular series pursuant to the provisions of this Indenture, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or interest or any Additional Amounts
on any Security of any series and remaining unclaimed for two years after such
principal or interest has or Additional Amounts have become due and payable
shall be paid to the Company upon receipt of a Company Order to that effect or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security or any coupon appertaining thereto shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment, or to be
mailed to Holders of Registered Securities, or both, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication or mailing nor shall be
later than one year after such principal or interest or Additional Amount has
become due and payable, any unclaimed balance of such money then remaining shall
be repaid to the Company.
SECTION 4.4. COMMISSION REPORTS; REPORTS TO TRUSTEE; REPORTS TO HOLDERS.
So long as any Security is outstanding, the Company will:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the
-39-
<PAGE>
information, documents and other reports which the Company may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act (or copies of such portions thereof as may be prescribed by the Commission
by rules and regulations); or, if the Company is not required to file with the
Commission information, documents or reports pursuant to either Section 13 or
Section 15(d) of the Exchange Act, then the Company will file with the Trustee
and mail to the Holders of the Securities, as the names and addresses of such
Holders appear upon the register of Securities, (i) annual reports containing
the information required by the Exchange Act to be contained in an Annual Report
on Form 10-K, (ii) quarterly reports containing the information required by the
Exchange Act to be contained in a Quarterly Report on Form 10-Q and (iii)
promptly after the occurrence of an event required to be therein reported, such
other reports containing information required by the Exchange Act to be
contained in a Current Report on Form 8-K.
(b) file with the Trustee and the Commission, in accordance with the
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants provided for in this Indenture as may
be required by such rules and regulations, including, in the case of annual
reports, if required by such rules and regulations, certificates or opinions of
independent public accountants, conforming to the requirements of Sections 13.4
and 13.5, as to compliance with conditions or covenants, compliance with which
is subject to verification by accountants; and
(c) mail to the Holders of the Registered Securities, as the names
and addresses of such Holders appear upon the register of Securities, in the
manner and to the extent provided in Section 7.6, such additional summaries of
any information, documents and reports required to be filed with the Trustee
pursuant to the provisions of paragraphs (a) and (b) of this Section 4.4 as may
be required to be provided to such Holders by the rules and regulations of the
Commission under the provisions of the TIA.
SECTION 4.5. COMPLIANCE CERTIFICATES.
Within 60 days after the close of each fiscal quarter of the Company
ending after the date hereof, the Company shall deliver to the Trustee a
statement signed by the Chairman of its Board of Directors, or its Vice Chairman
or its President or any Vice President and by the Treasurer or any Assistant
Treasurer or the Secretary or any Assistant
-40-
<PAGE>
Secretary of the Company (provided that one of such signatories shall be the
Company's principal executive officer, principal financial officer or principal
accounting officer), stating that in the course of the performance by the
signers of their duties as Officers of the Company they would normally obtain
knowledge of any Default by the Company and whether or not they have obtained
knowledge of any such Default, and, if so, specifying each such Default of which
the signers have knowledge and the nature thereof and what action the Company is
taking or proposes to take with respect thereto. The Company shall also comply
with TIA Section 314(a)(4).
SECTION 4.6. CORPORATE EXISTENCE.
Subject to the provisions of Article V, the Company will do or cause
to be done all things necessary to and will cause each of its Restricted
Subsidiaries to preserve and keep in full force and effect its corporate
existence, material rights (charter and statutory) and franchises of the Company
and each of its Restricted Subsidiaries; provided, however, that the Company
shall not be required to preserve any such material right or franchise or the
corporate existence of any of its Subsidiaries if (a) the preservation thereof
is no longer desirable in the conduct of the business of the Company or such
Subsidiary and (b) the loss thereof is not disadvantageous in any material
respect to the Holders of the Securities.
SECTION 4.7. LIMITATION ON LIENS.
Subject to Article VIII (to the extent they are applicable to the
Securities of any series) the Company will not, and will not permit any of its
Restricted Subsidiaries to, create, incur or otherwise cause or suffer to exist
or become effective any Liens of any kind upon any Principal Property or any
shares of stock or debt of any Restricted Subsidiary now owned or hereafter
acquired, unless all payments due under this Indenture and the Securities are
secured on an equal and ratable basis with the obligation so secured until such
time as such obligation is no longer secured by a Lien, except for Permitted
Liens.
The covenant contained in this section will be subject to the
provision for exempted indebtedness in Section 4.9.
-41-
<PAGE>
SECTION 4.8. LIMITATIONS ON SALE AND LEASEBACK TRANSACTIONS.
Subject to Article VIII (to the extent they are applicable to the
Securities of any series), the Company will not, nor will it permit any
Restricted Subsidiary to, enter into any arrangement with any Person providing
for the leasing by the Company or any Restricted Subsidiary of any Principal
Property (whether such Principal Property is now owned or hereafter acquired),
except for temporary leases for a term, including any renewal, of not more than
five years and except for leases between the Company and a Restricted Subsidiary
or between Restricted Subsidiaries, which Principal Property has been or is to
be sold or transferred by the Company or such Restricted Subsidiary to such
Person (hereinafter, a "Sale and Lease-Back Transaction"), unless either (i) the
Company or such Restricted Subsidiary would be entitled, in accordance with the
provisions of Section 4.7 (other than provisions with respect to exempted
Indebtedness), to incur Indebtedness secured by a lien on such property without
equally and ratably securing the Securities, or (ii) the Company within 180 days
after the effective date of the Sale and Lease-Back Transaction applies an
amount equal to the Value of such transaction to the voluntary retirement of its
Funded Debt. For the purposes of this Article, "Value" shall mean an amount
equal to the greater of the net proceeds of the sale or transfer of the property
leased pursuant to such Sale and Lease-Back Transaction, or the fair value in
the opinion of the Board of Directors of the leased property at the time of
entering into such Sale and Lease-Back Transaction. For the purposes of this
Article, "Funded Debt" shall mean indebtedness (including Securities) maturing
by the terms thereof more than one year after the original creation thereof.
The covenant contained in this Section will be subject to the
provision for exempted indebtedness in Section 4.9.
SECTION 4.9. EXEMPTED INDEBTEDNESS. Notwithstanding the provisions contained
in Sections 4.7 and 4.8, the Company and its Restricted Subsidiaries may issue,
assume, suffer to exist or guarantee Indebtedness which would otherwise be
subject to the limitation of Section 4.7, without securing the Securities, or
may enter into Sale and Lease-Back Transactions which would otherwise be subject
to the limitation of Section 4.8, without retiring Funded Debt, or enter into a
combination of such transactions, if the sum of (i) the principal amount of all
such Debt incurred after the date hereof, and which would otherwise be or have
been prohibited by the limitations of Section 4.7 or 4.8 and (ii)
-42-
<PAGE>
the aggregate Value of all such Sale and Lease-Back Transactions after the date
hereof does not at any such time exceed 10% of the consolidated total assets of
the Company and its consolidated Subsidiaries as shown in the audited
consolidated balance sheet contained in the latest annual report to the
shareholders of the Company.
SECTION 4.10. WAIVER OF STAY; EXTENSION OF USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive the Company from paying all or any
portion of the principal of, or interest on or any Additional Amounts payable
with respect to the Securities as contemplated herein or in the Securities,
wherever enacted, now or at any time hereafter in force, or that may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE V
SUCCESSORS
SECTION 5.1. WHEN COMPANY MAY MERGE, ETC.
The Company will not consolidate or merge with or into, or sell,
lease, convey or otherwise dispose of all or substantially all of its assets in
one transaction or a series of related transactions or assign any of its
obligations under this Indenture or the Securities to, any Person unless:
(a) the entity formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale, lease, conveyance or
other disposition or assignment shall have been made (the "Surviving Entity"),
is a corporation organized and existing under the laws of the United States, any
state thereof or the District of Columbia;
(b) the Surviving Entity assumes by a supplemental indenture in a
form satisfactory to the Trustee all of the obligations of the Company under the
Securities and this Indenture; and
-43-
<PAGE>
(c) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing.
The Company shall deliver to the Trustee prior to the consummation of
the proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
SECTION 5.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company or
any assignment of its obligations under this Indenture or the Securities in
accordance with Section 5.1, the Surviving Entity shall succeed to, and may be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation has been
named as the Company herein, and, except in the case of a lease, the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. EVENTS OF DEFAULT.
"Event of Default" is hereby defined for all purposes of this
Indenture and with respect to any series of Securities (except where the term is
otherwise defined for specific purposes) as any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the Company defaults in the payment of any installment of
interest on or any Additional Amounts payable in respect of any Security of that
series when and as the same shall become due and payable and such failure
continues for a period of 30 days;
(b) the Company defaults in the payment of the principal of any
Security of that series when and as the same shall become due and payable at
Stated Maturity, upon redemption or otherwise;
-44-
<PAGE>
(c) the Company fails to perform or observe any of its other
covenants, conditions or agreements in this Indenture or in the Securities
(other than a covenant, condition or agreement a Default in whose performance or
whose breach is elsewhere in this Section specifically dealt with), and such
failure continues for a period of 90 days after the date on which written notice
of such Default has been given to the Company by the Trustee or to the Company
and to the Trustee by the Holders of not less than 25% of the principal amount
of the Securities of that series then outstanding under this Indenture;
(d) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company or any of its Subsidiaries
in an involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or
order adjudging the Company or any of its Subsidiaries a bankrupt or insolvent,
or approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any of its
Subsidiaries under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any of its Subsidiaries or of any substantial
part of their property, or ordering the winding up or liquidation of their
affairs, and the continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period 90 consecutive days;
or
(e) the commencement by the Company or any of its Subsidiaries of a
voluntary case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or, of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by the
Company or any of its Subsidiaries to the entry of a decree or order for relief
in respect of the Company or any of its Subsidiaries in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Company or any of its Subsidiaries, or
the filing by the Company or any of its Subsidiaries of a petition or answer or
consent seeking reorganization or relief under any applicable federal or state
law, or the consent by the Company or any of its Subsidiaries to the filing of
such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of the
Company or any of its Subsidiaries or of any substantial part of their property,
or the making by the Company or any of its
-45-
<PAGE>
Subsidiaries of an assignment for the benefit of creditors, or the admission by
the Company or any of its Subsidiaries in writing of their inability to pay
their debts generally as they become due, or the taking of corporate action by
the Company or any of its Subsidiaries in furtherance of any such action.
The Company shall deliver to the Trustee, within 5 days after the
occurrence thereof, an Officers' Certificate detailing any Default of which it
is aware, its status and what action the Company is taking or proposes to take
with respect thereto.
SECTION 6.2. ACCELERATION.
If an Event of Default specified in Section 6.1(d) or (e) shall occur
and be continuing, then the principal of (or, with respect to a series of
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series), and any accrued and unpaid interest
on and any Additional Amounts payable in respect of the Securities shall
immediately become due and payable without any declaration or other act on the
part of the Trustee or any Securityholder. If one or more Events of Default
specified in Sections 6.1(a) through (c) with respect to any series of
Securities at the time outstanding shall occur and be continuing, then, and in
each and every such case, either the Trustee, by notice in writing to the
Company, or the Holders of not less than 25% of the principal amount of the
Securities of that series then outstanding, by notice in writing to the Company
and the Trustee, may declare due and payable, if not already due and payable,
the principal of (or, with respect to a series of Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) plus any accrued interest on and any Additional Amounts
payable in respect of all of the Securities of that series; and upon any such
declaration all such amounts upon such Securities shall become and be
immediately due and payable, anything in this Indenture or in the Securities to
the contrary notwithstanding. This provision is subject to the condition that
if, after any declaration of acceleration and before Stated Maturity of the
principal with respect to Securities of any series, all arrears of interest and
any Additional Amounts and the expenses of the Trustee, its agents or counsel
shall be paid by or for the account of the Company, and all Defaults (other than
the payment of principal that has been declared due and payable) have been cured
to the satisfaction of the Trustee, then the Trustee shall, upon the written
request of the Holders of a majority in principal amount of the Securities of
that series, waive such Default and rescind or annul the declaration of
-46-
<PAGE>
acceleration; but no such waiver or rescission or annulment shall extend to or
affect any subsequent Default, or impair any right consequent thereon.
SECTION 6.3. OTHER REMEDIES.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of, interest on or any Additional Amounts payable in
respect of the Securities of that series or to enforce the performance of any
provision of the Securities of that series or this Indenture. The Trustee may
maintain a proceeding even if it does not possess any of the Securities of that
series or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising
any right or remedy accruing upon any Event of Default shall not impair any such
right or remedy or constitute a waiver of or acquiescence in the Event of
Default. No remedy is exclusive of any other remedy. All available remedies
are cumulative.
SECTION 6.4. WAIVER OF PAST DEFAULTS.
Provided the applicable series of Securities shall not then be due and
payable by reason of a declaration pursuant to Section 6.2, the Holders of a
majority in principal amount of the Securities of any series at the time
outstanding may on behalf of the Holders of all the Securities of such series
waive any past Default hereunder with respect to such series and its
consequences by providing written notice thereof to the Company and the Trustee,
except a Default (i) in the payment of interest on, any Additional Amounts
payable in respect of or the principal of any Security of such series or (ii) in
respect of a covenant or provision hereof which under Article IX cannot be
modified or amended without the consent of the Holder of each outstanding
Security of such series affected. In the case of any such waiver, the Company,
the Trustee and the Holders of the Securities of such series shall be restored
to their former positions and rights hereunder, respectively; provided that no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereto.
SECTION 6.5. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the Securities then
outstanding of any series may direct the time, method and place of conducting
any proceeding for any
-47-
<PAGE>
remedy available to the Trustee or of exercising any power or trust conferred
upon the Trustee under this Indenture with respect to the Securities of such
series; provided, however, that subject to the provisions of Sections 7.1 and
7.2, the Trustee shall have the right to decline to follow any such direction if
the Trustee, advised by counsel, determines that the action or proceeding so
directed may not lawfully be taken or if the Trustee in good faith shall by
Responsible Officers determine that the action or proceeding so directed would
involve the Trustee in liability or that the Trustee is not satisfactorily
indemnified from the costs thereof.
SECTION 6.6. LIMITATION ON SUITS BY HOLDERS.
No Holder of any Security of any series or any coupon appertaining
thereto shall have the right to pursue a remedy with respect to this Indenture
or the Securities unless:
(1) such Holder gives to the Trustee notice of a continuing Event of
Default with respect to Securities of that series;
(2) the Holders of at least a majority in principal amount of the
Securities of that series make a request to the Trustee to pursue
the remedy;
(3) such Holder or Holders offer to the Trustee security or indemnity
satisfactory to the Trustee against any loss, liability or
expense; and
(4) the Trustee does not comply with the request within 30 days after
receipt of the request and the offer of security or indemnity.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security or coupon to receive payment of principal of, interest
on and any Additional Amounts payable with respect to the Security or coupon, on
or after the respective due dates expressed in the Security or coupon, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall
-48-
<PAGE>
not be impaired or affected without the consent of the Holder.
SECTION 6.8. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.1(a) or (b) occurs and
is continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Company for the whole amount of principal,
interest and any Additional Amounts remaining unpaid, together with interest on
overdue principal and, to the extent lawful, interest on overdue installments of
interest and any Additional Amounts, in each case at the rate or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section 7.7.
SECTION 6.9. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and the Securityholders allowed in any judicial proceedings relative to
the Company, its creditors or its property and the Trustee shall be entitled and
empowered to collect and receive any money or other property payable or
deliverable on any such claims and to distribute it, and any trustee, receiver,
liquidator, custodian or other similar official in any such judicial proceedings
is hereby authorized by each Securityholder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to Securityholders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of any claim of any Securityholder in such proceeding.
SECTION 6.10. APPLICATION OF MONEY COLLECTED.
Any money or property collected by the Trustee with respect to any
series of the Securities under this
-49-
<PAGE>
Article VI shall be paid out by the Trustee in the following order and, in the
case of the distribution of moneys on account of principal, interest or any
Additional Amounts, upon presentation of such Securities and coupons
appertaining to such Securities in respect of which monies have been collected
(except that the Trustee may waive presentation of Registered Securities when
interest alone is to be paid), and stamping 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, and upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses of collection, and
reasonable compensation to the Trustee, its agents and counsel, and of all other
expenses, losses, and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith;
SECOND: In case the principal of the outstanding Securities of such
series shall not have become due and be unpaid, to the payment of interest on
and any Additional Amounts Payable with respect to such Securities, in the order
of the maturity of the installments of such interest and Additional Amounts,
with interest, to the extent lawful, upon the overdue installments of interest
and Additional Amounts at the rate or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in such Securities, such payments to be
made ratably to the Persons entitled thereto, without discrimination or
preferences;
THIRD: In case the principal of the outstanding Securities of such
series shall have become due, by declaration or otherwise, to the payment of the
whole amount then owing and unpaid upon such Securities for principal, interest
and any Additional Amounts, with interest at the rate or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in such Securities on
the overdue principal, and, to the extent lawful, on the overdue installments of
interest and Additional Amounts; and in case such monies shall be insufficient
to pay in full the whole amount so due and unpaid upon such Securities, then to
the payment of such principal, interest and any Additional Amounts, ratably,
without preference or priority of any kind, to the aggregate of such principal
and accrued and unpaid interest and Additional Amounts; and
FOURTH: In case the Trustee shall retain possession of any funds
after all obligations of the Company hereunder have been fully paid and
satisfied, such funds shall be paid to the Company, its successors or assigns.
-50-
<PAGE>
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section. At least 15 days before such record
date, the Company shall mail to each Securityholder and the Trustee a notice
that states the record date, the payment date and the amount to be paid.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit instituted by the Trustee, a suit
instituted by a Holder pursuant to Section 6.7 or a suit instituted by Holders
of more than 10% in principal amount of the Securities then outstanding. This
Section 6.11 shall be in lieu of Section 315(c) of the TIA and said Section
315(c) is hereby expressly excluded from this Indenture, as permitted by the
TIA.
SECTION 6.12. DISCONTINUANCE OR ABANDONMENT OF PROCEEDINGS.
If the Trustee or any Holder shall have proceeded to enforce any right
under this Indenture, and such proceedings shall have been discontinued or
abandoned because of waiver, or for any other reason, or shall have been
determined adversely to the Trustee or such Holder, then, and in any such case,
the Company and the Trustee and such Holder or Holders shall each be restored to
its former position and rights hereunder, and all rights, remedies and powers of
the Trustee and the Holders shall continue as though no such proceedings had
been taken.
ARTICLE VII
TRUSTEE
SECTION 7.1. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee, subject to paragraph (e) below, shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in its
exercise as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
-51-
<PAGE>
(b) Except during the continuance of an Event of Default:
(i) The Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
in the case of any opinions or certificates which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b) of this
Section 7.1;
(ii) The Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to
paragraphs(a), (b) and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if the Trustee shall have reasonable grounds to believe that.
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
-52-
<PAGE>
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to
determine the maximum interest rate permissible under applicable law.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.2. RIGHTS OF TRUSTEE.
(a) The Trustee may rely on and shall be protected in acting or
refraining from acting on any document believed by it to be genuine and to have
been signed or presented by the proper person. The Trustee need not investigate
any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate and an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its selection and the written advice of such counsel or any Opinion
of Counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers conferred upon it hereunder; provided, however, that the Trustee's
conduct does not constitute willful misconduct, negligence or bad faith.
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity
-53-
<PAGE>
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Paying
Agent, Registrar or co-registrar may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Securities; it shall not
be accountable for the Company's use of the proceeds from the sale of the
Securities; and it shall not be responsible for any statement of the Company in
this Indenture or in any document issued in connection with the sale of the
Securities or in the Securities other than the Trustee's certificate of
authentication.
SECTION 7.5. NOTICE OF DEFAULTS.
If a Default occurs with respect to Securities of any series and is
continuing and if it is known to the Trustee, the Trustee shall give to each
Securityholder of such series a notice of the Default within 90 days after it
occurs in the manner and to the extent provided in TIA 313(c), and otherwise as
provided in Section 13.2 hereof. Except in the case of a Default in payment of
the principal of, interest on and any Additional Amount payable with respect to
any Security (including payments pursuant to a redemption or repurchase of the
Securities pursuant hereto), the Trustee may withhold the notice if and so long
as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of Securityholders.
The Trustee shall not be deemed to have knowledge of any Default or
Event of Default except (i) a Default under Section 6.1(a) or (b) so long as the
Trustee is Paying Agent or (ii) any Default or Event of Default of which the
Trustee shall have received written notification or a Responsible officer
charged with the administration of this Indenture shall have obtained actual
knowledge, and such notification shall not be deemed to include receipt of
information obtained in any report or other documents
-54-
<PAGE>
furnished under Section 4.4 of this Indenture, which reports and documents the
Trustee shall have no duty to examine.
SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each January 1 and July 1 beginning with the
January 1 following the date of this Indenture, the Trustee shall mail to each
Holder of a Registered Security a brief report dated as of such reporting date
if required by, and in compliance with, TIA Section 313(a). The Trustee also
shall comply with TIA Section 313(b). The Trustee shall also transmit by mail
all reports as required by TIA Section 313(c).
Commencing at the time this Indenture is qualified under the TIA, a
copy of each report at the time of its mailing to Securityholders shall be filed
with the Commission and each securities exchange, if any, on which the
Securities are listed. The Company agrees to notify promptly the Trustee
whenever the Securities become listed on any securities exchange and of any
delisting thereof.
SECTION 7.7. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed to in writing from time to time between the
Company and the Trustee for all services rendered by it hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable disbursements, advances and expenses incurred or made
by the Trustee in accordance with any provision of this Indenture. Such
expenses shall include the reasonable compensation and the disbursements,
advances and expenses of the Trustee's agents and counsel, except to the extent
any such disbursement, advance or expense may be attributable to its negligence
or bad faith.
The Company shall indemnify the Trustee and its directors, officers,
agents and employees against any and all loss, liability, damage, claim or
expense (including attorneys' fees and expenses) incurred by it or such officer,
director , agent or employee in connection with the acceptance or administration
of its duties under this Indenture, except as set forth in the next paragraph.
The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee or such officer,
director, agent or employee shall cooperate in the defense. The Trustee or such
officer, director, agent or employee may have separate counsel and the Company
shall pay the reasonable fees and
-55-
<PAGE>
expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The Company need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Trustee through the Trustee's own
willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
the principal of, interest on or any Additional Amounts payable with respect to
particular Securities. The Company's payment obligations pursuant to this
Section 7.7 shall survive the resignation or replacement of the Trustee and any
discharge or defeasance under Sections 8.1 and 8.2.
When the Trustee incurs expenses after the occurrence of an Event of
Default specified in Section 6.1(d) or (e), the expenses are intended to
constitute expenses of administration under any Bankruptcy Law.
SECTION 7.8. REPLACEMENT OF TRUSTEE.
The Trustee may resign at any time by so notifying the Company;
provided, however, no such resignation shall be effective until a successor
Trustee has accepted its appointment pursuant to this Section 7.8. The Holders
of a majority in principal amount of the then outstanding Securities may remove
the Trustee by so notifying the Trustee and the Company. The Company shall
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or public officer takes charge of the Trustee or its
property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee.
-56-
<PAGE>
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the Lien
provided for in Section 7.7. Notwithstanding replacement of the Trustee pursuant
to this Section 7.8, the Company's obligations under Section 7.7 shall continue
for the benefit of the retiring Trustee.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the then outstanding Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
SECTION 7.9. SUCCESSOR TRUSTEE BY MERGER.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or
transferee corporation or banking association without any further act shall be
the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
The Trustee shall at all times satisfy the requirements of TIA Section
310(a). The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
-57-
<PAGE>
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. DISCHARGE OF INDENTURE; DEFEASANCE.
(a) This Indenture shall cease to be of further effect with respect
to a series of Securities (except that the Company's obligations under Section
7.7 and the Trustee's and Paying Agent's obligations under Section 8.4 shall
survive) when (a) all outstanding Securities of such series theretofore
authenticated and issued have been delivered (other than destroyed, lost or
stolen Securities which have been replaced or paid pursuant to Section 2.6) to
the Trustee for cancellation and (b) the Company has paid all sums payable
hereunder.
(b) Subject to Sections 8.1(c), 8.2 and 8.5, the Company at any time
may terminate (i) all its obligations under the Securities of any series and
this Indenture with respect to such series of Securities ("legal defeasance
option") or (ii) its obligations under Article IV (except those obligations set
forth in Sections 4.1, 4.2 and 4.10 thereof) with respect to any series of
Securities ("covenant defeasance option"). The Company may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant defeasance
option.
If the Company exercises its legal defeasance option, payment of the
Securities of the applicable series may not be accelerated because of an Event
of Default.
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.3, 2.4, 2.5, 2.6, 7.7, 8.4 and 8.5 and Article XI and
Article XII shall survive until the Securities have been paid in full.
Thereafter, the Company's obligations in Sections 7.7 and 8.4 shall survive.
SECTION 8.2. CONDITIONS TO DEFEASANCE.
The Company may exercise its legal defeasance option or its covenant
defeasance option with respect to a series of Securities only if the following
conditions are satisfied:
-58-
<PAGE>
(a) the Company has irrevocably deposited or caused to be deposited
in trust for the benefit of the Holders of such series with the Trustee or a
Paying Agent or a trustee satisfactory to the Trustee and the Company, under the
terms of an irrevocable trust agreement in form and substance satisfactory to
the Trustee and any such Paying Agent, (i) money in an or eligible Obligations
amount sufficient, or (ii) U.S. Government Obligations that shall be payable as
to principal and interest in such amounts and at such times as are sufficient,
in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee (without
consideration of any reinvestment of such interest), or (iii) any combination
thereof in an amount sufficient, to pay the principal of, interest on and any
Additional Amounts payable with respect to the outstanding Securities of such
series on the dates such installments are due to redemption or Stated Maturity,
(b) the trustee of the irrevocable trust shall have been irrevocably instructed
to pay such money or the proceeds of such U.S. Government Obligations or
Eligible Obligations to the Trustee and (c) the Trustee or Paying Agent shall
have been irrevocably instructed in writing to apply the deposited money and the
proceeds from U.S. Government Obligations or Eligible Obligations in accordance
with the terms of this Indenture and the terms of the Securities of such series
to the payment of principal of, interest on and any Additional Amounts payable
with respect to the Securities of such series.
(b) such deposit described in clause (1) of this Section 8.2 will not
result in a breach or violation of, or constitute a Default under, any other
agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default or Event of Default shall have occurred and be
continuing (i) as of the date of such deposit or (ii) insofar as Sections 6.1(d)
and 6.1(e) are concerned at any time during the period ending on the 91st day
after the date of such deposit or, if longer, ending on the day following the
expiration of the longest preference period applicable to the Company in respect
of such deposit (it being understood that the condition in this clause (ii) is a
condition subsequent and shall not be deemed satisfied until the expiration of
such period);
(d) the company has paid or caused to be paid all sums currently due
and payable by the Company hereunder and under the Securities with respect to
such series;
-59-
<PAGE>
(e) such defeasance shall not cause or permit any Securities then
listed on any national securities exchange to be delisted;
(f) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent provided
for herein relating to the termination by the Company of its obligations as
provided in this Section 8.2 have been complied with;
(g) in the case of the legal defeasance option, the Company has
delivered to the Trustee either (i) a ruling received from the Internal Revenue
Service to the effect that, or (ii) an Opinion of Counsel by recognized counsel
who is not an employee of the Company stating that, since the date first set
forth hereinabove, there has been a change in the applicable federal income tax
law, and based upon either case (i) or (ii) such Opinion of Counsel shall
confirm 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 the
Company's exercise of its legal defeasance option under this Section 8.2 and
will be subject to federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such legal defeasance
option had not been exercised; and
(h) in the case of the covenant defeasance option, the Company has
delivered to the Trustee either (i) a ruling received from the Internal Revenue
Service to the effect that, or (ii) an Opinion of Counsel by recognized counsel
who is not an employee of the Company stating 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 the Company's exercise of its covenant
defeasance option under this paragraph and will be subject to federal income tax
on the same amount and in the same manner and at the same times as would have
been the case if such covenant defeasance option had not been exercised.
SECTION 8.3. APPLICATION OF TRUST MONEY.
The Trustee or a trustee satisfactory to the Trustee and the Company
shall hold in trust money, U.S. Government obligations or Eligible obligations
deposited with it pursuant to Section 8.2. It shall apply the deposited money
and the money from U.S. Government Obligations and Eligible Obligations through
the Paying Agent and in accordance with this Indenture to the payment
-60-
<PAGE>
of principal of, interest on and any Additional Amounts payable with respect to
the Securities.
SECTION 8.4. REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall promptly turn over to the
Company upon written request any money, U.S. Government Obligations or Eligible
Obligations held by them in trust pursuant to Section 8.2 which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect such
defeasance, in accordance with the provisions of this Indenture.
The Trustee or the Paying Agent shall pay promptly to the Company upon
written request any money held by them for the payment of principal, interest or
Additional Amounts that remains unclaimed for two years after the date upon
which such payment shall have become due, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law (except
that with respect to any amounts then held by the Company in trust as its own
Paying Agent no such request need be given and at such time the Company shall be
discharged from its duties to hold such money in trust as Paying Agent). After
payment to the Company, Securityholders entitled to the money must look to the
Company for payment as general creditors unless an applicable abandoned property
law designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
SECTION 8.5. REINSTATEMENT OF COMPANY'S OBLIGATIONS.
If the Trustee or Paying Agent is unable to apply any money, U.S.
Government Obligations or Eligible Obligations in accordance with Section 8.2 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the
Securities of the applicable series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.2 until such time as the Trustee or
Paying Agent is permitted to apply all such money, U.S. Government Obligations
or Eligible Obligations in accordance with Section 8.2; provided, however, that
if the Company has made any payment of interest on, Additional Amounts payable
with respect to or principal of any Securities because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such
-61-
<PAGE>
payment from the money, U.S. Government Obligations or Eligible Obligations held
by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS AND WAIVER
SECTION 9.L. WITHOUT CONSENT OF HOLDERS.
The Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto to amend this
Indenture or the Securities with respect to a particular series without prior
notice to or the consent of any Securityholder of such series:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article V;
(3) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the TIA as then in
effect;
(4) to provide for uncertificated Securities in addition to or in
place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for
purposes of Section 163(f) of the Internal Revenue Code or in a
manner such that the uncertificated Securities are described in
Section 163(f)(2) of the Internal Revenue Code;
(5) to make any change that does not materially adversely affect the
legal rights of any Securityholder under this Indenture as then
in effect;
(6) to secure the Securities and to make intercreditor arrangements
with respect to any such security, unless the incurrence of such
obligations or the security thereof is prohibited by this
Indenture;
(7) to evidence or to provide for a replacement Trustee under Section
7.8; or
-62-
<PAGE>
(8) to add to the covenants and agreements of the Company for the
benefit of all of the Holders of all of the Securities with
respect to a series (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such
covenants are being included solely for the benefit of such
series) and to surrender any right or power herein reserved to
the Company.
After an amendment under this Section becomes effective, the Company
shall give to Securityholders a notice briefly describing the substance thereof
in the manner as provided in Section 13.2. The failure to give such notice to
all Securityholders, or any defect therein, shall not impair or affect the
validity of any supplemental indenture.
SECTION 9.2. WITH CONSENT OF HOLDERS.
The Company, when authorized by a Board Resolution, and the Trustee
may enter into one or more supplemental indentures to amend this Indenture or
the Securities with respect to a particular series with the written consent of
the Holders of a majority of the principal amount of the then outstanding
Securities of such series. The Holders of a majority in principal amount of the
then outstanding Securities of a particular series may waive compliance by the
Company with any provision of this Indenture or the Securities with respect to
such series without prior notice to any other Securityholder.
Notwithstanding the first paragraph of this Section 9.2, without the
consent of each Securityholder affected, an amendment or waiver under this
Section may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment or waiver;
(2) reduce the rate of or change the time for payment of interest or
Additional Amounts, including default interest, on any Security;
(3) reduce the principal of or change the Stated Maturity of any
Security or alter the provisions with respect to redemption
pursuant to Section 3.8;
(4) make any Security payable in money other than that stated in the
Security;
-63-
<PAGE>
(5) make any change in this paragraph of this Section 9.2;
(6) make any change in this Indenture that adversely affects ranking
of the Securities; or
(7) make any change in Section 6.4 or 6.7.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver but
it shall be sufficient if such consent approves the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has been included solely for the benefit
of one or more series of Securities, or which modifies the rights of the Holders
of Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
Any amendment shall be effective upon certification to the Trustee by
the Company or an agent of the Company that such amendment has been authorized
by the Company and that the consent of the majority in principal amount of the
Securities has been obtained unless such consents specify that they shall become
effective at a later date, in which case such amendment shall become effective
in accordance with the terms of such consent.
After an amendment or waiver under this Section becomes effective, the
Company shall give to Securityholders a notice briefly describing the substance
thereof in the manner as provided in Section 13.2. The failure to give such
notice to all Securityholders, or any defect therein, shall not impair or affect
the validity of any supplemental indenture.
SECTION 9.3. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to this Indenture or the Securities or waiver of the
provisions hereof or thereof shall be set forth in a supplemental indenture
that complies with the TIA as then in effect.
SECTION 9.4. REVOCATION AND EFFECT OF CONSENTS AND WAIVERS.
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of that
-64-
<PAGE>
Security or portion of the Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent or waiver is not
made on the Security. However, any such Holder or subsequent Holder may revoke
the consent or waiver as to such Holder's Security or portion of the Security if
the Trustee receives written notice of revocation before the date the amendment
or waiver becomes effective.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment or
waiver. If a record date is fixed, then notwithstanding the next to last
sentence of the immediately preceding paragraph, those persons who were Holders
at such record date (or their duly designated proxies), and only those persons,
shall be entitled to consent to such amendment or waiver or to revoke any
consent previously given, whether or not such persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 120 days after such record date.
After an amendment or waiver becomes effective, it shall bind every
Securityholder, subject to the fourth paragraph of Section 9.2 and unless it
makes a change described in any of clauses (1) through (7) of Section 9.2. In
that case, the amendment or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or a portion of a
Security that evidences the same debt as the consenting Holder's Security.
SECTION 9.5. NOTATION ON OR EXCHANGE OF SECURITIES.
If a supplemental indenture changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security regarding the
changed terms and return it to the Holder. Alternatively, if the Company shall
so determine, the Company in exchange for all Securities may issue and the
Trustee shall authenticate new Securities of the same series that reflect the
changed terms.
SECTION 9.6. TRUSTEE TO SIGN AMENDMENTS.
Upon the written request of the Company, accompanied by a Board
Resolution authorizing the execution of a supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of the Securityholders if
such consent shall be required under Section 9.2, the Trustee shall sign any
supplemental indenture authorized pursuant to this Article IX; provided that the
Trustee shall
-65-
<PAGE>
not be obligated to sign any supplemental indenture that adversely affects the
Trustee's rights, duties, liabilities or immunities. In signing such
supplemental indenture, the Trustee shall be entitled to receive and, subject to
Section 7.1, shall be fully protected in relying upon, an Officers' Certificate
and an Opinion of Counsel stating that such amendment is authorized or permitted
by this Indenture, that it is not inconsistent herewith, and that it will be
valid and binding upon the Company in accordance with its terms.
ARTICLE X
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 10.1. APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option of the
Holders thereof before their 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 maturity shall not operate as a payment, redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the Company, at its option, shall deliver or surrender the same to the Trustee
with a directive that such Securities be cancelled. Notwithstanding anything to
the contrary contained in this Article X, in connection with any repayment of
Securities, the Company may arrange for the purchase of any Securities by an
agreement with one or more investment bankers or other purchasers to purchase
such Securities by paying to the Holders of such Securities on or before the
close of business on the repayment date an amount not less than the repayment
price payable by the Company on repayment of such Securities, and the obligation
of the Company to pay the repayment price of such Securities shall be satisfied
and discharged to the extent such payment is so paid by such purchasers.
ARTICLE XI
SINKING FUNDS
SECTION 11.1. APPLICABILITY OF ARTICLE.
The provisions of this Article XI shall be applicable to any sinking
fund for the retirement of Securities of a series, except as otherwise permitted
or required by any form of Security of such series issued pursuant to this
Indenture.
-66-
<PAGE>
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is referred to in this Article XI as a
"mandatory sinking fund payment," and any payment in excess of such minimum
amount provided for by the terms of Securities of such series is herein referred
to as an "optional sinking fund payment." If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 11.2. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
SECTION 11.2. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series to be made pursuant
to the terms of such Securities as provided for by the terms of such series (1)
deliver outstanding Securities of such series (other than any of such Securities
previously called for redemption or any of such Securities in respect of which
cash shall have been released to the Company), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (2) apply as a credit Securities of such series which have been
redeemed either at the election of the Company pursuant to the terms of such
series of Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, provided that such
series of Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at the Redemption
Price specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Securities of any
series in lieu of cash payments pursuant to this Section 11.2, the principal
amount of Securities of such series to be redeemed in order to exhaust the
aforesaid cash payment shall be less than $100,000, the Trustee need not call
Securities of such series for redemption, except upon Company request, and such
cash payment shall be held by the Trustee or a Paying Agent for Securities of
that series and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall at the request of the
Company from time to time pay over and deliver to the Company any cash payment
so being held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of Securities purchased by the Company having an unpaid principal
amount
-67-
<PAGE>
equal to the cash payment requested to be released to the Company.
SECTION 11.3. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 11.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 3.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.5 and 3.6.
ARTICLE XII
CONVERSION OF SECURITIES
SECTION 12.1. APPLICABILITY OF ARTICLE.
The provisions of this Article XII shall be applicable to the
Securities of any series which are convertible into Common Stock or, if so
provided in a Board Resolution, Officers' Certificate or executed supplemental
indenture referred to in Section 2.1 by or pursuant to which the form and terms
of the Securities of such series were established, cash in lieu thereof, as
provided by the terms of the Securities of such series.
SECTION 12.2. EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such
-68-
<PAGE>
Security to the Conversion Agent at any time during usual business hours at its
office or agency maintained for the purpose as provided in Section 4.2,
accompanied by a fully executed written notice, in substantially the form set
forth on the reverse of the Security, that the Holder elects to convert such
Security or a stated portion thereof constituting a multiple of $1,000 in
principal amount and, if such Security is surrendered for conversion during the
period between the close of business on any record date for such Security and
the opening of business on the related interest payment date and has not been
called for redemption on a Redemption Date within such period (or on such
interest payment date), accompanied also by payment of an amount equal to the
interest payable on such interest payment date on the portion of the principal
amount of the Security being surrendered for conversion. No interest shall be
payable on any Security called for redemption which is converted between the
record date and the opening of business of the next succeeding interest payment
date. Such notice shall also state the name or names (and address) in which the
certificate or certificates for shares of Common Stock shall be issued (or to
whom payment in cash in lieu of Common Stock shall be made) Securities
surrendered for conversion shall (if so required by the Company or the
Conversion Agent) be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Company and the
Conversion Agent duly executed by, the Holder or his attorney duly authorized in
writing. As promptly as practicable after the receipt of such notice and the
surrender of such Security as aforesaid, the Company shall, subject to the
provisions of Section 12.7, issue and deliver at such office or agency to such
Holder, or on his written order, a certificate or certificates for the number of
full shares of Common Stock issuable on conversion of such Security in
accordance with the provisions of such Security and cash, as provided in Section
12.3, in respect of any fraction of a share of Common Stock otherwise issuable
upon such conversion or, if so provided in a Board Resolution, Officers'
Certificate or executed supplemental indenture referred to in Section 2.1 by or
pursuant to which the form and terms of the Securities of such Series were
established, cash , in lieu of shares of Common Stock. Such conversion shall be
at the Conversion Price in effect, and shall be deemed to have been effected,
immediately prior to the close of business on the date (herein called the "Date
of Conversion") on which such notice in proper form shall have been received by
the Conversion Agent and such Security shall have been surrendered as aforesaid,
and the Person or Persons in whose name or names any certificate or certificates
for shares of Common Stock shall be issuable, if any, upon such conversion shall
be deemed to have become on the Date of Conversion the holder or holders of
record of
-69-
<PAGE>
the shares represented thereby; provided, however, that any such surrender on
any date when the stock transfer books of the Company shall be closed shall
constitute the Person or Persons in whose name or names the certificate or
certificates for such shares are to be issued, if any, as the record holder or
holders thereof for all purposes at the opening of business on the next
succeeding day on which such stock transfer books are open but such conversion
shall nevertheless be at the Conversion Price in effect at the close of business
on the date when such Security shall have been so surrendered with the
conversion notice in proper form. In the case of conversion of a portion, but
less than all, of a Security, the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder thereof, at the
expense of the Company, a Security or Securities in the aggregate principal
amount of the unconverted portion of the Security surrendered. Except as
otherwise expressly provided in this Indenture, no payment or adjustment shall
be made for interest accrued on any Security (or portion thereof) converted or
for dividends or distributions on any Common Stock issued upon conversion of any
Security. The right, if any, of a Holder of any Security to cause the Company
to redeem, purchase or repay such Security shall terminate upon receipt by the
Company of any notice of conversion of such Security.
SECTION 12.3. FRACTIONAL INTERESTS.
No fractions of shares or scrip representing fractions of shares shall
be issued upon conversion of Securities. If more than one Security shall be
surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities so surrendered. If
any fraction of a share of Common Stock would, except for the provisions of this
Section 12.3, be issuable on the conversion of any Security or Securities, the
Company shall make payment in lieu thereof in cash equal to the value of such
fraction computed on the basis of the Last Sale Price of one share of Common
Stock on the most recent Trading Day prior to the Date of Conversion.
"Last Sale Price" on any Trading Day shall mean (i) the closing
price regular way (or, if no closing price is reported the average of the bid
and asked prices) as reported on the New York Stock Exchange Composite Tape,
or (ii) if on such Trading Day the Common Stock is not listed or admitted to
trading on such exchange, the closing price regular way (or, if no closing
price is reported the average of the bid and asked prices) on the principal
national securities exchange on which the Common Stock is listed or
-70-
<PAGE>
admitted, or (iii) if not listed or admitted to trading on any national
securities exchange on such Trading Day, then the average of the closing bid and
asked prices as reported through the National Association of Securities Dealers,
Inc. on its NASDAQ National Market System or NASDAQ System or a similar
organization if NASDAQ is no longer reporting information, or (iv) if the Common
Stock is not listed or admitted to trading on any national securities exchange
or quoted on such National Market System or NASDAQ System on such Trading Day,
then the average of the closing bid and asked prices in the over-the-counter
market as furnished by any New York Stock Exchange member firm selected from
time to time by the Company for that purpose, or (v) if not quoted by any such
organization on such Trading Day, the fair value of such Common Stock on such
Trading Day, as determined by the Board of Directors. The term "Trading Day"
shall mean each Monday, Tuesday, Wednesday, Thursday and Friday, other than any
day on which securities are not traded on the applicable above mentioned
exchanges or markets.
SECTION 12.4. ADJUSTMENT OF CONVERSION PRICE.
The "Conversion Price" for a Series of Securities shall be as set
forth in a Board Resolution, Officers' Certificate or executed supplemental
indenture referred to in Section 2.1 by or pursuant to which the form and terms
of the Securities of such Series were established, and shall be subject to
adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend or make a
distribution in shares of Common Stock to holders of Common Stock, (2) subdivide
its outstanding shares of Common Stock into a greater number of shares of Common
Stock, (3) combine its outstanding shares of Common Stock into a smaller number
of shares of Common Stock or (4) issue by reclassification of its Common Stock
any shares of capital stock of the Company, the Conversion Price in effect
immediately prior to such action shall be adjusted so that the Holder of any
Security thereafter surrendered for conversion shall be entitled to receive the
number of shares of Common Stock or other capital stock of the Company which he
would have owned immediately following such action had such Security been
converted immediately prior thereto. An adjustment made pursuant to this
subsection (a) shall become effective immediately, except as provided in
subsection (e) below, after the record date in the case of a dividend or
distribution and shall become effective immediately after the effective date in
the case of a subdivision, combination or reclassification. If as a result of
an adjustment made pursuant to this subsection (a), the Holder of any Security
thereafter surrendered for conversion shall become entitled
-71-
<PAGE>
to receive shares of two or more classes of capital stock (including shares of
Common Stock and other capital stock) of the Company, the Board of Directors
(whose determination shall be conclusive and shall be described in a statement
filed with the Trustee) shall determine the allocation of the adjusted
Conversion Price between or among shares of such classes of capital stock or
shares of Common Stock and other capital stock.
(b) In case the Company shall issue rights or warrants to all holders
of Common Stock entitling them (for a period not exceeding 45 days from the date
of such issuance) to subscribe for or purchase shares of Common Stock or
Securities convertible into Common Stock at a price per share less than the
current market price per share (as determined pursuant to subsection (d) below)
of the Common Stock on the record date mentioned below, the Conversion Price
shall be adjusted to a price, computed to the nearest cent, so that the same
shall equal the price determined by multiplying:
(1) the Conversion Price in effect immediately prior to the date of
issuance of such rights or warrants by
(2) a fraction, of which (i) the numerator shall be (A) the number of
shares of Common Stock outstanding on the date of issuance of
such rights or warrants, immediately prior to such issuance, plus
(B) the number of shares of Common Stock which the aggregate
offering price of the total number of shares of Common Stock (or
the aggregate conversion price of the convertible securities) so
offered for subscription or purchase would purchase at such
current market price (determined by multiplying such total number
of shares by the exercise price of such rights or warrants and
dividing the product so obtained by such current market price),
and of which (ii) the denominator shall be (A) the number of
shares of Common Stock outstanding on the date of issuance of
such rights or warrants, immediately prior to such issuance, plus
(B) the number of additional shares of Common Stock (or into
which the convertible securities are convertible) which are so
offered for subscription or purchase.
Such adjustment shall become effective immediately, except as provided in
subsection (e) below, after the record date
-72-
<PAGE>
for the determination of holders entitled to receive such rights or warrants.
(c) In case the Company shall distribute to substantially all holders
of Common Stock, evidences of indebtedness, equity securities (including equity
interests in the Company's Subsidiaries) other than common stock, or other
assets (other than cash dividends paid out of surplus of the Company), or shall
distribute to substantially all holders of Common Stock rights or warrants
to-subscribe for securities (other than those referred to in Subsection (b)
above) then in each such case the Conversion Price shall be adjusted so that the
same shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to the date of such distribution by a fraction of which
the numerator shall be the current market price per share (determined as
provided in subsection (d) below) of the Common Stock on the record date
mentioned below less the then fair market value (as determined by the Board of
Directors, whose determination shall, if made in good faith, be conclusive
evidence of such fair market value) of the portion of the assets so distributed
or of such subscription rights or warrants applicable to one share of Common
Stock, and of which the denominator shall be such current market price per share
of the Common Stock. Such adjustment shall become effective immediately, except
as provided in subsection (e) below, after the record date for the determination
of stockholders entitled to receive such distribution.
(d) For the purpose of any computation under subsections (b) and (c)
above, the current market price per share of Common Stock on any date shall be
deemed to be the average of the Last Sale Prices for the 30 consecutive Trading
Days commencing 45 Trading Days before the date in question.
(e) In any case in which this Section 12.4 shall require that an
adjustment be made immediately following a record date, the Company may elect to
defer the effectiveness of such adjustment (but in no event until a date later
than the effective time of the event giving rise to such adjustment), in which
case the Company shall, with respect to any Security converted after such record
date and before such adjustment shall have become effective, (i) defer paying
any cash payment pursuant to Section 12.3 or issuing to the Holder of such
Security the number of shares of Common Stock and other capital stock of the
Company issuable upon such conversion in excess of the number of shares of
Common Stock and other capital stock of the Company issuable thereupon only on
the basis of the Conversion Price prior to adjustment and (ii), not later
-73-
<PAGE>
than five Business Days after such adjustment shall have become effective, pay
to such Holder the appropriate cash payment pursuant to Section 12.3 and issue
to such Holder the additional shares of Common Stock and other capital stock of
the Company issuable on such conversion.
(f) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% of the
Conversion Price; provided that any adjustments which by reason of this
subsection (f) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment and provided, further , that
adjustment shall be required and made in accordance with the provisions of this
Article XII (other than this subsection (f)) not later than such time as may be
required in order to preserve the tax-free nature of a distribution to the
holders of Securities or Common Stock. All calculations under this Article XII
shall be made to the nearest cent or to the nearest one-hundredth of a share, as
the case may be.
(g) Anything in this Section 12.4 to the contrary notwithstanding, no
adjustment need be made for rights to purchase Common Stock pursuant to a
Company plan for reinvestment of dividends or interest or for rights to purchase
Capital Stock pursuant to any future dividend or distribution which the Company
determines to be comparable in purpose and in effect to the dividend and
subsequent distribution of Rights contemplated by the Rights Agreement and no
adjustment need be made for a change in the par value or no par value of the
Common Stock.
(h) Whenever the Conversion Price is adjusted as herein provided, the
Company shall promptly (i) file with the Trustee and each Conversion Agent an
Officers' Certificate setting forth the Conversion Price after such adjustment
and setting forth a brief statement of the facts requiring such adjustment,
which certificate shall be conclusive evidence of the correctness of such
adjustment, and (ii) mail or cause to be mailed a notice of such adjustment to
each Holder of Securities at his address as the same appears on either the
registry books of the Company or in the filings described in Section 2.4.
Anything in this Section 12.4 to the contrary notwithstanding, the Company shall
be entitled to make such reductions in the Conversion Price, in addition to
those required by this Section 12.4 as it in its discretion shall determine to
be advisable in order that any stock dividend, subdivision of shares,
distribution of rights or warrants to purchase stock or securities, or
distribution of other assets (other than cash dividends) hereafter made by the
Company to its stockholders shall not be taxable.
-74-
<PAGE>
SECTION 12.5. CONTINUATION OF CONVERSION PRIVILEGE IN CASE OF MERGER,
CONSOLIDATION OR SALE OF ASSETS.
If any of the following shall occur, namely: (a) any consolidation or
merger of the Company as a result of which the holders of Common Stock shall be
entitled to receive stock, other securities or other assets (including cash)
with respect to or in exchange for Common Stock; or (b) any sale or conveyance
of all or substantially all of the property or business of the Company as an
entirety, then the Company, or such successor or purchasing corporation, as the
case may be, shall, as a condition precedent to such consolidation, merger, sale
or conveyance, execute and deliver to the Trustee a supplemental indenture
(which shall conform to the TIA as in force at the date of the execution
thereof) providing that the Holder of each convertible Security then outstanding
shall have the right to convert such Security into the kind and amount of shares
of stock and other securities and property (including cash) receivable upon such
consolidation, merger, sale or conveyance by a holder of the number of shares of
Common Stock issuable upon conversion of such Security immediately prior to such
reclassification, change, consolidation, merger, sale or conveyance. Such
supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article
XII. If, in the case of any such consolidation, merger, sale or conveyance, the
stock or other securities and property (including cash) receivable thereupon by
a holder of shares of Common Stock includes shares of stock or other securities
and property (including cash) of a corporation other than the successor or
purchasing corporation, as the case may be, in such consolidation, merger, sale
or conveyance, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the Holders of the Securities as the Board of Directors shall
reasonably consider necessary by reason of the foregoing. The provisions of
this Section 12.5 shall similarly apply to successive consolidations, mergers,
sales or conveyances.
Within 30 days after the execution of such supplemental indenture the
Company shall give notice of the execution of such supplemental indenture, with
respect to Registered Securities affected by such supplemental indenture, by
mailing a notice of the execution of such supplemental indenture to each Holder
of Registered Securities at such Holder's address as it appears on the
Securities register maintained by the Registrar and, with respect to Bearer
Securities affected by such supplemental indenture, by publishing in an
Authorized Newspaper notice
-75-
<PAGE>
of the execution of such supplemental indenture on two separate days.
Neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property (including cash) receivable by Holders of
Securities upon the conversion of their Securities after any such consolidation,
merger, sale or conveyance or to any adjustment to be made with respect thereto,
but, subject to the provisions of Sections 7.1 and 7.2, may accept as conclusive
evidence of the correctness of any such provisions, and shall be protected in
relying upon, the Officers' Certificate (which the Company shall be obligated to
file with the Trustee prior to the execution of any such supplemental indenture)
with respect thereto.
SECTION 12.6. NOTICE OF CERTAIN EVENTS.
If:
(a) the Company shall declare a dividend (or any other distribution)
payable to the holders of Common Stock otherwise than in cash; or
(b) the Company shall authorize the granting to the holders of Common
Stock of rights to subscribe for or purchase any shares of stock of any class or
of any other rights; or
(c) the Company shall authorize any reclassification or change of the
Common Stock (other than a subdivision or combination of its outstanding shares
of Common Stock), or any consolidation or merger to which the Company is a party
and for which approval of any stockholders of the Company is required, or the
sale or conveyance of all or substantially all the property or business of the
Company; or
(d) there shall be authorized or ordered any voluntary or involuntary
dissolution, liquidation or winding-up of the company; or
(e) such other event shall occur as may be specified in any
Securities issued pursuant to this Indenture.
then, the Company shall cause to be filed at the office or agency maintained for
the purpose of conversion of the Securities as provided in Section 4.2, and
shall, with respect to Registered Securities convertible into Common
-76-
<PAGE>
Stock, cause to be mailed to each Holder of such Registered Securities, at such
Holder's address as it shall appear on the Securities register maintained by the
Registrar and, with respect to Bearer Securities convertible into Common Stock,
cause to be published in an Authorized Newspaper on two separate days, at least
20 days before the date hereinafter specified (or the earlier of the dates
hereinafter specified, in the event that more than one date is specified), a
notice stating the date on which (1) a record is expected to be taken for the
purpose of such dividend, distribution or rights, or if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution or rights are to be determined, or (2) such
reclassification, change, consolidation, merger, sale, conveyance, dissolution,
liquidation or winding-up is expected to become effective and the date, if any
is to be fixed, as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their shares of Common Stock for securities
or other property deliverable upon such reclassification, change, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding-up.
SECTION 12.7. TAXES ON CONVERSION.
The Company will pay any and all documentary, stamp or similar taxes
payable to the United States of America or any political subdivision or taxing
authority thereof or therein in respect of the issue or delivery of shares of
Common Stock on conversion of Securities pursuant thereto; provided, however,
that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issue or delivery of shares of Common
Stock in a name other than that of the Holder of the Securities to be converted
(or payment of cash in lieu thereof to a Person other than such Holder) and no
such issue or delivery (or payment) shall be made unless and until the Person
requesting such issue or delivery (or payment) has paid to the Company the
amount of any such tax or has established, to the satisfaction of the Company,
that such tax has been paid. The Company extends no protection with respect to
any other taxes imposed in connection with conversion of Securities.
SECTION 12.8. COMPANY TO PROVIDE STOCK.
The Company shall reserve, free from preemptive rights, out of its
authorized but unissued shares, sufficient shares to provide for the conversion
of convertible Securities from time to time as such Securities are presented for
Conversion, provided, however, that nothing contained herein shall be construed
to preclude the
-77-
<PAGE>
Company from satisfying its obligations in respect of the conversion of
Securities by delivery of repurchase shares of Common Stock which are held in
the treasury of the Company.
If any shares of Common Stock to be reserved for the purpose of
conversion of Securities hereunder require registration with or approval of any
governmental authority under any Federal or state law before such shares may be
validly issued or delivered upon conversion, then the Company covenants that it
will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be; provided, however, that nothing in
this Section 12.8 shall be deemed to affect in any way the obligations of the
Company to convert Securities into Common Stock as provided in this Article XII.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the Common Stock, the
Company will take all corporate action which may, in the Opinion of Counsel, be
necessary in order that the Company may validly and legally issue fully paid and
non-assessable. shares of Common Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be fully paid and
non-assessable by the Company and free of preemptive rights.
SECTION 12.9. DISCLAIMER OF RESPONSIBILITY FOR CERTAIN MATTERS.
Neither the Trustee, the Conversion Agent nor any agent of either
shall at any time be under any duty or responsibility to any Holder of
Securities to determine whether any facts exist which may require any adjustment
of the Conversion Price, or with respect to the Officers' Certificate referred
to in Section 12.4(h), or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. Neither
the Trustee, the Conversion Agent nor any agent of either shall be accountable
with respect to the validity of value (or the kind or amount) or any shares of
Common Stock, or of any securities or property (including cash), which may at
any time be issued or delivered upon the conversion of any Security; and neither
the Trustee, the Conversion Agent nor any agent of either makes any
representation with respect thereto. Neither the Trustee, the Conversion Agent
nor any agent of either shall be responsible for any failure of the Company to
issue,
-78-
<PAGE>
register the transfer of or deliver any shares of Common Stock or stock
certificates or other securities or property (including cash) upon the surrender
of any Security for the purpose of conversion or, subject to Sections 7.1 and
7.2, to comply with any of the covenants of the Company contained in this
Article XII.
SECTION 12.10. RETURN OF FUNDS DEPOSITED FOR REDEMPTION OF CONVERTED
SECURITIES.
Any funds which at any time shall have been deposited by the Company
or on its behalf with the Trustee or any Conversion Agent for the purpose of
paying the principal of and interest, if any, on any of the Securities and which
shall not be required for such purposes because of the conversion of such
Securities, as provided in this Article XII, shall after such conversion be
repaid to the Company by the Trustee or such Conversion Agent.
SECTION 12.11. RIGHTS ISSUED IN RESPECT OF COMMON STOCK ISSUED UPON CONVERSION.
Each share of Common Stock issued upon conversion of Securities
pursuant to this Article XII shall be entitled to receive the appropriate number
of preferred share purchase rights (the "Rights"), if any, and the certificates
representing the Common Stock issued upon such conversion shall bear such
legends, if any, in each case as provided by and subject to the terms of the
Rights Agreement, dated June 21, 1989, between the Company and The First
National Bank of Chicago, as Rights Agent (the "Rights Agreement"), as in effect
at the time of such conversion. Notwithstanding anything else to the contrary
in this Article XII, there shall not be any adjustment to the conversion
privilege or conversion rate as a result of (i) the distribution of separate
certificates representing the Rights, (ii) the occurrence of certain events
entitling holders of Rights to receive, upon exercise thereof, Common Stock of
the Company or Capital Stock of another corporation or (iii) the exercise of
such Rights in accordance with the Rights Agreement.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by operation
-79-
<PAGE>
of subsection (c) of Section 318 of the TIA, the imposed duties shall control.
SECTION 13.2. NOTICES.
Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in person or by registered or
certified mail (postage prepaid, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, addressed as follows:
If to the Company:
IMC Global Inc.
2100 Sanders Road
Northbrook, IL 60062
Attention: General Counsel
If to the Trustee:
_____________________
_____________________
_____________________
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the others may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication to the Company or the Trustee shall be
deemed to have been duly given or made at the time delivered by hand if
personally delivered; five calendar days after mailing if sent by registered or
certified mail; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery (except that a
notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication to a Holder of a Registered Security shall
be mailed by first-class mail to such Securityholder's address shown on the
register kept by the Registrar. Failure to mail a notice or communication to a
Securityholder or any defect in-it shall not affect its sufficiency with respect
to other Securityholders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
-80-
<PAGE>
If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and each Agent at the same time.
Any notice to be given to a Holder of Bearer Securities shall be given
by publication in an Authorized Newspaper on two separate days within the time
prescribed.
SECTION 13.3. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 13.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(a) an Officers' Certificate, in form and substance reasonably
satisfactory to the Trustee, stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel, in form and substance reasonably
satisfactory to the Trustee, stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 13.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each party making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
-81-
<PAGE>
(c) a statement that, in the opinion of each such party, such party
has made such examination or investigation as is necessary to enable such
party 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 each such
party, such condition or covenant has been complied with;
provided, however, that with respect to matters of law, an Officers' Certificate
may be based upon an Opinion of Counsel, unless the signers know, or in the
exercise of reasonable care should know, that such Opinion of Counsel is
erroneous, and provided, further, that with respect to matters of fact, an
Opinion of Counsel may rely on an Officers' Certificate or certificates of
public officials, unless the signer knows, or in the exercise of reasonable care
should know, that any such document is erroneous.
SECTION 13.6. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
SECTION 13.7. LEGAL HOLIDAYS.
If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding Business Day, and no interest
on the amount payable on such payment date shall accrue for the intervening
period.
SECTION 13.8. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting
a Security waives and releases all such liability. The waiver and release are
part of the consideration for the issue of Securities.
SECTION 13.9. GOVERNING LAW.
This Indenture and the Securities shall be governed by, and construed
in accordance with, the laws of the State of New York.
-82-
<PAGE>
SECTION 13.10. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 13.11. SUCCESSORS.
All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 13.12. SEVERABILITY.
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 13.13. MULTIPLE ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.
SECTION 13.14. TABLE OF CONTENTS; HEADINGS.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not intended to be considered a part hereof and shall not
modify or restrict any of the terms or provisions hereof.
SECTION 13.15. SECURITIES IN FOREIGN CURRENCIES.
Wherever this Indenture provides for any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same currency, or any
distribution to Holders of Securities, in the absence of any provision to the
contrary in the form of Security of any particular series, any amount in respect
of any Security denominated in a currency other than United States dollars shall
be treated for any such action, determination or distribution as that amount of
United States dollars that could be obtained for such amount on such reasonable
basis of exchange and as of such date as the Company may specify in a written
notice to
-83-
<PAGE>
the Trustee, or in the absence of such notice, as the Trustee may determine.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be affixed hereto and
attested, all as of the date first above written.
IMC GLOBAL INC.
By:___________________________
Name:
Title:
[Seal]
Attest:____________________
Name:
Title:
______________________________
By:___________________________
Name:
Title:
[Seal]
Attest:____________________
Name:
Title:
<PAGE>
IMC GLOBAL INC.,
ISSUER
INDENTURE
DATED AS OF _____________, 1997
_____________________,
TRUSTEE
PROVIDING FOR THE ISSUANCE OF
SUBORDINATED DEBT SECURITIES IN SERIES
<PAGE>
CROSS-REFERENCE TABLE
TIA SECTION INDENTURE SECTION
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) NA
(a)(4) NA
(b) 7.8, 7.10, 14.2
(c) NA
311(a) 7.11
(b) 7.11
(c) NA
312(a) 2.4
(b) 14.3
(c) 14.3
313(a) 7.6
(b)(1) NA
(b)(2) 7.6
(c) 7.6, 14.2
(d) 7.6
314(a) 4.4, 14.2
(b) NA
(c)(1) 14.4
(c)(2) 14.4
(c)(3) NA
(d) NA
(e) 14.5
(f) NA
315(a) 7.1(b)
(b) 7.5, 10.2
(c) 7.1(a)
(d) 7.1(c)
(e) 6.11
316(a)(last sentence) 2.8
(a)(1)(A) 6.5
(a)(1)(B) 6.4
(a)(2) NA
(b) 6.7
317(a)(1) 6.8
(a)(2) 6.9
(b) 4.3
318(a) 14.1
N.A. means not applicable.
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1. Definitions. . . . . . . . . . . . . . . . . . . . . . . -1-
Section 1.3. Incorporation by Reference of Trust Indenture Act. . . . -12-
Section 1.4. Rules of Construction. . . . . . . . . . . . . . . . . . -13-
ARTICLE II
THE SECURITIES
Section 2.1. Terms and Forms. . . . . . . . . . . . . . . . . . . . . -14-
Section 2.2. Execution and Authentication.. . . . . . . . . . . . . . -18-
Section 2.3. Registrar, Paying Agent, Conversion Agent, Depository and
Securities Custodian. . . . . . . . . . . . . . . . . . . . . . . -21-
Section 2.4. Securityholder Lists.. . . . . . . . . . . . . . . . . . -22-
Section 2.5. Transfer, Registration and Exchange. . . . . . . . . . . -22-
Section 2.6. Replacement Securities.. . . . . . . . . . . . . . . . . -25-
Section 2.7. Outstanding Securities.. . . . . . . . . . . . . . . . . -27-
Section 2.8. Treasury Securities. . . . . . . . . . . . . . . . . . . -28-
Section 2.9. Temporary Securities. . . . . . . . . . . . . . . . . . -28-
Section 2.10. Securities in Global Form.. . . . . . . . . . . . . . . -29-
Section 2.11. Cancellation. . . . . . . . . . . . . . . . . . . . . . -29-
Section 2.12. Defaulted Interest. . . . . . . . . . . . . . . . . . . -29-
Section 2.13. Persons Deemed Owners.. . . . . . . . . . . . . . . . . -30-
ARTICLE III
REDEMPTION
Section 3.1. Applicability of Article.. . . . . . . . . . . . . . . . -31-
Section 3.2. Notices to Trustee.. . . . . . . . . . . . . . . . . . . -31-
If . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -31-
Section 3.3. Selection of Securities to Be Redeemed.. . . . . . . . . -32-
Section 3.4. Notice of Redemption.. . . . . . . . . . . . . . . . . . -32-
Section 3.5. Effect of Notice of Redemption.. . . . . . . . . . . . . -34-
Section 3.6. Deposit of Redemption Price. . . . . . . . . . . . . . . -34-
Section 3.7. Securities Redeemed in Part. . . . . . . . . . . . . . . -35-
-i-
<PAGE>
ARTICLE IV
COVENANTS
Section 4.1. Payment of Securities. . . . . . . . . . . . . . . . . . -36-
Section 4.2. Maintenance of Office or Agency for Notices Demands. . . -36-
Section 4.3. Money for Securities Payments to Be Held in Trust. . . . -38-
Section 4.4. Commission Reports; Reports to Trustee;
Reports to Holders. . . . . . . . . . . . . . . . . . . . . . . . -39-
Section 4.5. Compliance Certificates. . . . . . . . . . . . . . . . . -40-
Section 4.6. Corporate Existence. . . . . . . . . . . . . . . . . . . -41-
Section 4.7. Limitation on Liens. . . . . . . . . . . . . . . . . . . -41-
Section 4.8. Limitations on Sale and Leaseback Transactions . . . . . -42-
Section 4.9. Exempted Indebtedness. . . . . . . . . . . . . . . . . . -42-
ARTICLE V
SUCCESSORS
Section 5.1. When Company May Merge, etc. . . . . . . . . . . . . . . -43-
Section 5.2. Successor Corporation Substituted. . . . . . . . . . . . -44-
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1. Events of Default. . . . . . . . . . . . . . . . . . . . -44-
Section 6.2. Acceleration.. . . . . . . . . . . . . . . . . . . . . . -46-
Section 6.3. Other Remedies.. . . . . . . . . . . . . . . . . . . . . -47-
Section 6.4. Waiver of Past Defaults. . . . . . . . . . . . . . . . . -47-
Section 6.5. Control by Majority. . . . . . . . . . . . . . . . . . . -48-
Section 6.6. Limitation on Suits by Holders.. . . . . . . . . . . . . -48-
Section 6.7. Rights of Holders to Receive Payment.. . . . . . . . . . -48-
Section 6.8. Collection Suit by Trustee.. . . . . . . . . . . . . . . -49-
Section 6.9. Trustee May File Proofs of Claim.. . . . . . . . . . . . -49-
Section 6.10. Application of Money Collected. . . . . . . . . . . . . -50-
Section 6.11. Undertaking for Costs.. . . . . . . . . . . . . . . . . -51-
Section 6.12. Discontinuance or Abandonment of Proceedings. . . . . . -51-
ARTICLE VII
TRUSTEE
-ii-
<PAGE>
Section 7.1. Duties of Trustee. . . . . . . . . . . . . . . . . . . . -52-
Section 7.2. Rights of Trustee. . . . . . . . . . . . . . . . . . . . -53-
Section 7.3. Individual Rights of Trustee.. . . . . . . . . . . . . . -54-
Section 7.4. Trustee's Disclaimer.. . . . . . . . . . . . . . . . . . -54-
Section 7.5. Notice of Defaults.. . . . . . . . . . . . . . . . . . . -54-
Section 7.6. Reports by Trustee to Holders. . . . . . . . . . . . . . -55-
Section 7.7. Compensation and Indemnity.. . . . . . . . . . . . . . . -55-
Section 7.8. Replacement of Trustee.. . . . . . . . . . . . . . . . . -56-
Section 7.9. Successor Trustee by Merger. . . . . . . . . . . . . . . -57-
Section 7.10. Eligibility; Disqualification.. . . . . . . . . . . . . -58-
Section 7.11. Preferential Collection of Claims Against Company.. . . -58-
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.1. Discharge of Indenture; Defeasance.. . . . . . . . . . . -58-
Section 8.2. Conditions to Defeasance.. . . . . . . . . . . . . . . . -59-
Section 8.3. Application of Trust Money.. . . . . . . . . . . . . . . -61-
Section 8.4. Repayment to Company.. . . . . . . . . . . . . . . . . . -61-
Section 8.5. Reinstatement of Company's Obligations.. . . . . . . . . -62-
ARTICLE IX
AMENDMENTS AND WAIVERS
Section 9.1. Without Consent of Holders.. . . . . . . . . . . . . . . -62-
Section 9.2. With Consent of Holders. . . . . . . . . . . . . . . . . -63-
Section 9.3. Compliance with Trust Indenture Act. . . . . . . . . . . -65-
Section 9.4. Revocation and Effect of Consents and Waivers. . . . . . -65-
Section 9.5. Notation on or Exchange of Securities. . . . . . . . . . -65-
Section 9.6. Trustee to Sign Amendments.. . . . . . . . . . . . . . . -66-
ARTICLE X
REPAYMENT AT THE OPTION OF HOLDERS
Section 10.1. Applicability of Article. . . . . . . . . . . . . . . . -66-
ARTICLE XI
SINKING FUNDS
Section 11.1. Applicability of Article. . . . . . . . . . . . . . . . -67-
Section 11.2. Satisfaction of Sinking Fund Payments with Securities.. -67-
-iii-
<PAGE>
ARTICLE XII
CONVERSION OF SECURITIES
Section 11.3. Redemption of Securities for Sinking Fund.. . . . . . . -68-
Section 12.1. Applicability of Article. . . . . . . . . . . . . . . . -69-
Section 12.2. Exercise of Conversion Privilege. . . . . . . . . . . . -69-
Section 12.3. Fractional Interests. . . . . . . . . . . . . . . . . . -70-
Section 12.4. Adjustment of Conversion Price. . . . . . . . . . . . . -71-
Section 12.5. Continuation of Conversion Privilege in Case of Merger,
Consolidation or Sale of Assets.. . . . . . . . . . . . . . . . . -75-
Section 12.6. Notice of Certain Events. . . . . . . . . . . . . . . . -76-
Section 12.7. Taxes on Conversion.. . . . . . . . . . . . . . . . . . -77-
Section 12.8. Company to Provide Stock. . . . . . . . . . . . . . . . -78-
Section 12.9. Disclaimer of Responsibility for Certain Matters. . . . -78-
Section 12.10. Return of Funds Deposited for Redemption of Converted
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . -79-
Section 12.11. Rights Issued in Respect of Common Stock Issued upon
Conversion. . . . . . . . . . . . . . . . . . . . . . . . . . . . -79-
ARTICLE XIII
SUBORDINATION
Section 13.1. Securities Subordinated to Senior Indebtedness. . . . . -80-
Section 13.2. Reliance on Certificate of Liquidating Agent; Further
Evidence as to Ownership of Senior Indebtedness . . . . . . . . . -83-
Section 13.3. Payment Permitted If No Default.. . . . . . . . . . . . -83-
Section 13.4. Disputes with Holders of Certain Senior Indebtedness. . -84-
Section 13.5. Trustee Not Charged with Knowledge of Prohibition.. . . -84-
Section 13.6. Trustee to Effectuate Subordination.. . . . . . . . . . -85-
Section 13.7. Rights of Trustee as Holder of Senior Indebtedness. . . -85-
Section 13.8. Article Applicable to Paying Agents.. . . . . . . . . . -86-
Section 13.9. Subordination Rights Not Impaired by Acts-Omissions of
the Company or Holders of Senior Indebtednes. . . . . . . . . . . -86-
Section 13.10. Trustee Not Fiduciary for Holders of Indebtedness. . . -86-
-iv-
<PAGE>
ARTICLE XIV
MISCELLANEOUS
Section 14.1. Trust Indenture Act Controls. . . . . . . . . . . . . . -87-
Section 14.2. Notices.. . . . . . . . . . . . . . . . . . . . . . . . -87-
Section 14.3. Communication by Holders with Other Holders.. . . . . . -88-
Section 14.4. Certificate and Opinion as to Conditions Precedent. . . -88-
Section 14.5. Statements Required in Certificate or Opinion.. . . . . -89-
Section 14.6. Rules by Trustee and Agents.. . . . . . . . . . . . . . -89-
Section 14.7. Legal Holidays. . . . . . . . . . . . . . . . . . . . . -90-
Section 14.8. No Recourse Against Others. . . . . . . . . . . . . . . -90-
Section 14.9. Governing Law.. . . . . . . . . . . . . . . . . . . . . -90-
Section 14.10. No Adverse Interpretation of Other Agreements. . . . . -90-
Section 14.11. Successors.. . . . . . . . . . . . . . . . . . . . . . -90-
Section 14.12. Severability.. . . . . . . . . . . . . . . . . . . . . -90-
Section 14.13. Multiple Originals.. . . . . . . . . . . . . . . . . . -91-
Section 14.14. Table of Contents; Headings. . . . . . . . . . . . . . -91-
Section 14.15. Securities in Foreign Currencies.. . . . . . . . . . . -91-
-v-
<PAGE>
INDENTURE dated as of _____________, 1997 between IMC GLOBAL INC., a
Delaware corporation (the "Company"), and ______________, a national banking
association (the "Trustee").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of the Company's Securities issued
hereunder:
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1. DEFINITIONS.
"Additional Amounts" means any additional amounts which are required by a
Security or by or pursuant to a Board Resolution, under circumstances specified
therein, to be paid by the Company in respect of certain taxes imposed on
certain Holders, or as otherwise specified in the terms of a Security
established pursuant to Section 2.1, and which are owing to such Holders.
"Affiliate" shall mean another Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such first Person.
For the purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling," "controlled by" and "under common control
with"), as applied to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting securities or by contract
or otherwise. The Trustee may request and conclusively rely on an Officers'
Certificate to determine whether any Person is an Affiliate of the Company.
"Agent" shall mean any Registrar or Paying Agent or authenticating agent or
co-registrar.
"Authorized Newspaper" means a newspaper printed in the official language
of the country of publication and customarily published at least once a day on
each Business Day in each calendar week and of general circulation in New York,
New York or in any other place as required in this Indenture, whether or not
such newspaper is published on Legal Holidays, or, with respect to the
Securities of any series, such other newspaper(s) as may be specified in or
pursuant to the Board Resolution of the Company or supplement to this Indenture
pursuant to which such series of Securities is issued. Whenever, under the
provisions
<PAGE>
of this Indenture or such Board Resolution, two or more publications of a notice
or other communication are required or permitted, such publications may be in
the same or different newspapers. If, because of temporary or permanent
suspension of publication or general circulation of any newspaper or for any
other reason, it is impossible or impracticable to publish any notices required
by this Indenture or a Board Resolution in the manner provided, then such
publication in lieu thereof or such other notice as shall be made with the
approval of the Trustee shall constitute a sufficient publication of such
notice.
"Bankruptcy Law" shall mean Title 11, United States Code or any similar
federal or state law for the relief of debtors.
"Bearer Security" means any security in the form established pursuant to
Section 2.1 hereunder which is payable to bearer.
"Board" or "Board of Directors" shall mean the Board of Directors of the
Company or any authorized committee of such Board.
"Board Resolution" means a copy of the resolutions certified by the
Secretary or an Assistant Secretary of the Company as properly adopted by the
Board of Directors of the Company and in full force and effect and delivered to
the Trustee.
"Business Day" shall mean each day that is not a Legal Holiday.
"Capitalized Lease Obligation" shall mean an obligation that is required to
be classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP, and the amount of Indebtedness represented by
such obligation shall be the capitalized amount of such obligation determined in
accordance with such principles; and the Stated Maturity thereof shall be the
date of the last payment of rent or any other amount due under such lease prior
to the first date upon which such lease may be terminated by the lessee without
payment of a penalty.
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" shall mean the common stock, $1.00 par value per share, of
the Company.
"Company" shall mean IMC Global Inc., a Delaware corporation, until a
successor replaces it in accordance with Article V and, thereafter, means the
successor and, for purposes
-2-
<PAGE>
of any provision contained herein and required by the TIA, each other obligor on
the indenture securities.
"Company Request" or "Company Order" shall mean a written request or order
signed in the name of the Company by the Chairman of the Board, the President,
the Chief Financial Officer or the Treasurer thereof or any other officer
specifically authorized to act by the Board of Directors of the Company, and
delivered to the Trustee.
"Consolidated Net Worth" shall mean the excess of assets over liabilities
of the Company and its consolidated Subsidiaries, plus Minority Interests, as
determined from time to time in accordance with GAAP.
"consolidation" shall mean, with respect to any Person, the consolidation
of the accounts of such Person if and to the extent the accounts of such Person
and each of its Subsidiaries (or, if such Person is the Company, its Restricted
Subsidiaries) would normally be consolidated with those of such Person, all in
accordance with GAAP. The term "consolidated" shall have a similar meaning.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 14.2 or such other address as the Trustee may give
to the Company.
"coupon" shall mean any interest coupon appertaining to a Bearer Security.
"Currency Agreement" shall mean any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect
such Person or any of its Restricted Subsidiaries against fluctuations in
currency values.
"Default" shall mean any event that is, or after notice or passage of time
or both would be, an Event of Default as defined in Section 6.1 of this
Indenture.
"Depository" or "U.S. Depository" shall mean, with respect to the
Securities of any series issuable or issued in whole or in part in the form of
one or more global Securities, the Person designated as U.S. Depository pursuant
to Section 2.1, which must be a clearing agency registered under the Exchange
Act, and, if so provided pursuant to Section 2.1 with respect to the Securities
of any series, any successor to such Person. If at any time there is more than
one such Person, "Depository" or "U.S. Depository" shall mean, with respect to
any series of Securities,
-3-
<PAGE>
the qualifying entity which has been appointed with respect to the Securities of
that series.
"Eligible Obligations" shall mean obligations as a result of the deposit of
which (along with the simultaneous deposit, if any, of money or U.S. Government
Obligations or both) the Securities will be rated in the highest generic
long-term debt rating category assigned by one or more nationally recognized
rating agencies to debt with respect to which the issuer thereof has been
released from its obligations to the same extent that the Company has been
released from its obligations under this Indenture pursuant to the defeasance
provision of this Indenture.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"GAAP" shall mean generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, consistently applied, that are applicable to the circumstances as of
the date of determination; provided that, for purposes of calculating the
Consolidated Net Worth of a Person (including all components thereof),"GAAP"
shall mean such generally accepted accounting principles as described above in
effect on the date of this Indenture.
"Holder," "Securityholders" or "Holders of Securities" or other similar
term shall mean, with respect to a Registered Security, the person in whose name
a particular Security shall be registered on the books of the Registrar kept for
that purpose in accordance with the terms hereof and, with respect to a Bearer
Security or any coupon, the bearer thereof, and the word "majority," used in
connection with the term "Holder," "Securityholders" or "Holder of Securities"
or other similar term, shall signify the "majority in principal amount" whether
or not so expressed.
"IMC" shall mean IMC Global Operations Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company.
"IMC-Canada" shall mean International Minerals & Chemical Corporation
(Canada) Limited, a corporation organized under the laws of Canada and a
wholly-owned subsidiary of the Company.
"incur" shall mean, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (by
-4-
<PAGE>
conversion, exchange or otherwise), assume, guarantee or otherwise become liable
in respect of such Indebtedness or other obligation or the recording, as
required pursuant to GAAP or otherwise, of any such Indebtedness or other
obligation on the balance sheet of such Person (and "incurrence," "incurred,"
"incurrable," and "incurring" shall have meanings correlative to the foregoing);
provided that a change in GAAP that results in an obligation of such Person that
exists at such time becoming Indebtedness shall not be deemed an incurrence of
such Indebtedness.
"Indebtedness" shall mean, with respect to any Person, at any date, any of
the following, without duplication, (i) any liability, contingent or otherwise,
of such Person (A) for borrowed money (whether or not the recourse of the lender
is to the whole of the assets of such Person or only to a portion thereof), (B)
evidenced by a note, bond, debenture or similar instrument or (C) for the
payment of money relating to a Capitalized Lease Obligation or other obligation
(whether issued or assumed) relating to the deferred purchase price of property;
(ii) all conditional sale obligations and all obligations under any title
retention agreement (even if the rights and remedies of the seller under such
agreement in the event of default are limited to repossession or sale of such
property), but excluding trade accounts payable arising in the ordinary course
of business; (iii) all obligations for the reimbursement of any obligor on any
letter of credit, banker's acceptance or similar credit transaction other than
entered into in the ordinary course of business; (iv) all indebtedness of others
secured by (or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on any asset or property
(including, without limitation, leasehold interests and any other tangible or
intangible property) of such Person, whether or not such indebtedness is assumed
by such Person or is not otherwise such Person's legal liability; provided, that
if the obligations so secured have not been assumed in full by such Person or
are otherwise not such Person's legal liability in full, the amount of such
indebtedness for the purposes of this definition shall be limited to the lesser
of the amount of such indebtedness secured by such Lien or the fair market value
of the assets of the property securing such Lien; (v) all indebtedness of others
(including all interest and dividends on any Indebtedness or preferred stock of
any other Person for the payment of which is) guaranteed, directly or
indirectly, by such Person or that is otherwise its legal liability or which
such Person has agreed to purchase or repurchase or in respect of which such
Person has agreed contingently to supply or advance funds; and (vi) obligations
in respect of Currency Agreements and Interest Swap Obligations.
-5-
<PAGE>
"Indenture" shall mean this Indenture as amended or supplemented from time
to time.
"Interest Swap Obligations" shall mean the obligations of any Person
pursuant to any interest rate swap agreement, interest rate collar agreement or
other similar agreement or arrangement designed to protect such Person or any of
its Subsidiaries against fluctuations in interest rates.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, or any successor federal income tax laws.
"Issue Date" shall mean the first date on which a Security is authenticated
by the Trustee pursuant to this Indenture.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on which banking
institutions are not required to be open in the City of _________ or in a state
where a Place of Payment is located.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien, charge or adverse claim affecting title or resulting in an encumbrance
against real or personal property or a security interest of any kind (including,
without limitation, any conditional sale or other title retention agreement or
lease in the nature thereof or any filing or agreement to file a financing
statement as debtor under the Uniform Commercial Code or any similar statute
other than to reflect ownership by a third party or property leased to the
Company or any of its Subsidiaries under a lease that is not in the nature of a
conditional sale or title retention agreement).
"Maturity" when used with respect to any Security shall mean the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Minority Interest" shall mean any shares of stock of any class of a
Subsidiary that are not owned by the Company or a Subsidiary.
"Officer" shall mean the Chairman of the Board of Directors, the Vice
Chairman, the President, the Treasurer, any Assistant Treasurer, Controller,
Secretary, Assistant Secretary, or any Vice President of the Company.
-6-
<PAGE>
"Officers' Certificate" shall mean, with respect to any Person, a
certificate signed by the Chairman of the Board of Directors, the Vice Chairman,
the President or any Vice President and by the Treasurer or any Assistant
Treasurer or the Secretary or any Assistant Secretary of such Person that shall
comply with applicable provisions of this Indenture.
"Opinion of Counsel" shall mean an opinion in writing signed by a Person's
legal counsel (who may be an employee of or counsel to such Person or the
Trustee) who is acceptable to the Trustee.
"Original Issue Discount Security" shall mean any Security which provides
that an amount less than its principal amount is due and payable upon the
acceleration of the maturity thereof after an Event of Default.
"Partnership" shall mean IMC-Agrico Company, a Delaware general
partnership.
"Periodic Offering" shall mean an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the maturity or
maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as contemplated by Section 2.1
with respect thereto, are to be determined by the Company, or one or more of the
Company's gents designated in an Officers' Certificate, upon the issuance of
such Securities.
"Permitted Liens" shall mean, with respect to any Person:
(i) Liens existing on the Issue Date;
(ii) Liens on property or assets of, or any shares of stock of or
secured debt of, any corporation existing at the time such corporation
becomes a Restricted Subsidiary of the Company or at the time such
corporation is merged into the Company or any of its Restricted
Subsidiaries;
(iii) Liens in favor of the Company or any of its Restricted
Subsidiaries;
(iv) Liens in favor of governmental bodies to secure progress or
advance payments;
(v) Liens securing industrial revenue or pollution control bonds;
-7-
<PAGE>
(vi) Liens on Property to secure Indebtedness incurred for the
purpose of (i) financing all or any part of the purchase price of such
Property incurred prior to, at the time of, or within 180 days after, the
acquisition of such property or assets or (ii) financing all or any part of
the cost of construction, improvement, development or expansion of any such
Property;
(vii) Statutory liens or landlords', carriers', warehouseman's,
mechanics', suppliers', materialmen's, repairmen's or other like Liens
arising in the ordinary course of business and with respect to amounts not
yet delinquent or being contested in good faith by appropriate proceedings,
if a reserve or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made therefor;
(viii) Liens on current assets of Restricted Subsidiaries securing
Indebtedness of such Restricted Subsidiaries; and
(ix) any extensions, substitutions, replacements or renewals in whole
or in part of a Lien (an "existing Lien") enumerated in clauses (i) through
(viii) above; provided that the Lien may not extend beyond (A) the Property
or Indebtedness subject to the existing Lien and (B) improvements and
construction on such Property and the Indebtedness secured by the Lien may
not exceed the Indebtedness secured at the time by the existing Lien.
"Person" shall mean any individual, corporation, partnership, limited
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political sub-division
thereof, or any other entity.
"Place of Payment" when used with respect to the Securities of any series,
means the place or places where the principal of and interest and any Additional
Amounts on the Securities of that series are payable as specified as provided
pursuant to Section 2.1.
"principal" of a debt security (including the Securities) shall mean the
principal of the security plus the premium, if any, payable on the security
which is due or overdue or is to become due at the relevant time.
"Principal Property" shall mean any manufacturing plant or warehouse owned
or leased by the Company or any Subsidiary
-8-
<PAGE>
whether owned or leased on the date hereof or hereafter, the gross book value of
which exceeds one percent of Consolidated Net Worth, other than manufacturing
plants and warehouses which the Board of Directors by resolution declares are
not of material importance to the total business conducted by the Company and
its Restricted Subsidiaries as an entirety and which, when taken together with
all other plants and warehouses as to which such a declaration has been so made,
is so declared by the Board of Directors to be not of material importance to the
total business conducted by the Company and its Restricted Subsidiaries as an
entirety.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person whether or not included in the
most recent consolidated balance sheet of such Person and its Subsidiaries under
GAAP.
"Redemption Date" when used with respect to any Security to be redeemed
shall mean the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" shall mean the amount payable for the redemption of any
Security on the Redemption Date, and shall always include interest accrued and
unpaid to the Redemption Date and any Additional Amounts payable with respect
thereto, unless otherwise specifically provided.
"Registered Security" shall mean any Security registered on the books of
the Registrar kept for that purpose in accordance with the terms hereof.
"Responsible Officer," when used with respect to the Trustee, shall mean
any officer in the corporate trust department of the Trustee or any officer of
the Trustee customarily performing functions similar to those performed by any
officer in the corporate trust department of the Trustee with respect to a
particular corporate matter or any other officer to whom any corporate trust
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" shall mean (i) IMC, IMC-Canada and the Partnership,
and any intermediate holding company between either IMC, IMC-Canada or the
Partnership and the Company and (ii) any other Subsidiary of the Company that is
not an Unrestricted Subsidiary.
"Securities" shall mean the debt securities, as amended or supplemented
from time to time pursuant to this Indenture, that are issued under this
Indenture.
-9-
<PAGE>
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Senior Indebtedness" means Indebtedness of the Company outstanding at any
time, except (a) any Indebtedness as to which, by the terms of the instrument
creating or evidencing the same, it is provided that such Indebtedness is not
senior in right of payment to the Securities, (b) the Securities, (c) any
Indebtedness of the Company to a Wholly-Owned Subsidiary of the Company, (d)
interest accruing after the filing of a petition initiating any proceeding
referred to in Section 6.1(g) unless such interest is an allowed claim
enforceable against the Company in a proceeding under Federal or state
bankruptcy laws and (e) trade accounts payable.
"Stated Maturity," when used with respect to any Security or any
installment of interest thereon, shall mean the date specified in such Security
as the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" of any Person shall mean (i) any Person of which more than 50%
of the total voting power of shares of Capital Stock entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more of the Restricted Subsidiaries of that
Person or a combination thereof, and (ii) any partnership, joint venture or
other Person in which such Person or one or more of the Restricted Subsidiaries
of that Person or a combination thereof has the power to control by contract or
otherwise the board of directors or equivalent governing body or otherwise
controls such entity.
"TIA" or "Trust Indenture Act" shall mean the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of this Indenture,
except as provided in Sections 9.1 and 9.3 hereof.
"Transfer Agent" shall mean any Person, which may be the Company,
authorized by the Company to exchange or register the transfer of Securities.
"Trustee" shall mean the party named as such in this Indenture unless a
successor replaces it pursuant to the provisions hereunder, and thereafter shall
mean such successor.
"Unrestricted Subsidiary" shall mean (i) any Subsidiary of the Company that
at the time of determination shall be designated
-10-
<PAGE>
an Unrestricted Subsidiary by the Board of Directors in the manner provided
below and (ii) any Subsidiary of an Unrestricted Subsidiary. The Board of
Directors may designate any Subsidiary of the Company (including any
newly-acquired or newly-formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary owns any capital stock of, or owns or holds any property
of, the Company or any other Subsidiary of the Company that is not a Subsidiary
of the Subsidiary so designated; provided, however, that the Subsidiary to be so
designated has total assets of $5,000 or less. Any such designation by the
Board of Directors shall be evidenced to the Trustee by promptly filing with the
Trustee a copy of the Board Resolutions giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing provisions.
"U.S. Government Obligations" shall mean securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as full faith and
credit obligation by the United States of America, that, in either case, are not
callable or redeemable at the option of the issuer thereof and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligations or a specific payment of
interest on or principal of any such U.S. Government Obligations held by such
custodian for the account of the holder of a depository receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt for
any amount received by the custodian in respect of the U.S. Government
Obligations or the specific payment of interest on or principal of the U.S.
Government Obligations evidenced by such depository receipt.
"Yield to Maturity" means the yield to maturity on a series of Securities
at the most recent redetermination of interest on such series, and calculated in
accordance with accepted financial practice.
-11-
<PAGE>
Section 1.2. OTHER DEFINITIONS.
Defined in
TERM Section
- ---- ----------
"Conversion Price"................................ 12.4
"covenant defeasance option"...................... 8.1
"Date of Conversion".............................. 12.2
"Events of Default"............................... 6.1
"Last Sale Price"................................. 12.3
"legal defeasance option"......................... 8.1
"mandatory sinking fund payment".................. 11.1
"optional sinking fund payment"................... 11.1
"Paying Agent".................................... 2.3
"Rights".......................................... 12.1
"Registrar"....................................... 2.3
"Sale/Leaseback Transaction"...................... 4.8
"Securities Custodian"............................ 2.3
"Surviving Entity"................................ 5.1
"Trading Day"..................................... 12.3
Section 1.3. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Security-holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Securities means the Company, any other obligor upon the
Securities or any successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by Commission rule under the TIA
have the meanings so assigned to them.
-12-
<PAGE>
In addition, for purposes of Sections 311(b)(4) and 311(b)(6) of the TIA,
the following terms shall have the following meanings:
"cash transaction" means any transaction in which full payment for goods or
securities sold is made within seven days after delivery of the goods or
securities in currency or in checks or other orders drawn upon banks' or
bankers' acceptances and payable upon demand.
"self-liquidating paper" means any draft, bill of exchange, acceptance or
obligation which is made, drawn, negotiated or incurred by the Company for
the purpose of financing the purchase, processing, manufacture, shipment,
storage or sale of goods, wares or merchandise and which is secured by
documents evidencing title to, possession of or a lien upon, the goods,
wares or merchandise or the receivables or proceeds arising from the sale
of the goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with the
creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
Section 1.4. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural and words in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
-13-
<PAGE>
ARTICLE II
THE SECURITIES
Section 2.1. TERMS AND FORMS.
The aggregate principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued in
one or more series of Securities, and the Securities of each such series of
Securities shall rank equally and pari passu with the Securities of each other
series of Securities, but all Securities issued hereunder shall be subordinate
and junior in right of payment, to the extent and in the manner set forth in
Article XIII, to all Senior Indebtedness. The Securities shall bear the title,
a interest, if any, at the rates and from the dates, shall mature at the times,
may be redeemable at the prices and upon the terms, shall be denominated and
payable at the place or places and in the currency or currencies (which may be
other than United States dollars), including composite currencies, and shall
contain or be subject to such other terms as shall be approved by or pursuant
to a Board Resolution of the Company or in one or more supplements to this
Indenture.
The Securities of each series hereunder shall be in one or more forms
approved from time to time by or pursuant to a Board Resolution of the Company
or in one or more supplements to this Indenture establishing the following:
(1) the title or designation of the Securities and the series in which
such Securities shall be included (which, unless such Securities
constitute part of a series of Securities previously issued, shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
such title or the Securities of such series which may be authenticated
and delivered under this Indenture (except for Securities
authenticated and delivered upon registration or transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant
to Sections 2.5, 2.6, 2.9 or 3.7);
(3) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both; any
restrictions applicable to the offer, sale or delivery of Bearer
Securities and the terms upon which Bearer Securities of the series
-14-
<PAGE>
may be exchanged for Registered Securities of the series; and whether
any Securities of the series are to be issuable initially in global
form and, if so, (i) whether beneficial owners of interests in any
such global Security may exchange such interest for Securities of such
series and of like tenor of any authorized form and denomination and
the circumstances under which any such exchanges may occur, if other
than in the manner specified in Section 2.9 and (ii) the name of the
Depository or the U.S. Depository, as the case may be, with respect to
any global Security;
(4) the date as of which any Bearer Securities of the series and any
temporary global Security representing outstanding Securities of the
series shall be dated if other than the date of original issuance of
the first Security of the series to be issued;
(5) if Securities of the series are to be issuable as Bearer Securities,
whether interest in respect of any portion of a temporary Bearer
Security in global form (representing all of the outstanding Bearer
Securities of the series) payable in respect of any date or dates
prior to the exchange of such temporary Bearer Security for definitive
Securities of the series shall be paid to any clearing organization
with respect to the portion of such temporary Bearer Security held for
its account and, in such event, the terms and conditions (including
any certification requirements) upon which any such interest payment
received by a clearing organization will be credited to the Persons
entitled to interest payable on such date or dates;
(6) the date or dates on which the principal of such Securities is
payable;
(7) the rate or rates at which such Securities shall bear interest, if
any, or the method in which such rate or rates are determined, the
date or dates from which such interest shall accrue, the dates on
which such interest shall be payable and the record date for Holders
entitled to the interest payable on Registered Securities on any such
date, whether and under what circumstances Additional Amounts on such
Securities shall be payable and, if so, whether the Company has the
option to redeem the affected Securities rather than pay such
Additional Amounts, and the basis upon which interest shall be
calculated if other than as otherwise provided in this Indenture;
-15-
<PAGE>
(8) the place or places, if any, in addition to or other than
______________ or the City of Chicago, Illinois, where the principal
of and interest on or Additional Amounts, if any, payable in respect
of such Securities shall be payable;
(9) the period or periods within which, the price or prices at which and
the terms and conditions upon which such Securities may be redeemed,
in whole or in part, at the option of the Company;
(10) the obligation, if any, of the Company to redeem or purchase such
Securities pursuant to a sinking fund, at the option of a Holder
thereof or otherwise and the period or periods within which, the price
or prices at which and the terms and conditions upon which such
Securities shall be redeemed or purchased in whole or in part,
pursuant to such obligation, and any provisions for the remarketing of
such Securities;
(11) the denominations in which Registered Securities of the series,
if any, shall be issuable, and the denominations in which Bearer
Securities of the series, if any, shall be issuable, in either
case if other than as otherwise provided in this Indenture;
(12) if other than the principal amount thereof, the portion of the
principal amount of such Securities which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to
Section 6.2;
(13) if other than such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public or
private debts, the coin or currency, including composite currencies,
in which payment of the principal of or interest, if any, and any
Additional Amounts in respect of such Securities shall be payable and
whether the Securities of the series may be discharged other than as
provided in Article VIII;
(14) if the principal of or interest, if any, and any Additional Amounts in
respect of such Securities are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency, including
composite currencies, other than that in which the Securities are
stated to be payable, the
-16-
<PAGE>
period or periods within which, and the terms and conditions upon
which, such election may be made;
(15) if the amount of payments of principal of or interest, if any, or any
Additional Amounts in respect of such Securities may be determined
with reference to an index, formula or other method based on a coin or
currency other than that in which the Securities are stated to be
payable, the manner in which such amounts shall be determined;
(16) if the Securities of such series are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and terms
of such certificates, documents or conditions;
(17) any terms which may be related to warrants issued by the Company in
connection with, or for the purchase of, Securities of such series,
including whether and under what circumstances the Securities of any
series may be used toward the exercise price of any such warrants;
(18) whether the Securities of the series are to be convertible into shares
of common stock or other securities of the Company, and the conversion
price, conversion period and any conversion provisions other than as
provided in Article XII;
(19) any other events of default or covenants with respect to Securities of
such series; and
(20) any other terms of such Securities (which terms shall not be
inconsistent with the provisions of this Indenture).
If the form of the Security of any series is approved by or pursuant to a
Board Resolution, an Officers' Certificate delivered to the Trustee shall state
that all conditions precedent relating to the authentication and delivery of
such Security have been complied with and shall be accompanied by a copy of the
Board Resolution by or pursuant to which the form of such Security has been
approved. The Securities may have notations, legends or endorsements required
by law, stock exchange rule, agreements to which the Company is subject or usage
(provided that any such notation, legend or endorsement is
-17-
<PAGE>
in a form acceptable to the Company and the Trustee). Each Security shall be
dated the date of its authentication. Each Security may contain any other terms
as are not inconsistent with the provisions of this Indenture.
All Securities of any one series and coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except as to
denomination and the rate or rates of interest, if any, the time or times at
which the principal thereof may be payable, the date from which interest, if
any, shall accrue and except as may otherwise be provided in or pursuant to such
Board Resolution and set forth in the Officers' Certificate hereinabove
described 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 or
to establish additional terms of such series of Securities.
The Securities of each series may be issued as Registered Securities
without coupons or, if provided by the terms of the instrument establishing such
series of Securities, as Bearer Securities, with or without coupons and, in
either case, may be issued initially, temporarily or permanently in global form
(as provided in Section 2.10). Unless the form of a Security for a series
provides otherwise, the Registered Securities shall be issued in denominations
of $1,000 or integral multiples thereof and Bearer Securities shall be issuable
in the denomination of $5,000.
Except as otherwise specified as contemplated by this Section 2.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 2.2. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Securities and the coupons for the Company by
manual or facsimile signature. The Company's seal may be reproduced on the
Securities, but the Company's seal shall not be required to be included on the
Securities. Coupons shall bear the facsimile signatures of two Officers of the
Company.
If an Officer whose signature is on a Security or coupon no longer holds
that office at the time the Security is authenticated by the Trustee, the
Security and coupon shall nevertheless be valid.
-18-
<PAGE>
The aggregate principal amount of Securities outstanding hereunder at any
time shall be unlimited except that such outstanding amount (exclusive of any
premium) may not exceed the amount authorized from time to time by the Board of
Directors of the Company and except as provided in Section 2.6. Upon receipt of
a Company Order for the authentication and delivery of Securities of a series,
the Trustee shall authenticate and deliver for original issue Securities of a
series as to which an Officers' Certificate of the Company or a supplemental
indenture has been delivered to the Trustee pursuant to Section 2.1.
No Security or any coupon appertaining thereto shall be valid until the
Trustee or the authenticating agent referred to below manually signs the
certificate of authentication on the Security. Each Registered Security shall
be dated the date of its authentication. Bearer Securities and any temporary
Bearer Security in global form shall be dated as specified in the Officers'
Certificate of the Company or in the supplements to this Indenture contemplated
by Section 2.1. The signature of the Trustee or the authenticating agent
referred to below shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee may appoint an authenticating agent reasonably acceptable to
the Company to authenticate the Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate.
Except as permitted by Section 2.6, the Trustee shall not authenticate and
deliver any Bearer Security unless all appurtenant coupons for interest then
matured have been detached and cancelled.
The Trustee's authentication shall be in the following form:
This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.
--------------------------------,
as Trustee
-19-
<PAGE>
By
------------------------------
Authorized Officer
If the forms and terms of the Securities of the series and any related
coupons have been established in or pursuant to one or more Officers'
Certificates as permitted by Section 2.1 and 2.2, in authenticating such
Securities and accepting the additional responsibilities under this Indenture
relating to such Securities the Trustee shall be entitled to receive, and
(subject to Section 7.1) shall be fully protected in relying upon an Opinion of
Counsel to the effect that:
(a) the form and terms of such Securities and coupons, if any, have been
duly authorized and established pursuant to Sections 2.1 and 2.2 and comply with
this Indenture, and
(b) such Securities, when authenticated and delivered by the Trustee and
issued by the Company, and such coupons, if any, when issued by the Company, in
the manner and subject to any conditions specified in such Opinion of Counsel
will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to customary exceptions,
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the Opinion of Counsel above may state:
(x) that the forms of such Securities have been, and the terms of such
Securities (when established in accordance with such procedures as may be
specified from time to time in a Company Order, all as contemplated by and in
accordance with a Board Resolution or any Officers' Certificate pursuant to
Section 2.1, as the case may be) will have been, duly authorized by the Company
and established in conformity with the provisions of this Indenture; and
(y) that such Securities, together with the coupons, if any, appertaining
thereto, when (1) executed by the Company, (2) completed, authenticated and
delivered by the Trustee in accordance with this Indenture, and (3) issued by
the Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to customary
exceptions.
With respect to Securities of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the
-20-
<PAGE>
authorization by the Company of any of such Securities, the form and terms
thereof and the legality, validity, binding effect and enforceability thereof,
upon the Opinion of Counsel and other documents delivered pursuant to Section
2.1 and this Section 2.2, as applicable, at or prior to the time of the first
authentication of Securities of such series unless and until it has received
written notification that such opinion or other documents have been superseded
or revoked. In connection with the authentication and delivery of Securities of
a series subject to a Periodic Offering, the Trustee shall be entitled to assume
that the Company's instructions to authenticate and deliver such Securities do
not violate any rules, regulations or orders of any governmental agency or
commission having jurisdiction over the Company.
Section 2.3. REGISTRAR, PAYING AGENT, CONVERSION AGENT, DEPOSITORY AND
SECURITIES CUSTODIAN.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange (the "Registrar"), an
office or agency including the office or agency maintained by the Company
pursuant to Section 4.2 where Securities may be presented for payment (the
"Paying Agent") and, if applicable, an office or agency where the Securities may
be presented for conversion (the "Conversion Agent"). The Registrar shall keep
a register of the Securities and of their transfer and exchange. The Company
may appoint one or more co-registrars and one or more additional paying agents
or conversion agents. The term "Paying Agent" includes any additional paying
agent, and the term "Conversion Agent" includes any additional conversion agent.
The Company shall maintain a custodian ("Securities a Custodian") with respect
to global Securities for so long as global Securities remain outstanding.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent, Depository, Securities Custodian or
co-registrar not a party to this Indenture, which agreement shall implement the
provisions of this Indenture that relate to such agent and incorporate the terms
of the TIA. The Company shall notify the Trustee of the name and address of any
such agent. If the Company fails to maintain a Registrar, Paying Agent,
Conversion Agent, if applicable, or Securities Custodian, if applicable, the
Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 7.7. The Company or any of its Subsidiaries may act
as Paying Agent, Conversion Agent, Registrar, co-registrar or Transfer Agent.
-21-
<PAGE>
The Company initially appoints the Trustee as Registrar and Paying Agent in
connection with the Securities and the Trustee accepts such appointment.
Section 2.4. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least seven Business Days before each interest payment date
(and in all events at intervals of not more than six months) and at such other
times as the Trustee may request in writing a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Securityholders. The Company and the Trustee shall otherwise comply with TIA
Section 312(a).
Section 2.5. TRANSFER, REGISTRATION AND EXCHANGE.
When a Registered Security is presented at an office or agency maintained
for that series pursuant to Section 4.2 in proper form for registration of
transfer with a request to register a transfer, the Registrar or co-registrar at
that office shall register the transfer as requested.
At the option of the Securityholder, Registered Securities of any series
may be exchanged upon surrender to the Registrar or a co-registrar for
Registered Securities of the same series of like aggregate principal amount,
stated maturity and tenor and of other authorized denominations upon surrender
at any office or agency maintained for that series pursuant to Section 4.2.
If so provided with respect to Securities of a series, at the option of the
Holder, Bearer Securities of any such series may be exchanged for Registered
Securities of the same series containing identical terms and provisions, of any
authorized denominations and aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any office or agency maintained for that
series pursuant to Section 4.2, with all unmatured coupons and all matured
coupons in default thereto appertaining. If the Holder of a Bearer Security is
unable to produce any such unmatured coupon or coupons or matured coupon or
coupons in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company and the Trustee in an
amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustee if
-22-
<PAGE>
there is furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent for that series harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent for that series
any such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment; provided,
however, that except as otherwise provided in Section 4.2, interest represented
by coupons shall be payable only upon presentation and surrender of those
coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency maintained for that series pursuant to
Section 4.2 in exchange for a Registered Security of the same series and like
tenor after the close of business at such office or agency on any record date
for the payment of interest and any Additional Amounts thereon and before the
opening of business at such office or agency on the relevant payment date
therefor, such Bearer Security shall be surrendered without the coupon relating
to such payment date or proposed date of payment, as the case may be (or if such
coupon is so surrendered with such Bearer Security, such coupon shall be
returned to the person so surrendering the Bearer Security), and interest will
not be payable on such payment date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Registrar or co-registrar)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar duly executed by the Holder
thereof or his attorney duly authorized in writing. To permit transfers and
exchanges, the Company shall execute and the Trustee shall authenticate
Securities at the Registrar's or co-registrar's request.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 2.1, any global Security shall be exchangeable only if
(i) the Depository or U.S. Depository, as applicable, is at any time unwilling,
unable or ineligible to continue as Securities Depository and a successor
Depository, or U.S. Depository as applicable, is not appointed by the Company
within 90 days of the date the Company is so informed in writing, (ii) the
Company executes and delivers to the Trustee a Company Order to the effect that
such global Security shall be so exchangeable, or (iii) an Event of Default has
occurred and is continuing with respect to the Securities. If the beneficial
-23-
<PAGE>
owners of interests in a global Security are entitled to exchange such interests
for Securities of such series and of like tenor and a principal amount of any
authorized form and denomination, as specified as contemplated by Section 2.1,
then without unnecessary delay but in any event not later than the earliest date
on which such interests may be so exchanged, the Company shall deliver to the
Trustee definitive Securities of that series in aggregate principal amount equal
to the principal amount of such global Security, executed by the Company. On or
after the earliest date on which such interests may be so exchanged, such global
Securities shall be surrendered from time to time by the U.S. Depository or such
other Depository as shall be specified in the Company Order with respect
thereto, and in accordance with instructions given to the Trustee and the U.S.
Depository or such other Depository, as the case may be, which instructions
shall be in writing but need not be accompanied by an Officers' Certificate of
the Company or an Opinion of Counsel, as shall be specified in the Company Order
with respect thereto to the Trustee, as the Company's agent for such purpose, to
be exchanged, in whole or in part, for definitive Securities of the same series
without charge. The Trustee shall authenticate and make available for delivery,
in exchange for each portion of such surrendered global Security, a like
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such global
Security to be exchanged which shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof (unless the Securities of the series are not issuable
both as Bearer Securities and as Registered Securities, in which case the
definitive Securities exchanged for the global Security shall be issuable only
in the form in which the Securities are issuable, as specified as contemplated
by Section 2.1); provided, however, that no such exchanges may occur (a) for a
period of 15 days next preceding the 15th day of any selection of Securities of
that series to be redeemed; pursuant to Section 3.3, or to exchange any
Securities of a series selected, called or being called for redemption in whole
or in part except in the case of any Security to be redeemed in part, the
portion thereof not so to be redeemed; and provided, further, that (unless
otherwise specified as contemplated by Section 2.1) no Bearer Security delivered
in exchange for a portion of a global Security shall be mailed or otherwise
delivered to any location in the United States. Promptly following any such
exchange in part, such global Security shall be returned by the Trustee to the
U.S. Depository or such other Depository referred to above in accordance with
the instructions of the Company referred to above. If a Registered Security is
issued in exchange for any portion of a global Security after the close of
business at the office or agency
-24-
<PAGE>
where such exchange occurs on any record date for the payment of interest or any
Additional Amounts thereon, and before the opening of business at such office or
agency on the relevant payment date therefor, interest and any Additional
Amounts in respect of such Registered Security will not be payable on such
payment date, but will be payable on such payment date only to the Person to
whom interest or any Additional Amounts in respect of such portion of such
global Security is payable in accordance with the provisions of this Indenture.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 2.9 or 9.5 not involving any transfer.
The Company shall not be required (a) to issue, register the transfer of,
or exchange any Securities of any series for a period of 15 days next preceding
the day of any selection of Securities of such series to be redeemed pursuant to
Section 3.3, or (b) to register the transfer of or exchange any Securities of
any series selected, called or being called for redemption in whole or in part
except, in the case of any Registered Security to be redeemed in part, the
portion thereof not so to be redeemed or (c) to exchange any Bearer Security so
selected for redemption except, to the extent provided with respect to
Securities of a series, that such a Bearer Security may be exchanged for a
Registered Security of that series, provided that such Registered Security shall
be immediately surrendered for redemption with written instruction for payment
consistent with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
endorsed thereon surrendered upon such registration of transfer or exchange.
Section 2.6. REPLACEMENT SECURITIES.
If the Holder of a mutilated or defaced Security or a Security with a
mutilated or defaced coupon appertaining to it surrenders such Security to the
Trustee or if the Holder of a Security presents evidence to the satisfaction of
the Company and the Trustee of the destruction, loss or theft of the Security or
the destruction, loss or theft of a coupon and surrenders the
-25-
<PAGE>
Security to which such coupon appertains with all appurtenant coupons not so
lost, stolen or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security of the same series and of like tenor, with
coupons corresponding to the coupons, if any, appertaining to the surrendered
Security, if the requirements set forth in the next succeeding paragraph are
met. If required by the Trustee or the Company, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Trustee and the
Company to protect the Company, the Trustee, any Agent or any authenticating
agent from any loss which any of them may suffer if a Security is replaced.
Upon the issuance of any substitute Security, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith. 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
Company 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); provided, however, that the
applicant for such payment shall furnish to the Company and to the Trustee and
any agent of the Company 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 also furnish to the Company and
the Trustee and any agent of the Company or the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Security or coupon and of
the ownership thereof.
Every substitute Security of any series, with coupons, if any, issued
pursuant to the provisions of this Section 2.6 by virtue of the fact that any
Security is destroyed, lost or stolen or that a coupon appertaining to it is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Company, 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
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by the law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute
-26-
<PAGE>
existing or hereafter enacted to the contrary with respect to the replacement or
payment of negotiable instruments or other securities without their surrender.
Section 2.7. OUTSTANDING SECURITIES.
The Securities of any series outstanding at any time are all the Securities
of such series authenticated and delivered by the Trustee except for those
cancelled by it, those delivered to it for cancellation, those described in this
Section as not outstanding and in the case of any global Securities, the
principal amount by which such global Securities have been reduced by the
Trustee or the Securities custodian in accordance with this Indenture.
If any Security is replaced or paid pursuant to Section 2.6, it ceases to
be outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under Section
4.1 or 8.1, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent segregates and holds in trust, in accordance with this
Indenture, on a Redemption Date or maturity date money sufficient to pay all
principal and interest payable on that date with respect to the Securities of a
particular series (or portions thereof) to be redeemed or maturing, as the case
may be (and in the case of any Security which is to be redeemed prior to the
Maturity thereof, notice of such redemption has been duly given or provision
satisfactory to the Trustee has been made for giving such notice), and the
Paying Agent is not prohibited from paying such money to Security-holders on
that date pursuant to the terms of this Indenture, then on and after that date
such Securities of that series (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
If any Security is cancelled by the Trustee or delivered to the Trustee for
cancellation, it ceases to be outstanding and interest on it ceases to accrue.
A Security of any series does not cease to be outstanding because the
Company or an Affiliate holds such Security, except as otherwise provided in
Section 2.8 hereof.
In determining whether the Holders of the requisite principal amount of
outstanding Securities of any or all series
-27-
<PAGE>
have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, (i) the principal amount of an Original Issue Discount
Security that shall be deemed to be outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 6.1 and (ii) the principal amount of a Security denominated
in a foreign currency or currencies, of the principal amount (or, in the case of
an Original Issue Discount Security, the United States dollar equivalent,
determined pursuant to Section 14.15, of such Security of the amount determined
as provided in (i) above) of such Security.
Section 2.8. TREASURY SECURITIES.
In determining whether the Holders of the required principal amount of
Securities (in the aggregate or with respect to a particular series, in each
case only as expressly provided herein) have concurred in any direction, waiver
or consent, any Securities owned by the Company or an Affiliate shall be
disregarded (including for purposes of determining the outstanding principal
amount of Securities or any series of Securities) except that for the purposes
of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee knows are so
owned shall be so disregarded.
Section 2.9. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities upon receipt of the
written order of the Company signed by two Officers. Temporary Securities and,
if Bearer Securities, temporary coupons shall be substantially in the form of
definitive Securities and, if Bearer Securities, definitive coupons, but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee, upon
receipt of the written order of the Company signed by two Officers, shall
authenticate definitive Securities in exchange for temporary Securities. Until
such exchange, temporary Securities shall be entitled to the same rights,
benefits and privileges as definitive Securities.
-28-
<PAGE>
Section 2.10. SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable in a global form, any such 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 Security in global
form to reflect the amount, or any increase or decrease in the amount or changes
in the rights of Holders, of outstanding Securities represented thereby shall be
made in such manner and by such Person or Persons as shall be specified therein.
Section 2.11. CANCELLATION.
The Company at any time may deliver Securities or coupons to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of transfer,
exchange or payment and any coupons surrendered for payment. The Trustee shall
cancel all Securities surrendered for registration of transfer, exchange,
payment, replacement or cancellation and all coupons surrendered for payment and
shall destroy cancelled Securities in accordance with the usual destruction
procedures of the Trustee and deliver evidence of such destruction to the
Company, unless the Company directs the Trustee to return such cancelled
Securities to the Company by written order signed by two Officers. The Company
may not issue new Securities to replace Securities that it has redeemed or paid
or that have been delivered to the Trustee for cancellation.
Section 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest or any Additional Amounts
on any series of Registered Securities, and so long as the Trustee deems the
following procedure practicable, the Company shall pay the defaulted interest
and any Additional Amounts to Persons who are Holders of Registered Securities
of such series on a subsequent special record date in the following manner. The
Company shall fix the special record date (which shall be at least five days
before the payment date) for the payment of such defaulted interest and any
Additional Amounts on such Securities and the payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or the
Trustee) shall mail each Holder of Registered Securities a notice that states
the special record date, the payment date and the amount of defaulted interest
and any Additional Amounts to be
-29-
<PAGE>
paid, provided the Company has made arrangements satisfactory to the Trustee for
payment of the aggregate amount to be paid on such payment date. On such
payment date the Trustee shall pay out of funds provided by the Company such
defaulted interest and any Additional Amounts. In case a Bearer Security of any
series is surrendered at the office or agency of the Company maintained pursuant
to Section 4.2 in a Place of Payment for such series in exchange for a
Registered Security of such series after the close of business at such office or
agency on any special record date and before the opening of business at such
office or agency on the related proposed date for payment of defaulted interest
and any Additional Amounts, such Bearer Security shall be surrendered without
the coupon relating to such proposed date of payment and defaulted interest and
any Additional Amounts will not be payable on such proposed date of payment in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon on or after such payment
date in accordance with the provisions of this Indenture. The Company may pay
defaulted interest and any Additional Amounts in any other lawful manner.
Section 2.13. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any Agent may deem and treat the Person
in whose name any Security shall be registered upon the register of Securities
kept by the Registrar as the absolute owner of such Registered Security (whether
or not such Security shall be overdue and notwithstanding any notation of the
ownership or other writing thereon made by anyone other than the Company, any
Registrar or co-registrar) for the purpose of receiving payments of principal
of, interest on or any Additional Amounts payable with respect to such
Registered Security and for all other purposes whatsoever and neither the
Company, the Trustee nor any Agent shall be affected by any notice to the
contrary.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Security or coupon for the purpose of a receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Security or coupon shall be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
-30-
<PAGE>
ARTICLE III
REDEMPTION
Section 3.1. APPLICABILITY OF ARTICLE.
This Article shall apply to the Securities of each series, if any, that by
their terms are subject to redemption at the option of the Company or pursuant
to the operation of a sinking fund or otherwise are required to be redeemed
pursuant to the terms of the Securities. If the terms of any Security shall
conflict with any provision of this Article III, the terms of such Security
shall govern.
Section 3.2. NOTICES TO TRUSTEE.
If the Company elects to redeem Securities pursuant to the optional
redemption provisions of Section 3.8, it shall furnish to the Trustee an
Officers' Certificate setting forth the paragraph of the Securities of the
applicable series pursuant to which the redemption shall occur, the Redemption
Date, the principal amount of Securities to be redeemed and the Redemption
Price.
If Securities of any series by their terms are redeemable pursuant to the
operation of a sinking fund or pursuant to another mandatory redemption
provision of the Securities, the Company shall notify the Trustee by an
Officers' Certificate of the amount of the next sinking fund payment or amount
required to satisfy such mandatory redemption payment and the portion of such
payment which is to be satisfied by delivering and crediting Securities of the
same series pursuant to Section 3.6.
If the Company elects to reduce pursuant to the terms of such Securities
the principal amount of Securities to be redeemed, it shall notify the Trustee
by Officers' Certificate of the amount of the reduction and the basis for it.
If the Company elects to credit against any such redemption Securities of the
same series it has not previously delivered to the Trustee for cancellation, it
shall deliver the Securities with such Officers' Certificate.
The Company shall give each notice or Officers' Certificate provided for in
this Section at least 45 days (unless a shorter period shall be satisfactory to
the Trustee or a longer period required by Section 3.4) but not more than 60
days before the applicable Redemption Date.
-31-
<PAGE>
If the Registrar is not the Trustee, the Company shall, concurrently with
each notice of redemption or repurchase, cause the Registrar to deliver to the
Trustee a certificate (upon which the Trustee may rely) setting forth the
principal amounts of Securities held by each Holder.
Section 3.3. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities of a series are to be redeemed, the
Trustee shall select the Securities to be redeemed on a pro rata basis, by lot
or by such method as the Trustee shall deem fair and appropriate. In the event
of partial redemption by lot, the particular Securities of a series to be
redeemed shall be selected, unless otherwise provided herein, not less than 30
nor more than 60 days prior to the Redemption Date by the Trustee from the
outstanding Securities not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed. Securities and portions
of Securities selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Securities of a Holder are to be redeemed, the
entire outstanding amount of Securities held by such Holder, even if not a
multiple or $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
Section 3.4. NOTICE OF REDEMPTION.
The Company shall give notice of a redemption at least 30 days but not more
than 60 days before the Redemption Date, with respect to Registered Securities,
by mailing a notice of redemption to each Holder of Registered Securities of
such series to be redeemed at such Holder's address as it appears on the
Securities register maintained by the Registrar and, with respect to Bearer
Securities, by publishing in an Authorized Newspaper notice of such redemption
on two separate days.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
-32-
<PAGE>
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(5) the paragraph of the Securities pursuant to which the Securities
called for redemption are being redeemed;
(6) that, unless the Company defaults in making the redemption payment,
interest on Securities called for redemption ceases to accrue on and after the
Redemption Date and the only remaining right of the Holders of such Securities
is to receive payment of the Redemption Price upon surrender to the Paying
Agent of the Securities to be redeemed;
(7) if any Security is to be redeemed in part, the portion of the
principal amount (equal to $1,000 or any integral multiple thereof) of such
Security to be redeemed and that, on or after the Redemption Date, upon
surrender of such Security, a new Security or Securities of the same series in
aggregate principal amount equal to the unredeemed portion thereof will be
issued without charge to the Securityholder;
(8) if less than all of the Securities of a series are to be redeemed, the
identification of the particular Securities of such series (or portion thereof)
to be redeemed, as well as the aggregate principal amount of Securities of such
series to be redeemed and the aggregate principal amount of Securities of such
series estimated to be outstanding after such partial redemption; and
(9) the CUSIP number, if any.
At the Company's request, the Trustee shall give the notice of redemption
in the name and at the expense of the Company. In such event, the Company shall
provide the Trustee with the information required by this Section and shall
provide notice of such redemption to the Trustee at least 45 days prior to the
Redemption Date (unless a shorter period shall be satisfactory to the Trustee).
If such notice is given by the Company, the Company shall provide a copy of such
notice given to the Holders to the Trustee and any Paying Agent at least 2 days
prior to the date such notice is given to such Holders, but in any event at
least 15 days prior to the Redemption Date (unless a shorter period shall be
satisfactory to the Trustee).
-33-
<PAGE>
Section 3.5. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Securities of the series called for
redemption become due and payable on the Redemption Date at the Redemption
Price. Upon surrender to any Paying Agent, such Securities shall be paid at the
Redemption Price, plus accrued interest to the Redemption Date and any
Additional Amounts with respect thereto; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable, in the case of Bearer Securities, to bearers of the coupons for such
interest and Additional Amounts upon surrender thereof and, in the case of
Registered Securities, to the Holders of such series of Securities, registered
as such, at the close of business on the relevant record date for the payment of
such installment of interest and Additional Amounts.
Notice of redemption shall be deemed to be given when mailed or published,
as the case may be, whether or not the Holder receives the notice. In any
event, failure to give such notice, or any defect therein, shall not affect the
validity of the proceedings for the redemption of the Securities.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of each missing coupon or
coupons may be waived by the Company and the Trustee if there shall be furnished
to them such security or indemnity as they may require to save each of them and
any Paying Agent for such Security harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent for such Security
any such missing coupon in respect of which a deduction shall have been made
from the Redemption Price, such Holder shall be entitled to receive the amount
so deducted; provided, however, that interest (and any Additional Amounts)
represented by coupons shall be payable only upon presentation and surrender of
these coupons at an office or agency located outside of the United States except
as otherwise provided in Section 4.2.
Section 3.6. DEPOSIT OF REDEMPTION PRICE.
At least one Business Day prior to the Redemption Date, the Company shall
irrevocably deposit with the Trustee or with the Paying Agent (or if the Company
or a Subsidiary of the Company is acting as the Paying Agent, set aside,
segregate and hold in trust, as provided herein) in immediately available funds
money
-34-
<PAGE>
sufficient to pay the Redemption Price of and accrued and unpaid interest on all
Securities to be redeemed on that date.
If the Company complies with the preceding paragraph, interest on the
Securities to be redeemed will cease to accrue on the applicable Redemption
Date, whether or not such Securities are presented for payment. If any Security
called for redemption shall not be so paid upon surrender for redemption because
of the failure of the Company to comply with the preceding paragraph, interest
will be paid on the unpaid principal, from the Redemption Date until such
principal is paid, and, to the extent lawful, on any interest not paid on such
unpaid principal, in each case at the rate provided in the Securities for the
applicable series.
If any Security by its terms permits any sinking fund payment obligation to
be satisfied by delivering and crediting Securities, the Company shall deliver
such Securities to the Trustee for crediting against such payment obligation in
accordance with the terms of such Securities and this Indenture.
Section 3.7. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder at the expense of the
Company a new Security of the same series equal in principal amount to the
unredeemed portion of the Security surrendered.
If a Security in global form is surrendered upon redemption in part, the
Company shall execute, and the Trustee shall authenticate and deliver to the
U.S. Depository or other Depository for such Security in global form as shall be
specified in the Company Order to the Trustee with respect thereto, without
service charge, a new Security in global form in a denomination equal to and in
exchange for the unredeemed portion of the principal of the Security in global
form so surrendered.
ARTICLE IV
COVENANTS
Subject to the provisions of Section 8.1, so long as Securities are
outstanding hereunder, the Company covenants for the benefit of the
Securityholders that:
-35-
<PAGE>
Section 4.1. PAYMENT OF SECURITIES.
The Company will punctually pay the principal of, interest and Additional
Amounts, if any, on the Securities on the dates and in the manner provided in
the Securities, any coupons appertaining thereto and this Indenture. Principal,
interest and any Additional Amounts shall be considered paid on the date due if
the Paying Agent (other than the Company or any of its Subsidiaries) holds on
that date money sufficient to pay all principal, interest and any Additional
Amounts then due.
Any interest due on and any Additional Amounts payable in respect of Bearer
Securities on or before their maturity, in respect of the principal of such a
Security, 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 Company shall pay interest on overdue principal and, to the extent
lawful, interest on overdue installments of interest or Additional Amounts, if
any, at the rate borne by such Securities.
In case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency in a Place of Payment for such series) on any record date established to
determine the Person to whom interest or any Additional Amounts are payable on
the next following interest payment date therefor and before the opening of
business (at such office or agency) on such interest payment date, such Bearer
Security shall be surrendered without the coupon relating to such interest
payment date, and interest will not be payable on such interest payment date in
respect of the Registered Security issued in exchange of such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
Section 4.2. MAINTENANCE OF OFFICE OR AGENCY FOR NOTICES DEMANDS.
The Company shall maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of that series may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the
-36-
<PAGE>
Company in respect of the Securities of that series and this Indenture may be
served.
If Securities of a series are issuable as Bearer Securities, the Company
shall maintain, subject to any laws or regulations applicable thereto, an office
or agency in a Place of Payment for such series that is located outside the
United States where Securities of such series and the related coupons may be
presented and surrendered for payment (including payment of any Additional
Amounts payable on Securities of such series); provided, however, that if the
Securities of such series are listed on The International Stock Exchange of the
United Kingdom and the Republic of Ireland Limited or the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company will maintain a Paying Agent in
London, Luxembourg or any other city so required located outside the United
States, as the case may be, so long as the Securities of such series are listed
on such exchange. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Bearer Securities of
that series) at the place specified for that purpose pursuant to Section 2.1.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal or interest or Additional Amounts on Bearer Securities shall be made
at any office or agency of the Company in the United States or by check mailed
to any address in the United States or by transfer to an account maintained with
a bank located in the United States; provided, however, payment of principal of
and interest in U.S. dollars (including Additional Amounts payable in respect
thereof) on any Bearer Security may be made at the office of the Paying Agent in
the City of _________, State of __________ if (but only if) payment of the full
amount of such principal, interest or Additional Amounts at all offices outside
the United States maintained for that purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may from time to time designate one or more other offices or
agencies where the Securities of one or more
-37-
<PAGE>
series may be presented or surrendered for any or all such purposes and may from
time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
Section 4.3. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it shall, on or before each due date of the
principal of, or interest or Additional Amounts on, any of the Securities of
that series, segregate and hold in trust for the benefit of the Person entitled
thereto a sum sufficient to pay the principal or interest or Additional Amounts
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and shall promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, on or prior to each due date of the principal of, or
interest or Additional Amounts on, any Securities of that series, deposit with
any Paying Agent a sum sufficient to pay the principal or interest and
Additional Amounts so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, interest or Additional Amounts, and
(unless such Paying Agent is the Trustee) the Company shall promptly notify the
Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of or
interest or any Additional Amounts on Securities of that series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any Default by the Company in the making of
any payment of principal or interest or any Additional Amounts on the
Securities of that series; and
-38-
<PAGE>
(3) at any time during the continuance of any such Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or direct any
Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same terms as
those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Except as otherwise provided in the form of Securities of any particular
series pursuant to the provisions of this Indenture, any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of or interest or any Additional Amounts on any
Security of any series and remaining unclaimed for two years after such
principal or interest has or Additional Amounts have become due and payable
shall be paid to the Company upon receipt of a Company Order to that effect or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security or any coupon appertaining thereto shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment, or to be
mailed to Holders of Registered Securities, or both, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication or mailing nor shall be
later than one year after such principal or interest or Additional Amount has
become due and payable, any unclaimed balance of such money then remaining shall
be repaid to the Company.
Section 4.4. COMMISSION REPORTS; REPORTS TO TRUSTEE; REPORTS TO HOLDERS.
So long as any Security is outstanding, the Company will:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies
-39-
<PAGE>
of the annual reports and of the information, documents and other reports which
the Company may be required to file with the Commission pursuant to Section 13
or Section 15(d) of the Exchange Act (or copies of such portions thereof as may
be prescribed by the Commission by rules and regulations); or, if the Company is
not required to file with the Commission information, documents or reports
pursuant to either Section 13 or Section 15(d) of the Exchange Act, then the
Company will file with the Trustee and mail to the Holders of the Securities, as
the names and addresses of such Holders appear upon the register of Securities,
(i) annual reports containing the information required by the Exchange Act to be
contained in an Annual Report on Form 10-K, (ii) quarterly reports containing
the information required by the Exchange Act to be contained in a Quarterly
Report on Form 10-Q and (iii) promptly after the occurrence of an event required
to be therein reported, such other reports containing information required by
the Exchange Act to be contained in a Current Report on Form 8-K.
(b) file with the Trustee and the Commission, in accordance with the
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants provided for in this Indenture as may
be required by such rules and regulations, including, in the case of annual
reports, if required by such rules and regulations, certificates or opinions of
independent public accountants, conforming to the requirements of Sections 14.4
and 14.5, as to compliance with conditions or covenants, compliance with which
is subject to verification by accountants; and
(c) mail to the Holders of the Registered Securities, as the names
and addresses of such Holders appear upon the register of Securities, in the
manner and to the extent provided in Section 7.6, such additional summaries of
any information, documents and reports required to be filed with the Trustee
pursuant to the provisions of paragraphs (a) and (b) of this Section 4.4 as may
be required to be provided to such Holders by the rules and regulations of the
Commission under the provisions of the TIA.
Section 4.5. COMPLIANCE CERTIFICATES.
Within 60 days after the close of each fiscal quarter of the Company ending
after the date hereof, the Company shall deliver to the Trustee a statement
signed by the Chairman of its Board of Directors, or its Vice Chairman or its
President or any Vice President and by the Treasurer or any Assistant Treasurer
or the
-40-
<PAGE>
Secretary or any Assistant Secretary of the Company (provided that one of such
signatories shall be the Company's principal executive officer, principal
financial officer or principal accounting officer), stating that in the course
of the performance by the signers of their duties as Officers of the Company
they would normally obtain knowledge of any Default by the Company and whether
or not they have obtained knowledge of any such Default, and, if so, specifying
each such Default of which the signers have knowledge and the nature thereof and
what action the Company is taking or proposes to take with respect thereto. The
Company shall also comply with TIA Section 314(a)(4).
Section 4.6. CORPORATE EXISTENCE.
Subject to Article V, the Company will do or cause to be done all things
necessary to and will cause each of its Restricted Subsidiaries to preserve and
keep in full force and effect its corporate existence, material rights (charter
and statutory) and franchises of the Company and each of its Restricted
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such material right or franchise or the corporate existence of any
of its Subsidiaries if (a) the preservation thereof is no longer desirable in
the conduct of the business of the Company or such Subsidiary and (b) the loss
thereof is not disadvantageous in any material respect to the Holders of the
Securities.
Section 4.7. LIMITATION ON LIENS.
Subject to the provisions of Article VIII (to the extent they are
applicable to the Securities of any series) the Company will not, and will not
permit any of its Restricted Subsidiaries to, create, incur or otherwise cause
or suffer to exist or become effective any Liens of any kind upon any Principal
Property or any shares of stock or debt of any Restricted Subsidiary, now owned
or hereafter acquired, that secures any Indebtedness that is pari passu with the
Securities unless all payments due under this Indenture and the Securities are
secured on an equal and ratable basis with the obligation so secured until such
time as such obligation is no longer secured by a Lien, except for Permitted
Liens.
The covenant contained in this Section will be subject to the provision for
exempted indebtedness in Section 4.9.
-41-
<PAGE>
Section 4.8. LIMITATIONS ON SALE AND LEASEBACK TRANSACTIONS.
Subject to the provisions of Article VIII (to the extent they are
applicable to the Securities of any series), the Company will not, nor will it
permit any Restricted Subsidiary to, enter into any arrangement with any Person
providing for the leasing by the Company or any Restricted Subsidiary of any
Principal Property (whether such Principal Property is now owned or hereafter
acquired), except for temporary leases for a term, including any renewal, of not
more than five years and except for leases between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries, which Principal Property has been
or is to be sold or transferred by the Company or such Restricted Subsidiary to
such Person (hereinafter, a "Sale and Lease-Back Transaction"), unless either
(i) the Company or such Restricted Subsidiary would be entitled, in accordance
with the provisions of Section 4.07 (other than provisions with respect to
exempted Indebtedness), to incur Indebtedness secured by a lien on such property
without equally and ratably securing the Securities, or (ii) the Company within
180 days after the effective date of the Sale and Lease-Back Transaction applies
an amount equal to the Value of such transaction to the voluntary retirement of
its Funded Debt. For the purposes of this Article, "Value" shall mean an amount
equal to the greater of the net proceeds of the sale or transfer of the property
leased pursuant to such Sale and Lease-Back Transaction, or the fair value in
the opinion of the Board of Directors of the leased property at the time of
entering into such Sale and Lease-Back Transaction. For the purposes of this
Article, "Funded Debt" shall mean indebtedness (including Securities) maturing
by the terms thereof more than one year after the original creation thereof.
The covenant contained in this Section will be subject to the provision for
exempted indebtedness in Section 4.09.
Section 4.9. EXEMPTED INDEBTEDNESS.
Notwithstanding the provisions contained in Sections 4.7 and 4.8, the
Company and its Restricted Subsidiaries may issue, assume, suffer to exist or
guarantee Indebtedness which would otherwise be subject to the limitation of
Section 4.7, without securing the Securities, or may enter into Sale and
Lease-Back Transactions which would otherwise be subject to the limitation of
Section 4.8, without retiring Funded Debt, or enter into a combination of such
transactions, if the sum of (i) the principal amount of all such Debt incurred
after the date hereof, and which would otherwise be or have been prohibited by
the limitations of Section 4.7 or 4.8 and (ii) the aggregate Value of all such
Sale and Lease-Back Transactions after the date hereof does not at any
-42-
<PAGE>
such time exceed 10% of the consolidated total assets of the Company and its
consolidated Subsidiaries as shown in the audited consolidated balance sheet
contained in the latest annual report to the shareholders of the Company.
Section 4.10. WAIVER OF STAY; EXTENSION OF USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive the Company from paying all or any
portion of the principal of, interest on or any Additional Amounts payable with
respect to the Securities as contemplated herein or in the Securities, wherever
enacted, now or at any time hereafter in force, or that may affect the covenants
or the performance of this Indenture; and (to the extent that it may lawfully do
so) the Company hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE V
SUCCESSORS
Section 5.1. WHEN COMPANY MAY MERGE, ETC.
The Company will not consolidate or merge with or into, or sell, lease,
convey or otherwise dispose of all or substantially all of its assets in one
transaction or a series of related transactions or assign any of its obligations
under this Indenture or the Securities to, any Person unless:
(a) the entity formed by or surviving any such consolidation or merger (if
other than the Company), or to which such sale, lease, conveyance or other
disposition or assignment shall have been made (the "Surviving Entity"), is a
corporation organized and existing under the laws of the United States, any
state thereof or the District of Columbia;
(b) the Surviving Entity assumes by supplemental indenture in a form
satisfactory to the Trustee all of the obligations of the Company under the
Securities and this Indenture; and
-43-
<PAGE>
(c) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing.
The Company shall deliver to the Trustee prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
Section 5.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company or any
assignment of its obligations under this Indenture or the Securities in
accordance with Section 5.1, the Surviving Entity shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation has been
named as the Company herein, and, except in the case of a lease, the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1. EVENTS OF DEFAULT.
"Event of Default" is hereby defined for all purposes of this Indenture and
with respect to any series of Securities (except where the term is otherwise
defined for specific purposes) as any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the Company defaults in the payment of any installment of interest on
or any Additional Amounts payable in respect of any Security of that series when
and as the same shall become due and payable and such failure continues for a
period of 30 days;
(b) the Company defaults in the payment of the principal of any Security
of that series when and as the same shall become due and payable at Stated
Maturity, upon redemption or otherwise;
-44-
<PAGE>
(c) the Company fails to perform or observe any of its other covenants,
conditions or agreements in this Indenture or in the Securities (other than a
covenant, condition or agreement a Default in whose performance or whose breach
is elsewhere in this Section specifically dealt with), and such failure
continues for a period of 90 days after the date on which written notice of such
Default has been given to the Company by the Trustee or to the Company and to
the Trustee by the Holders of not less than 25% of the principal amount of the
Securities of that series then outstanding under this Indenture;
(d) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company or any of its Subsidiaries
in an involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or
order adjudging the Company or any of its Subsidiaries a bankrupt or insolvent,
or approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any of its
Subsidiaries under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any of its Subsidiaries or of any substantial
part of their property, or ordering the winding up or liquidation of their
affairs, and the continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period 90 consecutive days;
or
(e) the commencement by the Company or any of its Subsidiaries of a
voluntary case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by the
Company or any of its Subsidiaries to the entry of a decree or order for relief
in respect of the Company or any of its Subsidiaries in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Company or any of its Subsidiaries, or
the filing by the Company or any of its Subsidiaries of a petition or answer or
consent seeking reorganization or relief under any applicable federal or state
law, or the consent by the Company or any of its Subsidiaries to the filing of
such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of the
Company or any of its Subsidiaries or of any substantial part of their property,
or the making by the Company or any of its Subsidiaries of an assignment for the
benefit of creditors, or the admission by the
-45-
<PAGE>
Company or any of its Subsidiaries in writing of their inability to pay their
debts generally as they become due, or the taking of corporate action by the
Company or any of its Subsidiaries in furtherance of any such action.
The Company shall deliver to the Trustee, within 5 days after the
occurrence thereof, an Officers' Certificate detailing any Default of which it
is aware, its status and what action the Company is taking or proposes to take
with respect thereto.
Section 6.2. ACCELERATION.
If an Event of Default specified in Section 6.1(d) or (e) shall occur and
be continuing, then the principal of (or, with respect to a series of Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series), and any accrued and unpaid interest on
and any Additional Amounts payable in respect of the Securities shall
immediately become due and payable without any declaration or other act on the
part of the Trustee or any Securityholder. If one or more Events of Default
specified in Sections 6.1(a) through (c) with respect to any series of
Securities at the time outstanding shall occur and be continuing, then, and in
each and every such case, either the Trustee, by notice in writing to the
Company, or the Holders of not less than 25% of the principal amount of the
Securities of that series then outstanding, by notice in writing to the Company
and the Trustee, may declare due and payable, if not already due and payable,
the principal of (or, with respect to a series of Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) plus any accrued interest on and any Additional Amounts
payable in respect of all of the Securities of that series; and upon any such
declaration all such amounts upon such Securities shall become and be
immediately due and payable, anything in this Indenture or in the Securities to
the contrary notwithstanding. This provision is subject to the condition that
if, after any declaration of acceleration and before Stated Maturity of the
principal with respect to Securities of any series, all arrears of interest and
any Additional Amounts and the expenses of the Trustee, its agents or counsel
shall be paid by or for the account of the Company, and all Defaults (other than
the payment of principal that has been declared due and payable) have been cured
to the satisfaction of the Trustee, then the Trustee shall, upon the written
request of the Holders of a majority in principal amount of the Securities of
that series, waive such a Default and rescind or annul the declaration of
acceleration; but no such waiver or rescission
-46-
<PAGE>
or annulment shall extend to or affect any subsequent Default, or impair any
right consequent thereon.
Section 6.3. OTHER REMEDIES.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of, interest on or any Additional Amounts payable in
respect of the Securities of that series or to enforce the performance of any
provision of the Securities of that series or this Indenture. The Trustee may
maintain a proceeding even if it does not possess any of the Securities of that
series or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any
right or remedy accruing upon any Event of Default shall not impair any such
right or remedy or constitute a waiver of or acquiescence in the Event of
Default. No remedy is exclusive of any other remedy. All available remedies
are cumulative.
Section 6.4. WAIVER OF PAST DEFAULTS.
Provided the applicable series of Securities shall not then be due and
payable by reason of a declaration pursuant to Section 6.2, the Holders of a
majority in principal amount of the Securities of any series at the time
outstanding may on behalf of the Holders of all the Securities of such series
waive any past Default hereunder with respect to such series and its
consequences by providing written notice thereof to the Company and the Trustee,
except a Default (i) in the payment of interest on, any Additional Amounts
payable in respect of or the principal of any Security of such series or (ii) in
respect of a covenant or provision hereof which under Article IX cannot be
modified or amended without the consent of the Holder of each outstanding
Security of such series affected. In the case of any such waiver, the Company,
the Trustee and the Holders of the Securities of such series shall be restored
to their former positions and rights hereunder, respectively; provided that no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereto.
-47-
<PAGE>
Section 6.5. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the Securities then
outstanding of any series may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or of exercising any
power or trust conferred upon the Trustee under this Indenture with respect to
the Securities of such series; provided, however, that subject to the provisions
of Sections 7.1 and 7.2, the Trustee shall have the right to decline to follow
any such direction if the Trustee, advised by counsel, determines that the
action or proceeding so directed may not lawfully be taken or if the Trustee in
good faith shall by Responsible Officers determine that the action or proceeding
so directed would involve the Trustee in liability or that the Trustee is not
satisfactorily indemnified from the costs thereof.
Section 6.6. LIMITATION ON SUITS BY HOLDERS.
No Holder of any Security of any series or any coupon appertaining thereto
shall have the right to pursue a remedy with respect to this Indenture or the
Securities unless:
(1) such Holder gives to the Trustee notice of a continuing Event of
Default with respect to Securities of that series;
(2) the Holders of at least a majority in a principal amount of the
Securities of that series make a request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee security or indemnity
satisfactory to the Trustee against any loss, liability or expense; and
(4) the Trustee does not comply with the request within 30 days
after receipt of the request and the offer of security or indemnity.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
Section 6.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security or coupon to receive payment of
-48-
<PAGE>
principal of, interest on and any Additional Amounts payable with respect to the
Security or coupon, on or after the respective due dates expressed in the
Security or coupon, or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of the Holder.
Section 6.8. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.1(a) or (b) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount of principal, interest
and any Additional Amounts remaining unpaid, together with interest on overdue
principal and, to the extent lawful, interest on overdue installments of
interest and any Additional Amounts, in each case at the rate or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section 7.7.
Section 6.9. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee and the
Securityholders allowed in any judicial proceedings relative to the Company, its
creditors or its property and the Trustee shall be entitled and empowered to
collect and receive any money or other property payable or deliverable on any
such claims and to distribute it, and any trustee, receiver, liquidator,
custodian or other similar official in any such judicial proceedings is hereby
authorized by each Securityholder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly
to Securityholders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of any claim of any Securityholder in such proceeding.
-49-
<PAGE>
Section 6.10. APPLICATION OF MONEY COLLECTED.
Any money or property collected by the Trustee with respect to any series
of the Securities under this Article VI shall, subject to the provisions of
Article XIII, be paid out by the Trustee in the following order and, in the case
of the distribution of moneys on account of principal, interest or any
Additional Amounts, upon presentation of such Securities and coupons
appertaining to such Securities in respect of which monies have been collected
(except that the Trustee may waive presentation of Registered Securities when
interest alone is to be paid), and stamping 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, and upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses of collection, and reasonable
compensation to the Trustee, its agents and counsel, and of all other expenses,
losses, and liabilities incurred, and all advances made, by the Trustee except
as a result of its negligence or bad faith;
SECOND: In case the principal of the outstanding Securities of such series
shall not have become due and be unpaid, to the payment of interest on and any
Additional Amounts Payable with respect to such Securities, in the order of the
maturity of the installments of such interest and Additional Amounts, with
interest, to the extent lawful, upon the overdue installments of interest and
Additional Amounts at the rate or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in such Securities, such payments to be
made ratably to the Persons entitled thereto, without discrimination or
preferences;
THIRD: In case the principal of the outstanding Securities of such series
shall have become due, by declaration or otherwise, to the payment of the whole
amount then owing and unpaid upon such Securities for principal, interest and
any Additional Amounts, with interest at the rate or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in such Securities on the
overdue principal, and, to the extent lawful, on the a overdue installments of
interest and Additional Amounts; and in case such monies shall be insufficient
to pay in full the whole amount so due and unpaid upon such Securities, then to
the payment of such principal, interest and any Additional Amounts, ratably,
without preference or priority of any kind, to the aggregate of such principal
and accrued and unpaid interest and Additional Amounts; and
-50-
<PAGE>
FOURTH: In case the Trustee shall retain possession of any funds after all
obligations of the Company hereunder have been fully paid and satisfied, such
funds shall be paid to the Company, its successors or assigns.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section. At least 15 days before such record
date, the Company shall mail to each Securityholder and the Trustee a notice
that states the record date, the payment date and the amount to be paid.
Section 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section does
not apply to a suit instituted by the Trustee, a suit instituted by a Holder
pursuant to Section 6.7 or a suit instituted by Holders of more than 10% in
principal amount of the Securities then outstanding. This Section 6.11 shall be
in lieu of Section 315(c) of the TIA and said Section 315(c) is hereby expressly
excluded from this Indenture, as permitted by the TIA.
Section 6.12. DISCONTINUANCE OR ABANDONMENT OF PROCEEDINGS.
If the Trustee or any Holder shall have proceeded to enforce any right
under this Indenture, and such proceedings shall have been discontinued or
abandoned because of waiver, or for any other reason, or shall have been
determined adversely to the Trustee or such Holder, then, and in any such case,
the Company and the Trustee and such Holder or Holders shall each be restored to
its former position and rights hereunder, and all rights, remedies and powers of
the Trustee and the Holders shall continue as though no such proceedings had
been taken.
-51-
<PAGE>
ARTICLE VII
TRUSTEE
Section 7.1. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee,
subject to paragraph (e) below, shall exercise the rights and powers vested in
it by this Indenture and use the same degree of care and skill in its exercise
as a prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
in the case of any opinions or certificates which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(i) This paragraph does not limit the effect of paragraph (b) of this
Section 7.1;
(ii) The Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
-52-
<PAGE>
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b) and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or
powers, if the Trustee shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
(g) No provision of this Indenture shall require the Trustee to determine
the maximum interest rate permissible under applicable law.
(h) Every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Section and to the provisions of the TIA.
Section 7.2. RIGHTS OF TRUSTEE.
(a) The Trustee may rely on and shall be protected in acting or refraining
from acting on any document believed by it to be genuine and to have been signed
or presented by the proper person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate and an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its selection and the written advice of such counsel or any Opinion
of Counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
-53-
<PAGE>
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers conferred upon it hereunder; provided, however, that the Trustee's
conduct does not constitute willful misconduct, negligence or bad faith.
(e) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction.
Section 7.3. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or an Affiliate
with the same rights it would have if it were not Trustee. Any Paying Agent,
Registrar or co-registrar may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.
Section 7.4. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Securities; it shall not be
accountable for the Company's use of the proceeds from the sale of the
Securities; and it shall not be responsible for any statement of the Company in
this Indenture or in any document issued in connection with the sale of the
Securities or in the Securities other than the Trustee's certificate of
authentication.
Section 7.5. NOTICE OF DEFAULTS.
If a Default occurs with respect to Securities of any series and is
continuing and if it is known to the Trustee, the Trustee shall give to each
Securityholder of such series a notice of the Default within 90 days after it
occurs in the manner and to the extent provided in TIA 313(c), and otherwise as
provided in Section 14.2 hereof. Except in the case of a Default in payment of
-54-
<PAGE>
the principal of, interest on and any Additional Amount payable with respect to
any Security (including payments pursuant to a redemption or repurchase of the
Securities pursuant hereto), the Trustee may withhold the notice if and so long
as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of Securityholders.
The Trustee shall not be deemed to have knowledge of any Default or
Event of Default except (i) a Default under Section 6.1(a) or (b) so long as the
Trustee is Paying Agent or (ii) any Default or Event of Default of which the
Trustee shall have received written notification or a Responsible officer
charged with the administration of this Indenture shall have obtained actual
knowledge, and such notification shall not be deemed to include receipt of
information obtained in any report or other documents furnished under Section
4.4 of this Indenture, which reports and documents the Trustee shall have no
duty to examine.
Section 7.6. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each January 1 and July 1 beginning with the January 1
following the date of this Indenture, the Trustee shall mail to each Holder of a
Registered Security a brief report dated as of such reporting date if required
by, and in compliance with, TIA Section 313(a). The Trustee also shall comply
with TIA Section 313(b). The Trustee shall also transmit by mail all reports as
required by TIA Section 313(c).
Commencing at the time this Indenture is qualified under the TIA, a copy of
each report at the time of its mailing to Securityholders shall be filed with
the Commission and each securities exchange, if any, on which the Securities are
listed. The Company agrees to notify promptly the Trustee whenever the
Securities become listed on any securities exchange and of any delisting
thereof.
Section 7.7. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such compensation as
shall be agreed to in writing from time to time between the Company and the
Trustee for all services rendered by it hereunder. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all reasonable
disbursements, advances and expenses incurred or made by the Trustee in
accordance with any provision of this Indenture. Such expenses shall include
the reasonable
-55-
<PAGE>
compensation and the disbursements, advances and expenses of the Trustee's
agents and counsel, except to the extent any such disbursement, advance or
expense may be attributable to its negligence or bad faith.
The Company shall indemnify the Trustee and its directors, officers, agents
and employees against any and all loss, liability, damage, claim or expense
(including attorneys' fees and expenses) incurred by it or such officer,
director, agent or employee in connection with the acceptance or administration
of its duties under this Indenture, except as set forth in the next paragraph.
The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee or such officer,
director, agent or employee shall cooperate in the defense. The Trustee or such
officer, director, agent or employee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need
not pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.
The Company need not reimburse any expense or indemnify against any loss,
liability or expense incurred by the Trustee through the Trustee's own willful
misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section, the Trustee
shall have a Lien prior to the Securities on all money or property held or
collected by the Trustee other than money or property held in trust to pay the
principal of, interest on or any Additional Amounts payable with respect to
particular Securities. The Company's payment obligations pursuant to this
Section 7.7 shall survive the resignation or replacement of the Trustee and any
discharge or defeasance under Sections 8.1 and 8.2.
When the Trustee incurs expenses after the occurrence of an Event of
Default specified in Section 6.1(d) or (e), the expenses are intended to
constitute expenses of administration under any Bankruptcy Law.
Section 7.8. REPLACEMENT OF TRUSTEE.
The Trustee may resign at any time by so notifying the Company; provided,
however, no such resignation shall be effective until a successor Trustee has
accepted its appointment pursuant to this Section 7.8. The Holders of a
majority in principal amount of the then outstanding Securities may remove
-56-
<PAGE>
the Trustee by so notifying the Trustee and the Company. The Company shall
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or public officer takes charge of the Trustee or its
property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason (the Trustee in such event being referred to herein as
the retiring Trustee), the Company shall promptly appoint a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Securityholders. The retiring Trustee shall promptly transfer all property held
by it as Trustee to the successor Trustee, subject to the Lien provided for in
Section 7.7. Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the then outstanding Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
Section 7.9. SUCCESSOR TRUSTEE BY MERGER.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation or
-57-
<PAGE>
banking association without any further act shall be the successor Trustee.
Section 7.10. ELIGIBILITY; DISQUALIFICATION.
The Trustee shall at all times satisfy the requirements of TIA
Section 310(a). The Trustee shall have a combined capital and surplus of at
least a $50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b).
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.1. DISCHARGE OF INDENTURE; DEFEASANCE.
(a) This Indenture shall cease to be of further effect with respect to a
series of Securities (except that the Company's obligations under Section 7.7
and the Trustee's and Paying Agent's obligations under Section 8.4 shall
survive) when (a) all outstanding Securities of such series theretofore
authenticated and a issued have been delivered (other than destroyed, lost or
stolen Securities which have been replaced or paid pursuant to Section 2.6) to
the Trustee for cancellation and (b) the Company has paid all sums payable
hereunder.
(b) Subject to Sections 8.1(c), 8.2 and 8.5, the Company at any time may
terminate (i) all its obligations under the Securities of any series and this
Indenture with respect to such series of Securities ("legal defeasance option")
or (ii) its obligations under Article IV (except those obligations set forth in
Sections 4.1, 4.2 and 4.11 thereof) with respect to any series of Securities
("covenant defeasance option"). The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.
-58-
<PAGE>
If the Company exercises its legal defeasance option, payment of the
Securities of the applicable series may not be accelerated because of an Event
of Default.
Upon satisfaction of the conditions set forth herein and upon request of
the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's obligations
in Sections 2.3, 2.4, 2.5, 2.6, 7.7, 8.4 and 8.5 and Article XI and Article XII
shall survive until the Securities have been paid in full. Thereafter, the
Company's obligations in Sections 7.7 and 8.4 shall survive.
Section 8.2. CONDITIONS TO DEFEASANCE.
The Company may exercise its legal defeasance option or its covenant
defeasance option with respect to a series of Securities only if the following
conditions are satisfied:
(a) the Company has irrevocably deposited or caused to be deposited in
trust for the benefit of the Holders of such series with the Trustee or a Paying
Agent or a trustee satisfactory to the Trustee and the Company, under the terms
of an irrevocable trust agreement in form and substance satisfactory to the
Trustee and any such Paying Agent, (i) money in an amount sufficient, or (ii)
U.S. Government Obligations or Eligible Obligations that shall be payable as to
principal and interest in such amounts and at such times as are sufficient, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee (without
consideration of any reinvestment of such interest), or (iii) any combination
thereof in an amount sufficient, to pay the principal of, interest on and any
Additional Amounts payable with respect to the outstanding Securities of such
series on the dates such installments are due to redemption or Stated Maturity,
(b) the trustee of the irrevocable trust shall have been irrevocably instructed
to pay such money or the proceeds of such U.S. Government Obligations or
Eligible Obligations to the Trustee and (c) the Trustee or Paying Agent shall
have been irrevocably instructed in writing to apply the deposited money and the
proceeds from U.S. Government Obligations or Eligible Obligations in accordance
with the terms of this Indenture and the terms of the Securities of such series
to the payment of principal of, interest on and any Additional Amounts payable
with respect to the Securities of such series.
-59-
<PAGE>
(b) such deposit described in clause (1) of this Section 8.2 will not
result in a breach or violation of, or constitute a Default under, any other
agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default or Event of Default shall have occurred and be continuing
(i) as of the date of such deposit or (ii) insofar as Sections 6.1(d) and 6.1(e)
are concerned at any time during the period ending on the 91st day after the
date of such deposit or, if longer, ending on the day following the expiration
of the longest preference period applicable to the Company in respect of such
deposit (it being understood that the condition in this clause (ii) is a
condition subsequent and shall not be deemed satisfied until the expiration of
such period);
(d) the Company has paid or caused to be paid all sums currently due and
payable by the Company hereunder and under the Securities with respect to such
series;
(e) such defeasance shall not cause or permit any Securities then listed
on any national securities exchange to be delisted;
(f) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent provided for
herein relating to the termination by the Company of its obligations as provided
in this Section 8.2 have been complied with;
(g) in the case of the legal defeasance option, the Company has delivered
to the Trustee either (i) a ruling received from the Internal Revenue Service to
the effect that, or (ii) an Opinion of Counsel by recognized counsel who is not
an employee of the Company stating that, since the date first set forth
hereinabove, there has been a change in the applicable federal income tax law,
and based upon either case (i) or (ii) such Opinion of Counsel shall confirm
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 the Company's
exercise of its legal defeasance option under this Section 8.2 and will be
subject to federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such legal defeasance option had
not been exercised; and
(h) in the case of the covenant defeasance option, the Company has
delivered to the Trustee either (i) a ruling received from the Internal Revenue
Service to the effect that, or (ii) an Opinion of Counsel by recognized counsel
who is not an employee of the Company stating that, the Holders of the
Securities of
-60-
<PAGE>
such series will not recognize income, gain or loss for federal income tax
purposes as a result of the Company's exercise of its covenant defeasance option
under this paragraph and will be subject to federal income tax on the same
amount and in the same manner and at the same times as would have been the case
if such covenant defeasance option had not been exercised.
Section 8.3. APPLICATION OF TRUST MONEY.
The Trustee or a trustee satisfactory to the Trustee and the Company shall
hold in trust money, U.S. Government Obligations or Eligible Obligations
deposited with it pursuant to Section 8.2. It shall apply the deposited money
and the money from U.S. Government Obligations and Eligible Obligations through
the Paying Agent and in accordance with this Indenture to the payment of
principal of, interest on and any Additional Amounts payable with respect to the
Securities.
Section 8.4. REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall promptly turn over to the Company
upon written request any money, U.S. Government Obligations or Eligible
Obligations held by them in trust pursuant to Section 8.2 which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect such
defeasance, in accordance with the provisions of this Indenture.
The Trustee or the Paying Agent shall pay promptly to the Company upon
written request any money held by them for the payment of principal, interest or
Additional Amounts that remains unclaimed for two years after the date upon
which such payment shall have become due, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law (except
that with respect to any amounts then held by the Company in trust as its own
Paying Agent no such request need be given and at such time the Company shall be
discharged from its duties to hold such money in trust as Paying Agent). After
payment to the Company, Securityholders entitled to the money must look to the
Company for payment as general creditors unless an applicable abandoned property
law designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
-61-
<PAGE>
Section 8.5. REINSTATEMENT OF COMPANY'S OBLIGATIONS.
If the Trustee or Paying Agent is unable to apply any money, U.S.
Government Obligations or Eligible Obligations in accordance with Section 8.2 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the
Securities of the applicable series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.2 until such time as the Trustee or
Paying Agent is permitted to apply all such money, U.S. Government Obligations
or Eligible Obligations in accordance with Section 8.2; provided, however, that
if the Company has made any payment of interest on, Additional Amounts payable
with respect to or principal of any Securities because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money, U.S. Government
Obligations or Eligible Obligations held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS AND WAIVERS
Section 9.1. WITHOUT CONSENT OF HOLDERS.
The Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto to amend this
Indenture or the Securities with respect to a particular series without prior
notice to or the consent of any Securityholder of such series:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article V;
(3) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the TIA as then in effect;
(4) to provide for uncertificated Securities in addition to or in
place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Internal Revenue Code or in a manner such that the
uncertificated Securities are described in Section 163(f)(2) of the
Internal Revenue Code;
-62-
<PAGE>
(5) to make any change that does not materially adversely affect the
legal rights of any Securityholder under this Indenture as then in effect;
(6) to secure the Securities and to make intercreditor arrangements
with respect to any such security, unless the incurrence of such
obligations or the security thereof is prohibited by this Indenture;
(7) to evidence or to provide for a replacement Trustee under Section
7.8; or
(8) to add to the covenants and agreements of the Company for the
benefit of all of the Holders of all of the Securities with respect to a
series (and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are being included solely
for the benefit of such series) and to surrender any right or power herein
reserved to the Company.
After an amendment under this Section becomes effective, the Company shall
give to Securityholders a notice briefly describing the substance thereof in the
manner as provided in Section 14.2. The failure to give such notice to all
Securityholders, or any defect therein, shall not impair or affect the validity
of any supplemental indenture.
Section 9.2. WITH CONSENT OF HOLDERS.
The Company, when authorized by a Board Resolution, and the Trustee may
enter into one or more supplemental indentures to amend this Indenture or the
Securities with respect to a particular series with the written consent of the
Holders of a majority of the principal amount of the then outstanding Securities
of such series. The Holders of a majority in principal amount of the then
outstanding Securities of a particular series may waive compliance by the
Company with any provision of this Indenture or the Securities with respect to
such series without prior notice to any other Securityholder.
Notwithstanding the first paragraph of this Section 9.2, without the
consent of each Securityholder affected, an amendment or waiver under this
Section may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment or waiver;
-63-
<PAGE>
(2) reduce the rate of or change the time for payment of interest or
Additional Amounts, including default interest, on any Security;
(3) reduce the principal of or change the Stated Maturity of any
Security or alter the provisions with respect to redemption pursuant to
Section 3.8;
(4) make any Security payable in money other than that stated in the
Security;
(5) make any change in this paragraph of this Section 9.2;
(6) make any change in Article XIV that adversely affects the rights
of any Securityholder; or
(7) make any change in Section 6.4 or 6.7.
It shall not be necessary for the consent of the Holders under this Section
to approve the particular form of any proposed amendment or waiver but it shall
be sufficient if such consent approves the substance thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has been included solely for the benefit of
one or more series of Securities, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
Any amendment shall be effective upon certification to the Trustee by the
Company or an agent of the Company that such amendment has been authorized by
the Company and that the consent of the majority in principal amount of the
Securities has been obtained, unless such consents specify that they shall
become effective at a later date, in which case such amendment shall become
effective in accordance with the terms of such consent.
After an amendment or waiver under this Section becomes effective, the
Company shall give to Securityholders a notice briefly describing the substance
thereof in the manner as provided in Section 14.2. The failure to give such
notice to all Securityholders, or any defect therein, shall not impair or affect
the validity of any supplemental indenture.
-64-
<PAGE>
Section 9.3. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to this Indenture or the Securities or waiver of the
provisions hereof or thereof shall be set forth in a supplemental indenture that
complies with the TIA as then in effect.
Section 9.4. REVOCATION AND EFFECT OF CONSENTS AND WAIVERS.
Until an amendment or waiver becomes effective, a consent to it by a Holder
of a Security is a continuing consent by the Holder and every subsequent Holder
of that Security or portion of the Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent or waiver is not
made on the Security. However, any such Holder or subsequent Holder may revoke
the consent or waiver as to such Holder's Security or portion of the Security if
the Trustee receives written notice of revocation before the date the amendment
or waiver becomes effective.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment or
waiver. If a record date is fixed, then notwithstanding the next to last
sentence of the immediately preceding paragraph, those persons who were Holders
at such record date (or their duly designated proxies), and only those persons,
shall be entitled to consent to such amendment or waiver or to revoke any
consent previously given, whether or not such persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 120 days after such record date.
After an amendment or waiver becomes effective, it shall bind every
Securityholder, subject to the fourth paragraph of Section 9.2 and unless it
makes a change described in any of clauses (1) through (7) of Section 9.2. In
that case, the amendment or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or a portion of a
Security that evidences the same debt as the consenting Holder's Security.
Section 9.5. NOTATION ON OR EXCHANGE OF SECURITIES.
If a supplemental indenture changes the terms of a Security, the Trustee
may require the Holder of the Security to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Security regarding the changed
terms and return it to the
-65-
<PAGE>
Holder. Alternatively, if the Company shall so determine, the Company in
exchange for all Securities may issue and the Trustee shall authenticate new
Securities of the same series that reflect the changed terms.
Section 9.6. TRUSTEE TO SIGN AMENDMENTS.
Upon the written request of the Company, accompanied by a Board Resolution
authorizing the execution of a supplemental indenture, and upon the filing with
the Trustee of evidence of the consent of the Securityholders if such consent
shall be required under Section 9.2, the Trustee shall sign any supplemental
indenture authorized pursuant to this Article IX; provided that the Trustee
shall not be obligated to sign any supplemental indenture that adversely affects
the Trustee's rights, duties, liabilities or immunities. In signing such
supplemental indenture, the Trustee shall be entitled to receive and, subject to
Section 7.1, shall be fully protected in relying upon, an Officers' Certificate
and an Opinion of Counsel stating that such amendment is authorized or permitted
by this Indenture, that it is not inconsistent herewith, and that it will be
valid and binding upon the Company in accordance with its terms.
ARTICLE X
REPAYMENT AT THE OPTION OF HOLDERS
Section 10.1. APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option of the Holders
thereof before their 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 maturity shall not operate as a payment, redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the Company, at its option, shall deliver or surrender the same to the Trustee
with a directive that such Securities be cancelled. Notwithstanding anything to
the contrary contained in this Article X, in connection with any repayment of
Securities, the Company may arrange for the purchase of any Securities by an
agreement with one or more investment bankers or other purchasers to purchase
such Securities by paying to the Holders of such Securities on or before the
close of business on the repayment date an amount not less than the repayment
price payable by the Company on repayment of such Securities, and the obligation
of the Company to pay the
-66-
<PAGE>
repayment price of such Securities shall be satisfied and discharged to the
extent such payment is so paid by such purchasers.
ARTICLE XI
SINKING FUNDS
Section 11.1. APPLICABILITY OF ARTICLE.
The provisions of this Article XI shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise permitted or
required by any form of Security of such series issued pursuant to this
Indenture.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is referred to in this Article XI as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of such series is herein referred to as an"
optional sinking fund payment." If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 11.2. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 11.2. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series to be made pursuant to the
terms of such Securities as provided for by the terms of such series (1) deliver
outstanding Securities of such series (other than any of such Securities
previously called for redemption or any of such Securities in respect of which
cash shall have been released to the Company), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (2) apply as a credit Securities of such series which have been
redeemed either at the election of the Company pursuant to the terms of such
series of Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, provided that such
series of Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at the Redemption
Price specified in such Securities for redemption through operation of
-67-
<PAGE>
the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Securities of any
series in lieu of cash payments pursuant to this Section 11.2, the principal
amount of Securities of such series to be redeemed in order to exhaust the
aforesaid cash payment shall be less than $100,000, the Trustee need not call
Securities of such series for redemption, except upon Company request, and such
cash payment shall be held by the Trustee or a Paying Agent for Securities of
that series and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall at the request of the
Company from time to time pay over and deliver to the Company any cash payment
so being held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of Securities purchased by the Company having an unpaid principal
amount equal to the cash payment requested to be released to the Company.
Section 11.3. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 11.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 3.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.5 and 3.6.
-68-
<PAGE>
ARTICLE XII
CONVERSION OF SECURITIES
Section 12.1. APPLICABILITY OF ARTICLE.
The provisions of this Article XII shall be applicable to the Securities of
any series which are convertible into Common Stock or, if so provided in a Board
Resolution, Officers' Certificate or executed supplemental indenture referred to
in Section 2.1 by or pursuant to which the form and terms of the Securities of
such series were established, cash in lieu thereof, as provided by the terms of
the Securities of such series.
Section 12.2. EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise the conversion privilege, the Holder of any Security
to be converted shall surrender such Security to the Conversion Agent at any
time during usual business hours at its office or agency maintained for the
purpose as provided in Section 4.2, accompanied by a fully executed written
notice, in substantially the form set forth on the reverse of the Security, that
the Holder elects to convert such Security or a stated portion thereof
constituting a multiple of $1,000 in principal amount, and, if such Security is
surrendered for conversion during the period between the close of business on
any record date for such Security and the opening of business on the related
interest payment date and has not been called for redemption on a Redemption
Date within such period (or on such interest payment date), accompanied also by
payment of an amount equal to the interest payable on such interest payment date
on the portion of the principal amount of the Security being surrendered for
conversion. No interest shall be payable on any Security called for redemption
which is converted between the record date and the opening of business of the
next succeeding interest payment date. Such notice shall also state the name or
names (and address) in which the certificate or certificates fora shares of
Common Stock shall be issued (or to whom payment in cash in lieu of Common Stock
shall be made). Securities surrendered for conversion shall (if so required by
the Company or the Conversion Agent) be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company and the Conversion Agent duly executed by, the Holder or his attorney
duly authorized in writing. As promptly as practicable after the receipt of
such notice and the surrender of such Security as aforesaid, the Company shall,
subject to the provisions of Section 12.7, issue and deliver at such office or
agency to such Holder, or on his written order, a certificate or certificates
-69-
<PAGE>
for the number of full shares of Common Stock issuable on conversion of such
Security in accordance with the provisions of such Security and cash, as
provided in Section 12.3, in respect of any fraction of a share of Common Stock
otherwise issuable upon such conversion or, if so provided in a Board
Resolution, Officers' Certificate or executed supplemental indenture referred to
in Section 2.1 by or pursuant to which the form and terms of the Securities of
such Series were established, cash in lieu of shares of Common Stock. Such
conversion shall be at the Conversion Price in effect, and shall be deemed to
have been effected, immediately prior to the close of business on the date
(herein called the "Date of Conversion") on which such notice in proper form
shall have been received by the Conversion Agent and such Security shall have
been surrendered as aforesaid, and the Person or Persons in whose name or names
any certificate or certificates for shares of Common Stock shall be issuable, if
any, upon such conversion shall be deemed to have become on the Date of
Conversion the holder or holders of record of the shares represented thereby;
provided, however, that any such surrender on any date when the stock transfer
books of the Company shall be closed shall constitute the Person or Persons in
whose name or names the certificate or certificates for such shares are to be
issued, if any, as the record holder or holders thereof for all purposes at the
opening of business on the next succeeding day on which such stock transfer
books are open but such conversion shall nevertheless be at the Conversion Price
in effect at the close of business on the date when such Security shall have
been so surrendered with the conversion notice in proper form. In the case of
conversion of a portion, but less than all, of a Security, the Company shall
execute, and the Trustee shall authenticate and make available for delivery to
the Holder thereof, at the expense of the Company, a Security or Securities in
the aggregate principal amount of the unconverted portion of the Security
surrendered. Except as otherwise expressly provided in this Indenture, no
payment or adjustment shall be made for interest accrued on any Security (or
portion thereof) converted or for dividends or distributions on any Common Stock
issued upon conversion of any Security. The right, if any, of a Holder of any
Security to cause the Company to redeem, purchase or repay such Security shall
terminate upon receipt by the Company of any notice of conversion of such
Security.
Section 12.3. FRACTIONAL INTERESTS.
No fractions of shares or scrip representing fractions of shares shall be
issued upon conversion of Securities. If more than one Security shall be
surrendered for conversion at one time by the same Holder, the number of full
shares which shall be
-70-
<PAGE>
issuable upon conversion thereof shall be computed on the basis of the aggregate
principal amount of the Securities so surrendered. If any fraction of a share
of Common Stock would, except for the provisions of this Section 12.3, be
issuable on the conversion of any Security or Securities, the Company shall make
payment in lieu thereof in cash equal to the value of such fraction computed on
the basis of the Last Sale Price of one share of Common Stock on the most recent
Trading Day prior to the Date of Conversion. "Last Sale Price" on any Trading
Day shall mean (i) the closing price regular way (or, if no closing price is
reported the average of the bid and asked prices) as reported on the New York
Stock Exchange Composite Tape, or (ii) if on such Trading Day the Common Stock
is not listed or admitted to trading on such exchange, the closing price regular
way (or, if no closing price is reported the average of the bid and asked
prices) on the principal national securities exchange on which the Common Stock
is listed or admitted, or (iii) if not listed or admitted to trading on any
national securities exchange on such Trading Day, then the average of the
closing bid and asked prices as reported through the National Association of
Securities Dealers, Inc. on its NASDAQ National Market System or NASDAQ System
or a similar organization if NASDAQ is no longer reporting information, or (iv)
if the Common Stock is not listed or admitted to trading on any national
securities exchange or quoted on such National Market System or NASDAQ System on
such Trading Day, then the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the Company for that purpose, or (v) if not quoted
by any such organization on such Trading Day, the fair value of such Common
Stock on such Trading Day, as determined by the Board of Directors. The term
"Trading Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday,
other than any day on which securities are not traded on the applicable above
mentioned exchanges or markets.
Section 12.4. ADJUSTMENT OF CONVERSION PRICE.
The "Conversion Price" for a Series of Securities shall be as set forth in
a Board Resolution, Officers' Certificate or executed supplemental indenture
referred to in Section 2.1 by or pursuant to which the form and terms of the
Securities of such Series were established, and shall be subject to adjustment
from time to time as follows:
(a) In case the Company shall (1) pay a dividend or make a distribution in
shares of Common Stock to holders of Common Stock, (2) subdivide its outstanding
shares of Common Stock into
-71-
<PAGE>
a greater number of shares of Common Stock, (3) combine its outstanding shares
of Common Stock into a smaller number of shares of Common Stock or (4) issue by
reclassification of its Common Stock any shares of capital stock of the Company,
the Conversion Price in effect immediately prior to such action shall be
adjusted so that the Holder of any Security thereafter surrendered for
conversion shall be entitled to receive the number of shares of Common Stock or
other capital stock of the Company which he would have owned immediately
following such action had such Security been converted immediately prior
thereto. An adjustment made pursuant to this subsection (a) shall become
effective immediately, except as provided in subsection (e) below, after the
record date in the case of a dividend or distribution and shall become effective
immediately after the effective date in the case of a subdivision, combination
or reclassification. If as a result of an adjustment made pursuant to this
subsection (a), the Holder of any Security thereafter surrendered for conversion
shall become entitled to receive shares of two or more classes of capital stock
(including shares of Common Stock and other capital stock) of the Company, the
Board of Directors (whose determination shall be conclusive and shall be
described in a statement filed with the Trustee) shall determine the allocation
of the adjusted Conversion Price between or among shares of such classes of
capital stock or shares of Common Stock and other capital stock.
(b) In case the Company shall issue rights or warrants to all holders of
Common Stock entitling them (for a period not exceeding 45 days from the date of
such issuance) to subscribe for or purchase shares of Common Stock or Securities
convertible into Common Stock at a price per share less than the current market
price per share (as determined pursuant to subsection (d) below) of the Common
Stock on the record date mentioned below, the Conversion Price shall be adjusted
to a price, computed to the nearest cent, so that the same shall equal the price
determined by multiplying:
(1) the Conversion Price in effect immediately prior to the date of
issuance of such rights or warrants by
(2) a fraction, of which (i) the numerator shall be (A) the number of
shares of Common Stock outstanding on the date of issuance of such rights
or warrants, immediately prior to such issuance, plus (B) the number of
shares of Common Stock which the aggregate offering price of the total
number of shares of Common Stock (or the aggregate conversion price of the
convertible securities) so offered for subscription or purchase would
purchase at such current market price (determined by multiplying such total
number of
-72-
<PAGE>
shares by the exercise price of such rights or warrants and dividing the
product so obtained by such current market price), and of which (ii) the
denominator shall be (A) the number of shares of Common Stock outstanding
on the date of issuance of such rights or warrants, immediately prior to
such issuance, plus (B) the number of additional shares of Common Stock (or
into which the convertible securities are convertible) which are so offered
for subscription or purchase.
Such adjustment shall become effective immediately except as provided in
subsection (e) below, after the record date for the determination of holders
entitled to receive such rights or warrants.
(c) In case the Company shall distribute to substantially all holders of
Common Stock, evidences of indebtedness, equity securities (including equity
interests in the Company's Subsidiaries) other than a common stock, or other
assets (other than cash dividends paid out of surplus of the Company), or shall
distribute to substantially all holders of Common Stock rights or warrants to
subscribe for securities (other than those referred to in Subsection (b) above)
then in each such case the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion Price in effect
immediately prior to the date of such distribution by a fraction of which the
numerator shall be the current market price per share (determined as provided in
subsection (d) below) of the Common Stock on the record date mentioned below
less the then fair market value (as determined by the Board of Directors, whose
determination shall, if made in good faith, be conclusive evidence of such fair
market value) of the portion of the assets so distributed or of such
subscription rights or warrants applicable to one share of Common Stock, and of
which the denominator shall be such current market price per share of the Common
Stock. Such adjustment shall become effective immediately, except as provided
in subsection (e) below, after the record date for the determination of
stockholders entitled to receive such distribution.
(d) For the purpose of any computation under subsections (b) and (c)
above, the current market price per share of Common Stock on any date shall be
deemed to be the average of the Last Sale Prices for the 30 consecutive Trading
Days commencing 45 Trading Days before the date in question.
(e) In any case in which this Section 12.4 shall require that an
adjustment be made immediately following a record date, the Company may elect to
defer the effectiveness of such
-73-
<PAGE>
adjustment (but in no event until a date later than the effective time of the
event giving rise to such adjustment), in which case the Company shall, with
respect to any Security converted after such record date and before such
adjustment shall have become effective, (i) defer paying any cash payment
pursuant to Section 12.3 or issuing to the Holder of such Security the number of
shares of Common Stock and other capital stock of the Company issuable upon such
conversion in excess of the number of shares of Common Stock and other capital
stock of the Company issuable thereupon only on the basis of the Conversion
Price prior to adjustment and (ii), not later than five Business Days after such
adjustment shall have become effective, pay to such Holder the appropriate cash
payment pursuant to Section 12.3 and issue to such Holder the additional shares
of Common Stock and other capital stock of the Company issuable on such
conversion.
(f) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% of the
Conversion Price; provided that any adjustments which by reason of this
subsection (f) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment and provided, further, that adjustment
shall be required and made in accordance with the provisions of this Article XII
(other than this subsection (f)) not later than such time as may be required in
order to preserve the tax-free nature of a distribution to the holders of
Securities or Common Stock. All calculations under this Article XII shall be
made to the nearest cent or to the nearest one-hundredth of a share, as the case
may be.
(g) Anything in this Section 12.4 to the contrary notwithstanding, no
adjustment need be made for rights to purchase Common Stock pursuant to a
Company plan for reinvestment of dividends or interest or for rights to purchase
Capital Stock pursuant to any future dividend or distribution which the Company
determines to be comparable in purpose and in effect to the dividend and
subsequent distribution of Rights contemplated by the Rights Agreement and no
adjustment need be made for a change in the par value or no par value of the
Common Stock.
(h) Whenever the Conversion Price is adjusted as herein provided, the
Company shall promptly (i) file with the Trustee and each Conversion Agent an
Officers' Certificate setting forth the Conversion Price after such adjustment
and setting forth a brief statement of the facts requiring such adjustment,
which certificate shall be conclusive evidence of the correctness of such
adjustment, and (ii) mail or cause to be mailed a notice of such adjustment to
each Holder of Securities at his address as the same appears on either the
registry books of the Company or
-74-
<PAGE>
in the filings described in Section 2.4. Anything in this Section 12.4 to the
contrary notwithstanding, the Company shall be entitled to make such reductions
in the Conversion Price, in addition to those required by this Section 12.4, as
it in its discretion shall determine to be advisable in order that any stock
dividend, subdivision of shares, distribution of rights or warrants to purchase
stock or securities, or distribution of other assets (other than cash dividends)
hereafter made by the Company to its stockholders shall not be taxable.
Section 12.5. CONTINUATION OF CONVERSION PRIVILEGE IN CASE OF MERGER,
CONSOLIDATION OR SALE OF ASSETS.
If any of the following shall occur, namely: (a) any consolidation or
merger of the Company as a result of which the holders of Common Stock shall be
entitled to receive stock, other securities or other assets (including cash)
with respect to or in exchange for Common Stock; or (b) any sale or conveyance
of all or substantially all of the property or business of the Company as an
entirety, then the Company, or such successor or purchasing corporation, as the
case may be, shall, as a condition precedent to such consolidation, merger, sale
or conveyance, execute and deliver to the Trustee a supplemental indenture
(which shall conform to the TIA as in force at the date of the execution
thereof) providing that the Holder of each convertible Security then outstanding
shall have the right to convert such Security into the kind and amount of shares
of stock and other securities and property (including cash) receivable upon such
consolidation, merger, sale or conveyance by a holder of the number of shares of
Common Stock issuable upon conversion of such Security immediately prior to such
reclassification, change, consolidation, merger, sale or conveyance. Such
supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Article XII. If, in the case of any such consolidation, merger, sale or
conveyance, the stock or other securities and property (including cash)
receivable thereupon by a holder of shares of Common Stock includes shares of
stock or other securities and property (including cash) of a corporation other
than the successor or purchasing corporation, as the case may be, in such
consolidation, merger, sale or conveyance, then such supplemental indenture
shall also be executed by such other corporation and shall contain such
additional provisions to protect the interests of the Holders of the Securities
as the Board of Directors shall reasonably consider necessary by reason of the
foregoing. The provisions of this Section 12.5 shall similarly apply to
successive consolidations, mergers, sales or conveyances.
-75-
<PAGE>
Within 30 days after the execution of such supplemental indenture the
Company shall give notice of the execution of such supplemental indenture, with
respect to Registered Securities affected by such supplemental indenture, by
mailing a notice of the execution of such supplemental indenture to each Holder
of Registered Securities at such Holder's address as it appears on the
Securities register maintained by the Registrar and, with respect to Bearer
Securities affected by such supplemental indenture, by publishing in an
Authorized Newspaper notice of the execution of such supplemental indenture on
two separate days.
Neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property (including cash) receivable by Holders of
Securities upon the conversion of their Securities after any such consolidation,
merger, sale or conveyance or to any adjustment to be made with respect thereto,
but, subject to the provisions of Sections 7.1 and 7.2, may accept as conclusive
evidence of the correctness of any such provisions, and shall be protected in
relying upon, the Officers' Certificate (which the Company shall be obligated to
file with the Trustee prior to the execution of any such supplemental indenture)
with respect thereto.
Section 12.6. NOTICE OF CERTAIN EVENTS.
If: (a) the Company shall declare a dividend (or any other distribution)
payable to the holders of Common Stock otherwise than in cash; or
(b) the Company shall authorize the granting to the holders of Common
Stock of rights to subscribe for or purchase any shares of stock of any class or
of any other rights; or
(c) the Company shall authorize any reclassification or change of the
Common Stock (other than a subdivision or combination of its outstanding shares
of Common Stock), or any consolidation or merger to which the Company is a party
and for which approval of any stockholders of the Company is required, or the
sale or conveyance of all or substantially all the property or business of the
Company; or
(d) there shall be authorized or ordered any voluntary or involuntary
dissolution, liquidation or winding-up of the Company;
-76-
<PAGE>
then, the Company shall cause to be filed at the office or agency maintained for
the purpose of conversion of the Securities as provided in Section 4.2, and
shall, with respect to Registered Securities convertible into Common Stock,
cause to be mailed to each Holder of such Registered Securities, at such
Holder's address as it shall appear on the Securities register maintained by the
Registrar and, with respect to Bearer Securities convertible into Common Stock,
cause to be published in an Authorized Newspaper on two separate days, at least
20 days before the date hereinafter specified (or the earlier of the dates
hereinafter specified, in the event that more than one date is specified), a
notice stating the date on which (1) a record is expected to be taken for the
purpose of such dividend, distribution or rights, or if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution or rights are to be determined, or (2) such
reclassification, change, consolidation, merger, sale, conveyance, dissolution,
liquidation or winding-up is expected to become effective and the date, if any
is to be fixed, as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their shares of Common Stock for securities
or other property deliverable upon such reclassification, change, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding-up.
Section 12.7. TAXES ON CONVERSION.
The Company will pay any and all documentary, stamp or similar taxes
payable to the United States of America or any political subdivision or taxing
authority thereof or therein in respect of the issue or delivery of shares of
Common Stock on conversion of Securities pursuant thereto; provided, however,
that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issue or delivery of shares of Common
Stock in a name other than that of the Holder of the Securities to be converted
(or payment of cash in lieu thereof to a Person other than such Holder) and no
such issue or delivery (or payment) shall be made unless and until the Person
requesting such issue or delivery (or payment) has paid to the Company the
amount of any such tax or has established, to the satisfaction of the Company,
that such tax has been paid. The Company extends no protection with respect to
any other taxes imposed in connection with conversion of Securities.
-77-
<PAGE>
Section 12.8. COMPANY TO PROVIDE STOCK.
The Company shall reserve, free from preemptive rights, out of its
authorized but unissued shares, sufficient shares to provide for the conversion
of convertible Securities from time to time as such Securities are presented for
Conversion, provided, however, that nothing contained herein shall be construed
to preclude the Company from satisfying its obligations in respect of the
conversion of Securities by delivery of repurchase shares of Common Stock which
are held in the treasury of the Company.
If any shares of Common Stock to be reserved for the purpose of conversion
of Securities hereunder require registration with or approval of any
governmental authority under any Federal or state law before such shares may be
validly issued or delivered upon conversion, then the Company covenants that it
will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be; provided, however, that nothing in
this Section 12.8 shall be deemed to affect in any way the obligations of the
Company to convert Securities into Common Stock as provided in this Article XII.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the Common Stock, the
Company will take all corporate action which may, in the Opinion of Counsel, be
necessary in order that the Company may validly and legally issue fully paid and
non-assessable shares of Common Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock which may be issued
upon conversion of Securities will upon issue be fully paid and non-assessable
by the Company and free of preemptive rights.
Section 12.9. DISCLAIMER OF RESPONSIBILITY FOR CERTAIN MATTERS.
Neither the Trustee, the Conversion Agent nor any agent of either shall at
any time be under any duty or responsibility to any Holder of Securities to
determine whether any facts exist which may require any adjustment of the
Conversion Price, or with respect to the Officers' Certificate referred to in
Section 12.4(h), or with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed, or herein or in any
supplemental indenture provided to be employed, in making the same. Neither the
Trustee, the Conversion Agent nor any agent of either shall be accountable with
respect to the validity of value (or the kind or amount) or any shares of Common
-78-
<PAGE>
Stock, or of any securities or property (including cash), which may at any time
be issued or delivered upon the conversion of any Security; and neither the
Trustee, the Conversion Agent nor any agent of either makes any representation
with respect thereto. Neither the Trustee, the Conversion Agent nor any agent
of either shall be responsible for any failure of the Company to issue, register
the transfer of or deliver any shares of Common Stock or stock certificates or
other securities or property (including cash) upon the surrender of any Security
for the purpose of conversion or, subject to Sections 7.1 and 7.2, to comply
with any of the covenants of the Company contained in this Article XII.
Section 12.10. RETURN OF FUNDS DEPOSITED FOR REDEMPTION OF CONVERTED
SECURITIES.
Any funds which at any time shall have been deposited by the Company or on
its behalf with the Trustee or any Conversion Agent for the purpose of paying
the principal of and interest, if any, on any of the Securities and which shall
not be required for such purposes because of the conversion of such Securities,
as provided in this Article XII, shall after such conversion be repaid to the
Company by the Trustee or such Conversion Agent.
Section 12.11. RIGHTS ISSUED IN RESPECT OF COMMON STOCK ISSUED UPON CONVERSION.
Each share of Common Stock issued upon conversion of Securities pursuant to
this Article XII shall be entitled to receive the appropriate number of
preferred share purchase rights (the "Rights"), if any, and the certificates
representing the Common Stock issued upon such conversion shall bear such
legends, if any, in each case as provided by and subject to the terms of the
Rights Agreement dated June 21, 1989, between the Company and The First National
Bank of Chicago, as Rights Agent (the "Rights Agreement"), as in effect at the
time of such conversion. Notwithstanding anything else to the contrary in this
Article XII, there shall not be any adjustment to the conversion privilege or
conversion rate as a result of (i) the distribution of separate certificates
representing the Rights, (ii) the occurrence of certain events entitling holders
of Rights to receive, upon exercise thereof, Common Stock of the Company or
Capital Stock of another corporation or (iii) the exercise of such Rights in
accordance with the Rights Agreement.
-79-
<PAGE>
ARTICLE XIII
SUBORDINATION
Section 13.1. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company covenants and agrees that, anything in this Indenture or the
Securities of any series to the contrary notwithstanding, the Indebtedness
evidenced by the Securities of each series is subordinated and junior in right
of payment to all Senior Indebtedness to the extent provided herein, and each
Holder of Securities of each series, by his acceptance thereof, whether upon
original issue or upon transfer or assignment thereof, likewise covenants and
agrees to the subordination herein provided and shall be bound by the provisions
hereof.
Subject to Section 13.4, if the Company shall default in the payment of any
principal of interest on or any Additional Amount payable in respect of any
Senior Indebtedness when the same becomes due and payable, whether at maturity
or at a date fixed for prepayment or by declaration of acceleration or
otherwise, then, upon written notice of such default to the Company by the
holders of Senior Indebtedness or any trustee therefor, unless and until such
default shall have been cured or waived or shall have ceased to exist, no direct
or indirect payment (in cash, property, securities, by set off or otherwise)
shall be made or agreed to be made on account of the principal of, interest on
or Additional Amounts payable in respect of any of the Securities, or in respect
of any redemption, retirement, purchase or other acquisition of any of the
Securities other than those made in capital stock of the Company (or cash in
lieu of fractional shares thereof) pursuant to Article XII or otherwise made in
capital stock of the Company (or cash in lieu of fractional shares thereof).
If (a) without the consent of the Company a court having jurisdiction shall
enter an order for relief with respect to the Company under the Bankruptcy Laws
or without the consent of the Company a court having jurisdiction shall enter a
judgment, order or decree adjudging the Company a bankrupt or insolvent, or
enter an order for relief for reorganization, arrangement, adjustment or
composition of or in respect of the Company under the Bankruptcy Laws or
applicable state insolvency law, or (b) the Company shall institute proceedings
for entry of an order for relief with respect to the Company under the
Bankruptcy Laws or for an adjudication of insolvency, or shall consent to the
institution of bankruptcy or insolvency proceedings against it, or shall file a
petition seeking, or seek or consent to reorganization, arrangement, composition
or relief under the
-80-
<PAGE>
Bankruptcy Laws or any applicable state law, or shall consent to the filing of
such petition or to the appointment of a receiver, custodian, liquidator,
assignee, trustee, sequestrator or similar official (other than a custodian
pursuant to 8 Delaware Code (S) 226 or any similar statute under other state
laws) in respect of the Company or of substantially all of its property, or the
Company shall make a general assignment for the benefit of creditors as
recognized under the Bankruptcy Laws, then all Senior Indebtedness (including
any interest thereon accruing after the commencement of any such proceedings and
any Additional Amounts payable in respect thereof) shall first be paid in full
before any payment or distribution, whether in cash, securities or other
property, shall be made to any Holder of any Securities on account thereof. Any
payment or distribution, whether in cash, securities or other property (other
than securities of the Company or any other corporation provided for by a plan
of reorganization or readjustment the payment of which is subordinate, at least
to the extent provided in these subordination provisions with respect to the
Indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness then outstanding and to any securities issued in respect thereof
under any such plan of reorganization or readjustment) that would otherwise (but
for these subordination provisions) be payable or deliverable in respect of the
Securities of any series shall be paid or delivered directly to the holders of
Senior Indebtedness in accordance with the priorities then existing among such
holders until all Senior Indebtedness (including any interest thereon accruing
after the commencement of any such proceedings and any Additional Amounts
payable in respect thereof) shall have been paid in full. In the event of any
such proceeding, after payment in full of all sums owing with respect to Senior
Indebtedness, the Holder of the Securities, together with the holders of any
obligation of the Company ranking on a parity with the Securities, shall be
entitled to be paid from the remaining assets of the Company the amounts at the
time due and owing on account of unpaid principal of, interest on and any
Additional Amounts payable in respect of the Securities and such other
obligations before any payment of other distribution, whether in cash, property
or otherwise, shall be made on account of any capital stock or any obligations
of the Company ranking junior to the Securities and such other obligations.
If, notwithstanding the foregoing, any payment or distribution of any
character, whether in cash, securities or other property (other than securities
of the Company or any other corporation provided for by a plan of reorganization
or readjustment the payment of which is subordinate, at least to the extent
provided in these subordination provisions with respect to
-81-
<PAGE>
the Indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness then outstanding and to any securities issued in respect thereof
under any such plan of reorganization or readjustment), shall be received by the
Trustee or any Holder in contravention of any of the terms hereof, such payment
or distribution or security shall be received in trust for the benefit of, and
shall be paid over or delivered and transferred to, the holders of the Senior
Indebtedness then outstanding in accordance with the priorities then existing
among such holders for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all such Senior Indebtedness in
full. In the event of the failure of the Trustee or any Holder to endorse or
assign any such payment, distribution or security, each holder of Senior
Indebtedness is hereby irrevocably authorized to endorse or assign the same.
Nothing contained herein shall impair, as between the Company and the
Holders of Securities of each series, the obligation of the Company to pay to
such Holders the principal of, interest on or any Additional Amounts payable
with respect to such Securities or prevent the Trustee or the Holder from
exercising all rights, powers and remedies otherwise permitted by applicable law
or hereunder upon a Default or Event of Default hereunder, all subject to the
rights of the holders of the Senior Indebtedness to receive cash, securities or
other property otherwise payable or deliverable to the Holders.
Senior Indebtedness shall not be deemed to have been paid in full unless
the holders thereof shall have received cash, securities or other property equal
to the amount of such Senior Indebtedness then outstanding. Upon the payment in
full of all Senior Indebtedness, the Holders of Securities of each series shall
be subrogated to all rights of any holders of Senior Indebtedness to receive any
further payments or distributions applicable to the Senior Indebtedness until
the indebtedness evidenced by the Securities of such series shall have been paid
in full, and such payments or distributions received by such Holders, by reason
of such subrogation, of cash, securities or other property that otherwise would
be paid or distributed to the holders of Senior Indebtedness, shall as between
the Company and its creditors other than the holders of Senior Indebtedness, on
the one hand, and such Holders, on the other hand, be deemed to be a payment by
the Company on account of Senior Indebtedness, and not on account of the
Securities of such series.
The provisions of this Section 13.1 shall not impair any rights, interests,
remedies or powers of any secured creditor of the Company in respect of any
security interest the creation of which is not prohibited by the provisions of
this Indenture.
-82-
<PAGE>
The securing of any obligations of the Company, otherwise ranking on a
parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
Section 13.2. RELIANCE ON CERTIFICATE OF LIQUIDATING AGENT; FURTHER EVIDENCE AS
TO OWNERSHIP OF SENIOR INDEBTEDNESS.
Upon any payment or distribution of assets of the Company, the Trustee and
the Holders shall be entitled to rely upon an order or decree issued by any
court of competent jurisdiction in which such dissolution or winding up or
liquidation or reorganization or arrangement proceedings are pending or upon a
certificate of the trustee in bankruptcy, receiver, assignee for the benefit of
creditors or other Person making such payment or distribution, delivered to the
Trustee or to the Holders, for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of the Senior Indebtedness and
other Indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article XIII. In the absence of any such bankruptcy trustee,
receiver, assignee or other Person, the Trustee shall be entitled to rely upon a
written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee or representative on behalf of such holder) as
evidence that such Person is a holder of Senior Indebtedness (or is such a
trustee or representative). If the Trustee determines, in good faith, that
further evidence is required with respect to the right of any Person as a holder
of Senior Indebtedness to participate in any payment or distributions pursuant
to this Article XIII, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, as to the extent to which such Person is
entitled to participate in such payment or distribution, and as to other facts
pertinent to the rights of such Person under this Article XIII, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section 13.3. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article XIII or elsewhere in this Indenture, or
in any of the Securities, shall prevent (a) the Company at any time, except
during the pendency of any default in
-83-
<PAGE>
the payment of any principal of or interest on any Senior Indebtedness as
described in Section 13.1 or of any of the events described in clause (a) and
(b) of Section 13.1, from making payments of the principal of or interest, if
any, on the Securities, or (b) the application by the Trustee or any Paying
Agent of any moneys deposited with it hereunder to payments of the principal of
or interest, if any, on the Securities, if, at the time of such deposit, the
Trustee or such payment agent, as the case may be, did not have the written
notice provided for in Section 13.5 of any event prohibiting the making of such
deposit, or if, at the time of such deposit (whether or not in trust) by the
Company with the Trustee or Paying Agent (other than the Company) such payment
would not have been prohibited by the provisions of this Article XIII, and the
Trustee or any Payment Agent shall not be affected by any notice to the contrary
received by it on or after such date.
Section 13.4. DISPUTES WITH HOLDERS OF CERTAIN SENIOR INDEBTEDNESS.
Any failure by the Company to make any payment on or under any Senior
Indebtedness, other than any Senior Indebtedness as to which the provisions of
this Section 13.4 shall have been waived by the Company in the instrument or
instruments by which the Company incurred, assumed, guaranteed or otherwise
created such Senior Indebtedness, shall not be deemed a default under Section
13.1 if (i) the Company shall be disputing its obligation to make such payment
or perform such obligation, and (ii) either (A) no final judgment relating to
such dispute shall have been issued against the Company that is in full force
and effect and is not subject to further review, including a judgment that has
become final by reason of the expiration of the time within which a party may
seek further appeal or review, or (B) in the event of a judgment that is subject
to further review or appeal has been issued, the Company shall in good faith be
prosecuting an appeal or other proceeding for review, and a stay of execution
shall have been obtained pending such appeal or review.
Section 13.5. TRUSTEE NOT CHARGED WITH KNOWLEDGE OF PROHIBITION.
Anything in this Article XIII or elsewhere in this Indenture contained to
the contrary notwithstanding, the Trustee shall not at any time be charged with
knowledge of existence of any facts that would prohibit the making of any
payment of money to or by the Trustee and shall be entitled to assume
conclusively that no such facts exist and that no event specified in Section
13.1 has happened, until the Trustee shall have received an Officers'
-84-
<PAGE>
Certificate to that effect or notice in writing to that effect signed by or on
behalf of the holder or holders, or their representatives, of Senior
Indebtedness who shall have been certified by the Company or otherwise
established to the reasonable satisfaction of the Trustee to be such holder or
holders or representatives or from any trustee under any indenture pursuant to
which such Senior Indebtedness shall be outstanding; provided, however, that,
if the Trustee shall not have received the Officers' Certificate or notice
provided for in this Section 13.5 prior to the third Business Day preceding the
date upon which by the term hereof any money becomes payable (including, without
limitation, the payment of the principal of, interest on or any Additional
Amounts payable with respect to any Security), or in the event of the execution
of an instrument pursuant to Section 8.1 acknowledging satisfaction and
discharge of this Indenture, then if prior to the third Business Day preceding
the date of such execution, the Trustee or any Paying Agent shall not have
received with respect to such money the Officers' Certificate or notice provided
for in this Section 13.5, then, anything herein contained to the contrary
notwithstanding, the Trustee or such Paying Agent shall have full power and
authority to receive such money and apply the same to the purpose for which it
was received and shall not be affected by any notice to the contrary which may
be received by it on or after such date. The Company shall give prompt written
notice to the Trustee and to the Paying Agent of any facts that would prohibit
the payment of the money to or by the Trustee or any Paying Agent and the
Trustee shall to be charged with knowledge of the curing of any default or the
elimination of any other fact or condition preventing such payment or
distribution unless and until the Trustee shall have received an Officers'
Certificate to such effect.
Section 13.6. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of Securities by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination as between such Holder and holders of Senior
Indebtedness as provided in this Article XIII and appoints the Trustee its
attorney-in-fact for any and all such purposes.
Section 13.7. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all the rights set forth in this Article
XIII with respect to any Senior Indebtedness that
-85-
<PAGE>
may at the time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder. Nothing in this Article XIII shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 7.7.
Section 13.8. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article XIII shall in such case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if the Paying Agent were named
in this Article XIII in addition to or in place of the Trustee; provided,
however, that Sections 13.5 and 13.7 shall not apply to the Company if it acts
as Paying Agent.
Section 13.9. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS-OMISSIONS OF THE
COMPANY OR HOLDERS OF SENIOR INDEBTEDNESS.
No right of any present or future holders of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have or
be otherwise charged with. The holders of Senior Indebtedness may, at any time
or from time to time and in their absolute discretion, change the manner, place
or terms of payment, change or extend the time of payment of, or renew or
alter, any such Senior Indebtedness, or amend or supplement any instrument
pursuant to which any such Senior Indebtedness is issued or by which it may be
secured, or release any security therefor, or exercise or refrain from
exercising any other of their rights under the Senior Indebtedness, including,
without limitation, the waiver of default thereunder, all without notice to or
assent from the Holders of the Securities or the Trustee and without affecting
the obligations of the Company, the Trustee or the Holders of Securities under
this Article XIII.
Section 13.10. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF INDEBTEDNESS.
-86-
<PAGE>
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
the Senior Indebtedness, and shall not be liable to any such holders if it shall
mistakenly pay over or distribute money or assets to Securityholders or the
Company. With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants or obligation as
are specifically set forth in this Article XIII and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
the Indenture against the Trustee.
ARTICLE XIV
MISCELLANEOUS
Section 14.1. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by operation of subsection (c) of Section 318 of the TIA, the
imposed duties shall control.
Section 14.2. NOTICES.
Any notice or communication by the Company or the Trustee to the other is
duly given if in writing and delivered in person or by registered or certified
mail (postage prepaid, return receipt requested), telex, telecopier or overnight
air courier guaranteeing next day delivery, addressed as follows:
If to the Company:
IMC Global Inc.
2100 Sanders Road
Northbrook, IL 60062
Attention: General Counsel
If to the Trustee:
------------------------
------------------------
------------------------
Attention: {Corporate Trust Administration}
The Company or the Trustee by notice to the others may designate additional
or different addresses for subsequent notices or communications.
-87-
<PAGE>
Any notice or communication to the Company or the Trustee shall be deemed
to have been duly given or made at the time delivered by hand if personally
delivered; five calendar days after mailing if sent by registered or certified
mail; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery (except that a
notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication to a Holder of a Registered Security shall be
mailed by first-class mail to such Securityholder's address shown on the
register kept by the Registrar. Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its sufficiency with respect
to other Securityholders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Securityholders, it shall
mail a copy to the Trustee and each Agent at the same time.
Any notice to be given to a Holder of Bearer Securities shall be given by
publication in an Authorized Newspaper on two separate days within the time
prescribed.
Section 14.3. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
Section 14.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take or
refrain from taking any action under this Indenture, the Company shall furnish
to the Trustee:
(a) an Officers' Certificate, in form and substance reasonably
satisfactory to the Trustee stating that, in the
-88-
<PAGE>
opinion of the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel, in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
Section 14.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) a statement that each party making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such party, such party
has made such examination or investigation as is necessary to enable such party
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 each such
party, such condition or covenant has been complied with;
provided, however, that with respect to matters of law, an Officers' Certificate
may be based upon an Opinion of Counsel, unless the signers know, or in the
exercise of reasonable care should know, that such Opinion of Counsel is
erroneous, and provided, further, that with respect to matters of fact, an
Opinion of Counsel may rely on an Officers' Certificate or certificates of
public officials, unless the signer knows, or in the exercise of reasonable care
should know, that any such document is erroneous.
Section 14.6. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
-89-
<PAGE>
Section 14.7. LEGAL HOLIDAYS.
If a payment date is a Legal Holiday at a place of payment, payment may be
made at that place on the next succeeding Business Day, and no interest on the
amount payable on such payment date shall accrue for the intervening period.
Section 14.8. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the Company shall
not have any liability for any obligations of the Company under the Securities
or this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of Securities.
Section 14.9. GOVERNING LAW.
This Indenture and the Securities shall be governed by, and construed in
accordance with, the laws of the State of New York.
Section 14.10. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 14.11. SUCCESSORS.
All agreements of the Company in this Indenture and the Securities shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
Section 14.12. SEVERABILITY.
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.
-90-
<PAGE>
Section 14.13. MULTIPLE ORIGINALS.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.
Section 14.14. TABLE OF CONTENTS; HEADINGS.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not intended to be considered a part hereof and shall not modify or
restrict any of the terms or provisions hereof.
Section 14.15. SECURITIES IN FOREIGN CURRENCIES.
Wherever this Indenture provides for any action by, or the determination of
any of the rights of, Holders of Securities of any series in which not all of
such Securities are denominated in the same currency, or any distribution to
Holders of Securities, in the absence of any provision to the contrary in the
form of Security of any particular series, any amount in respect of any a
Security denominated in a currency other than United States dollars shall be
treated for any such action, determination or distribution as that amount of
United States dollars that could be obtained for such amount on such reasonable
basis of exchange and as of such date as the Company may specify in a written
notice to the Trustee, or in the absence of such notice, as the Trustee may
determine.
-91-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be affixed hereto and
attested, all as of the date first above written.
IMC GLOBAL INC.
By
-------------------------------
Name:
Title:
{Seal}
Attest:
- --------------------------
Name:
Title:
[ ]
-----------------------
By
-------------------------------
Name:
Title:
{Seal}
Attest:
- --------------------------
Name:
Title:
-92-
<PAGE>
EXHIBIT 5
[IMC GLOBAL LETTERHEAD]
May 16, 1997
IMC Global Inc.
2100 Sanders Road
Northbrook, Illinois 60062
Re: $160,000,000 Aggregate Initial
Offering Price of Securities
------------------------------
Ladies and Gentlemen:
I refer to the Registration Statement on Form S-3 (the "Registration
Statement") being filed by IMC Global Inc., a Delaware corporation (the
"Company"), with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Act"), relating to the
registration of $160,000,000 aggregate initial offering price of (i) unsecured
debt securities ("Debt Securities"), which may be convertible into shares of
common stock, par value $1.00 per share ("Common Stock"), (ii) warrants to
purchase Debt Securities ("Debt Warrants"), (iii) shares of series preferred
stock, $1.00 par value per share ("Series Preferred Stock"), which may be
convertible into shares of Common Stock, (iv) shares of Common Stock, (v)
warrants to purchase shares of Common Stock ("Stock Warrants"), (vi) warrants
to receive from the Company the cash value in U.S. dollars of the right to
purchase (the "Currency Call Warrants") or to sell ("Currency Put Warrants"),
and, together with the Currency Call Warrants, the "Currency Warrants" and
collectively with the Debt Securities, Debt Warrants, Series Preferred Stock,
Common Stock and Stock Warrants, the "Securities"). The Securities were
authorized for issuance, offering and sale by the Board of Directors of the
Company by resolutions which were duly adopted (the "Resolutions"). The
Securities may be offered separately or as part of units with other Securities,
in series, in amounts, at
<PAGE>
IMC Global Inc.
May 16, 1997
Page 2
prices and on other terms set forth or to be set forth in the Registration
Statement and any amendments thereto and in the prospectus contained in the
Registration Statement (the "Prospectus") and one or more supplements thereto
(each a "Prospectus Supplement"), and the Securities may be convertible into
Common Stock or other Securities. All capitalized terms not otherwise defined
herein have the meaning set forth in the Registration Statement.
The Debt Securities specified as Senior Debt Securities in the
applicable Prospectus Supplement will be issued under an Indenture, to be filed
prior to the issuance of such Senior Debt Securities in an amendment to the
Registration Statement or incorporated by reference into the Registration
Statement pursuant to a Current Report on Form 8-K, to be entered into by the
Company and a trustee to be named by the Company (such Indenture, as amended or
supplemented from time to time, the "Senior Debt Securities Indenture"). The
Debt Securities specified as Subordinated Debt Securities in the applicable
Prospectus Supplement will be issued under an Indenture, to be filed prior to
the issuance of such Subordinated Debt Securities in an amendment to the
Registration Statement or incorporated by reference into the Registration
Statement pursuant to a Current Report on Form 8-K, to be entered by the
Company (such Indenture, as amended or supplemented from time to time, the
"Subordinated Debt Securities Indenture"). Each series of Debt Warrants will
be issued under a warrant agreement (each a "Debt Warrant Agreement"), to be
filed prior to the issuance of such Debt Warrants in an amendment to the
Registration Statement or incorporated by reference into the Registration
Statement pursuant to a Current Report on Form 8-K, to be entered into by the
Company and a warrant agent or agents to be named by the Company. Each series
of Stock Warrants will be issued under a warrant agreement (each a "Stock
Warrant Agreement"), to be filed prior to the issuance of such Stock Warrants
in an amendment to the Registration Statement or incorporated by reference into
the Registration Statement pursuant to a Current Report on Form 8-K, to be
entered into by the Company and a warrant agent or agents to be named by the
Company. Each series of Currency Warrants will be issued under a warrant
agreement (each a "Currency Warrant Agreement") to be filed prior to the
<PAGE>
IMC Global Inc.
May 16, 1997
Page 3
issuance of such Currency Warrants in an amendment to the Registration
Statement or incorporated by reference into the Registration Statement pursuant
to a Current Report on Form 8-K, to be entered by the Company and a warrant
agent or agents to be named by the Company.
I am familiar with the proceedings to date with respect to the
proposed issuance and sale of the Securities, and have examined such records,
documents and questions of law, and satisfied myself as to such matters of
fact, as I have considered relevant and necessary as a basis for this opinion.
I have assumed the authenticity of all documents submitted to me as originals,
the genuineness of all signatures, the legal capacity of all natural persons and
the conformity with the original documents of any copies thereof submitted to me
for my examination.
Based on the foregoing and subject to the qualifications set forth
below, I am of the opinion that:
1. The Company is a corporation duly organized and validly existing
in good standing under the laws of the State of Delaware.
2. Each series of Senior Debt Securities will be legally issued and
binding obligations of the Company when (i) the Registration Statement, as
finally amended, shall have become effective under the Act, (ii) the Senior Debt
Securities Indenture, including any necessary supplemental indenture, shall have
been qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Act"), (iii) each of the Senior Debt Securities Indenture and any necessary
supplemental indenture to the Senior Debt Securities Indenture shall have been
duly authorized, executed and delivered by the Company and the trustee
thereunder, (iv) the terms of such series of Senior Debt Securities shall have
been established and approved in accordance with the Resolutions, as
contemplated by the Registration Statement, any applicable Prospectus Supplement
and the Senior Debt Securities Indenture, (v) a Prospectus Supplement with
respect to such series of Senior Debt Securities shall have been filed (or
transmitted for filing) with the Commission pursuant to Rule 424(b) of the Act,
and (vi) such
<PAGE>
IMC Global Inc.
May 16, 1997
Page 4
series of Senior Debt Securities shall have been duly executed and
authenticated as provided in the Senior Debt Securities Indenture and duly
delivered to the purchasers thereof against payment of the agreed consideration
therefor in accordance with the applicable underwriting, purchase or similar
agreement.
3. Each series of Subordinated Debt Securities will be legally
issued and binding obligations of the Company when (i) the Registration
Statement, as finally amended, shall have become effective under the Act, (ii)
the Subordinated Debt Securities Indenture, including any necessary supplemental
indenture, shall have been qualified under the Trust Act, (iii) each of the
Subordinated Debt Securities Indenture and any necessary supplemental indenture
to the Subordinated Debt Securities Indenture, (iv) the terms of such series of
Subordinated Debt Securities shall have been established and approved in
accordance with the Resolutions, as contemplated by the Registration Statement,
any applicable Prospectus Supplement and the Subordinated Debt Securities
Indenture, (v) a Prospectus Supplement with respect to such series of
Subordinated Debt Securities shall have been filed (or transmitted for filing)
with the Commission pursuant to Rule 424(b) of the Act, and (vi) such series of
Subordinated Debt Securities shall have been duly executed and authenticated as
provided in the Subordinated Debt Securities Indenture and duly delivered to the
purchasers thereof against payment of the agreed consideration therefor in
accordance with the applicable underwriting, purchase or similar agreement.
4. The Common Stock will be legally issued, fully paid and
non-assessable when (i) the Registration Statement, as finally amended, shall
have become effective under the Act, (ii) the issuance and sale of the Common
Stock shall have been approved in accordance with the Resolutions, as
contemplated by the Registration Statement and any applicable Prospectus
Supplement, (iii) a Prospectus Supplement with respect to such shares of Common
Stock shall have been filed (or transmitted for filing) with the Commission
pursuant to Rule 424(b) of the Act, and (iv) certificates representing the
Common Stock shall have been duly executed, countersigned and registered and
duly delivered to the purchasers thereof against payment of the agreed
consideration therefor (but not less than the par value)
<PAGE>
IMC Global Inc.
May 16, 1997
Page 5
in accordance with the applicable underwriting, purchase or similar agreement.
5. Each series of Debt Warrants will be legally issued and binding
obligations of the Company when (i) the Registration Statement, as finally
amended, shall have become effective under the Act, (ii) a Debt Warrant
Agreement relating to such series of Debt Warrants shall have been duly
authorized, executed and delivered by the Company and the warrant agent or
agents thereunder, (iii) the terms of such series of Debt Warrants shall have
been established and approved in accordance with the Resolutions, as
contemplated by the Registration Statement, any applicable Prospectus Supplement
and the Debt Warrant Agreement, (iv) a Prospectus Supplement with respect to
such series of Debt Warrants shall have been filed (or transmitted for filing)
with the Commission pursuant to Rule 424(b) of the Act, and (v) such series of
Debt Warrants shall have been duly executed and authenticated or countersigned
as provided in the Debt Warrant Agreement and duly delivered to the purchasers
thereof against payment of the agreed consideration therefor in accordance with
the applicable underwriting, purchase or similar agreement.
6. Each series of Series Preferred Stock will be legally issued,
fully paid and non-assessable when (i) the Registration Statement, as finally
amended, shall have become effective under the Act, (ii) the terms of such
series of Series Preferred Stock shall have been established and approved in
accordance with the Resolutions, as contemplated by the Registration Statement
and any applicable Prospectus Supplement, (iii) a Certificate of Designations
setting forth the terms of such series of Series Preferred Stock shall have been
executed, acknowledged, filed and recorded and shall have become effective in
accordance with Section 103 of the General Corporation Law of the State of
Delaware, (iv) a Prospectus Supplement with respect to such series of Series
Preferred Stock shall have been filed (or transmitted for filing) with the
Commission pursuant to Rule 424(b) of the Act, and (v) certificates representing
such series of Series Preferred Stock shall have been duly executed,
countersigned and registered and duly delivered to the purchasers thereof
against payment of the agreed consideration
<PAGE>
IMC Global Inc.
May 16, 1997
Page 6
therefor (but not less than the par value) in accordance with the applicable
underwriting, purchase or similar agreement.
7. Each series of Stock Warrants will be legally issued and binding
obligations of the Company when (i) the Registration Statement, as finally
amended, shall have become effective under the Act, (ii) a Stock Warrant
Agreement relating to such series of Stock Warrants shall have been duly
authorized, executed and delivered by the Company and the warrant agent or
agents thereunder, (iii) the terms of such series of Stock Warrants shall have
been established and approved in accordance with the Resolutions, as
contemplated by the Registration Statement, any applicable Prospectus Supplement
and the Stock Warrant Agreement, (iv) a Prospectus Supplement with respect to
such series of Stock Warrants shall have been filed (or transmitted for filing)
with the Commission pursuant to Rule 424(b) of the Act, and (v) such series of
Stock Warrants shall have been duly executed and authenticated or countersigned
as provided in the Stock Warrant Agreement and duly delivered to the purchasers
thereof against payment of the agreed consideration therefor in accordance with
the applicable underwriting, purchase or similar agreement.
8. Each series of Currency Warrants will be legally issued and
binding obligations of the Company when (i) the Registration Statement, as
finally amended, shall have become effective under the Act, (ii) a Currency
Warrant Agreement relating to such series of Currency Warrants shall have been
duly authorized, executed and delivered by the Company and the warrant agent or
agents thereunder, (iii) the terms of such series of Currency Warrants shall
have been established and approved in accordance with the Resolutions, as
contemplated by the Registration Statement, any applicable Prospectus Supplement
and the Currency Warrant Agreement, (iv) a Prospectus Supplement with respect to
such series of Currency Warrants shall have been filed (or transmitted for
filing) with the Commission pursuant to Rule 424(b) of the Act, and (v) such
series of Currency Warrants shall have been duly executed and authenticated or
countersigned as provided in the Currency Warrant Agreement and duly delivered
to the purchasers thereof against payment of the agreed consideration therefor
in accordance with the applicable underwriting, purchase or similar agreement.
<PAGE>
IMC Global Inc.
May 16, 1997
Page 7
The opinions set forth in paragraphs 2, 3, 5, 7 and 8 are subject to
the qualification that enforceability may be limited by (i) applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or
similar laws of general applicability relating to or affecting the enforcement
of creditors' rights, (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law), (iii) any
requirement that a claim with respect to any security denominated in other than
U.S. dollars (or a judgment denominated in other than U.S. dollars in respect of
such claim) be converted into U.S. dollars at a rate of exchange prevailing on a
date determined in accordance with applicable law and (iv) governmental
authority to limit, delay or prohibit the making of payments outside of the
United States or in a foreign currency or currency unit.
For purposes of rendering the opinions set forth in paragraphs 2
through 8, I have also assumed that, (i) the Registration Statement remains
effective during the offer and sale of the particular Securities, and (ii) at
the time of the issuance, sale and delivery of each Security: (x) the
authorization of the Securities by the Company will not have been modified or
rescinded, and there will not have occurred any change in law affecting the
validity, legally binding character or enforceability of the Securities; and (y)
the issuance, sale and delivery of such Security, the terms of such Security and
compliance by the Company with the terms of such Security will not violate any
applicable law, any agreement or instrument then binding upon the Company or any
restriction imposed by any court or governmental body having jurisdiction over
the Company.
For the purposes of this opinion, I have assumed that there will be no
changes in the laws currently applicable to the Company and that such laws will
be the only laws applicable to the Company.
I do not find it necessary for the purposes of this opinion to cover,
and accordingly express no opinion as to, the application of the securities or
blue sky laws of any jurisdiction to offers or sales of any Securities.
<PAGE>
IMC Global Inc.
May 16, 1997
Page 8
This opinion is limited to the General Corporation law of the State of
Delaware, the laws of the State of New York and the laws of the United States of
America.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the use of my name under the caption "Legal
Matters" in the Prospectus and to the use of my name in any Prospectus
Supplement relating to the Registration Statement reviewed and approved by me
prior to the distribution of such Prospectus Supplement and the filing thereof
with the Commission. In giving such consent, I do not thereby admit that I am
within the category of persons whose consent is required by Section 7 of the Act
or the related rules promulgated by the Commission.
Very truly yours,
/s/ Marschall I. Smith
--------------------------------
Marschall I. Smith
Senior Vice President and
General Counsel
<PAGE>
EXHIBIT 12
IMC GLOBAL INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
NINE MONTHS FISCAL YEAR ENDED JUNE 30,
ENDED -----------------------------------------------------
MARCH 31, 1997 1996 1995 1994 1993 1992
--------------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Fixed charges(a):
Interest charges.................................... $ 38.6 64.8 70.2 91.2 55.6 59.5
------ --------- --------- --------- --------- ---------
------ --------- --------- --------- --------- ---------
Earnings(a):
Net earnings (loss)................................. $ 108.1 144.3 180.9 19.2 (127.0) (66.1)
Extraordinary charge................................ 8.1 -- 6.5 25.2 2.0 --
Cumulative effect of accounting change.............. -- -- 5.9 -- 47.1 197.5
Provision (credit) for income taxes................. 66.7 94.1 115.5 34.8 (39.1) 71.3
Minority interest................................... 119.2 191.5 130.4 55.6 -- --
Interest charges.................................... 38.6 64.8 70.2 91.2 55.6 59.5
------ --------- --------- --------- --------- ---------
Total earnings.................................... $ 340.7 494.7 509.4 226.0 (61.4) 262.2
------ --------- --------- --------- --------- ---------
------ --------- --------- --------- --------- ---------
Ratio of earnings to fixed charges.................... 8.83 7.63 7.26 2.48 (1.10) 4.41
------ --------- --------- --------- --------- ---------
------ --------- --------- --------- --------- ---------
Ratio of earnings to fixed charges(b)................. 8.83 9.16 7.26 2.48 1.94 4.41
------ --------- --------- --------- --------- ---------
------ --------- --------- --------- --------- ---------
</TABLE>
- ------------------------
(a) Earnings consist of pre-tax earnings from continuing operations but before
fixed charges. Fixed charges consist of interest on indebtedness, interest
capitalized as part of fixed assets, amortization of debt expense and rent
expense which is deemed representative of an interest factor.
(b) The ratio of earnings to fixed charges for the fiscal year ended June 30,
1996 excludes a charge of $98.6 million relating to the merger of The Vigoro
Corporation into a wholly-owned subsidiary of the Company. The ratio of
earnings to fixed charges for the fiscal year ended June 30, 1993 excludes a
charge of $169.1 million relating to the settlement of litigation resulting
from a May 1991 explosion at a nitroparaffins plant in Sterlington,
Louisiana.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of IMC Global Inc. for
the registration of $160,000,000 Debt Securities, Debt Warrants, Series
Preferred Stock, Common Stock, Common Stock Warrants and Currency Warrants and
to the incorporation by reference therein of our report dated July 31, 1996,
with respect to the consolidated financial statements of IMC Global Inc.
included in its Annual Report on Form 10-K for the year ended June 30, 1996,
filed with the Securities and Exchange Commission.
Ernst & Young LLP
Chicago, Illinois
May 13, 1997
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 of our report dated January
22, 1996. It should be noted that we have not audited any financial statements
of the company subsequent to June 30, 1995 or performed any audit procedures
subsequent to the date of our report.
Arthur Andersen LLP
Chicago, IL
May 13, 1997
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Brian J.
Smith and Marschall I. Smith his or her true and lawful attorneys and agents,
each with full power and authority (acting alone and without the other) to
execute and deliver in the name and on behalf of the undersigned as such
Director and/or Officer, a Registration Statement on Form S-3 under the
Securities Act of 1933, as amended, with respect to the issuance of $160 million
of securities of the Company; to execute and deliver any and all amendments to
such Registration Statement (including post-effective amendments) for filing
with the Securities and Exchange Commission; and in connection with the
foregoing, to do any and all acts and things and execute any and all instruments
which such attorneys and agents may deem necessary or advisable to enable the
Company to comply with the securities laws of the United States and of any state
or other political subdivision thereof. The undersigned hereby grants onto such
attorney and agents, and each of them, full power of substitution and revocation
in the premises and hereby ratifies and confirms all that such attorneys and
agents may do or cause to be done by virtue of these presents.
Dated this 19th day of December, 1996.
/s/ Wendell F. Bueche
- -----------------------------
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Brian J.
Smith and Marschall I. Smith his or her true and lawful attorneys and agents,
each with full power and authority (acting alone and without the other) to
execute and deliver in the name and on behalf of the undersigned as such
Director and/or Officer, a Registration Statement on Form S-3 under the
Securities Act of 1933, as amended, with respect to the issuance of $160 million
of securities of the Company; to execute and deliver any and all amendments to
such Registration Statement (including post-effective amendments) for filing
with the Securities and Exchange Commission; and in connection with the
foregoing, to do any and all acts and things and execute any and all instruments
which such attorneys and agents may deem necessary or advisable to enable the
Company to comply with the securities laws of the United States and of any state
or other political subdivision thereof. The undersigned hereby grants onto such
attorney and agents, and each of them, full power of substitution and revocation
in the premises and hereby ratifies and confirms all that such attorneys and
agents may do or cause to be done by virtue of these presents.
Dated this 19th day of December, 1996.
/s/ Robert E. Fowler, Jr.
- -----------------------------
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Brian J.
Smith and Marschall I. Smith his or her true and lawful attorneys and agents,
each with full power and authority (acting alone and without the other) to
execute and deliver in the name and on behalf of the undersigned as such
Director and/or Officer, a Registration Statement on Form S-3 under the
Securities Act of 1933, as amended, with respect to the issuance of $160 million
of securities of the Company; to execute and deliver any and all amendments to
such Registration Statement (including post-effective amendments) for filing
with the Securities and Exchange Commission; and in connection with the
foregoing, to do any and all acts and things and execute any and all instruments
which such attorneys and agents may deem necessary or advisable to enable the
Company to comply with the securities laws of the United States and of any state
or other political subdivision thereof. The undersigned hereby grants onto such
attorney and agents, and each of them, full power of substitution and revocation
in the premises and hereby ratifies and confirms all that such attorneys and
agents may do or cause to be done by virtue of these presents.
Dated this 19th day of December, 1996.
/s/ Raymond F. Bentele
- -----------------------------
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Brian J.
Smith and Marschall I. Smith his or her true and lawful attorneys and agents,
each with full power and authority (acting alone and without the other) to
execute and deliver in the name and on behalf of the undersigned as such
Director and/or Officer, a Registration Statement on Form S-3 under the
Securities Act of 1933, as amended, with respect to the issuance of $160 million
of securities of the Company; to execute and deliver any and all amendments to
such Registration Statement (including post-effective amendments) for filing
with the Securities and Exchange Commission; and in connection with the
foregoing, to do any and all acts and things and execute any and all instruments
which such attorneys and agents may deem necessary or advisable to enable the
Company to comply with the securities laws of the United States and of any state
or other political subdivision thereof. The undersigned hereby grants onto such
attorney and agents, and each of them, full power of substitution and revocation
in the premises and hereby ratifies and confirms all that such attorneys and
agents may do or cause to be done by virtue of these presents.
Dated this 19th day of December, 1996.
/s/ Rod F. Dammeyer
- -----------------------------
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Brian J.
Smith and Marschall I. Smith his or her true and lawful attorneys and agents,
each with full power and authority (acting alone and without the other) to
execute and deliver in the name and on behalf of the undersigned as such
Director and/or Officer, a Registration Statement on Form S-3 under the
Securities Act of 1933, as amended, with respect to the issuance of $160 million
of securities of the Company; to execute and deliver any and all amendments to
such Registration Statement (including post-effective amendments) for filing
with the Securities and Exchange Commission; and in connection with the
foregoing, to do any and all acts and things and execute any and all instruments
which such attorneys and agents may deem necessary or advisable to enable the
Company to comply with the securities laws of the United States and of any state
or other political subdivision thereof. The undersigned hereby grants onto such
attorney and agents, and each of them, full power of substitution and revocation
in the premises and hereby ratifies and confirms all that such attorneys and
agents may do or cause to be done by virtue of these presents.
Dated this 19th day of December, 1996.
/s/ Dr. James M. Davidson
- -----------------------------
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Brian J.
Smith and Marschall I. Smith his or her true and lawful attorneys and agents,
each with full power and authority (acting alone and without the other) to
execute and deliver in the name and on behalf of the undersigned as such
Director and/or Officer, a Registration Statement on Form S-3 under the
Securities Act of 1933, as amended, with respect to the issuance of $160 million
of securities of the Company; to execute and deliver any and all amendments to
such Registration Statement (including post-effective amendments) for filing
with the Securities and Exchange Commission; and in connection with the
foregoing, to do any and all acts and things and execute any and all instruments
which such attorneys and agents may deem necessary or advisable to enable the
Company to comply with the securities laws of the United States and of any state
or other political subdivision thereof. The undersigned hereby grants onto such
attorney and agents, and each of them, full power of substitution and revocation
in the premises and hereby ratifies and confirms all that such attorneys and
agents may do or cause to be done by virtue of these presents.
Dated this 19th day of December, 1996.
/s/ Harold H. MacKay
- -----------------------------
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Brian J.
Smith and Marschall I. Smith his or her true and lawful attorneys and agents,
each with full power and authority (acting alone and without the other) to
execute and deliver in the name and on behalf of the undersigned as such
Director and/or Officer, a Registration Statement on Form S-3 under the
Securities Act of 1933, as amended, with respect to the issuance of $160 million
of securities of the Company; to execute and deliver any and all amendments to
such Registration Statement (including post-effective amendments) for filing
with the Securities and Exchange Commission; and in connection with the
foregoing, to do any and all acts and things and execute any and all instruments
which such attorneys and agents may deem necessary or advisable to enable the
Company to comply with the securities laws of the United States and of any state
or other political subdivision thereof. The undersigned hereby grants onto such
attorney and agents, and each of them, full power of substitution and revocation
in the premises and hereby ratifies and confirms all that such attorneys and
agents may do or cause to be done by virtue of these presents.
Dated this 19th day of December, 1996.
/s/ David B. Mathis
- -----------------------------
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Brian J.
Smith and Marschall I. Smith his or her true and lawful attorneys and agents,
each with full power and authority (acting alone and without the other) to
execute and deliver in the name and on behalf of the undersigned as such
Director and/or Officer, a Registration Statement on Form S-3 under the
Securities Act of 1933, as amended, with respect to the issuance of $160 million
of securities of the Company; to execute and deliver any and all amendments to
such Registration Statement (including post-effective amendments) for filing
with the Securities and Exchange Commission; and in connection with the
foregoing, to do any and all acts and things and execute any and all instruments
which such attorneys and agents may deem necessary or advisable to enable the
Company to comply with the securities laws of the United States and of any state
or other political subdivision thereof. The undersigned hereby grants onto such
attorney and agents, and each of them, full power of substitution and revocation
in the premises and hereby ratifies and confirms all that such attorneys and
agents may do or cause to be done by virtue of these presents.
Dated this 19th day of December, 1996.
/s/ Thomas H. Roberts, Jr.
- -----------------------------
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Brian J.
Smith and Marschall I. Smith his or her true and lawful attorneys and agents,
each with full power and authority (acting alone and without the other) to
execute and deliver in the name and on behalf of the undersigned as such
Director and/or Officer, a Registration Statement on Form S-3 under the
Securities Act of 1933, as amended, with respect to the issuance of $160 million
of securities of the Company; to execute and deliver any and all amendments to
such Registration Statement (including post-effective amendments) for filing
with the Securities and Exchange Commission; and in connection with the
foregoing, to do any and all acts and things and execute any and all instruments
which such attorneys and agents may deem necessary or advisable to enable the
Company to comply with the securities laws of the United States and of any state
or other political subdivision thereof. The undersigned hereby grants onto such
attorney and agents, and each of them, full power of substitution and revocation
in the premises and hereby ratifies and confirms all that such attorneys and
agents may do or cause to be done by virtue of these presents.
Dated this 19th day of December, 1996.
/s/ Joseph P. Sullivan
- -----------------------------
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Brian J.
Smith and Marschall I. Smith his or her true and lawful attorneys and agents,
each with full power and authority (acting alone and without the other) to
execute and deliver in the name and on behalf of the undersigned as such
Director and/or Officer, a Registration Statement on Form S-3 under the
Securities Act of 1933, as amended, with respect to the issuance of $160 million
of securities of the Company; to execute and deliver any and all amendments to
such Registration Statement (including post-effective amendments) for filing
with the Securities and Exchange Commission; and in connection with the
foregoing, to do any and all acts and things and execute any and all instruments
which such attorneys and agents may deem necessary or advisable to enable the
Company to comply with the securities laws of the United States and of any state
or other political subdivision thereof. The undersigned hereby grants onto such
attorney and agents, and each of them, full power of substitution and revocation
in the premises and hereby ratifies and confirms all that such attorneys and
agents may do or cause to be done by virtue of these presents.
Dated this 19th day of December, 1996.
/s/ Richard L. Thomas
- -----------------------------
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Brian J.
Smith and Marschall I. Smith his or her true and lawful attorneys and agents,
each with full power and authority (acting alone and without the other) to
execute and deliver in the name and on behalf of the undersigned as such
Director and/or Officer, a Registration Statement on Form S-3 under the
Securities Act of 1933, as amended, with respect to the issuance of $160 million
of securities of the Company; to execute and deliver any and all amendments to
such Registration Statement (including post-effective amendments) for filing
with the Securities and Exchange Commission; and in connection with the
foregoing, to do any and all acts and things and execute any and all instruments
which such attorneys and agents may deem necessary or advisable to enable the
Company to comply with the securities laws of the United States and of any state
or other political subdivision thereof. The undersigned hereby grants onto such
attorney and agents, and each of them, full power of substitution and revocation
in the premises and hereby ratifies and confirms all that such attorneys and
agents may do or cause to be done by virtue of these presents.
Dated this 19th day of December, 1996.
/s/ Billie B. Turner
- -----------------------------
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints Brian J.
Smith and Marschall I. Smith his or her true and lawful attorneys and agents,
each with full power and authority (acting alone and without the other) to
execute and deliver in the name and on behalf of the undersigned as such
Director and/or Officer, a Registration Statement on Form S-3 under the
Securities Act of 1933, as amended, with respect to the issuance of $160 million
of securities of the Company; to execute and deliver any and all amendments to
such Registration Statement (including post-effective amendments) for filing
with the Securities and Exchange Commission; and in connection with the
foregoing, to do any and all acts and things and execute any and all instruments
which such attorneys and agents may deem necessary or advisable to enable the
Company to comply with the securities laws of the United States and of any state
or other political subdivision thereof. The undersigned hereby grants onto such
attorney and agents, and each of them, full power of substitution and revocation
in the premises and hereby ratifies and confirms all that such attorneys and
agents may do or cause to be done by virtue of these presents.
Dated this 19th day of December, 1996.
/s/ Clayton K. Yeutter
- -----------------------------
