<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 16, 1998
REGISTRATION NO. 333-
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- -------------------------------------------------------------------------------
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)
DELAWARE 36-3492467
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
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)
--------------
J. BRADFORD JAMES
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
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)
With copies to:
MICHAEL G. TIMMERS
KIRKLAND & ELLIS
200 EAST RANDOLPH DRIVE
CHICAGO, ILLINOIS 60601
--------------
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. [X]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE(1) FEE
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities (2)............................. (5) (5) $500,000,000 $147,500(6)
Debt Warrants...................................
Series Preferred Stock (3)......................
Common Stock (4)................................
Common Stock Warrants...........................
Currency Warrants...............................
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</TABLE>
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(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 $500,000,000 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
$200,000,000 principal amount of Debt Securities, Debt Warrants, Series
Preferred Stock, Common Stock, Common Stock Warrants and Currency Warrants
registered by the Registrant under the Securities Act of 1933 in Registration
Statement No. 333-41713, 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. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED SEPTEMBER 16, 1998
PROSPECTUS
IMC GLOBAL INC.
$700,000,000
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 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 $700,000,000
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, any terms for
conversion or exchange into Common Stock and any special provisions related to
Debt Securities issued as medium-term notes, (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 (v) 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 , 1998
<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 ANY JURISDICTION IN
WHICH AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER OR SOLICITATION WOULD
NOT BE IN COMPLIANCE WITH THE SECURITIES OR BLUE SKY LAWS OF 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 450 Fifth Street,
N.W., Room 1024, 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 and Northeast Regional Office, 7 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 (File No. 1-9759) are incorporated herein by
reference:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1997;
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998;
3. The Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1998;
2
<PAGE>
4. The Company's Current Report on Form 8-K filed on January 6, 1998;
5. The Company's Current Report on Form 8-K filed on January 15, 1998;
6. The Company's Current Report on Form 8-K filed on April 15, 1998, as
amended on June 15, 1998 and September 16, 1998;
7. 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
8. 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.
The consolidated financial statements of Freeport-McMoRan Inc. ("FTX") at
December 31, 1996 and for each of the three years in the period ended December
31, 1996 contained in FTX's Annual Report on Form
10-K for the year ended December 31, 1996 filed with the Commission pursuant
to the Exchange Act (File No. 1-8124) are incorporated herein by reference.
The unaudited interim consolidated financial statements of FTX for the quarter
ended September 30, 1997 contained in FTX's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1997 filed with the Commission pursuant to the
Exchange Act (File No. 1-8124) are incorporated herein by reference.
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, including the
documents incorporated by reference herein, 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; weather; risks associated with export sales and
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, as
3
<PAGE>
well as those of the United Kingdom and other European countries, China and
other countries in the Far East and Australia; 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.
THE COMPANY
The Company is one of the world's leading producers of crop nutrients for
the international agricultural community and is one of the foremost
distributors in the United States of crop nutrients and related products
through its retail and wholesale distribution networks. The Company is also
one of the world's leading producers of salt, soda ash and other inorganic
chemicals. The Company mines, processes and distributes potash in the United
States and Canada and is a joint venture partner in IMC-Agrico Company, a
leading producer, marketer and distributor of phosphate crop nutrients and
animal feed ingredients. The Company also mines, processes and distributes
salt products in the United States, Canada and Europe and is a major producer
of soda ash and other inorganic chemicals in the United States, Europe and
Australia. The Company has structured its operations into five business units
corresponding to its major product lines as follows: IMC Crop Nutrients
(phosphates and potash), IMC Salt (salt), IMC-Agrico Feed Ingredients (animal
feed), IMC Chemicals (soda ash and other inorganic chemicals) and IMC
AgriBusiness (wholesale and retail distribution). 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 for the periods indicated:
<TABLE>
<CAPTION>
SIX MONTHS YEAR ENDED DECEMBER 31,
ENDED -------------------------
JUNE 30, 1998 1997 1996 1995 1994 1993
------------- ---- ---- ---- ---- -----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges(a). 3.69 5.78 8.24 8.34 5.24 (1.56)
Adjusted ratio of earnings to fixed
charges(b)........................... 3.86 9.21 9.98 8.34 5.24 0.65
</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 adjusted ratio of earnings to fixed charges for the six months ended
June 30, 1998 excludes a charge of $9.1 million relating to the sale of
the Company's IMC Vigoro business unit. The adjusted ratio of earnings to
fixed charges for the year ended December 31, 1997 excludes a charge of
$183.7 million relating to the writedown of the historical carrying value
of IMC's interest in the Main Pass 299 business of Phosphate Resource
Partners Limited Partnership. The adjusted ratio of earnings to fixed
charges for the year ended December 31, 1996 excludes a charge of $98.6
million relating to the merger of The Vigoro Corporation into a wholly
owned subsidiary of IMC. The adjusted ratio of earnings to fixed charges
for the year ended December 31, 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, dated as of August 1,
1998 (the "Senior Indenture"), between the Company and The Bank of New York, as
Trustee (the "Senior Trustee"). A copy of the Senior Indenture is filed as an
exhibit to the Registration Statement of which this Prospectus is a part. 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"). A copy of the form of Subordinated Indenture is filed
as an exhibit to the Registration Statement of which this Prospectus is a part.
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 the Company 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 the Company. 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 the Company or its Subsidiaries. All
Senior Debt Securities will be unsecured and will rank on a parity with all
other unsecured and unsubordinated Indebtedness of the Company. 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 the Company as described below
under "Provisions Applicable Solely to Subordinated Debt Securities--
Subordination." In addition, creditors of Subsidiaries of the Company 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 the
Company and holders of Senior Debt Securities or Subordinated Debt Securities,
except to the extent that the Company is itself recognized as a creditor of
such Subsidiary, in which case the claims of the Company 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 the Company.
Reference is made to the Prospectus Supplement for the following terms
thereof: (i) the title of the Offered Debt Securities, which may include
medium-term notes, 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
5
<PAGE>
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; (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 the Company;
(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 the
Company 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 the Company 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 the
Company 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
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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
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 the Company 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 the Company with the Trustee of a
certificate as to compliance with certain covenants contained in the
Indentures.
The Company 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 the Company 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, the
Company 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
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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 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 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 indebtedness of any
Restricted Subsidiary 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 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.
The Subordinated Indenture provides that 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 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
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Company or such Restricted Subsidiary would be entitled, pursuant to the
provisions of the Indentures, to incur Indebtedness secured by a Lien on such
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 transaction, defined as the greater of the
net proceeds of the sale of the property leased in such transaction or the
fair value, as determined by the Board of Directors, of the leased property at
the time such transaction was entered into. The Indentures define "Funded
Debt" as indebtedness (including the Debt Securities) maturing by the terms
thereof more than one year after the original creation thereof. 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, suffer to exist 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 latest
audited consolidated balance sheet contained in the latest annual report to
the stockholders 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 when and as 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 when and as 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 Debt Securities of that series then outstanding; (iv)
default in the payment of any scheduled principal of or interest on any
Indebtedness of the Company or any wholly owned Subsidiary of the Company
(other than the Debt Securities of such series) aggregating more than $25
million in principal amount, when due after giving effect to any applicable
grace period, that results in such Indebtedness becoming due and payable prior
to the date on which it would otherwise become due and payable, and such
acceleration shall not have been rescinded or annulled, or such Indebtedness
shall not have been discharged; or (v) certain events of bankruptcy,
insolvency or reorganization involving the Company 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.
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If an Event of Default of the type described in clause (v) 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 (iv) 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 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 such 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 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 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 in
principal amount 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.
The Company must furnish to the Trustee a statement, detailing any Defaults
of which it is aware, within five days of the occurrence of any Default.
REPORTS
The Indentures provide that the Company will file with the Trustee copies of
the annual reports and other information, documents and reports which the
Company is required to file with the Commission pursuant to the Exchange Act.
If the Company is not required to file such reports and other information, the
Indentures provide that the Company 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. The
Company shall also comply with the requirements of Section 314(a) of the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
SUCCESSOR COMPANY
The Indentures provide that 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 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 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; (ii) the
Surviving Entity assumes by a supplemental
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indenture in a form satisfactory to the Trustee all of the obligations of the
Company 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.
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 the Company has paid all sums payable under such Indenture.
MODIFICATION OF THE INDENTURES
Each Indenture contains provisions permitting the Company 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 the Company 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 the Company 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 the Company in such Indenture.
DEFEASANCE AND COVENANT DEFEASANCE
Each Indenture provides that the Company 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
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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 fund or analogous payments thereon,
on the scheduled due dates therefor. Such a trust may be established only if,
among other things, the Company 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
The Bank of New York is the 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. Such Trustee will be an "eligible trustee" under the
Trust Indenture Act.
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 the Company. If the Company 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, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise, then, upon written notice of such default to the
Company by the holders of such Senior Indebtedness of any trustee therefor and
subject to certain rights of the Company 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 the Company (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 the
Company.
The term "Senior Indebtedness" is defined to mean Indebtedness (including
the Senior Debt Securities) 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 Subordinated Debt Securities, (b) the Subordinated
Debt 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 certain events of bankruptcy or insolvency unless such
interest is an allowed claim enforceable against the Company in a proceeding
under federal or state bankruptcy laws and (e) trade payables.
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If (i) without the consent of the Company a court shall enter an order for
relief with respect to the Company under the United States federal bankruptcy
laws or 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 United
States federal or state bankruptcy or insolvency laws or (ii) the Company
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 the Company or of substantially
all of its property, or the Company shall make a general assignment for 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 or 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 the Company 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. 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 the Company ranking on a parity with
the Subordinated Debt Securities, will be entitled to be repaid from the
remaining assets of the Company 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 the
Company ranking junior to the Subordinated Debt Securities and such other
obligations.
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 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 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 the Trustee
or 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 or security 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 in full.
By reason of such subordination, in the event of the insolvency of the
Company, holders of Senior Indebtedness may receive more, ratably, than
holders of the Subordinated Debt Securities. In addition, other creditors of
the Company 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.
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CERTAIN DEFINITIONS
"Additional Amounts" shall mean any additional amounts which are required by
a Debt Security, under circumstances specified therein, to be paid by the
Company 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, with respect to any Person, 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.
"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" 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.
"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.
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"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).
"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 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; (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" shall mean 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, are 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.
"Restricted Subsidiary" shall mean any Subsidiary of the Company 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,
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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.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that at
the time of determination shall be designated an Unrestricted Subsidiary by
the Board of Directors of the Company 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.
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 that will be included in the Debt Warrant
Agreements 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 applicable Debt Warrant Agreement and the Debt Warrant
Certificates, respectively, to be filed in an amendment to the Registration
Statement of which this Prospectus is a part or to be filed in a Current
Report on Form 8-K and incorporated by reference in the Registration Statement
of which this Prospectus is a part, 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.
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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
The Company 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, as amended (the
"Restated Certificate of Incorporation"), (ii) IMC's Amended and Restated By-
Laws (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)
300,000,000 shares, $1.00 par value per share of Common Stock, of which
114,327,797 shares of Common Stock were issued and outstanding as of August
11, 1998 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 September 30, 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.
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Reference is made to the applicable Prospectus Supplement relating to the
Series Preferred Stock offered thereby for specific terms, including the
following: (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
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 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
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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.
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
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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.
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
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incorporated by reference in the Registration Statement of which this
Prospectus is a part. The following summaries of certain provisions that will
be included in the Stock Warrant Agreements 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 applicable Stock Warrant
Agreement and the Stock Warrant Certificates, respectively, to be filed in an
amendment to the Registration Statement of which this Prospectus is a part or
to be filed in a Current Report on Form 8-K and incorporated by reference in
the Registration Statement of which this Prospectus is a part, 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.
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.
21
<PAGE>
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 that will be included in the Currency Warrant Agreements 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 applicable Currency Warrant Agreement and the Currency Warrant
Certificates, respectively, to be filed in an amendment to the Registration
Statement of which this Prospectus is a part or to be filed in a Current
Report on Form 8-K and incorporated by reference in the Registration Statement
of which this Prospectus is a part, 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 and 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 (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.
22
<PAGE>
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.
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.
23
<PAGE>
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
Unless otherwise indicated in the Prospectus Supplement, certain legal
matters in connection with the securities offered hereby will be passed upon
for IMC by Kirkland & Ellis (a partnership including professional
corporations).
EXPERTS
The consolidated financial statements of the Company as of December 31, 1997
and 1996 and for each of the three years in the period ended December 31, 1997
appearing in the Company's Annual Report on Form 10-K for the year ended
December 31, 1997, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such financial statements have been
incorporated herein in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
The consolidated balance sheets of Harris Chemical Group, Inc. as of March
29, 1997 and March 30, 1996 and the related consolidated statements of
operations, cash flows and common stockholders' equity for each of the three
fiscal years in the period ended March 29, 1997 appearing in the Company's
Current Report on Form 8-K/A filed on June 15, 1998, which is incorporated by
reference in this Prospectus and in the Registration Statement, have been
audited by PricewaterhouseCoopers LLP, independent accountants, as set forth
in their report thereon included therein and incorporated herein by reference.
The consolidated balance sheets of Harris Chemical Group, Inc. as of March 28,
1998 and March 29, 1997 and the related consolidated statements of operations,
cash flows and common stockholders' equity for each of the three fiscal years
in the period ended March 28, 1998 appearing in the Company's Current Report
on Form 8-K/A filed on September 16, 1998, which is incorporated by reference
in this Prospectus and in the Registration Statement, have been audited by
PricewaterhouseCoopers LLP, independent accountants, as set forth in their
report thereon included therein and incorporated herein by reference. Such
financial statements have been incorporated herein in reliance upon such
reports given upon the authority of such firm as experts in accounting and
auditing.
The financial statements of Harris Chemical Australia Pty Ltd. & Its
Controlled Entities for the year ended June 30, 1997 appearing in the
Company's Current Report on Form 8-K/A filed on June 15, 1998, which is
incorporated by reference in this Prospectus and in the Registration
Statement, have been audited by Arthur Andersen, Chartered Accountants, as set
forth in their report thereon included therein and incorporated herein by
reference. Such financial statements have been incorporated herein in reliance
upon such report given upon the authority of such firm as experts in
accounting and auditing.
The consolidated financial statements of FTX at December 31, 1996 and for
each of the three years in the period ended December 31, 1996 appearing in
FTX's Annual Report on Form 10-K for the year ended December 31, 1996, which
are incorporated by reference in this Prospectus and in the Registration
Statement, have been audited by Arthur Andersen LLP, independent public
accountants, as set forth in their report thereon incorporated by reference
herein. In that report, that firm states that its report is based in part on
the report of other independent public accountants, Ernst & Young LLP. Such
financial statements have been incorporated herein by reference in reliance
upon the authority of those firms as experts in accounting and auditing in
giving said reports.
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............................................. $147,500
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.................................................... 82,500
--------
Total........................................................ $700,000
========
</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 or she 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 or her 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
or her 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 or her 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.
II-1
<PAGE>
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -------------------------------------------------------------------
<C> <S>
1.1 Form of Underwriting Agreement (incorporated by reference to
Exhibit 1.1 to the Company's Registration Statement on Form S-3
(No. 333-41713)).
*1.2 Form of Distribution Agreement
4.1 Restated Certificate of Incorporation, as amended, (incorporated
by reference to the Company's Current Report on Form 8-K dated
November 1, 1994 (File No. 1-9759)).
4.2 Certificate of Amendment to Restated Certificate of Incorporation,
dated October 20, 1994 (incorporated by reference to Exhibit 3.2
of the Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1997 (File No. 1-9759)).
4.3 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 (File No. 1-9759)).
4.4 Certificate of Amendment to Restated Certificate of Incorporation,
dated March 1, 1996 (incorporated by reference to Exhibit 3.4 of
the Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1997 (File No. 1-9759)).
4.5 Certificate of Merger of Freeport-McMoRan Inc. and the Company,
dated December 22, 1997 (incorporated by reference to Exhibit 3.5
of the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997 (File No. 1-9759)).
4.6 Amended and Restated By-Laws (incorporated by reference to Exhibit
3.6 to the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997 (File No. 1-9759)).
4.7 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 (File No. 1-9759)).
4.8 Amendment to Rights Agreement, effective as of April 29, 1993
(incorporated by reference to Exhibit 4.2 to the Company's
Registration Statement on Form 8-A/A dated January 12, 1996 (File
No. 1-9759)).
4.9 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 (File No. 1-9759)).
4.10 Indenture dated as of August 1, 1998 between the Company and The
Bank of New York, as Trustee.
*4.11 Form of Senior Debt Securities.
4.12 Form of Subordinated Debt Securities Indenture (incorporated by
reference to Exhibit 4.12 to the Company's Registration Statement
on Form S-3 (No. 333-41713)).
*4.13 Form of Subordinated Debt Securities.
*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.
*4.17 Form of Currency Warrant Agreement, including form of Currency
Warrant Certificate.
5.1 Opinion of Kirkland & Ellis.
12.1 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Ernst & Young LLP.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- --------------------------------------------------------------------
<C> <S>
23.2 Consent of Arthur Andersen, Chartered Accountants.
23.3 Consent of PricewaterhouseCoopers LLP.
23.4 Consent of Kirkland & Ellis (included in Exhibit 5).
23.5 Consent of Arthur Andersen LLP, independent public accountants.
24 Powers of Attorney.
25.1 Statement of Eligibility and Qualification on Form T-1 of the Bank
of New York, as Trustee under the Senior Indenture pursuant to
which the Senior Debt Securities registered hereunder are to be
issued.
</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% 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 information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
II-3
<PAGE>
(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 that 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.
II-4
<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 SEPTEMBER 16, 1998.
IMC Global Inc.
/s/ J. Bradford James
By: _________________________________
J. Bradford James
Senior Vice President and
Chief Financial Officer
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
--------- ----- ----
<S> <C> <C>
* Chief Executive Officer September 16, 1998
____________________________________ (principal executive
Robert E. Fowler, Jr officer), President
(principal operating
officer) and Director
/s/ J. Bradford James Senior Vice President and September 16, 1998
____________________________________ Chief Financial Officer
J. Bradford James (principal financial
officer)
/s/ Anne M. Scavone Vice President and September 16, 1998
____________________________________ Controller
Anne M. Scavone (principal accounting
officer)
* Chairman and Director September 16, 1998
____________________________________
Wendell F. Bueche
* Director September 16, 1998
____________________________________
Raymond F. Bentele
* Director September 16, 1998
____________________________________
Robert W. Bruce, III
* Director September 16, 1998
____________________________________
Rod F. Dammeyer
* Director September 16, 1998
____________________________________
James M. Davidson, Ph.D.
* Director September 16, 1998
____________________________________
Rene L. Latiolais
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Director September 16, 1998
____________________________________
Harold H. MacKay
* Director September 16, 1998
____________________________________
David B. Mathis
* Director September 16, 1998
____________________________________
Donald F. Mazankowski
* Director September 16, 1998
____________________________________
Joseph P. Sullivan
* Director September 16, 1998
____________________________________
Richard L. Thomas
* Director September 16, 1998
____________________________________
</TABLE> Billie B. Turner
/s/ J. Bradford James
*By: __________________________
J. Bradford James
Attorney in Fact
II-6
<PAGE>
EXHIBIT 4.10
IMC GLOBAL INC.,
ISSUER
INDENTURE
DATED AS OF AUGUST 1, 1998
THE BANK OF NEW YORK,
TRUSTEE
PROVIDING FOR THE ISSUANCE OF
SENIOR DEBT SECURITIES IN SERIES
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I--DEFINITIONS AND INCORPORATION BY REFERENCE....................... 1
SECTION 1.1 DEFINITIONS.............................................. 1
SECTION 1.2 OTHER DEFINITIONS........................................ 9
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT........ 9
SECTION 1.4 RULES OF CONSTRUCTION.................................... 10
ARTICLE II--THE SECURITIES.................................................. 10
SECTION 2.1 TERMS AND FORMS.......................................... 10
SECTION 2.2 EXECUTION AND AUTHENTICATION............................. 14
SECTION 2.3 REGISTRAR, PAYING AGENT, CONVERSION AGENT, DEPOSITORY
AND SECURITIES CUSTODIAN................................. 16
SECTION 2.4 SECURITYHOLDER LISTS..................................... 16
SECTION 2.5 TRANSFER, REGISTRATION AND EXCHANGE...................... 17
SECTION 2.6 REPLACEMENT SECURITIES................................... 19
SECTION 2.7 OUTSTANDING SECURITIES................................... 20
SECTION 2.8 TREASURY SECURITIES...................................... 21
SECTION 2.9 TEMPORARY SECURITIES..................................... 21
SECTION 2.10 SECURITIES IN GLOBAL FORM................................ 21
SECTION 2.11 CANCELLATION............................................. 21
SECTION 2.12 DEFAULTED INTEREST....................................... 22
SECTION 2.13 PERSONS DEEMED OWNERS.................................... 22
SECTION 2.14 CUSIP NUMBERS............................................ 23
ARTICLE III--REDEMPTION..................................................... 23
SECTION 3.1 APPLICABILITY OF ARTICLE................................. 23
SECTION 3.2 NOTICES TO TRUSTEE....................................... 23
SECTION 3.3 SELECTION OF SECURITIES TO BE REDEEMED................... 24
SECTION 3.4 NOTICE OF REDEMPTION..................................... 24
SECTION 3.5 EFFECT OF NOTICE OF REDEMPTION........................... 25
SECTION 3.6 DEPOSIT OF REDEMPTION PRICE.............................. 26
SECTION 3.7 SECURITIES REDEEMED IN PART.............................. 26
ARTICLE IV--COVENANTS....................................................... 27
SECTION 4.1 PAYMENT OF SECURITIES.................................... 27
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY FOR NOTICES AND DEMANDS.. 27
SECTION 4.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST........ 28
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
SECTION 4.4 COMMISSION REPORTS; REPORTS TO TRUSTEE; REPORTS
TO HOLDERS............................................... 30
SECTION 4.5 COMPLIANCE CERTIFICATES.................................. 30
SECTION 4.6 CORPORATE EXISTENCE...................................... 31
SECTION 4.7 LIMITATION ON LIENS...................................... 31
SECTION 4.8 LIMITATIONS ON SALE AND LEASEBACK TRANSACTIONS........... 31
SECTION 4.9 EXEMPTED INDEBTEDNESS.................................... 32
SECTION 4.10 WAIVER OF STAY; EXTENSION OF USURY LAWS.................. 32
ARTICLE V--SUCCESSORS....................................................... 33
SECTION 5.1 WHEN COMPANY MAY MERGE, ETC.............................. 33
SECTION 5.2 SUCCESSOR CORPORATION SUBSTITUTED........................ 33
ARTICLE VI--DEFAULTS AND REMEDIES........................................... 33
SECTION 6.1 EVENTS OF DEFAULT........................................ 33
SECTION 6.2 ACCELERATION............................................. 35
SECTION 6.3 OTHER REMEDIES........................................... 35
SECTION 6.4 WAIVER OF PAST DEFAULTS.................................. 36
SECTION 6.5 CONTROL BY MAJORITY...................................... 36
SECTION 6.6 LIMITATION ON SUITS BY HOLDERS........................... 36
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT..................... 37
SECTION 6.8 COLLECTION SUIT BY TRUSTEE............................... 37
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM......................... 37
SECTION 6.10 APPLICATION OF MONEY COLLECTED........................... 37
SECTION 6.11 UNDERTAKING FOR COSTS.................................... 38
SECTION 6.12 DISCONTINUANCE OR ABANDONMENT OF PROCEEDINGS............. 39
ARTICLE VII--TRUSTEE........................................................ 39
SECTION 7.1 DUTIES OF TRUSTEE........................................ 39
SECTION 7.2 RIGHTS OF TRUSTEE........................................ 40
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE............................. 41
SECTION 7.4 TRUSTEE'S DISCLAIMER..................................... 41
SECTION 7.5 NOTICE OF DEFAULTS....................................... 41
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS............................ 42
SECTION 7.7 COMPENSATION AND INDEMNITY............................... 42
SECTION 7.8 REPLACEMENT OF TRUSTEE................................... 43
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER.............................. 44
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION............................ 44
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY........ 44
SECTION 7.12 MONEY HELD IN TRUST...................................... 44
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
ARTICLE VIII--DISCHARGE OF INDENTURE; DEFEASANCE............................ 44
SECTION 8.1 DISCHARGE OF INDENTURE; DEFEASANCE....................... 44
SECTION 8.2 CONDITIONS TO DEFEASANCE................................. 45
SECTION 8.3 APPLICATION OF TRUST MONEY............................... 46
SECTION 8.4 REPAYMENT TO COMPANY..................................... 46
SECTION 8.5 REINSTATEMENT OF COMPANY'S OBLIGATIONS................... 47
ARTICLE IX--AMENDMENTS AND WAIVER........................................... 47
SECTION 9.1 WITHOUT CONSENT OF HOLDERS............................... 47
SECTION 9.2 WITH CONSENT OF HOLDERS.................................. 48
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT...................... 49
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS AND WAIVERS............ 49
SECTION 9.5 NOTATION ON OR EXCHANGE OF SECURITIES.................... 50
SECTION 9.6 TRUSTEE TO SIGN AMENDMENTS............................... 50
ARTICLE X--REPAYMENT AT THE OPTION OF HOLDERS............................... 51
SECTION 10.1 APPLICABILITY OF ARTICLE................................. 51
ARTICLE XI--SINKING FUNDS................................................... 51
SECTION 11.1 APPLICABILITY OF ARTICLE................................. 51
SECTION 11.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.... 51
SECTION 11.3 REDEMPTION OF SECURITIES FOR SINKING FUND................ 52
ARTICLE XII--CONVERSION OF SECURITIES....................................... 52
SECTION 12.1 APPLICABILITY OF ARTICLE................................. 52
SECTION 12.2 EXERCISE OF CONVERSION PRIVILEGE......................... 53
SECTION 12.3 FRACTIONAL INTERESTS..................................... 54
SECTION 12.4 ADJUSTMENT OF CONVERSION PRICE........................... 54
SECTION 12.5 CONTINUATION OF CONVERSION PRIVILEGE IN CASE OF MERGER,
CONSOLIDATION OR SALE OF ASSETS.......................... 57
SECTION 12.6 NOTICE OF CERTAIN EVENTS................................. 58
SECTION 12.7 TAXES ON CONVERSION...................................... 59
SECTION 12.8 COMPANY TO PROVIDE STOCK................................. 59
SECTION 12.9 DISCLAIMER OF RESPONSIBILITY FOR CERTAIN MATTERS......... 60
SECTION 12.10 RETURN OF FUNDS DEPOSITED FOR REDEMPTION OF CONVERTED
SECURITIES............................................... 60
SECTION 12.11 RIGHTS ISSUED IN RESPECT OF COMMON STOCK ISSUED
UPON CONVERSION.......................................... 60
ARTICLE XIII--MISCELLANEOUS................................................. 61
SECTION 13.1 TRUST INDENTURE ACT CONTROLS............................. 61
SECTION 13.2 NOTICES.................................................. 61
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
SECTION 13.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.............. 62
SECTION 13.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT....... 62
SECTION 13.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION............ 62
SECTION 13.6 RULES BY TRUSTEE AND AGENTS.............................. 63
SECTION 13.7 LEGAL HOLIDAYS........................................... 63
SECTION 13.8 NO RECOURSE AGAINST OTHERS............................... 63
SECTION 13.9 GOVERNING LAW............................................ 63
SECTION 13.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS............ 63
SECTION 13.11 SUCCESSORS............................................... 63
SECTION 13.12 SEVERABILITY............................................. 63
SECTION 13.13 MULTIPLE ORIGINALS....................................... 64
SECTION 13.14 TABLE OF CONTENTS; HEADINGS.............................. 64
SECTION 13.15 SECURITIES IN FOREIGN CURRENCIES......................... 64
</TABLE>
iv
<PAGE>
CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
TIA Section Indenture Section
- ----------- -----------------
<S> <C>
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
</TABLE>
N.A. means not applicable.
v
<PAGE>
INDENTURE dated as of August 1, 1998 between IMC GLOBAL INC., a
Delaware corporation (the "Company"), and THE BANK OF NEW YORK, a New York
banking corporation (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, with respect to any Person, 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 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.
<PAGE>
"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 or any authorized
committee created by 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.
"Capital Stock" shall mean, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's capital stock or equity interests
in a partnership, joint venture, limited liability company or other equity that
is outstanding or issued on or after the Issue Date, including, without
limitation, all classes and series of such Person's common stock or ordinary
shares, preferred stock and preference stock.
"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 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
2
<PAGE>
(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 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,"
3
<PAGE>
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.
"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 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.
4
<PAGE>
"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 New York 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.
"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.
"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.
5
<PAGE>
"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;
(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.
6
<PAGE>
"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 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 any 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.
7
<PAGE>
"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 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.
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"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.
<TABLE>
<CAPTION>
SECTION 1.2 OTHER DEFINITIONS.
Defined in
Term Section
- ---- ----------
<S> <C>
"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".......................... 12.11
"Registrar"....................... 2.3
"Sale/Leaseback Transaction"...... 4.8
"Securities Custodian"............ 2.3
"Surviving Entity"................ 5.1
"Trading Day"..................... 12.3
</TABLE>
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.
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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.
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 shall contain or be subject to
such other terms as shall be approved by or pursuant to a Board Resolution of
the Company, which may delegate to one or more officers of the
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<PAGE>
Company the authority to establish the particular terms of any series, including
the terms set forth below, 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, 3.7 or 9.5);
(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 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;
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<PAGE>
(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 the
Borough of Manhattan, The City of New York, State of New York,
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 period or
periods within which, and the terms and conditions upon which,
such election may be made;
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<PAGE>
(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 to the extent permitted by
applicable law (whether or not such terms are 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.
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
13
<PAGE>
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 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:
14
<PAGE>
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
Dated: The Bank of New York, as Trustee
By:
Authorized Signatory
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 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
15
<PAGE>
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 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).
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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 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.
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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
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 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
18
<PAGE>
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 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.
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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 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.
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
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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, 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 cancel such Securities in accordance with the usual procedures of the
Trustee and deliver such
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cancelled Securities to the Company upon written order signed by two Officers of
the Company. 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 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.
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SECTION 2.14 CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
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.
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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;
(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
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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).
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
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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 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.
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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.
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.
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
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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 Borough of Manhattan, The City of New York, State of New York 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 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
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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, 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.
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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 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.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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 Secretary of the Company (provided
that
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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 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, 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.
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 4.7 (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
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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 as
determined by 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) 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 most recent audited consolidated balance sheet
contained in the latest annual report to the stockholders 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.
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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
(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
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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 all or any part 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;
(c) the Company fails to perform or observe any of its other
covenants, conditions or agreements in this Indenture or in that series of
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) default in the payment of any scheduled principal of or interest
on any Indebtedness of the Company or any wholly owned Subsidiary of the Company
(other than the Securities of such series) aggregating more than $25 million in
principal amount, when due after giving effect to any applicable grace period,
that results in such Indebtedness becoming due and payable prior to the date on
which it would otherwise become due and payable, and such acceleration shall not
have been rescinded or annulled, or such Indebtedness shall not have been
discharged;
(e) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company 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 a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its 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
(f) the commencement by the Company 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 to the entry of a decree or
order for relief in respect of the Company 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 the filing by the Company of a petition or
answer or consent seeking reorganization or relief under any applicable federal
or state law, or the consent by the Company to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver, liquidator,
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assignee, trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by the Company of an assignment
for the benefit of creditors, or the taking of corporate action by the Company
in furtherance of any such action.
The Company shall deliver to the Trustee, within five 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(e) or (f) 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 (d) 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 such 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
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
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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 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.
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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 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 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
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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.
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.
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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.
(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
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(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.
(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.
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(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.
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney
at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation.
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 in respect of
any series of 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 of
such series.
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
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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 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
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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(e) or (f), the expenses are intended to
constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section shall survive the termination of this
indenture.
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.
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.
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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.
SECTION 7.12 MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
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.
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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 or eligible Obligations in an
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(e)
and 6.1(f) 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;
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(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 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
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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 payment from the money, U.S. Government
Obligations or Eligible Obligations held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS AND WAIVER
SECTION 9.1 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;
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(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;
(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; or
(9) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective only when there is no Security outstanding
under this Indenture.
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;
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(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 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 Security or portion of the Security that evidences the same debt
as the consenting Holder's Security, even if
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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 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.
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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.
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
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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 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
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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 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 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
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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 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
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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 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.
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(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 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
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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.
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
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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; 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 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
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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 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.
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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, 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.
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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 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 first class mail
(postage prepaid, return receipt requested), 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:
The Bank of New York
101 Barclay Street, Floor 21 West
New York, NY 10286
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 first class
mail; 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.
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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;
(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,
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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 applicable to agreements
and instruments made and to be performed wholly within such State.
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.
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<PAGE>
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 the Trustee, or in the absence of such notice, as the Trustee may
determine.
* * * * *
64
<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: /s/ E. Paul Dunn, Jr.
-----------------------------------
Name: E. Paul Dunn, Jr.
Title: Vice President and Treasurer
[Seal]
Attest: /s/ Rose Marie Williams
--------------------------
Name: Rose Marie Williams
Title: Corporate Secretary
THE BANK OF NEW YORK
By: /s/ Michael Culhane
-----------------------------------
Name: Michael Culhane
Title: Vice President
Attest: /s/ Remo J. Reale
--------------------------
Assistant Vice President
<PAGE>
Exhibit 5.1
[KIRKLAND & ELLIS LETTERHEAD]
To Call Writer Direct:
312 861-2200
September 14, 1998
To: IMC Global Inc.
2100 Sanders Road
Northbrook, Illinois 60062
Re: IMC Global Inc.
Registration Statement on Form S-3
We are issuing this opinion in our capacity as special counsel to IMC
Global Inc. (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), on a Registration Statement on
Form S-3 to be filed with the Securities and Exchange Commission on or about
September 14, 1998 (the "Registration Statement") of (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 the
Company (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 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 issued by the Company either together or separately in connection with an
offering or offerings from time to time pursuant to the Registration Statement
and will be offered on terms set forth in the Registration Statement and in the
prospectus contained in the Registration Statement (the "Prospectus") and in
amounts, at prices and on other terms to be determined by the Company at the
time of offering and to be set forth in an amendment or amendments to the
Registration Statement and the Prospectus and in one or more supplements to the
Prospectus (each, a "Prospectus Supplement").
The Debt Securities specified as Senior Debt Securities in the
applicable Prospectus Supplement will be issued under an Indenture, dated August
1, 1998 (such Indenture, as amended or supplemented from time to time, the
"Senior Indenture"), between the Company
<PAGE>
IMC Global Inc.
September 14, 1998
Page 2
and The Bank of New York, as Trustee. The Debt Securities specified as
Subordinated Debt Securities in the applicable Prospectus Supplement will be
issued under an Indenture the form of which is filed as an exhibit to the
Registration Statement (such Indenture, as amended or supplemented from time to
time, the "Subordinated Indenture"). The Subordinated Indenture will be executed
by the Company and a trustee to be named and qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), prior to the offering of
any Subordinated Debt Securities. The executed Subordinated Indenture will 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 of the Company. 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 of the Company,
to be executed by the Company and a warrant agent or agents to be named by the
Company prior to the offering of any Debt Warrants of such series. 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 of the Company,
to be executed by the Company and a warrant agent or agents to be named by the
Company prior to the offering of any Stock Warrants of such series. Each series
of Currency Warrants will be issued under a warrant agreement (each, a "Currency
Warrant Agreement"), to be filed prior to the 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 of the
Company, to be entered by the Company and a warrant agent or agents to be named
by the Company prior to the offering of any Currency Warrants of such series.
The Registration Statement provides that the Company may sell the
Securities registered thereby (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
applicable Prospectus Supplement with respect to the Securities offered will set
forth the terms of the offering of such Securities, including the name or names
of any underwriters, dealers or agents, the purchase price of such Securities
and the proceeds to the Company 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. If underwriters are used in an
offering of Securities registered by the Registration
<PAGE>
IMC Global Inc.
September 14, 1998
Page 3
Statement, the Registration Statement anticipates that the Company will sell
such Securities pursuant to the terms of an underwriting agreement to be
executed between the Company and underwriters that will be identified in the
applicable Prospectus Supplement. We have for purposes of this letter reviewed
the preliminary form of the underwriting agreement initially filed as an exhibit
to the Registration Statement and we have assumed for purposes of this letter
that the terms of the Underwriting Agreement will fall within the scope of the
authorization adopted by the Company's Board of Directors and will receive the
approvals required by that Board authorization. The term "Underwriting
Agreement" is used in this letter to mean an underwriting agreement in the form
in which it will be actually executed by the Company and the underwriters with
respect to a particular underwritten offering of Securities registered by the
Registration Statement. We have also assumed for purposes of this letter that
the terms of any other agreement providing for the sale of Securities registered
by the Registration Statement (other than by means of an underwritten offering),
including a distribution agreement to be filed prior to a particular offering of
Securities registered by the Registration Statement in an amendment to the
Registration Statement or incorporated by reference into the Registration
Statement pursuant to a Current Report on Form 8-K of the Company, to be
executed by the Company and an appropriate party or parties that will be
identified in the applicable Prospectus Supplement, will fall within the scope
of the authorization adopted by the Company's Board of Directors and will
receive the approvals required by that Board authorization. The term "Other
Agreement" is used in this letter to mean an agreement providing for the sale of
Securities registered by the Registration Statement (other than by means of an
underwritten offering) in the form in which it will be actually executed by the
Company and the appropriate party or parties with respect to a particular
offering or offerings of Securities registered by the Registration Statement.
The term "Agreement" is used in this letter to mean either an Underwriting
Agreement or an Other Agreement. The terms "Registered Senior Debt Securities,"
"Registered Subordinated Debt Securities," "Registered Debt Warrants,"
"Registered Series Preferred Stock," "Registered Common Stock," "Registered
Stock Warrants" and "Registered Currency Warrants" are used in this letter to
mean, respectively, the Senior Debt Securities, the Subordinated Debt
Securities, the Debt Warrants, the Series Preferred Stock, the Common Stock, the
Stock Warrants and the Currency Warrants that are registered under the
Registration Statement as initially filed and are sold by the Company under an
Agreement.
For purposes of this letter, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed necessary for the
purpose of this opinion, including (i) the corporate and organizational
documents of the Company, (ii) minutes and records of the
<PAGE>
IMC Global Inc.
September 14, 1998
Page 4
corporate proceedings of the Company with respect to the issuance of the
Securities and (iii) the Registration Statement and the exhibits thereto.
For purposes of this letter, we have assumed the authenticity of all
documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as copies and the authenticity of the originals
submitted to us as copies. We have also assumed the genuineness of the
signatures of persons signing all documents in connection with which this
opinion is rendered, the authority of such persons signing on behalf of the
parties thereto other than the Company, and the due authorization, execution and
delivery of all documents by the parties thereto other than the Company. As to
any facts material to the opinions expressed herein which we have not
independently established or verified, we have relied upon statements and
representations of officers and other representatives of the Company and others.
Subject to the assumptions, qualifications and limitations identified
in this letter, we advise you that in our opinion:
(1) Registered Senior Debt Securities of each series, when issued, will be
binding obligations of the Company, enforceable against the Company in
accordance with their terms, when, as and if (i) the Registration Statement
shall have become effective pursuant to the provisions of the Act, (ii)
appropriate corporate action shall have been taken by the Company to authorize
(a) the form, terms, execution and delivery of any necessary supplemental
indenture or amendment to the Senior Indenture (and such supplemental indenture
or amendment shall have been duly executed and delivered by the Company and the
trustee thereunder) and (b) the form and terms of such series of Registered
Senior Debt Securities, (iii) such series of Registered Senior Debt Securities
shall have been issued in the form and containing the terms described in the
Registration Statement, any applicable Prospectus Supplements, the Senior
Indenture and such corporate action, (iv) a Prospectus Supplement or Prospectus
Supplements with respect to such series of Registered Senior Debt Securities
shall have been filed (or transmitted for filing) with the Securities and
Exchange Commission (the "Commission") pursuant to Rule 424(b) of the Act and
any exhibits necessary under the rules and regulations of the Commission shall
have been filed with the Commission in an amendment to the Registration
Statement or incorporated by reference into the Registration Statement pursuant
to a Current Report on Form 8-K of the Company filed with the Commission, (v)
any legally required consents, approvals, authorizations and other orders of the
Commission and any other regulatory authorities shall have been obtained and
(vi) Registered Senior Debt Securities of such series shall have been duly
executed and authenticated as provided in the Senior Indenture and duly
delivered to the purchasers
<PAGE>
IMC Global Inc.
September 14, 1998
Page 5
thereof against payment of the agreed consideration therefor in accordance with
the applicable Agreement.
(2) Registered Subordinated Debt Securities of each series, when issued,
will be binding obligations of the Company, enforceable against the Company in
accordance with their terms, when, as and if (i) the Registration Statement
shall have become effective pursuant to the provisions of the Act, (ii)
appropriate corporate action shall have been taken by the Company to authorize
(a) the form, terms, execution and delivery of the Subordinated Indenture and
any necessary supplemental indenture or amendment to the Subordinated Indenture
(and the Subordinated Indenture and any such supplemental indenture or amendment
shall have been duly executed and delivered by the Company and the trustee
thereunder) and (b) the form and terms of such series of Registered Subordinated
Debt Securities, (iii) the trustee under the Subordinated Indenture shall have
been qualified under the Trust Indenture Act, (iv) such series of Registered
Subordinated Debt Securities shall have been issued in the form and containing
the terms described in the Registration Statement, any applicable Prospectus
Supplements, the Subordinated Indenture and such corporate action, (v) a
Prospectus Supplement or Prospectus Supplements with respect to such series of
Registered Subordinated Debt Securities shall have been filed (or transmitted
for filing) with the Commission pursuant to Rule 424(b) of the Act and any
exhibits necessary under the rules and regulations of the Commission, including
the executed Subordinated Indenture, shall have been filed with the Commission
in an amendment to the Registration Statement or incorporated by reference into
the Registration Statement pursuant to a Current Report on Form 8-K of the
Company filed with the Commission, (vi) any legally required consents,
approvals, authorizations and other orders of the Commission and any other
regulatory authorities shall have been obtained and (vii) Registered
Subordinated Debt Securities of such series shall have been duly executed and
authenticated as provided in the Senior Indenture and duly delivered to the
purchasers thereof against payment of the agreed consideration therefor in
accordance with the applicable Agreement.
(3) Registered Debt Warrants of each series, when issued, will be binding
obligations of the Company, enforceable against the Company in accordance with
their terms when, as and if (i) the Registration Statement shall have become
effective pursuant to the provisions of the Act, (ii) appropriate corporate
action shall have been taken by the Company to authorize the form, terms,
execution and delivery of a Debt Warrant Agreement for such series of Registered
Debt Warrants, including a form of certificate evidencing such series of
Registered Debt Warrants (and such Debt Warrant Agreement shall have been duly
executed and delivered by the Company and the warrant agent or agents
thereunder), (iii) a Prospectus Supplement or Prospectus Supplements with
respect to such series of Registered Debt Warrants shall have been
<PAGE>
IMC Global Inc.
September 14, 1998
Page 6
filed (or transmitted for filing) with the Commission pursuant to Rule 424(b) of
the Act and any exhibits necessary under the rules and regulations of the
Commission, including such Debt Warrant Agreement, shall have been filed with
the Commission in an amendment to the Registration Statement or incorporated by
reference into the Registration Statement pursuant to a Current Report on Form
8-K of the Company filed with the Commission, (iv) any legally required
consents, approvals, authorizations and other orders of the Commission and any
other regulatory authorities shall have been obtained and (v) Registered Debt
Warrants of such series are duly executed, attested and issued by duly
authorized officers of the Company, countersigned by the applicable warrant
agent and delivered to the purchasers thereof against payment of the agreed
consideration therefor in the manner provided for in the Registration Statement,
any applicable Prospectus Supplements, such Debt Warrant Agreement, the
applicable Agreement and such corporate action.
(4) Shares of each series of Registered Series Preferred Stock will be
validly issued, fully paid and nonassessable when, as and if (i) the
Registration Statement shall have become effective pursuant to the provisions of
the Act, (ii) appropriate corporate action shall have been taken to authorize
the issuance of such series of Registered Series Preferred Stock, to fix the
terms thereof and to authorize the execution and filing of a Certificate of
Designations relating thereto with the Secretary of State of the State of
Delaware, (iii) such Certificate of Designations shall have been executed by
duly authorized officers of the Company and so filed by the Company, all in
accordance with the laws of the State of Delaware and any legally required
consents, approvals, authorizations and other orders of the Commission and any
other regulatory authorities are obtained, (iv) a Prospectus Supplement or
Prospectus Supplements with respect to such series of Registered Series
Preferred Stock shall have been filed (or transmitted for filing) with the
Commission pursuant to Rule 424(b) of the Act and any exhibits necessary under
the rules and regulations of the Commission, including such Certificate of
Designations, shall have been filed with the Commission in an amendment to the
Registration Statement or incorporated by reference into the Registration
Statement pursuant to a Current Report on Form 8-K of the Company filed with the
Commission, (v) Registered Series Preferred Stock of such series with terms so
fixed shall have been duly issued and delivered by the Company against payment
therefor in accordance with such corporate action and the applicable Agreement
and (vi) certificates representing shares of such series of Registered Series
Preferred Stock shall have been duly executed by the duly authorized officers of
the Company in accordance with applicable law.
(5) Shares of Registered Common Stock will be validly issued, fully paid
and nonassessable when, as and if (i) the Registration Statement shall have
become effective
<PAGE>
IMC Global Inc.
September 14, 1998
Page 7
pursuant to the provisions of the Act, (ii) appropriate corporate action shall
have been taken to authorize the issuance and sale of such Registered Common
Stock, (iii) a Prospectus Supplement or Prospectus Supplements with respect to
the shares of Registered Common Stock shall have been filed (or transmitted for
filing) with the Commission pursuant to Rule 424(b) of the Act and any exhibits
necessary under the rules and regulations of the Commission shall have been
filed with the Commission in an amendment to the Registration Statement or
incorporated by reference into the Registration Statement pursuant to a Current
Report on Form 8-K of the Company filed with the Commission, (iv) any legally
required consents, approvals, authorizations and other orders of the Commission
and any other regulatory authorities shall have been obtained and (v)
appropriate certificates representing the shares of Registered Common Stock are
duly executed, countersigned by the Company's transfer agent/registrar,
registered and delivered against payment of the agreed consideration therefor in
accordance with the applicable Agreement.
(6) Registered Stock Warrants of each series, when issued, will be binding
obligations of the Company, enforceable against the Company in accordance with
their terms when, as and if (i) the Registration Statement shall have become
effective pursuant to the provisions of the Act, (ii) appropriate corporate
action shall have been taken by the Company to authorize the form, terms,
execution and delivery of a Stock Warrant Agreement for such series of
Registered Stock Warrants, including a form of certificate evidencing such
series of Registered Stock Warrants (and such Stock Warrant Agreement shall have
been duly executed and delivered by the Company and the warrant agent or agents
thereunder), (iii) a Prospectus Supplement or Prospectus Supplements with
respect to such series of Registered Stock Warrants shall have been filed (or
transmitted for filing) with the Commission pursuant to Rule 424(b) of the Act
and any exhibits necessary under the rules and regulations of the Commission,
including such Stock Warrant Agreement, shall have been filed with the
Commission in an amendment to the Registration Statement or incorporated by
reference into the Registration Statement pursuant to a Current Report on Form
8-K of the Company filed with the Commission, (iv) any legally required
consents, approvals, authorizations and other orders of the Commission and any
other regulatory authorities shall have been obtained and (v) Registered Stock
Warrants of such series are duly executed, attested and issued by duly
authorized officers of the Company, countersigned by the applicable warrant
agent and delivered to the purchasers thereof against payment of the agreed
consideration therefor in the manner provided for in the Registration Statement,
any applicable Prospectus Supplements, such Stock Warrant Agreement, the
applicable Agreement and such corporate action.
<PAGE>
IMC Global Inc.
September 14, 1998
Page 8
(7) Registered Currency Warrants of each series, when issued, will be
binding obligations of the Company, enforceable against the Company in
accordance with their terms when, as and if (i) the Registration Statement shall
have become effective pursuant to the provisions of the Act, (ii) appropriate
corporate action shall have been taken by the Company to authorize the form,
terms, execution and delivery of a Currency Warrant Agreement for such series of
Registered Currency Warrants, including a form of certificate evidencing such
series of Registered Currency Warrants (and such Currency Warrant Agreement
shall have been duly executed and delivered by the Company and the warrant agent
or agents thereunder), (iii) a Prospectus Supplement or Prospectus Supplements
with respect to such series of Registered Currency Warrants shall have been
filed (or transmitted for filing) with the Commission pursuant to Rule 424(b) of
the Act and any exhibits necessary under the rules and regulations of the
Commission, including such Currency Warrant Agreement, shall have been filed
with the Commission in an amendment to the Registration Statement or
incorporated by reference into the Registration Statement pursuant to a Current
Report on Form 8-K of the Company filed with the Commission, (iv) any legally
required consents, approvals, authorizations and other orders of the Commission
and any other regulatory authorities shall have been obtained and (v) Registered
Currency Warrants of such series are duly executed, attested and issued by duly
authorized officers of the Company, countersigned by the applicable warrant
agent and delivered to the purchasers thereof against payment of the agreed
consideration therefor in the manner provided for in the Registration Statement,
any applicable Prospectus Supplements, such Currency Warrant Agreement, the
applicable Agreement and such corporate action.
Our advice on every legal issue addressed in this letter is based
exclusively on the internal law of New York and the General Corporation Law of
the State of Delaware (under which the Company is incorporated).
Our opinions expressed above are subject to the qualifications that we
express no opinion as to the applicability of, compliance with, or effect of (i)
any bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent
conveyance, moratorium or other similar law or judicially developed doctrine in
this area (such as substantive consolidation or equitable subordination)
affecting the enforcement of creditors' rights generally, (ii) general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), (iii) an implied covenant of good faith and
fair dealing, (iv) public policy considerations which may limit the rights of
parties to obtain certain remedies, (v) 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, (vi) governmental
<PAGE>
IMC Global Inc.
September 14, 1998
Page 9
authority to limit, delay or prohibit the making of payments outside of the
United States or in a foreign currency or currency unit and (vii) any laws
except the laws of the State of New York and the General Corporation Law of the
State of Delaware. We advise you that issues addressed by this letter may be
governed in whole or in part by other laws, but we express no opinion as to
whether any relevant difference exists between the laws upon which our opinions
are based and any other laws which may actually govern.
For purposes of rendering our opinions expressed above, we have
assumed that (i) the Registration Statement remains effective during the offer
and sale of the particular Securities, (ii) the terms of the (a) the Senior
Indenture, as amended, (b) the Subordinated Indenture, as executed or as
thereafter amended, (c) any supplemental indenture to the Senior Indenture or
the Subordinated Indenture, (d) any Debt Warrant Agreement, (e) any Certificate
of Designations, (f) any Stock Warrant Agreement or (g) any Currency Warrant
Agreement, each as applicable to the particular Securities, are consistent with
the description of the terms of such indenture, agreement or certificate set
forth in the Registration Statement and in the Prospectus, (iii) at the time of
the issuance, sale and delivery of each such Security (x) the authorization of
such Security 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 such Security and (y) the issuance, sale and
delivery of such Security, the terms of such Security, the terms of any
Agreement, any supplemental indenture to the Senior Indenture or the
Subordinated Indenture, any Debt Warrant Agreement, any Certificate of
Designations, any Stock Warrant Agreement or any Currency Warrant Agreement
applicable to such Security and compliance by the Company with the terms of such
Security and the terms of any such agreement or indenture 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 and (iv) any revisions to the form of Subordinated Indenture filed
as an exhibit to the Registration Statement prior to the execution thereof, and
any amendments or supplemental indentures to the Senior Indenture or the
Subordinated Indenture (as executed), will not require requalification of such
indenture under the Trust Indenture Act.
We do not find it necessary for the purposes of this opinion, and
accordingly we do not purport to cover herein, the application of the securities
or "Blue Sky" laws of the various states to the issuance of the Securities.
This opinion is limited to the specific issues addressed herein, and
no opinion may be inferred or implied beyond that expressly stated herein. We
assume no obligation to revise or supplement this opinion should the present
laws of the State of New York or the
<PAGE>
IMC Global Inc.
September 14, 1998
Page 10
General Corporation Law of the State of Delaware be changed by legislative
action, judicial decision or otherwise.
This opinion is furnished to you in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise
relied upon for any other purposes.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. We also consent to the reference to our firm under the
heading "Legal Opinion" in the Prospectus. In giving this consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Act of the rules and regulations of the Commission.
Very Truly Yours,
Kirkland & Ellis
<PAGE>
EXHIBIT 12.1
IMC Global Inc.
Computation of Ratio of Earnings to Fixed Charges
<TABLE>
<CAPTION>
Six Months Years Ended December 31,
Ended ------------------------------------------------------
June 30, 1998 1997 1996 1995 1994 1993
------------- ------- ------- ------- -------- -------
<S> <C> <C> <C> <C> <C> <C>
Fixed charges:
Interest charges $ 83.7 $ 53.5 $ 56.7 $ 69.8 $ 77.5 $ 76.6
====== ====== ====== ====== ====== =======
Earnings:
Net earnings (loss) $132.3 $ 62.9 $127.1 $215.5 $113.9 $(151.1)
Extraordinary charge 2.7 24.9 8.1 3.5 4.4 25.2
Cumulative effect of accounting
change -- -- -- -- 5.9 --
Provision (credit) for income 73.2 43.5 89.7 129.4 97.8 (75.2)
taxes
Minority interest 17.2 124.4 185.7 163.6 106.8 5.3
Interest charges 83.7 53.5 56.7 69.8 77.5 76.6
------ ------ ------ ------ ------ -------
Total earnings (loss) $309.1 $309.2 $467.3 $581.8 $406.3 $(119.2)
====== ====== ====== ====== ====== =======
Ratio of earnings (loss) to fixed
charges $ 3.69 $ 5.78 $ 8.24 $ 8.34 $ 5.24 $ (1.56)
====== ====== ====== ====== ====== =======
Adjusted ratio of earnings to fixed
charges(1) $ 3.86 $ 9.21 $ 9.98 $ 8.34 $ 5.24 $ 0.65
====== ====== ====== ====== ====== =======
</TABLE>
(1) The adjusted ratio of earnings to fixed charges for the six months ended
June 30, 1998 excludes a charge of $9.1 million relating to the sale of the
Company's IMC Vigoro business unit. The adjusted ratio of earnings to fixed
charges for the year ended December 31, 1997 excludes a charge of $183.7
million relating to the writedown of the historical carrying value of IMC's
interest in the Main Pass 299 business of Phosphate Resource Partners
Limited Partnership. The adjusted ratio of earnings to fixed charges for
the year ended December 31, 1996 excludes a charge of $98.6 million
relating to the merger of The Vigoro Corporation into a wholly owned
subsidiary of IMC. The adjusted ratio of earnings to fixed charges for the
year ended December 31, 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 $500,000,000 of 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 January 26, 1998,
with respect to the consolidated financial statements of IMC Global Inc.
included in its Annual Report on Form 10-K for the year ended December 31, 1997,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Chicago, Illinois
September 14, 1998
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTS
We consent to the incorporation by reference in the prospectus constituting a
part of this Registration Statement on Form S-3 of IMC Global Inc. of our report
dated 18 September 1997, on our audits of the financial statements of Harris
Chemical Australia Pty Ltd. & Its Controlled Entities for the year ended 30 June
1997, which report is included in the Current Report on Form 8-K/A which was
filed with the Securities and Exchange Commission on June 15, 1998. We also
consent to the reference to our firm under the caption "Experts" in the
prospectus constituting a part of this Registration Statement.
Arthur Andersen
Chartered Accountants
Adelaide, South Australia
14 September 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this prospectus and registration
statement of IMC Global Inc. on Form S-3 of our report dated August 14, 1997, on
our audits of the consolidated financial statements of Harris Chemical Group,
Inc. as of March 29, 1997 and March 30, 1996, and for the years ended March 29,
1997, March 30, 1996, and March 25, 1995, which report is included in IMC Global
Inc.'s Form 8-K/A which was filed with the Securities and Exchange Commission on
June 15, 1998.
We also consent to the incorporation by reference in this prospectus and
registration statement of IMC Global Inc. on Form S-3 of our report dated
September 8, 1998, on our audits of the consolidated financial statements of
Harris Chemical Group, Inc. as of March 28, 1998 and March 29, 1997, and for the
years ended March 28, 1998, March 29, 1997, and March 30, 1996, which report is
included in IMC Global Inc.'s Form 8-K/A which was filed with the Securities and
Exchange Commission on September 16, 1998. We also consent to the reference to
our firm under the caption "Experts".
Kansas City, Missouri /s/ PricewaterhouseCoopers LLP
September 16, 1998 --------------------------
PricewaterhouseCoopers LLP
<PAGE>
Exhibit 23.5
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in the prospectus constituting a part of this Registration Statement
of our report dated January 21, 1997 incorporated by reference in Freeport-Mc-
MoRan Inc's Form 10-K for the year ended December 31, 1996 and to all references
to our Firm included in the prospectus constituting a part of this Registration
Statement.
Arthur Andersen LLP
New Orleans, Louisiana
September 14, 1998
<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 J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams 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
$500,000,000 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 to such attorneys 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 25th day of August, 1998.
/s/ Robert E. Fowler, Jr.
- -----------------------------
Robert E. Fowler, Jr.
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams 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
$500,000,000 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 to such attorneys 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 25th day of August, 1998.
/s/ Wendell F. Bueche
- --------------------------
Wendell F. Bueche
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams 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
$500,000,000 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 to such attorneys 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 25th day of August, 1998.
/s/ Raymond F. Bentele
- ---------------------------
Raymond F. Bentele
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams 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
$500,000,000 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 to such attorneys 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 25th day of August, 1998.
/s/ Robert W. Bruce III
- --------------------------
Robert W. Bruce III
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams 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
$500,000,000 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 to such attorneys 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 25th day of August, 1998.
/s/ Rod F. Dammeyer
- ----------------------
Rod F. Dammeyer
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams 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
$500,000,000 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 to such attorneys 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 25th day of August, 1998.
/s/ James M. Davidson
- -------------------------
James M. Davidson
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams 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
$500,000,000 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 to such attorneys 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 25th day of August, 1998.
/s/ Rene L. Latiolais
- --------------------------
Rene L. Latiolais
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams 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
$500,000,000 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 to such attorneys 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 25th day of August, 1998.
/s/ Harold H. MacKay
- -------------------------
Harold H. MacKay
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams 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
$500,000,000 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 to such attorneys 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 25th day of August, 1998.
/s/ David B. Mathis
- -------------------------
David B. Mathis
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams 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
$500,000,000 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 to such attorneys 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 25th day of August, 1998.
/s/ Donald F. Mazankowski
- -----------------------------
Donald F. Mazankowski
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams 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
$500,000,000 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 to such attorneys 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 25th day of August, 1998.
/s/ Joseph P. Sullivan
- ---------------------------
Joseph P. Sullivan
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams 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
$500,000,000 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 to such attorneys 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 25th day of August, 1998.
/s/ Richard L. Thomas
- -------------------------
Richard L. Thomas
<PAGE>
POWER OF ATTORNEY
-----------------
The undersigned, being a Director and/or Officer of IMC Global Inc., a
Delaware corporation (the "Company"), hereby constitutes and appoints J.
Bradford James, E. Paul Dunn, Jr., and Rose Marie Williams 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
$500,000,000 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 to such attorneys 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 25th day of August, 1998.
/s/ Billie B. Turner
- -------------------------
Billie B. Turner
<PAGE>
EXHIBIT 25.1
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
IMC Global Inc.
(Exact name of obligor as specified in its charter)
Delaware 36-3492467
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
2100 Sanders Road
Northbrook, IL 60062
(Address of principal executive offices) (Zip code)
----------------------
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------
Name Address
- -----------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed
with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1
filed with Registration Statement No. 33-21672 and Exhibit 1 to Form
T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 12th day of September, 1998.
THE BANK OF NEW YORK
By: /s/ROBERT A. MASSIMILLO
----------------------------
Name: ROBERT A. MASSIMILLO
Title: ASSISTANT VICE PRESIDENT
-4-
<PAGE>
Exhibit 7 [to Form T-1]
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
in Thousands
ASSETS
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin.................... $ 6,397,993
Interest-bearing balances............. 1,138,362
Securities:
Held-to-maturity securities........... 1,062,074
Available-for-sale securities......... 4,167,240
Federal funds sold and Securities pur-
chased under agreements to resell..... 391,650
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ...................36,538,242
LESS: Allowance for loan and
lease losses ................631,725
LESS: Allocated transfer risk
reserve............................0
Loans and leases, net of unearned
income, allowance, and reserve 35,906,517
Assets held in trading accounts......... 2,145,149
Premises and fixed assets (including
capitalized leases)................... 663,928
Other real estate owned................. 10,895
Investments in unconsolidated
subsidiaries and associated
companies............................. 237,991
Customers' liability to this bank on
acceptances outstanding............... 992,747
Intangible assets....................... 1,072,517
Other assets............................ 1,643,173
-----------
Total assets............................ $55,830,236
===========
LIABILITIES
Deposits:
In domestic offices................... $24,849,054
Noninterest-bearing ........10,011,422
Interest-bearing ...........14,837,632
In foreign offices, Edge and
Agreement subsidiaries, and IBFs...... 15,319,002
Noninterest-bearing ...........707,820
Interest-bearing ...........14,611,182
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Federal funds purchased and Securities
sold under agreements to repurchase... 1,906,066
Demand notes issued to the U.S.
Treasury.............................. 215,985
Trading liabilities..................... 1,591,288
Other borrowed money:
With remaining maturity of one year
or less............................. 1,991,119
With remaining maturity of more than
one year through three years........ 0
With remaining maturity of more than
three years......................... 25,574
Bank's liability on acceptances exe-
cuted and outstanding................. 998,145
Subordinated notes and debentures....... 1,314,000
Other liabilities....................... 2,421,281
-----------
Total liabilities....................... 50,631,514
-----------
EQUITY CAPITAL
Common stock............................ 1,135,284
Surplus................................. 731,319
Undivided profits and capital
reserves.............................. 3,328,050
Net unrealized holding gains
(losses) on available-for-sale
securities............................ 40,198
Cumulative foreign currency transla-
tion adjustments...................... (36,129)
-----------
Total equity capital.................... 5,198,722
-----------
Total liabilities and equity
capital .............................. $55,830,236
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi ]
Alan R. Griffith ] Directors
J. Carter Bacot ]
- --------------------------------------------------------------------------------
