<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 13, 1998
FILE NO. 333-43333
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------------
TYCO INTERNATIONAL LTD.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
BERMUDA NOT APPLICABLE
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
</TABLE>
THE GIBBONS BUILDING
10 QUEEN STREET, SUITE 301
HAMILTON HM11, BERMUDA
(441) 292-8374
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
MARK H. SWARTZ
C/O TYCO INTERNATIONAL (US) INC.
ONE TYCO PARK
EXETER, NEW HAMPSHIRE 03833
(603) 778-9700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
*Tyco International Ltd. maintains its registered offices at The Gibbons
Building, 10 Queen Street, Suite 301, Hamilton HM11, Bermuda. The executive
offices of Tyco International (US) Inc., the subsidiary that supervises the
activities of the subsidiaries of Tyco International Ltd. in North America, is
located at One Tyco Park, Exeter, New Hampshire 03833. The telephone number
there is (603) 778-9700.
COPIES TO:
JOSHUA M. BERMAN, ESQ.
KRAMER, LEVIN, NAFTALIS & FRANKEL
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE
SECURITIES TO BE REGISTERED REGISTERED PER UNIT (1) OFFERING PRICE (1)
<S> <C> <C> <C>
Debt Securities (2).......................................
Common Shares, par value $0.20 per share (3)(4)...........
Share Purchase Contracts (5)..............................
Share Purchase Unit(6)....................................
Total..................................................... U.S.$2,000,000,000(7) 100% U.S.$2,000,000,000(7)
<CAPTION>
AMOUNT OF
TITLE OF EACH CLASS OF REGISTRATION
SECURITIES TO BE REGISTERED FEE
<S> <C>
Debt Securities (2).......................................
Common Shares, par value $0.20 per share (3)(4)...........
Share Purchase Contracts (5)..............................
Share Purchase Unit(6)....................................
Total..................................................... U.S.$590,000(8)
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933, as amended, and
exclusive of accrued interest, if any.
(2) Subject to note (7) below, there are being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold, from time
to time, by the Registrant. If any Debt Securities are issued at an original
issue discount, then the offering price shall be in such greater principal
amount as shall result in an aggregate initial offering price not to exceed
U.S.$2,000,000,000, less the dollar amount of any securities previously
issued hereunder.
(3) Subject to note (7) below, there are being registered hereunder an
indeterminate number of Common Shares as may be sold, from time to time, by
the Registrant, including Common Shares issuable upon settlement of the
Share Purchase Contracts or Share Purchase Units.
(4) With attached rights ("Rights") to purchase additional Common Shares in
certain circumstances. The Rights trade with the Common Shares and the
value, if any, attributed to the Rights is reflected in the market price of
the Common Shares.
(5) Subject to note (7) below, there are being registered hereunder an
indeterminate amount and number of Share Purchase Contracts, representing
rights to purchase Common Shares, as may be sold from time to time by the
Registrant.
(6) Subject to note (7) below, there are being registered hereunder an
indeterminate amount and number of Share Purchase Units, representing
ownership of Share Purchase Contracts and Debt Securities or debt
obligations of third parties, including U.S. Treasury Securities, as may be
sold from time to time by the Registrant.
(7) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
U.S.$2,000,000,000, or its equivalent if some or all of the Debt Securities
are denominated in one or more foreign currencies, foreign currency units or
composite currencies. Any securities registered hereunder may be sold
separately or as units with other securities registered hereunder.
(8) The amount of registration fee, calculated in accordance with Section 6(b)
of the Securities Act of 1933, as amended, and Rule 457(o) promulgated
thereunder, is .000295 of the maximum aggregate offering price at which the
securities registered pursuant to this Registration Statement are proposed
to be offered and has been previously paid.
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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
SUBJECT TO COMPLETION, DATED FEBRUARY 13, 1998
PROSPECTUS
$2,000,000,000
------------------------
TYCO INTERNATIONAL LTD.
------------------------
DEBT SECURITIES
COMMON SHARES
SHARE PURCHASE CONTRACTS
SHARE PURCHASE UNITS
------------------------
Tyco International Ltd. (the "Company" or "Tyco") may offer from time to
time (i) unsecured debt securities ("Debt Securities") consisting of debentures,
notes and/or other evidences of unsecured indebtedness in one or more series,
(ii) common shares, par value U.S.$0.20 per share ("Common Shares"), (iii) Share
Purchase Contracts ("Share Purchase Contracts") to purchase Common Shares or
(iv) Share Purchase Units ("Share Purchase Units"), each representing ownership
of a Share Purchase Contract and Debt Securities or debt obligations of third
parties, including U.S. Treasury securities, securing the holder's obligation to
purchase Common Shares under the Share Purchase Contracts (the Debt Securities,
Common Shares, Share Purchase Contracts and Share Purchase Units are
collectively referred to as "Securities"), or any combination of the foregoing,
at an aggregate initial offering price not to exceed U.S.$2,000,000,000, or its
equivalent if some or all of the Debt Securities are denominated in one or more
foreign currencies, at prices and on terms to be determined at or prior to the
time of sale in light of market conditions at the time of sale.
Specific terms of the particular Securities in respect of which this
Prospectus is being delivered will be set forth in one or more accompanying
Prospectus Supplements (each a "Prospectus Supplement"), together with the terms
of the offering of the Securities and the initial price and the net proceeds to
the Company from the sale thereof. The Prospectus Supplement will set forth with
regard to the particular Securities, without limitation, the following: (i) in
the case of Debt Securities, the specific designation, aggregate principal
amount, ranking as senior debt or subordinated debt, authorized denomination,
maturity, rate or method of calculation of interest and dates for payment
thereof, any exchangeability, conversion, redemption, prepayment or sinking fund
provisions, the currency or currencies or currency unit or currency units in
which principal, premium, if any, or interest, if any, is payable, any
modification of the covenants and any other specific terms thereof; (ii) in the
case of Common Shares, the number of shares of Common Shares and the terms of
the offering and sale thereof; (iii) in the case of Share Purchase Contracts,
the number of Common Shares issuable thereunder, the purchase price of the
Common Shares, the date or dates on which the Common Shares are required to be
purchased by the holders of the Share Purchase Contracts, any periodic payments
required to be made by the Company to the holders of the Share Purchase
Contracts or visa versa, and the terms of the offering and sale thereof; and
(iv) in the case of Share Purchase Units, the specific terms of the Share
Purchase Contracts and any Debt Securities or debt obligations of third parties
securing the holder's obligation to purchase Common Shares under the Share
Purchase Contracts, and the terms of the offering and sale thereof. The amounts
payable by the Company in respect of Debt Securities may be calculated by
reference to the value, rate or price of one or more specified commodities,
currencies or indices as set forth in the Prospectus Supplement. The Prospectus
Supplement will also contain information, where applicable, about certain United
States federal income tax considerations relating to the holders of Securities
covered by the Prospectus Supplement.
The Company may sell Securities offered hereby to or through underwriters or
dealers, and also may sell Securities directly to other purchasers or through
agents. The Prospectus Supplement will also set forth the names of the
underwriters, dealers and agents involved in the sale of the Securities offered
hereby, the principal amounts, if any, to be purchased by the underwriters or
agents and the compensation, if any, of such underwriters or agents and any
applicable commissions or discounts. The net proceeds to the Company from the
sale of the Securities offered hereby will also be set forth in the Prospectus
Supplement.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
--------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
--------------------------
The date of this Prospectus is , 1998.
<PAGE>
No person has been authorized to give any information or to make any
representation not contained or incorporated by reference in this Prospectus or
the accompanying Prospectus Supplement and, if given or made, such information
or representation must not be relied upon as having been authorized by the
Company or any underwriter, dealer or agent. Neither the delivery of this
Prospectus or the accompanying Prospectus Supplement nor any sale made hereunder
or thereunder shall, under any circumstances, create an implication that the
information contained herein or in the accompanying Prospectus Supplement is
correct as of any date subsequent to the date hereof or thereof or that there
has been no change in the affairs of the Company since the date hereof or
thereof. Neither this Prospectus nor the accompanying Prospectus Supplement
constitutes an offer to sell or a solicitation of an offer to buy Securities in
any jurisdiction in which such offer or solicitation is not authorized or in
which the person making such offer or solicitation is not qualified to do so or
to any person to whom it is unlawful to make such offer or solicitation.
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, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"), all of which may be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington,
D.C. 20549, and at the following Regional Offices of the Commission: Chicago
Regional Office, Suite 1400, Northwestern Atrium Center, 500 West Madison
Street, Chicago, Illinois 60661; and New York Regional Office, Seven World Trade
Center, 13th Floor, New York, New York 10048. Copies of such material can be
obtained at prescribed rates from the Public Reference Section of the Commission
at 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549. The
Commission maintains a site on the World Wide Web, and the reports, proxy
statements and other information filed by the Company with the Commission may be
accessed electronically on the Web at http:/ /www.sec.gov. Such material can
also be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005, where the Common Shares are listed.
This Prospectus constitutes part of a Registration Statement on Form S-3
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 Common Shares. Statements contained herein concerning the
provisions of any document are not necessarily complete and, in each instance,
where a copy of such document has been filed as an exhibit to the Registration
Statement or otherwise has been filed with the Commission, reference is made to
the copy of the applicable document so filed. Each such statement is qualified
in its entirety by such reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents, which have been filed by the Company with the
Commission pursuant to the Exchange Act, are hereby incorporated by reference in
this Prospectus:
The Company's Transition Report on Form 10-K for the fiscal year ended
September 30, 1997.
The Company's Transition Report on Form 10-K/A for the fiscal year ended
September 30, 1997.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and prior to the termination of the offering of the Securities made hereby shall
be deemed to be incorporated by reference into this Prospectus from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document
2
<PAGE>
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, including any beneficial owner of Securities, upon
the written or oral request of any such person, a copy of any and all of the
documents that have been or may be incorporated by reference herein other than
exhibits to such documents (unless such exhibits are specifically incorporated
by reference into such documents). Such requests should be directed to David
Brownell, Senior Vice President, Tyco International (US) Inc., One Tyco Park,
Exeter, New Hampshire 03833 (telephone: (603) 778-9700).
3
<PAGE>
THE COMPANY
Tyco International Ltd. ("Tyco" or the "Company") is a diversified
manufacturing and service company that, through its subsidiaries, operates in
four segments: (i) the manufacture and distribution of disposable medical
supplies and other specialty products, and the conduct of vehicle auctions and
related services; (ii) the design, manufacture, installation and service of fire
detection and suppression systems, and the installation, monitoring and
maintenance of electronic security systems; (iii) the manufacture and
distribution of flow control products; and (iv) the manufacture and distribution
of electrical and electronic components, and the design, manufacture,
installation and service of undersea cable communication systems.
Tyco's strategy is to be the low-cost, high quality producer and provider in
each of its markets. It promotes its leadership position by investing in
existing businesses, developing new markets and acquiring complementary
businesses and products. Combining the strengths of its existing operations and
its business acquisitions, Tyco seeks to enhance shareholder value through
increased earnings per share and strong cash flows.
On July 2, 1997, Tyco International Ltd., a Massachusetts corporation
("Former Tyco"), merged with a subsidiary of the Company, and the Company
continued as the surviving public corporation. In connection with the merger,
the Company changed its name from ADT Limited ("ADT") to Tyco International Ltd.
The Company is a Bermuda company. Its registered offices are located at The
Gibbons Building, 10 Queen Street, Hamilton HM11 Bermuda, and its telephone
number is (441) 292-8674. The executive office of Tyco International (US) Inc.,
the subsidiary that supervises the activities of the subsidiaries of Tyco
International Ltd. in North America, is located at One Tyco Park, Exeter, New
Hampshire 03833, and its telephone number is (603) 778-9700.
CURRENT DEVELOPMENTS
On December 20, 1997, the Company entered into an agreement to purchase from
American Home Products Corporation its Sherwood-Davis & Geck division
("Sherwood") for $1.77 billion in cash. Sherwood, with annual revenues of
approximately $1.0 billion, is a global manufacturer of medical and surgical
devices, including catheters, needles and syringes, sutures, thermometers and
other specialized disposable medical products. The Company expects to consummate
the transaction in the second quarter of its 1998 fiscal year.
On February 13, 1998, Former Tyco entered into a new $2.25 billion credit
agreement with a group of commercial banks, giving it the right to borrow (a) up
to $1.75 billion until February 12, 1999, with the ability to extend, at the
option of the Borrower, to February 12, 2000, and (b) up to $.5 billion until
February 12, 2003, such term converting from a 364-day term to a five year term
upon termination of the existing credit agreement. Interest payable on
borrowings is variable based upon the Borrower's option of selecting a
Eurodollar rate plus margins ranging from 0.17% to 0.19%, a certificate of
deposit rate plus margins ranging from 0.295% to 0.315%, or a base rate, as
defined. If the outstanding principal amount of loans equals or exceeds
one-third of the commitments, the Eurodollar and certificate of deposit margins
are increased by 0.10%. Repayment of amounts outstanding under this agreement is
guaranteed by the Company.
The Company reviews acquisition opportunities in the ordinary course of its
business, some of which may be material and some of which are currently under
investigation, discussion or negotiation.
Tyco has recently announced that diluted earnings per share, before
extraordinary items, for its first fiscal 1998 quarter ended December 31, 1997
were 43 cents per share, a 43 percent increase, compared to last year's 30 cents
per share. Net income, before extraordinary items, rose to $240.8 million
compared to last year's $150.5 million. Sales for the quarter increased 17
percent to $2.69 billion compared to last year's $2.29 billion. Last year's
results have been restated to account for poolings of interests transactions
relating
4
<PAGE>
to the the merger of the Company and Former Tyco and the acquisitions of
Keystone International, Inc. ("Keystone") and INBRAND Corporation ("INBRAND"),
and are before non-recurring charges and extraordinary items. Results for the
first quarter of fiscal 1998 included, among other acquisitions, the operations
of Tyco Submarine Systems Ltd, acquired by the Company's Electrical and
Electronic Components group in July 1997. Per share information for all periods
presented reflects a two-for-one stock split effective on October 22, 1997.
Earnings at Tyco's Disposable and Specialty Products group grew to $123.6
million, a 23 percent increase over the $100.6 million reached a year ago. Sales
for the segment grew to $676.6 million versus last year's $638.9 million.
Kendall's healthcare operations reported strong earnings in all areas, including
the recently acquired INBRAND operations. These results reflect continued
improvements being made in productivity. The Plastics group achieved higher
results as cost reductions in all areas of the business took effect. The
recently announced acquisition of Sherwood-Davis & Geck will, upon completion,
provide additional product offerings for the disposable medical products group.
At Tyco's Fire and Security Services group, quarterly earnings increased 45
percent as they rose to $146.4 million versus $100.7 million last year. Sales
reached $1.13 billion compared to $1.02 billion last year. The combination of
Tyco's fire protection and security businesses on a worldwide basis continues to
provide both increased sales opportunities and a higher recurring revenue
stream. The recently announced Holmes Protection acquisition will further
complement the growth in recurring revenue in this group.
Quarterly earnings at the Tyco Flow Control group increased 39 percent to
$71.9 million from $51.9 million last year. Sales were $550.0 million compared
to the prior year's $511.5 million. The integration of Keystone International
with the existing flow control units has contributed to improved overall margins
in all units of this segment as greater efficiencies in manufacturing and
distribution take effect.
At Tyco's Electrical and Electronic Components group, which includes the
results of Tyco Submarine Systems Ltd. (TSSL) acquired in July, 1997, earnings
increased to $71.6 million versus the $22.5 million in last year's quarter.
Sales rose to $334.3 million compared with $120.6 million in the prior year. In
addition, TSSL continues to build its backlog of future cable systems. Tyco's
Printed Circuit units also showed significant improvements over last year as
shipments of printed circuit boards remained strong.
5
<PAGE>
RESULTS OF OPERATIONS (1)(2)
(IN MILLIONS EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
--------------------
12/31/97 12/31/96
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<S> <C> <C>
SALES............................................................................. $2,687.5 $2,290.0
--------- ---------
--------- ---------
Income before income taxes........................................................ $359.4 $217.0
Income taxes...................................................................... (118.6) (66.5)
--------- ---------
INCOME BEFORE EXTRAORDINARY ITEM.................................................. $240.8 $150.5
--------- ---------
--------- ---------
EARNINGS PER SHARE: (3)
BASIC........................................................................... $0.44 $0.31
--------- ---------
--------- ---------
DILUTED (4)..................................................................... $0.43 $0.30
--------- ---------
--------- ---------
COMMON EQUIVALENT SHARES:
BASIC........................................................................... 545.1 489.7
--------- ---------
--------- ---------
DILUTED......................................................................... 568.3 520.5
--------- ---------
--------- ---------
</TABLE>
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(1) Three months ended December 31, 1997 are before extraordinary items of $0.9
million after-tax.
(2) Three months ended December 31, 1996 are restated for poolings of interests
with ADT, Keystone, and INBRAND, and are before non-recurring items of $80.3
million after-tax and extraordinary items of $2.6 million after-tax.
(3) Effective October 1, 1997 the Company adopted Statement of Financial
Standards No. 128, "Earnings Per Share," ("SFAS 128"). SFAS 128 requires
restatement of prior period earnings presented after the effective date.
This restatement did not effect reported diluted earnings per share for the
three months ended December 31, 1996.
(4) Earnings per share based on diluted shares assumes conversion of LYONs
notes. Accordingly, net interest expense of $2.2 million in 1997 and $3.3
million in 1996 must be added back to income before extraordinary item for
computing diluted earnings per share.
USE OF PROCEEDS
Except as otherwise described in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Securities to
refinance, in part, existing indebtedness, to finance, in part, the cost of
acquisitions, including Sherwood, and for general corporate purposes. Funds not
required immediately for such purposes may be invested temporarily in short-term
marketable securities.
6
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the Company for the nine month transitional fiscal year ended September 30,
1997, and the years ended December 31, 1996, 1995, 1994 and 1993.
<TABLE>
<CAPTION>
FISCAL YEAR YEAR ENDED DECEMBER
ENDED
SEPTEMBER 31,
30, --------------------
1997(3) 1996 1995 1994
--------------- ----- --------- ---------
<S> <C> <C> <C> <C>
Ratio of earnings to fixed charges(1)(2)................................. (4) (4) 3.00 3.33
<CAPTION>
1993
---------
<S> <C>
Ratio of earnings to fixed charges(1)(2)................................. 2.76
</TABLE>
- ------------------------
(1) For purposes of determining the ratio of earnings to fixed charges, earnings
consist of income (loss) before income taxes, cumulative effect of change in
accounting methods and extraordinary items, and fixed charges. Fixed charges
consist of interest on indebtedness, amortization of debt expenses and
one-third of rent expense which is deemed representative of an interest
factor.
(2) On July 2, 1997, a wholly-owned subsidiary of the Company merged with Former
Tyco. On August 27, 1997, the Company consummated a merger with INBRAND,
and, on August 29, 1997, the Company consummated a merger with Keystone.
Each of the three merger transactions qualifies for pooling of interests
basis of accounting. As such, the ratio of earnings to fixed charges for the
nine months ended September 30, 1997 and the years ended December 31, 1996,
1995, 1994 and 1993 include the effect of the mergers, except that the
calculation presented above for periods prior to January 1, 1997 does not
include INBRAND due to immateriality.
Prior to the respective mergers, ADT and Keystone had calendar year ends and
Former Tyco and INBRAND had June 30 fiscal year ends. The historical results
upon which the ratios are based have been combined using a calendar year end
for ADT, Keystone and Former Tyco for the year ended December 31, 1996. For
1995, 1994, and 1993, the ratio of earnings to fixed charges reflects the
combination of ADT and Keystone with a calendar year end and Former Tyco
with a June 30 fiscal year end.
(3) In September 1997, the Company changed its fiscal year end from December 31
to September 30. The fiscal year ended September 30, 1997 represents the
nine month period ended September 30, 1997.
(4) Earnings were insufficient to cover fixed charges by $589.7 million and
$61.2 million in 1997 and 1996, respectively.
Earnings for the nine months ended September 30, 1997 and the year ended
December 31, 1996 included merger, restructuring and other nonrecurring
charges of $917.8 million and $246.1 million, respectively. Earnings also
include a charge for the impairment of long-lived assets of $148.4 million
and $744.7 million, respectively in the 1997 and 1996 periods. The 1997
period also includes a write off of purchased in process research and
development of $361.0 million.
On a pro forma basis the ratio of earnings to fixed charges excluding merger,
restructuring and other nonrecurring charges, charge for the impairment of
long-lived assets and write off of purchased in process research and
development would have been 5.44x and 4.68x for the nine months ended
September 30, 1997 and year ended December 31, 1996, respectively.
7
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The Debt Securities offered hereby will be issued under an indenture
(hereinafter the "Indenture"), between the Company and the trustee thereunder
(hereinafter referred to as the "Trustee"). The following statements are subject
to the detailed provisions of the Indenture, a copy of which is filed as an
exhibit to this Registration Statement. The Indenture is subject to, and
governed by, the Trust Indenture Act of 1939, as amended. The statements made
hereunder relating to the Indenture and the Debt Securities to be issued
thereunder are summaries of certain provisions thereof, do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all provisions of the Indenture and such Debt Securities. Capitalized terms
used but not defined herein shall have the respective meanings set forth in the
Indenture.
The particular terms of the Debt Securities offered by a Prospectus
Supplement will be described in the particular Prospectus Supplement, along with
any applicable modifications of or additions to the general terms of the Debt
Securities as described herein and in the Indenture or in any supplemental
indenture thereto and any applicable material federal income tax considerations.
Accordingly, for a description of the terms of any series of Debt Securities,
reference must be made to both the Prospectus Supplement relating thereto and
the description of the Debt Securities set forth in this Prospectus.
GENERAL
The Indenture does not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and provides that the Debt Securities
may be issued from time to time in one or more series unless otherwise provided
in any supplemental indenture and the applicable Prospectus Supplement.
Unless otherwise provided in any supplemental indenture and specified in the
applicable Prospectus Supplement, Debt Securities offered pursuant to this
Prospectus will be direct, unsecured and unsubordinated obligations of the
Company and will rank equally with other unsecured and unsubordinated
obligations of the Company for money borrowed. Except as may be provided in any
supplemental indenture and set forth in the applicable Prospectus Supplement,
the Indenture does not limit other indebtedness or securities which may be
incurred or issued by the Company or any of its subsidiaries or contain
financial or similar restrictions on the Company or any of its subsidiaries.
Except as may be provided in any supplemental indenture and set forth in the
applicable Prospectus Supplement, the Company's rights and the rights of its
creditors, including holders of Debt Securities, to participate in any
distribution of assets of any subsidiary upon the latter's liquidation or
reorganization or otherwise will be effectively subordinated to the claims of
the subsidiary's creditors, except to the extent that the Company or any of its
creditors may itself be a creditor of that subsidiary.
A Prospectus Supplement will set forth where applicable the following terms
of and information relating to the Debt Securities offered pursuant to this
Prospectus: (i) the designation of the Debt Securities; (ii) the aggregate
principal amount of the Debt Securities; (iii) the date or dates on which
principal of, and premium, if any, on the Debt Securities is payable; (iv) the
rate or rates at which the Debt Securities shall bear interest, if any, or the
method by which such rate shall be determined, the date or dates from which
interest will accrue and on which such interest will be payable and the related
record dates; (v) if other than the offices of the Trustee, the place where the
principal of and any premium or interest on the Debt Securities will be payable;
(vi) any redemption, repayment or sinking fund provisions; (vii) if other than
denominations of $1,000 or multiples thereof, the denominations in which the
Debt Securities will be issuable; (viii) if other than the principal amount
thereof, the portion of the principal amount due upon acceleration; (ix) whether
the Debt Securities shall be issued in the form of a global security or
securities; (x) any other specific terms of the Debt Securities (which may, for
example, include the currency, and any index used to determine the amount, of
payment of principal of and any premium and interest on the Debt Securities);
and (xi) if other than the Trustee, the identity of any trustees, paying agents,
transfer agents or registrars with respect to the Debt Securities.
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Unless otherwise provided in any supplemental indenture and specified in the
applicable Prospectus Supplement, Debt Securities offered pursuant to this
Prospectus will be issued either in certificated, fully registered form, without
coupons, or as global notes under a book-entry system.
Upon receipt of an authentication order from the Company together with any
other documentation required by the Indenture or any supplemental indenture
thereto, the Trustee will authenticate Debt Securities in the appropriate form
and for the amount specified in the applicable Prospectus Supplement and the
supplemental indenture relating thereto.
Unless otherwise provided in any supplemental indenture and specified in the
applicable Prospectus Supplement, principal and premium, if any, will be
payable, and the Debt Securities offered pursuant to this Prospectus will be
transferable and exchangeable without any service charge, at the office of the
Trustee. However, the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection with any such
transfer or exchange.
Interest, if any, on any series of Debt Securities offered pursuant to this
Prospectus will be payable on the interest payment dates set forth in the
accompanying Prospectus Supplement to the persons described in the accompanying
Prospectus Supplement.
If Debt Securities offered pursuant to this Prospectus are issued as
original issue discount securities (bearing no interest or interest at a rate
which at the time of issuance is below market rates) to be sold at more than a
DE MINIMIS discount below their stated principal amount, the federal income tax
consequences to the holders of Debt Securities and other special considerations
applicable to such original issue discount securities will be as provided in the
applicable Prospectus Supplement.
Unless otherwise provided in any supplemental indenture and described in the
applicable Prospectus Supplement, there are no covenants or provisions contained
in the Indenture which afford the holders of Debt Securities offered pursuant to
this Prospectus protection in the event of a highly leveraged transaction,
reorganization, restructuring, merger or similar transaction involving the
Company. The consummation of any highly leveraged transaction, reorganization,
restructuring, merger or similar transaction could cause a material decline in
the credit quality of the outstanding Debt Securities.
BOOK-ENTRY SYSTEM
If so specified in the applicable Prospectus Supplement, Debt Securities of
any series offered pursuant to this Prospectus may be issued under a book-entry
system in the form of one or more global securities ("Global Securities"). Each
Global Security will be deposited with, or on behalf of, a depositary, which,
unless otherwise specified in the accompanying Prospectus Supplement, will be
The Depository Trust Company, New York, New York (the "Depositary"). The Global
Securities will be registered in the name of the Depositary or its nominee. The
specific terms of the depositary arrangement with respect to any series of Debt
Securities, or portion thereof, to be represented by a Global Security will be
provided in the supplemental indenture relating thereto and described in the
applicable Prospectus Supplement.
The Depositary has advised the Company as follows: the Depositary is a
limited purpose trust company organized under the laws of the State of New York,
a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and "clearing agency"
registered pursuant to the provisions of section 17A of the Exchange Act. The
Depositary was created to hold securities of persons who have accounts with the
Depositary ("participants") and to facilitate the clearance and settlement of
securities transactions among its participants in such securities through
electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of certificates. The Depositary's
participants include securities brokers and dealers, banks, trust companies and
clearing corporations, and may include certain other organizations. Indirect
access to the Depositary book-entry system is also available to others, such as
banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a participant, either directly or indirectly.
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<PAGE>
Upon the issuance of a Global Security, the Depositary or its nominee will
credit, on its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such Global Security to
the accounts of participants. The accounts to be credited will be designated by
the underwriters or agents, if any, or by the Company, if such Debt Securities
are offered and sold directly by the Company. Ownership of beneficial interests
in the Global Security will be limited to participants or persons that may hold
interests through participants. Ownership of beneficial interests by
participants in the Global Security will be shown on, and the transfer of that
ownership interest will be effected only through, records maintained by the
Depositary or its nominee for such Global Security. Ownership of beneficial
interests in the 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 jurisdiction require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interests in a Global Security.
So long as the Depositary or its nominee is the registered owner of a Global
Security, it will be considered the sole owner or holder of the Debt Securities
represented by such Global Security for all purposes under the Indenture. Except
as set forth below, owners of beneficial interests in such Global Security will
not be entitled to have the Debt Securities represented thereby registered in
their names, will not receive or be entitled to receive physical delivery of
certificates representing the Debt Securities and will not be considered the
owners or holders thereof under the Indenture.
Payment of principal of, premium, if any, and any interest on Debt
Securities represented by a Global Security will be made to the Depositary or
its nominee, as the case may be, as the registered owner or the holder of the
Global Security. None of the Company, the Trustee, any paying agent or registrar
for such Debt Securities will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interest in the Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
The Company has been advised by the Depositary that the Depositary will
credit participants' accounts with payments of principal, premium, if any, or
interest on the payment date thereof in amounts proportionate to their
respective beneficial interests in the principal amount of the Global Security
as shown on the records of the Depositary. The Company expects that payments by
participants to owners of beneficial interests in the Global Security held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the account of
customers registered in "street name," and will be the responsibility of such
participants.
A Global Security may not be transferred except as a whole to a nominee or
successor of the Depositary. If the Depositary is at any time unwilling or
unable to continue as depositary and a successor depositary is not appointed by
the Company within ninety days, the Company will issue certificates in
registered form in exchange for the Global Security or securities representing
the Debt Securities. In addition, the Company may at any time and in its sole
discretion determine not to have Debt Securities of a series represented by a
Global Security and, in such event, will issue certificates in definitive form
in exchange for the Global Security representing such Debt Securities.
COVENANTS
Any covenants, including any restrictive covenants, of the Company with
respect to any series of Debt Securities will be provided in a supplemental
indenture and described in the applicable Prospectus Supplement.
MERGER, CONSOLIDATION, SALE, LEASE OR CONVEYANCE
The Indenture provides that unless otherwise provided in any supplemental
indenture and described in the applicable Prospectus Supplement, the Company
will not merge or consolidate with any other corporation and will not sell,
lease or convey all or substantially all of its assets to any person, unless the
Company shall be the continuing corporation, or the successor corporation or
person that acquires all or
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substantially all of the assets of the Company shall expressly assume the
payment of principal of, premium, if any, and interest on the Debt Securities
and the observance of all the covenants and agreements under the Indenture to be
performed or observed by the Company, and immediately after such merger,
consolidation, sale, lease or conveyance, the Company, such person or such
successor corporation shall not be in default in the performance of the
covenants and agreements of the Indenture to be performed or observed by the
Company.
EVENTS OF DEFAULT
Unless otherwise provided in any supplemental indenture and described in the
applicable Prospectus Supplement, an Event of Default with respect to Debt
Securities of any series issued under the Indenture is defined in the Indenture
as being: default for 30 days in payment of any interest upon any Debt
Securities of such series; default in any payment of principal of or premium, if
any, on any Debt Securities of such series (including any sinking fund payment);
default by the Company in performance of any other of the covenants or
agreements in respect of the Debt Securities of such series or the Indenture
which shall not have been remedied for a period of 90 days after written notice
to the Company by the Trustee or the holders of at least 25% of the principal
amount of all Debt Securities of all affected series, as provided in the
supplemental indenture relating thereto and described in the applicable
Prospectus Supplement, specifying that such notice is a "Notice of Default"
under the Indenture; certain events involving bankruptcy, insolvency or
reorganization of the Company; or any other Event of Default established for the
Debt Securities of such series set forth in the accompanying Prospectus
Supplement. Unless otherwise provided in any supplemental indenture and
described in the applicable Prospectus Supplement, the Indenture requires that
the Trustee transmit notice of any uncured default under the Indenture with
respect to any series, within 90 days after the occurrence of such default, to
the holders of Debt Securities of each affected series, except that the Trustee
may withhold notice to the holders of any series of the Debt Securities of any
default (except in payment of principal of, premium, if any, or interest on,
such series of Debt Securities) if the Trustee considers it in the interest of
the holders of such series of Debt Securities to do so.
Unless otherwise provided in any supplemental indenture and described in the
applicable Prospectus Supplement, (a) if an Event of Default due to the default
in payment of principal of, premium, if any, or interest on, any series of Debt
Securities issued under the Indenture or due to the default in the performance
or breach of any other covenant or agreement of the Company applicable to the
Debt Securities of such series but not applicable to all outstanding Debt
Securities issued under the Indenture shall have occurred and be continuing,
either the Trustee or the holders of not less than 25% in principal amount of
the Debt Securities of each affected series issued under the Indenture and then
outstanding (each such series voting as a separate class) may declare the
principal of all Debt Securities of such affected series and interest accrued
thereon to be due and payable immediately; and (b) if an Event of Default due to
a default in the performance of any other of the covenants or agreements in the
Indenture applicable to all outstanding Debt Securities issued thereunder and
then outstanding, or due to a default in payment at final maturity upon or
acceleration of indebtedness for money borrowed in the principal amount set
forth in the applicable Prospectus Supplement, or to certain events of
bankruptcy, insolvency and reorganization of the Company shall have occurred and
be continuing, either the Trustee or the holders of not less than 25% in
principal amount of all Debt Securities issued under the Indenture and then
outstanding (treated as one class) may declare the principal of all such Debt
Securities and interest accrued thereon to be due and payable immediately, but
upon certain conditions such declarations may be annulled and past defaults may
be waived (except a continuing default in payment of principal of, premium, if
any, or interest on such Debt Securities) by the holders of a majority in
principal amount of the Debt Securities of all such affected series then
outstanding (each such series voting as a separate class or all such Debt
Securities voting as a single class, as the case may be).
Unless otherwise provided in any supplemental indenture and described in the
applicable Prospectus Supplement, the holders of a majority in principal amount
of the Debt Securities of each series then outstanding and affected (with each
series voting as a separate class) will have the right to direct the time,
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<PAGE>
method and place of conducting any proceeding for any remedy available to the
Trustee with respect to the Debt Securities of such series under the Indenture,
subject to certain limitations specified in the Indenture, provided that the
holders of such Debt Securities shall have offered to the Trustee reasonable
indemnity against expenses and liabilities.
Unless otherwise provided in any supplemental indenture and described in the
applicable Prospectus Supplement, no holder of Debt Securities of any series may
institute any action against the Company under the Indenture (except actions for
payment of overdue principal, premium, if any, or interest) unless such holder
previously shall have given to the Trustee written notice of default and
continuance thereof and unless the holders of not less than 25% in principal
amount of the Debt Securities of each affected series (with each series voting
as a separate class) issued under the Indenture and then outstanding shall have
requested the Trustee to institute such action and shall have offered the
Trustee reasonable indemnity, and the Trustee shall not have instituted such
action within 60 days of such request, and the Trustee shall not have received
direction inconsistent with such written request by the holders of a majority in
principal amount of the Debt Securities of each affected series (with each
series voting as a separate class) issued under such Indenture and then
outstanding.
Unless otherwise provided in any supplemental indenture and described in the
applicable Prospectus Supplement, the Company is required to file annually with
the Trustee a written statement as to compliance with the covenants and
agreements contained in the Indenture.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Unless otherwise provided in any supplemental indenture and described in the
applicable Prospectus Supplement, the Company may discharge certain obligations
with respect to any series of Debt Securities issued under the Indenture by
irrevocably depositing with the applicable Trustee cash or direct obligations of
the United States as trust funds in an amount certified to be sufficient to pay
at maturity (or upon redemption) the principal of, premium, if any, and interest
on such Debt Securities upon the terms and conditions set forth in the Indenture
and described in the applicable Prospectus Supplement relating to such Debt
Securities.
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than a majority of principal amount
of the Debt Securities at the time outstanding of all series affected (voting as
one class), to modify the Indenture or any supplemental indenture or the rights
of the holders of the Debt Securities, except that no such modification shall
(i) extend the final maturity of any of the Debt Securities or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption thereof, or reduce
the amount of any original issue discount security payable upon acceleration or
provable in bankruptcy or impair or affect the right of any holder of the Debt
Securities to institute suit for the payment thereof without the consent of the
holder of each of the Debt Securities so affected or (ii) reduce the aforesaid
percentage in principal amount of Debt Securities, the consent of the holders of
which is required for any such modification, without the consent of the holders
of all Debt Securities then outstanding.
The Indenture contains provisions permitting the Company and the Trustee,
without the consent of any holders of Debt Securities, to enter into a
supplemental indenture, amoung other things, for purposes of curing any
ambiguity or correcting or supplementing any provision contained in the
Indenture or in any supplemental indenture or making other provisions in regard
to the matters or questions arising under the Indenture or any supplemental
indenture as the Board of Directors of the Company deems necessary or desirable
and which does not adversely affect the interest of the holders of Debt
Securities in any material respect. The Company and the Trustee, without the
consent of any holders of Debt Securities, may also enter into a supplemental
indenture to establish the form or terms of any series of Debt Securities as are
not otherwise inconsistent with any of the provisions of the Indenture.
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DESCRIPTION OF CAPITAL STOCK
The summary of the terms of the share capital of Tyco set forth below does
not purport to be complete and is qualified by reference to the Tyco Memorandum
of Association (the "Tyco Memorandum") and the Bye-laws of Tyco (the "Tyco
Bye-Laws"). Copies of the Tyco Memorandum and the Tyco Bye-Laws are filed as
exhibits to the Registration Statement.
AUTHORIZED SHARE CAPITAL
Tyco's authorized share capital consists of 750,000,000 Common Shares, par
value U.S.$0.20 per share, 125,725,000 convertible cumulative redeemable
preference shares, par value $1 per share, divided into three classes (the
"Convertible Preference Shares") (including a class of first preference shares
(the "First Preference Shares")), and 25,000 exchangeable cumulative redeemable
preference shares, par value $1 per share (the "Exchangeable Preference Shares")
(the Convertible Preference Shares and the Exchangeable Preference Shares,
collectively, the "Preference Shares"). As of January 16, 1998, there were
550,182,802 Common Shares outstanding and no Preference Shares outstanding. As
of such date, 7,500,000 First Preference Shares had been designated as Series A
First Preference Shares and reserved for issue upon exercise of the Rights under
Tyco's Shareholder Rights Plan. At Tyco's 1998 Annual General Meeting scheduled
to be held on March 27, 1998, shareholders will be asked to approve changing the
authorized share capital of Tyco to consist entirely of 1,503,750,000 Common
Shares, par value U.S.$.20 per share, and 125,000,000 preference shares, par
value U.S.$1 per share, of which 7,500,000 will be designated Series A First
Prefernce Shares.
COMMON SHARES
DIVIDENDS. The Board of Directors of Tyco may declare dividends out of
profits of Tyco available for that purpose as long as there are no reasonable
grounds for believing that Tyco is, or after such dividend would be, unable to
pay its liabilities as they became due or if the realizable value of Tyco's
assets would thereby be less than the aggregate of its liabilities and its
issued share capital and share premium accounts. Subject to such special rights
as may be attached to any other shares in Tyco, all dividends are payable
according to the amounts paid or credited as paid on Common Shares. Dividends
are normally payable in U.S. dollars, but holders with a registered address in
countries outside the United States may receive payment in another currency. Any
dividend which is unclaimed after a period of 12 years is forfeited and reverts
to Tyco.
VOTING RIGHTS. At any general meeting of Tyco, votes may be given in person
or by proxy and each holder of Common Shares is entitled, on a show of hands, to
one vote and, on a poll, to one vote for each Common Share held by him. The Tyco
Bye-Laws require that any proxy must be a shareholder of Tyco. Under the Tyco
Bye-Laws, two holders of Common Shares present, in person or by proxy,
constitute a quorum at a general meeting.
LIQUIDATION. On a liquidation of Tyco, holders of Common Shares are
entitled to receive any assets remaining after the payment of the Tyco's debts
and the expenses of the liquidation, subject to such special rights as may be
attached to any other class of shares.
SUSPENSION OF RIGHTS. In certain circumstances, the rights of a shareholder
to vote and to receive any payment or income or capital in respect of a Common
Share may be suspended. The Tyco Bye-Laws provide that a shareholder is not
entitled (except as proxy for another shareholder) to be present or vote at any
meeting if such shareholder has been served, and failed to comply, with a notice
under the Tyco Bye-Laws stating that such shareholder must make an offer in
accordance with the UK City Code on Takeovers and Mergers, as applied by the
Tyco Bye-Laws, or otherwise in accordance with the Tyco Bye-Laws. The effect of
these provisions is that if any person (and persons acting in concert with such
person) acquires shares which carry 30 per cent or more of the voting rights of
Tyco, such person may be required to make an offer for all the outstanding
shares to acquire such shares for cash, on the terms set forth in the Tyco
Bye-Laws. The Tyco Bye-Laws also provide that a shareholder loses the right to
vote for a period of
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180 days if such shareholder acquires three per cent or more of the issued share
capital of any class, either alone or with others, and fails to notify Tyco of
such acquisition within two days or, if he already possesses three per cent or
more, such shareholder fails to notify Tyco of a change in the shareholder's
interest amounting to one per cent or more of the share capital of any class and
such shareholder is so notified by the Board of Directors of such loss of right.
In addition, the Tyco Bye-Laws provide that any person who is known or believed
by Tyco to be interested in Common Shares and has failed to comply with a notice
from Tyco requesting specified information regarding such person's interests in
shares shall lose the right to vote for the period during which such person
fails to comply with the notice plus an additional 90 days. The right of a
shareholder to receive payments of income and capital on a share may be
suspended while the voting rights attached to such share are suspended.
VARIATION OF RIGHTS. If at any time the share capital of Tyco is divided
into different classes of shares, the rights attached to any class (unless
otherwise provided by the terms of the issue of the shares of that class) may be
varied with the consent in writing of the holders of three-fourths of the issued
shares of that class or with the sanction of a resolution passed at a separate
general meeting of the holders of the shares of that class by a majority of
three-fourths of such holders voting in person or by proxy.
TRANSFERS. Common Shares may be transferred in any manner the Tyco Board of
Directors may approve. The Board of Directors may require the transfer to be by
an instrument signed by the transferor and, in the case of a partly paid share,
also by the transferee. The instrument must be in writing in the usual common
form or in any other form which the Board of Directors may approve and must be
lodged at the office of the registrar of Tyco for registration. The Tyco Board
of Directors may decline to register any transfer of shares on which Tyco has a
lien or any transfer of shares not fully paid up. Under the Tyco Bye-Laws, the
Board of Directors may decline to register any transfer of shares by a
transferor or to a transferee on whom Tyco has duly served a notice in respect
of such shares under any of the provisions of the Tyco Bye-Laws referred to
above under "Suspension of Rights" during a period of suspension of voting
rights pursuant to those provisions.
REGISTRAR AND TRANSFER AGENT. AS&K Services Ltd. is Tyco's Registrar.
ChaseMellon Shareholder Services, L.L.C. is the transfer agent for Common
Shares.
TYCO PREFERENCE SHARES
Under the Tyco Bye-Laws, the Tyco Board of Directors, in its sole
discretion, may designate, allot and issue one or more series of First
Preference Shares from the authorized and unissued First Preference Shares.
Subject to limitations imposed by law, the Tyco Memorandum or the Tyco Bye-Laws,
the Board of Directors is empowered to determine the designation of, and the
number of shares constituting, each series of First Preference Shares, the
dividend rate for each series, the terms and conditions of any voting and
conversion rights for each series, the amounts payable on each series on
redemption or return of capital and the preference and relative rights among
each series of First Preference Shares.
SHAREHOLDER RIGHTS PLAN
In 1996, Tyco adopted a Shareholder Rights Plan (the "Shareholder Rights
Plan"). The Shareholder Rights Plan provides that unless certain actions are
taken by the Tyco Board of Directors, upon the Distribution Date (as defined
therein) each right other than those rights owned by an Acquiring Person (as
defined therein) will become exercisable. Each right entitles its holder, among
other things, to purchase Common Shares from Tyco at a 50% discount from the
market price of Common Shares on the Distribution Date.
STOCK EXCHANGE LISTING
The Common Shares are listed on the New York Stock Exchange, the London
Stock Exchange and the Bermuda Stock Exchange.
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DESCRIPTION OF SHARE PURCHASE CONTRACTS
AND SHARE PURCHASE UNITS
The Company may issue Share Purchase Contracts, including contracts
obligating holders to purchase from the Company, and the Company to sell to the
holders, a specified number of Common Shares at a future date or dates. The
price per Common Share may be fixed at the time the Share Purchase Contracts are
issued or may be determined by reference to a specific formula set forth in the
Share Purchase Contracts. The Share Purchase Contracts may be issued separately
or as a part of units ("Share Purchase Units") consisting of a Share Purchase
Contract and Debt Securities or debt obligations of third parties, including
U.S. Treasury securities, securing the holders' obligations to purchase the
Common Shares under the Share Purchase Contracts. The Share Purchase Contracts
may require the Company to make periodic payments to the holders of the Share
Purchase Units or vice versa, and such payments may be unsecured or prefunded on
some basis. The Share Purchase Contracts may require holders to secure their
obligations thereunder in a specified manner.
The applicable Prospectus Supplement will describe the terms of any Share
Purchase Contracts or Share Purchase Units. The description in the Prospectus
Supplement will not purport to be complete and will be qualified in its entirety
by reference to the Share Purchase Contracts, and, if applicable, collateral
arrangements and depositary arrangements, relating to such Share Purchase
Contracts or Share Purchase Units.
PLAN OF DISTRIBUTION
The Company may sell Securities to or through underwriters or dealers, and
also may sell Securities directly to other purchasers or through agents. Each
Prospectus Supplement will describe the method of distribution of the offered
Securities.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Securities, underwriters may receive
compensation from the Company or from purchasers of Securities for whom they may
act as agents in the form of discounts, concessions, or commissions.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions, or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as
agents. Underwriters, dealers, and agents that participate in the distribution
of Securities may be deemed to be underwriters, and any discounts or commissions
received by them from the Company and any profit on the resale of Securities by
them may be deemed to be underwriting discounts and commissions, under the
Securities Act. Any such underwriter or agent will be identified, and any such
compensation received from the Company will be described, in the Prospectus
Supplement.
Underwriters and agents who participate in the distribution of Securities
may be entitled under agreements which may be entered into by the Company to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase offered Securities from the
Company 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 such
institutions must be approved by the Company. 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
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underwriters and such other agents will not have any responsibility in respect
of the validity or performance of such contracts.
VALIDITY OF SECURITIES
The validity of the Securities to be sold pursuant to this Prospectus, as to
matters of Bermuda law, will be passed upon for the Company by Appleby, Spurling
& Kempe, Hamilton, Bermuda, Bermuda counsel to the Company, and, as to all other
matters, will be passed upon for the Company by Kramer, Levin, Naftalis &
Frankel, New York, New York, counsel to the Company. Joshua M. Berman, a
director and vice president of the Company, is counsel to Kramer, Levin,
Naftalis & Frankel. Mr. Berman owns beneficially 68,000 Common Shares.
EXPERTS
The consolidated financial statements and financial statement schedule
included in the Company's Transition Report on Form 10-K for fiscal year ended
September 30, 1997 and incorporated by reference in this prospectus have been
audited by Coopers & Lybrand, independent public accountants, as set forth in
their report included therein. In that report, that firm states that with
respect to certain subsidiaries its opinion is based on the reports of other
independent public accountants, namely Coopers & Lybrand L.L.P. and Arthur
Andersen LLP. The consolidated financial statements and financial statement
schedule referred to above have been incorporated herein in reliance upon said
reports given upon the authority of those firms as experts in accounting and
auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the issuance and distribution of
the Securities covered by this Registration Statement are as follows:
<TABLE>
<S> <C>
SEC registration fee (actual)..................................... $ 590,000
Printing and engraving expenses................................... 100,000
Legal fees and expenses........................................... 100,000
Accounting fees and expenses...................................... 50,000
Miscellaneous..................................................... 60,000
---------
Total............................................................. $ 900,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Bye-Law 102 of the Tyco Bye-Laws provides, in part, that Tyco shall
indemnify its directors and other officers for all costs, losses and expenses
which they may incur in the performance of their duties as director or officer,
provided that such indemnification is not otherwise prohibited under the
Companies Act 1981 (as amended) of Bermuda. Section 98 of the Companies Act 1981
(as amended) prohibits such indemnification against any liability arising out of
the fraud or dishonesty of the director or officer. However, such section
permits Tyco to indemnify a director or officer against any liability incurred
by him in defending any proceedings, whether civil or criminal, in which
judgment is given in his favor or in which he is acquitted or when other similar
relief is granted to him.
The Registrant maintains $75 million of insurance to reimburse its directors
and officers for charges and expenses incurred by them for wrongful acts claimed
against them by reason of their being or having been directors or officers of
the Registrant or any subsidiary thereof. Such insurance specifically excludes
reimbursement of any director or officer for any charge or expense incurred in
connection with various designated matters, including libel or slander,
illegally obtained personal profits, profits recovered by the Registrant
pursuant to Section 16(b) of the Exchange Act and deliberate dishonesty.
ITEM 16. EXHIBITS
<TABLE>
<C> <S>
1 - Form of Underwriting Agreement*
3.1 - Memorandum of Association (as altered) of the Registrant (incorporating all
amendments to May 26, 1992) (incorporated by reference as an Exhibit to the
Registrant's Annual Report on Form 10-K for the year ended December 31, 1992)
3.2 - Certified copy of a resolution approved at the Annual General Meeting of common
shareholders of ADT Limited held on October 12, 1993, approving an increase in the
authorized common share capital of ADT Limited from $19.5 million to $22.0 million
(incorporated by reference as an Exhibit to the Registrant's Annual Report on Form
10-K for the year ended December 31, 1993)
3.3 - Certified copy of a resolution approved at a special meeting of common shareholders
of the Registrant held on July 2, 1997, approving the consolidation and division of
the common shares of $0.10 of the Registrant into new common shares of $0.20 each
and increasing the authorized number of common shares to 750,000,000
</TABLE>
II-1
<PAGE>
<TABLE>
<C> <S>
3.4 - Certificate of Incorporation on Change of Name (previously filed as an Exhibit to
the Registrant's Current Report on Form 8-K filed July 10, 1997 ("July 10, 1997
8-K"))
3.5 - Bye-Laws of the Registrant (previously filed as an Exhibit to the July 10, 1997 Form
8-K)
4.1 - Rights Agreement between Registrant and Citibank, N.A. dated as of November 6, 1996
(previously filed as an Exhibit to Registrant's Form 8-A dated November 12, 1996)
4.2 - First Amendment between Registrant and Citibank, N.A. dated as of March 3, 1997 to
Rights Agreement between Registrant and Citibank, N.A. dated as of November 6, 1996
(previously filed as an Exhibit to Registrant's Form 8-A/A dated March 3, 1997)
4.3 - Second Amendment between Registrant and Citibank, N.A. dated as of July 2, 1997 to
Rights Agreement between Registrant and Citibank N.A. dated as of November 6, 1996
(previously filed as an Exhibit to Registrant's Form 8-A/A dated July 2, 1997)
4.4 - Form of Share Purchase Contract*
4.5 - Form of Indenture
4.6 - Form of Pledge Agreement*
4.7 - Form of Common Share Certificate**
5.1 - Opinion of Appleby, Spurling & Kempe*
5.2 - Opinion of Kramer, Levin, Naftalis & Frankel*
12 - Statement of Computation of Ratio of Earnings to Fixed Charges**
23.1 - Consent of Coopers & Lybrand
23.2 - Consent of Coopers & Lybrand L.L.P.
23.3 - Consent of Arthur Andersen LLP
24 - Power of Attorney**
25 - Statement of Eligibility of Trustee on Form T-1
</TABLE>
- ------------------------
* To be filed by amendment or under cover of Form 8-K and incorporated herein
by reference.
** Previously filed.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and persons controlling the Registrant
pursuant to the foregoing provisions, the Registrant has been informed that in
the opinion of the 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.
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;
II-2
<PAGE>
(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 (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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.
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; and (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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Town of Exeter, State of New Hampshire, on the
13th day of February, 1998.
<TABLE>
<S> <C> <C>
TYCO INTERNATIONAL LTD.
By: /s/ MARK H. SWARTZ
-----------------------------------------
Mark H. Swartz
Executive Vice President -
Chief Financial Officer
(Principal Financial
and Accounting Officer)
</TABLE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS ON FEBRUARY 13,
1998 IN THE CAPACITIES INDICATED BELOW.
SIGNATURE TITLE
- ------------------------------ ---------------------------
Chairman of the Board,
* President, Chief
- ------------------------------ Executive Officer and
L. Dennis Kozlowski Director (Principal
Executive Officer)
* Director
- ------------------------------
Michael A. Ashcroft
* Director
- ------------------------------
Joshua M. Berman
* Director
- ------------------------------
Richard S. Bodman
* Director
- ------------------------------
John F. Fort
* Director
- ------------------------------
Stephen W. Foss
* Director
- ------------------------------
Richard A. Gilleland
* Director
- ------------------------------
Philip M. Hampton
* Director
- ------------------------------
James S. Pasman, Jr.
* Director
- ------------------------------
W. Peter Slusser
II-4
<PAGE>
SIGNATURE TITLE
- ------------------------------ ---------------------------
Vice President and Chief
/s/ MARK H. SWARTZ Financial Officer
- ------------------------------ (Principal Financial and
Mark H. Swartz Accounting Officer)
* Director
- ------------------------------
Frank E. Walsh, Jr.
*By: /s/ MARK H. SWARTZ
- --------------------------------------
Mark H. Swartz
ATTORNEY-IN-FACT
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
- -------- ------------------------------------------------------------ --------
<C> <S><C> <C>
1 - Form of Underwriting Agreement*
3.1 - Memorandum of Association (as altered) of the Registrant
(incorporating all amendments to May 26, 1992) (incorporated
by reference as an Exhibit to the Registrant's Annual Report
on Form 10-K for the year ended December 31, 1992)
3.2 - Certified copy of a resolution approved at the Annual
General Meeting of common shareholders of ADT Limited held
on October 12, 1993, approving an increase in the authorized
common share capital of ADT Limited from $19.5 million to
$22.0 million (incorporated by reference as an Exhibit to
the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1993)
3.3 - Certified copy of a resolution approved at a special meeting
of common shareholders of the Registrant held on July 2,
1997, approving the consolidation and division of the common
shares of $0.10 of the Registrant into new common shares of
$0.20 each and increasing the authorized number of common
shares to 750,000,000
3.4 - Certificate of Incorporation on Change of Name (previously
filed as an Exhibit to the Registrant's Current Report on
Form 8-K filed July 10, 1997 ("July 10, 1997 8-K"))
3.5 - Bye-Laws of the Registrant (previously filed as an Exhibit
to the July 10, 1997 Form 8-K)
4.1 - Rights Agreement between Registrant and Citibank, N.A. dated
as of November 6, 1996 (previously filed as an Exhibit to
Registrant's Form 8-A dated November 12, 1996)
4.2 - First Amendment between Registrant and Citibank, N.A. dated
as of March 3, 1997 to Rights Agreement between Registrant
and Citibank, N.A. dated as of November 6, 1996 (previously
filed as an Exhibit to Registrant's Form 8-A/A dated March
3, 1997)
4.3 - Second Amendment between Registrant and Citibank, N.A. dated
as of July 2, 1997 to Rights Agreement between Registrant
and Citibank N.A. dated as of November 6, 1996 (previously
filed as an Exhibit to Registrant's Form 8-A/A dated July 2,
1997)
4.4 - Form of Share Purchase Contract*
4.5 - Form of Indenture
4.6 - Form of Pledge Agreement*
4.7 - Form of Common Share Certificate**
5.1 - Opinion of Appleby, Spurling & Kempe*
5.2 - Opinion of Kramer, Levin, Naftalis & Frankel*
12 - Statement of Computation of Ratio of Earnings to Fixed
Charges**
23.1 - Consent of Coopers & Lybrand
23.2 - Consent of Coopers & Lybrand L.L.P.
23.3 - Consent of Arthur Andersen LLP
24 - Power of Attorney**
25 - Statement of Eligibility of Trustee on Form T-1
</TABLE>
- ------------------------
* To be filed by amendment or under cover of Form 8-K and incorporated herein
by reference.
** Previously filed.
<PAGE>
EXHIBIT 3.3
I, JOHN D. CAMPBELL, Secretary of TYCO INTERNATIONAL LTD., a Company duly
incorporated and existing under the laws of the Islands of Bermuda, DO HEREBY
CERTIFY that attached hereto is a true and correct copy of resolutions adopted
at a Meeting of the Shareholders of the Company duly convened and held on the
2nd July, 1997 at which a quorum was present and voting throughout and that the
same have not been amended or rescinded and are in accordance with the
provisions of the Bye-Laws of the said Company.
IN WITNESS WHEREOF, I have hereunto set my hand and the Common Seal of TYCO
INTERNATIONAL LTD. this 10th day of February, 1998.
/s/ John D. Campbell
-----------------------------------
John D. Campbell, Secretary
TYCO INTERNATIONAL LTD.
<PAGE>
TYCO INTERNATIONAL LTD.
(FORMERLY ADT LIMITED)
RESOLUTIONS PASSED AT THE SPECIAL GENERAL MEETING
HELD ON JULY 2, 1997
1. THAT, subject to the passing of the resolution to be proposed at this
meeting relating to the consolidation and increase of the common share
capital of the Company (being the item of business numbered 2 set out in
the notice of the meeting) so as to consist of Common Shares of US$0.20
each ("New Common Shares") and subject to and contemporaneously with the
merger (the "Merger") of Limited Apache, Inc., a wholly-owned subsidiary of
the Company, with and into Tyco International Ltd. ("Tyco") pursuant to an
Agreement and Plan of Merger dated as of March 17, 1997 by and among the
Company, Limited Apache, Inc. and Tyco, (the "Merger Agreement"), the
Directors of the Company be authorised to allot and issue such number of
New Common Shares resulting from such consolidation and increase as is
necessary to give effect to the Merger Agreement.
2. THAT, subject to and (except as provided in paragraphs (a) (iii) and
(b)(ii) below) contemporaneously with the Merger becoming effective, the
common share capital of the Company be reorganised as follows:
(a) the Common Shares of US$0.10 each, including those created by the
resolution to be proposed at this meeting relating to the increase of
the share capital of the Company (being the item of business numbered
7 set out in the notice of the meeting) if such resolution is duly
passed, ("Existing Common Shares") be consolidated and divided into
New Common Shares as follows:
(i) all the authorised but unissued Existing Common Shares
comprised in the capital of the Company immediately before the
Effective Time (as defined in the Merger Agreement) be
consolidated into a single share and such share be sub-divided
into New Common Shares;
(ii) each member's holding or Existing Common Shares appearing in
the register of members immediately before the Effective Time
be consolidated into such number of New Common Shares as
results from applying the factor of 0.48133 (subject to such
adjustments as may be required by the Merger Agreement) to the
number of shares then comprised in his holding (with the
resulting number being rounded down to the nearest whole
number of New Common Shares); and
(iii) with effect from such date as the Directors may determine
(being not more than 30 days after the Effective Date) the
capital of the Company be reduced by the cancellation pursuant
to Section 46 of the Companies Act of 1981 of the balance of
each member's holding of Existing Common
-2-
<PAGE>
Shares appearing in the register of members immediately before
the Effective Time and representing any fractional entitlement
to a New Common Share on terms that such member be paid cash
equal to the value of such fractional entitlement (such value
to be calculated by reference to the closing price of New
Common Shares on the New York Stock Exchange on the date on
which the Merger becomes effective, rounded to the nearest
whole cent;
(b) the authorised share capital of the Company be increased to US$
275,750,000 by the creation of (i) an additional 640,000,000 New
Common Shares or, if the resolution to be proposed at this meeting
relating to the increase of the share capital of the Company (being
the item of business numbered 7 set out in the notice of the meeting)
is duly passed, an additional 500,000,000 New Common Shares and (ii)
subject to and with effect from the date on which that part of the
capital referable to the aggregate nominal value of fractional
entitlements is cancelled and reduced pursuant to paragraph (a)(iii)
above, such number of New Common Shares as is equal in nominal value
to such aggregate value;
(c) all the New Common Shares resulting from the consolidation, sub-
division, and increase of capital referred to in paragraphs (a) and (b) above
shall comprise a single class of shares and, as regards those New Common Shares
in issue immediately after the Effective Time, shall rank PARI PASSU in all
respects and the Directors of the Company be authorised to allot, issue, grant
options over or otherwise dispose of all or any of the New Common Shares for the
time being forming part of the authorised but unissued share capital of the
Company (other than those issued to give effect to the Merger Agreement) on such
terms and subject to such conditions as the Directors think fit; and
(d) paragraph (1) of the Schedule to the Bye-Laws of the Company, in its
present form or as it may be amended by the passing of the resolution
to be proposed at this meeting relating to the increase of the share
capital of the Company (being the item of business numbered 7 set out
in the notice of the meeting), be amended by deleting the words
appearing before "("Common Shares")" and substituting the following
"The authorised share capital of the Company is US$275,750,000 divided
into 750,000,000 Common Shares of the nominal value of US$0.20 each".
3. THAT, subject to and contemporaneously with the Merger becoming effective,
the number of Directors be increased to eleven, each of John E. Danneberg,
Alan B. Henderson, Stephen J. Ruzika, William W. Stinson and Raymond S.
Troubh be removed from office as a Director and each of L. Dennis
Kozlowski, Joshua M. Berman, Richard S. Bodman, John F. Fort, III, Stephen
W. Foss, Richard A. Gilleland, Philip M. Hampton and Frank E. Walsh, Jr.
(or such other persons as the board of directors of Tyco may nominate in
accordance with the provisions of the Merger Agreement) be elected as
additional Directors of the Company, to serve until the next Annual General
Meeting of the Company on such terms, and to hold such offices in relation
to the
-3-
<PAGE>
Company, as the Directors may from time to time determine, and each of the
Directors for the time being in office be authorised from time to time by
notice in writing to the Company to appoint an Alternate Director.
4. THAT, subject to the Merger becoming effective, the name of the Company be
changed to Tyco International Ltd.
5. THAT, subject to the passing of those resolutions to be proposed at this
meeting on which the Merger Agreement is conditional (being the items of
business numbered 1 through 4 set out in the notice of the meeting):
(a) the ADT Limited 1993 Long Term Incentive Plan (the "Plan"),
incorporating the amendments set out in the document produced to the
meeting and initialled by the chairman for the purpose of
identification (including those amendments expressed therein to be
effective upon the Merger being consummated), be approved;
(b) the grant of all share options outstanding under the Plan or under the
Company's other existing share option and incentive plans, particulars
of which are set out in the joint proxy statement/prospectus issued by
the Company and Tyco dated June 3, 1997, be ratified and approved; and
(c) subject to and upon the Merger becoming effective, the assumption by
the Company of the obligations of Tyco in respect of (i) all share
options outstanding under Tyco's share option and incentive plans to
be assumed by the Company under the Merger Agreement and (ii) the
Warrants (as defined in, and on the terms contemplated by, such
agreement) be ratified and approved.
6. THAT, subject to the passing of those resolutions to be proposed at this
meeting on which the Merger Agreement is conditional (being the items of
business numbered 1 through 4 set out in the notice of the meeting), the
following amendment to the Bye-Laws of the Company be approved; that is the
deletion of Bye-Law 45 and the substitution for it of the following:
"45. Power to adjourn General Meeting
The chairman of the meeting may, with the consent of the meeting,
and shall, if so directed by the meeting or (prior to or at the
meeting) by the Board of Directors (or a duly authorised
committee thereof), adjourn the meeting, from time to time and
from place to place as the chairman of the meeting shall
determine (subject to any directions from the Board of Directors
or a duly authorised committee thereof). Whenever a meeting is
adjourned for more than five days, the Directors shall give
notice of the adjourned meeting in such manner as they consider
expedient. No business shall be transacted at any adjourned
meeting other than the business which might have been transacted
at the meeting from which the adjournment took place."
-4-
<PAGE>
7. THAT:
(a) the authorised share capital of the Company be increased to US$
175,750,000 by the creation of an additional 280,000,000 Common Shares
of US$0.10 each;
(b) the Directors of the Company be authorised to allot, issue, grant
options over or otherwise dispose of all or any of the such additional
Common Shares on such terms and subject to such conditions as the
Directors think fit; and
(c) paragraph (1) of the Schedule to the Bye-Laws of the Company be
amended by deleting the words appearing before "("Common Shares")" and
substituting the following "The authorised share capital of the
Company is US$175,750,000 divided into 500,000,000 Common Shares of
the nominal value of US$0.20 each".
-5-
<PAGE>
Exhibit 4.5
- --------------------------------------------------------------------------------
TYCO INTERNATIONAL LTD.
AND
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
as Trustee
Indenture
Dated as of _______ __, 1998
---------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE ONE
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1.1 Certain Terms Defined . . . . . . . . . . . . . . . . . .
ARTICLE TWO
SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 2.1 Forms Generally. . . . . . . . . . . . . . . . . . . . .
SECTION 2.2 Form of Trustee's
Certificate of Authentication. . . . . . . . . . . . .
SECTION 2.3 Amount Unlimited; Issuable
in Series. . . . . . . . . . . . . . . . . . . . . . .
SECTION 2.4 Authentication and
Delivery of Securities . . . . . . . . . . . . . . . .
SECTION 2.5 Execution of Securities. . . . . . . . . . . . . . . . .
SECTION 2.6 Certificate of Authentication. . . . . . . . . . . . . .
SECTION 2.7 Denomination and Date of
Securities; Payments of Interest . . . . . . . . . . .
SECTION 2.8 Registration, Transfer and Exchange. . . . . . . . . . .
SECTION 2.9 Mutilated, Defaced, Destroyed,
Lost and Stolen Securities . . . . . . . . . . . . . .
SECTION 2.10 Cancellation of Securities;
Destruction Thereof . . . . . . . . . . . . . . . . .
SECTION 2.11 Temporary Securities . . . . . . . . . . . . . . . . . .
SECTION 2.12 Securities Issuable in the
Form of a Global Security. . . . . . . . . . . . . . .
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE TRUSTEE. . . . . . . . . . . . . . . . . . .
SECTION 3.1 Payment of Principal and Interest. . . . . . . . . . . .
SECTION 3.2 Offices for Payments, etc. . . . . . . . . . . . . . . .
SECTION 3.3 Appointment to Fill a Vacancy
in Office of Trustee . . . . . . . . . . . . . . . . .
SECTION 3.4 Paying Agent . . . . . . . . . . . . . . . . . . . . . .
SECTION 3.5 Certificate of the Issuer. . . . . . . . . . . . . . . .
SECTION 3.6 Securityholders Lists. . . . . . . . . . . . . . . . . .
SECTION 3.7 Reports by the Issuer. . . . . . . . . . . . . . . . . .
SECTION 3.8 Reports by the Trustee . . . . . . . . . . . . . . . . .
SECTION 3.9 Notice to Trustee. . . . . . . . . . . . . . . . . . . .
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT. . . . . . . . . . . . . . . . . . . . .
SECTION 4.1 Event of Default Defined;
Acceleration of Maturity;
Waiver of Default. . . . . . . . . . . . . . . . . . .
SECTION 4.2 Collection of Indebtedness by
Trustee; Trustee May Prove Debt. . . . . . . . . . . .
SECTION 4.3 Application of Proceeds. . . . . . . . . . . . . . . . .
SECTION 4.4 Suits for Enforcement. . . . . . . . . . . . . . . . . .
SECTION 4.5 Restoration of Rights on
Abandonment of Proceedings . . . . . . . . . . . . . .
SECTION 4.6 Limitations on Suits by
Securityholders. . . . . . . . . . . . . . . . . . . .
SECTION 4.7 Unconditional Right of Securityholders
to Institute Certain Suits . . . . . . . . . . . . . .
SECTION 4.8 Powers and Remedies Cumulative;
Delay or Omission Not Waiver
of Default . . . . . . . . . . . . . . . . . . . . . .
SECTION 4.9 Control by Securityholders . . . . . . . . . . . . . . .
SECTION 4.10 Waiver of Past Defaults. . . . . . . . . . . . . . . . .
SECTION 4.11 Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances. . . . . . . . . . . . . . . . . . . . .
SECTION 4.12 Right of Court to Require
Filing of Undertaking to Pay Costs . . . . . . . . . .
ARTICLE FIVE
CONCERNING THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 5.1 Duties and Responsibilities
of the Trustee; During Default;
Prior to Default . . . . . . . . . . . . . . . . . . .
SECTION 5.2 Certain Rights of the Trustee. . . . . . . . . . . . . .
SECTION 5.3 Trustee Not Responsible for
Recitals, Disposition of
Securities or Application of
Proceeds Thereof . . . . . . . . . . . . . . . . . . .
SECTION 5.4 Trustee and Agents May Hold
Securities; Collections, etc . . . . . . . . . . . . .
SECTION 5.5 Moneys Held by Trustee . . . . . . . . . . . . . . . . .
SECTION 5.6 Compensation and Indemnification
of Trustee and Its Prior Claim . . . . . . . . . . . .
SECTION 5.7 Right of Trustee to Rely
on Officers' Certificate, etc. . . . . . . . . . . . .
SECTION 5.8 Persons Eligible for Appointment
as Trustee . . . . . . . . . . . . . . . . . . . . . .
SECTION 5.9 Resignation and Removal; Appointment
of Successor Trustee . . . . . . . . . . . . . . . . .
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 5.10 Acceptance of Appointment by
Successor Trustee. . . . . . . . . . . . . . . . . . .
SECTION 5.11 Merger, Conversion, Consolidation
or Succession to Business of Trustee . . . . . . . . .
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS . . . . . . . . . . . . . . . . . . . . . . .
SECTION 6.1 Evidence of Action Taken by
Securityholders. . . . . . . . . . . . . . . . . . . .
SECTION 6.2 Proof of Execution of Instruments
and of Holding of Securities;
Record Date. . . . . . . . . . . . . . . . . . . . . .
SECTION 6.3 Holders to be Treated as Owners. . . . . . . . . . . . .
SECTION 6.4 Securities Owned by Issuer
Deemed Not Outstanding . . . . . . . . . . . . . . . .
SECTION 6.5 Right of Revocation of Action Taken. . . . . . . . . . .
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 7.1 Supplemental Indentures Without
Consent of Securityholders . . . . . . . . . . . . . .
SECTION 7.2 Supplemental Indentures With
Consent of Securityholders . . . . . . . . . . . . . .
SECTION 7.3 Effect of Supplemental Indenture . . . . . . . . . . . .
SECTION 7.4 Documents to Be Given to Trustee . . . . . . . . . . . .
SECTION 7.5 Notation on Securities in
Respect of Supplemental Indentures . . . . . . . . . .
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE. . . . . . . . . . . . . . . . . .
SECTION 8.1 Issuer May Consolidate, etc.,
on Certain Terms . . . . . . . . . . . . . . . . . . .
SECTION 8.2 Successor Corporation Substituted. . . . . . . . . . . .
SECTION 8.3 Opinion of Counsel to Trustee. . . . . . . . . . . . . .
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 9.1 Satisfaction and Discharge of Indenture. . . . . . . . .
SECTION 9.2 Issuer's Option to Effect
Defeasance or Covenant Defeasance. . . . . . . . . . .
SECTION 9.3 Defeasance and Discharge . . . . . . . . . . . . . . . .
SECTION 9.4 Covenant Defeasance. . . . . . . . . . . . . . . . . . .
SECTION 9.5 Conditions to Defeasance or
Covenant Defeasance. . . . . . . . . . . . . . . . . .
</TABLE>
iii
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<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 9.6 Application by Trustee of Funds
Deposited for Payment of Securities. . . . . . . . . .
SECTION 9.7 Repayment of Moneys Held by
Paying Agent . . . . . . . . . . . . . . . . . . . . .
SECTION 9.8 Return of Moneys Held by Trustee
and Paying Agent Unclaimed
for Two Years. . . . . . . . . . . . . . . . . . . . .
SECTION 9.9 Indemnity for Direct Obligations
of the United States . . . . . . . . . . . . . . . . .
SECTION 9.10 Reinstatement. . . . . . . . . . . . . . . . . . . . . .
ARTICLE TEN
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 10.1 Incorporators, Shareholders,
Officers and Directors of Issuer
Exempt from Individual Liability . . . . . . . . . . .
SECTION 10.2 Provisions of Indenture for the
Sole Benefit of Parties and
Securityholders. . . . . . . . . . . . . . . . . . . .
SECTION 10.3 Successors and Assigns of Issuer
Bound by Indenture . . . . . . . . . . . . . . . . . .
SECTION 10.4 Notices and Demands on Issuer,
Trustee and Securityholders. . . . . . . . . . . . . .
SECTION 10.5 Officers' Certificates and
Opinions of Counsel; Statements
to Be Contained Therein. . . . . . . . . . . . . . . .
SECTION 10.6 Payments Due on Saturdays, Sundays
and Holidays . . . . . . . . . . . . . . . . . . . . .
SECTION 10.7 Conflict of Any Provision of
Indenture with Trust Indenture Act
of 1939. . . . . . . . . . . . . . . . . . . . . . . .
SECTION 10.8 New York Law to Govern . . . . . . . . . . . . . . . . .
SECTION 10.9 Counterparts . . . . . . . . . . . . . . . . . . . . . .
SECTION 10.10 Effect of Headings . . . . . . . . . . . . . . . . . . .
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS . . . . . . . . . . . . . . . . .
SECTION 11.1 Applicability of Article . . . . . . . . . . . . . . . .
SECTION 11.2 Notice of Redemption; Partial
Redemptions. . . . . . . . . . . . . . . . . . . . . .
SECTION 11.3 Payment of Securities Called
for Redemption . . . . . . . . . . . . . . . . . . . .
SECTION 11.4 Exclusion of Certain Securities
from Eligibility for Selection
for Redemption . . . . . . . . . . . . . . . . . . . .
SECTION 11.5 Mandatory and Optional Sinking Funds . . . . . . . . . .
</TABLE>
iv
<PAGE>
Exhibit 4.5
THIS INDENTURE, dated as of ________ __, 1998 between TYCO
INTERNATIONAL LTD., a Bermuda company (the "Issuer"), and FIRST TRUST OF NEW
YORK, NATIONAL ASSOCIATION, a national banking association (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture and to provide, among other things, for the authentication, delivery
and administration thereof, the Issuer has duly authorized the execution and
delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Issuer and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective holders from time to
time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this
Section. All other terms used in this Indenture that are defined in the
Trust Indenture Act of 1939 or the definitions of which in the Securities Act
of 1933 are referred to in the Trust Indenture Act of 1939, including terms
defined therein by reference to the Securities Act of 1933 (except as herein
otherwise expressly provided or unless the context otherwise clearly
requires), shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of this
Indenture. All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally
accepted accounting principles, and the terms "generally accepted accounting
principles" means such accounting principles as are generally accepted in the
United States at the time of any computation. The words "herein", "hereof"
and "hereunder" and other words of similar import refer to this Indenture as
a whole and not to any particular Article, Section or other subdivision.
<PAGE>
The terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act hereunder.
"Business Day" means, with respect to any Security, a day that in the
city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, is not a day on which banking
institutions are authorized by law or regulation to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at 100 Wall Street, Suite 1600, New York, New York
10005, Attention: Corporate Trust Division.
"Depositary" means, unless otherwise specified by the Issuer pursuant
to either Section 2.3 or 2.14, with respect to Securities of any series issuable
or issued as a Global Security, The Depository Trust Company, New York, New
York, or any successor thereto registered under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation.
"Event of Default" means any event or condition specified as such in
Section 4.1.
"Global Security" means a Security issued to evidence all or part of
any series of Securities which is executed by the Issuer and authenticated and
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and pursuant to an Issuer
order which shall be registered in the name of the Depositary or its nominee.
2
<PAGE>
"Holder", "holder of Securities", "Securityholder" or other similar
terms mean the registered holder of any Security.
"Indebtedness" means, without duplication, the principal or face
amount of (i) all obligations for borrowed money, (ii) all obligations evidenced
by debentures, notes or other similar instruments, (iii) all obligations to
pay the deferred purchase price of property or services, except trade accounts
payable arising in the ordinary course of business, (iv) all obligations as
lessee which are capitalized in accordance with generally accepted accounting
principles, and (v) all Indebtedness of others guaranteed by the Issuer or any
of its subsidiaries or for which the Issuer or any of its subsidiaries is
legally responsible or liable (whether by agreement to purchase indebtedness
of, or to supply funds or to invest in, others).
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in Article Five) Tyco
International Ltd., and, subject to Article Eight, its successors and assigns.
"Officers' Certificate" means a certificate signed by the chairman or
any vice chairman of the Board of Directors or the president or any vice
president and by the treasurer or any assistant treasurer or the secretary or
any assistant secretary of the Issuer and delivered to the Trustee. Each such
certificate shall comply with Section 314 of the Trust Indenture Act of 1939
and include the statements provided for in Section 10.5.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Issuer and who shall be
satisfactory to the Trustee. Each such opinion shall comply with Section 314 of
the Trust Indenture Act of 1939 and include the statements provided for in
Section 10.5, if and to the extent required hereby.
3
<PAGE>
"Original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Outstanding", when used with reference to Securities, shall, subject
to the provisions of Section 6.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than the Issuer) or shall
have been set aside, segregated and held in trust by the Issuer for the
holders of such Securities (if the Issuer shall act as its own paying
agent), provided that if such Securities, or portions thereof, are to be
redeemed prior to the maturity thereof, notice of such redemption shall
have been given as herein provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid, pursuant
to the terms of Section 2.9 (except with respect to any such Security as to
which proof satisfactory to the Trustee is presented that such Security is
held by a person in whose hands such Security is a legal, valid and binding
obligation of the Issuer).
In determining whether the holders of the requisite principal amount
of Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 4.1.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
4
<PAGE>
"Responsible Officer" when used with respect to the Trustee means
the chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any
vice president, the cashier, the secretary, the treasurer, any trust officer,
any assistant trust officer, any assistant vice president, any assistant
cashier, any assistant secretary, any assistant treasurer, or any other officer
or assistant officer of the Trustee customarily performing functions similar
to those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of
his knowledge of and familiarity with the particular subject.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Five, shall also
include any successor trustee.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 7.1 and 7.2) means the Trust Indenture Act of 1939 as in force at the
date as of which this Indenture was originally executed.
"vice president" when used with respect to the Issuer or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title of "vice president".
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to a resolution of the Board of Directors or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Indenture, as may be
5
<PAGE>
required to comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to conform to general
usage, all as may be determined by the officers executing such Securities, as
evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION,
as Trustee
By_________________________________
Authorized Signatory
SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a resolution of the Board of Directors and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series.
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.8, 2.9, 2.11 or 11.3);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate shall be
determined, the date or dates from which
6
<PAGE>
such interest shall accrue, the interest payment dates on which such
interest shall be payable and the record dates for the determination of
Holders to whom interest is payable;
(5) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in
Section 3.2);
(6) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices at
which and the period or periods within which and the terms and conditions
upon which Securities of the series shall be redeemed, purchased or repaid,
in whole or in part, pursuant to such obligation;
(7) if other than denominations of $1,000 and any multiple thereof,
the denominations in which Securities of the series shall be issuable;
(8) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 4.1
or provable in bankruptcy pursuant to Section 4.2;
(9) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities; the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Securities; and the
Depositary for Global Security or Securities;
(10) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture); and
(11) if other than the Trustee, any trustees, authenticating or paying
agents, transfer agents or registrars or any other agents with respect to
the Securities of such series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such resolution of the Board of Directors or in any such indenture
supplemental hereto.
SECTION 2.4 Authentication and Delivery of Securities. At any time
and from time to time after the execution and delivery of this Indenture, the
Issuer may deliver Securities of any series executed by the Issuer to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
7
<PAGE>
deliver such Securities to or upon the written order of the Issuer, signed by
both (a) the chairman of its Board of Directors, or any vice chairman of its
Board of Directors, or its president or vice president and (b) its secretary
or any assistant secretary or its treasurer or any assistant treasurer,
without any further action by the Issuer. In authenticating such Securities
and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 5.1) shall be fully protected in relying upon:
(1) a certified copy of any resolution or resolutions of the Board of
Directors authorizing the action taken pursuant to the resolution or
resolutions delivered under clause (2) below;
(2) a copy of any resolution or resolutions of the Board of Directors
relating to such series, in each case certified by the secretary or any
assistant secretary of the Issuer;
(3) an executed supplemental indenture setting forth the form and
terms of the securities as required pursuant to Sections 2.1 and 2.3
respectively, if any;
(4) an Officers' Certificate setting forth the form and terms of the
Securities as required pursuant to Section 2.1 and 2.3, respectively and
prepared in accordance with Section 10.5;
(5) an Opinion of Counsel, prepared in accordance with Section 10.5,
to the effect that
(a) that the form or forms and terms of such Securities
have been established by or pursuant to a resolution of the Board
of Directors or by a supplemental indenture as permitted by
Sections 2.1 and 2.3 in conformity with the provisions of this
Indenture;
(b) that such Securities, when authenticated in accordance
with the terms of this Indenture and delivered by the Trustee and
issued by and delivered by or to the order of the Issuer, against
payment therefor, in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and
binding obligations of the Issuer;
(c) that all laws and requirements in respect of the
execution and delivery by the
8
<PAGE>
Issuer of the Securities have been complied with; and
(d) covering such other matters as the Trustee may
reasonably request.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders.
SECTION 2.5 Execution of Securities. The Securities shall be signed
on behalf of the Issuer by both (a) the chairman of its Board of Directors or
any vice chairman of its Board of Directors or its president or any vice
president and (b) the its treasurer or any assistant treasurer or its secretary
or any assistant secretary, under its corporate seal which may, but need not,
be attested. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. The seal of the Issuer may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects
in any such reproduction of the seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. Such certificate by the Trustee upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this Indenture.
9
<PAGE>
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities shall be issuable as registered securities without
coupons and in denominations as shall be specified as contemplated by Section
2.3. In the absence of any such specification with respect to the Securities of
any series, the Securities of such series shall be issuable in denominations of
$1,000 and any multiple thereof. The Securities shall be numbered, lettered, or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of the
Trustee as evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication, shall
bear interest, if any, from the date and shall be payable on the dates, in each
case, which shall be specified as contemplated by Section 2.3.
The person in whose name any Security of any series is registered at
the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the persons in whose names Outstanding Securities for such series are
registered at the close of business on a subsequent record date (which shall not
be less than five Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf of the Issuer to
the holders of Securities not less than 15 days preceding such subsequent record
date. The term "record date" as used with respect to any interest payment date
(except a date for payment of defaulted interest) shall mean the date specified
as such in the terms of the Securities of any particular series, or, if no such
date is so specified, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar month or, if
such interest payment date is the fifteenth day of a calendar month, the first
day of such calendar month, whether or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer will
keep or cause to be kept at each office or agency to be maintained for the
purpose as provided in Section 3.2 a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will register, and will
register the transfer of, Securities as in this Article provided. Such register
shall be in written form in the English language or in any other form capable of
being converted into such form within a reasonable time. At all reasonable
times such register or registers shall be open for inspection by the Trustee.
10
<PAGE>
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series in authorized denominations for a like
aggregate principal amount.
Any Security or Securities of any series may be exchanged for a
Security or Securities of the same series in other authorized denominations, in
an equal aggregate principal amount. Securities of any series to be exchanged
shall be surrendered at any office or agency to be maintained by the Issuer for
the purpose as provided in Section 3.2, and the Issuer shall execute and the
Trustee shall authenticate and deliver in exchange therefor the Security or
Securities of the same series which the Securityholder making the exchange shall
be entitled to receive, bearing numbers not contemporaneously outstanding.
All Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Issuer and the Trustee, duly executed by
the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
first mailing of notice of redemption of Securities of such series to be
redeemed, or (b) any Securities selected, called or being called for redemption
except, in the case of any Security where public notice has been given that such
Security is to be redeemed in part, the portion thereof not so to be redeemed.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Issuer, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Securities surrendered upon
such transfer or exchange.
None of the Issuer, the Trustee or any Paying Agent will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial interests.
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<PAGE>
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become
mutilated, defaced or be destroyed, lost or stolen, the Issuer in its discretion
may execute, and upon the written request of any officer of the Issuer, the
Trustee shall authenticate and deliver, a new Security of the same series,
bearing a number not contemporaneously outstanding, in exchange and substitution
for the mutilated or defaced Security, or in lieu of and substitution for the
Security so destroyed, lost or stolen. In every case the applicant for a
substitute Security shall furnish to the Issuer and to the Trustee and any agent
of the Issuer or the Trustee such security or indemnity as may be required by
them to indemnify and defend and to save each of them harmless and, in every
case of destruction, loss or theft, evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof.
Upon the issuance of any substitute Security, the Issuer may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustees) connected therewith. In case any security
which has matured or is about to mature or has been called for redemption in
full shall become mutilated or defaced or be destroyed, lost or stolen, the
Issuer may instead of issuing a substitute Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
or defaced Security), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer of 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 Issuer and the Trustee and any agent of the Issuer or the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or 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.
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SECTION 2.10 Cancellation of Securities; Destruction Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee,
shall be delivered to the Trustee for cancellation or, if surrendered to the
Trustee, shall be cancelled by it; and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall destroy cancelled Securities held by it and
deliver a certificate of destruction to the Issuer. If the Issuer shall acquire
any of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as registered Securities without coupons, of any authorized
denomination, and substantially in the form of the definitive Securities of such
series but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Issuer with the
concurrence of the Trustee. Temporary Securities may contain such reference to
any provisions of this Indenture as may be appropriate. Every temporary
Security shall be executed by the Issuer and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities. Without unreasonable delay the issuer
shall execute and shall furnish definitive Securities of such series and
thereupon temporary Securities of such series may be surrendered in exchange
therefor without charge at each office or agency to be maintained by the Issuer
for that purpose pursuant to Section 3.2, and the Trustee shall authenticate and
deliver in exchange for such temporary Securities of such series a like
aggregate principal amount of definitive Securities of the same series of
authorized denominations. Until so exchanged, the temporary Securities of any
series shall be entitled to the same benefits under this Indenture as definitive
Securities of such series.
SECTION 2.12 Securities Issuable in the Form of a Global Security.
(a) If the Issuer shall establish pursuant to Section 2.3 that the Securities
of a particular series are to be issued in whole or in part in the form of one
or more Global Securities, then the Issuer shall execute and the Trustee shall,
in accordance with Section 2.4 and the Issuer order delivered to the Trustee
thereunder, authenticate and deliver, such Global Security or Securities, which
(i) shall represent, and shall be denominated in an amount equal to the
aggregate principal amount
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of, the Outstanding Securities of such series to be represented by such Global
Security or Securities, (ii) shall be registered in the name of the Depositary
for such Global Security or Securities or its nominee, (iii) shall be delivered
by the Trustee to the Depositary or pursuant to the Depositary's instruction and
(iv) shall bear a legend substantially to the following effect: "Unless and
until it is exchanged in whole or in part for the individual Securities
represented hereby, this Global Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary."
(b) Notwithstanding any other provision of this Section 2.12 or of
Section 2.8, unless the terms of a Global Security expressly permit such Global
Security to be exchanged in whole or in part for individual Securities, a Global
Security may be transferred, in whole but not in part and in the manner provided
in Section 2.8, only to another nominee of the Depositary for such Global
Security, or by the nominee of the Depositary to the Depositary, or to a
successor Depositary for such Global Security selected or approved by the Issuer
or to a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security
notifies the Issuer that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time the Depositary for the Securities
for such series shall no longer be eligible or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, the Issuer shall appoint a successor Depositary with respect to
such Global Security. If a successor Depositary for such Global Security is
not appointed by the Issuer within 90 days after the Issuer receives notice
or becomes aware of such ineligibility, the Issuer's election pursuant to
Section 2.3(9) shall no longer be effective with respect to such Global
Security and the Issuer will execute, and the Trustee, upon receipt of an
Issuer order for the authentication and delivery of individual Securities of
such series in exchange for such Global Security, will authenticate and
deliver individual Securities of such series of like tenor and terms in a
definitive form in an aggregate principal amount equal to the principal
amount of the Global Security in exchange for such Global Security.
(ii) The Issuer may at any time and in its sole discretion
determine that the Securities of any series issued or issuable in the form of
one or more Global Securities shall no longer be represented by such Global
Security or Securities. In such event the Issuer will execute, and the
Trustee, upon receipt of an Issuer order for the authentication and delivery
of individual Securities of such series in exchange in whole or in part for
such Global Security, will authenticate and deliver individual Securities of
such series of like tenor and terms in
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a definitive form in an aggregate principal amount equal to the principal
amount of such Global Security or Securities representing such series in
exchange for such Global Security or Securities.
(iii) If specified by the Issuer pursuant to Section 2.3 with
respect to Securities issued or issuable in the form of a Global Security, the
Depositary for such Global Security may surrender such Global Security in
exchange in whole or in part for individual Securities of such series of like
tenor and terms in definitive form on such terms as are acceptable to the Issuer
and such Depositary. Thereupon the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge, (1) to each Person specified
by such Depositary a new Security or Securities of the same series of like tenor
and terms and of any authorized denomination as requested by such Person in
aggregate principal amount equal to and in exchange for such person's beneficial
interest in the Global Security; and (2) to such Depositary a new Global
Security of like tenor and terms and in a denomination equal to the difference,
if any, between the principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the Issuer will execute and the Trustee will authenticate and
deliver individual Securities in definitive registered form in authorized
denominations. Upon the exchange of a Global Security for individual
Securities, such Global Security shall be cancelled by the Trustee. Securities
issued in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the persons in whose names such Securities are so
registered.
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE TRUSTEE
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series at the place or places, at the respective times
and in the manner provided in such Securities. Each instalment of interest on
the Securities of any series may be paid by mailing checks for such interest
payable to or upon the written order of the holders of Securities entitled
thereto as they shall appear on the registry books of the Issuer.
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SECTION 3.2 Offices for Payments, etc. So long as any of the
Securities remain outstanding, the Issuer will maintain in The Borough of
Manhattan, The City of New York for each series: an office or agency (a) where
the Securities may be presented for payment, (b) where the Securities may be
presented for registration of transfer and for exchange as in this Indenture
provided and (c) where notices and demands to or upon the Issuer in respect of
the Securities or of this Indenture may be served. The Issuer will give to the
Trustee written notice of the location of any such office or agency and of any
change of location thereof. Unless otherwise specified in accordance with
Section 2.3, the Issuer hereby initially designates the Corporate Trust Office
of First Trust, National Association 100 Wall Street, Suite 1600, New York, New
York 10005, as the office to be maintained by it for each such purpose. In case
the Issuer shall fail to so designate or maintain any such office or agency or
shall fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the
Corporate Trust Office.
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of the
Trustee, will appoint, in the manner provided in Section 5.9, a Trustee, so that
there shall at all times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.4 Paying Agent. Whenever the Issuer shall appoint a paying
agent other than the Trustee with respect to the Securities of any series, it
will cause such paying agent to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee, subject to the provisions of
this Section.
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other
obligor on the Securities of such series) in trust for the benefit of the
Holders of the Securities of such series or of the Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities of such series) to make any
payment of the principal of or interest on the Securities of such series
when the same shall be due and payable, and
(c) pay any such sums so held in trust by it to the Trustee upon the
Trustee's written request at any time during the continuance of the failure
referred to in clause (b) above.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series,
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deposit with the paying agent a sum sufficient to pay such principal or interest
so becoming due, and (unless such paying agent is the Trustee) the Issuer will
promptly notify the Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such series a sum
sufficient to pay such principal or interest so becoming due. The Issuer will
promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Issuer
may at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust for any
such series by the Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 9.3 and 9.4
SECTION 3.5 Certificate of the Issuer. So long as any of the
Securities remain outstanding, the Issuer will furnish to the Trustee on
or before March 31 in each year (beginning with 1999) a brief certificate
(which need not comply with Section 10.5) executed by the principal executive,
financial or accounting officer of the Issuer on its behalf as to his or her
knowledge of the Issuer's compliance with all covenants and agreements under
the Indenture (such compliance to be determined without regard to any period
of grace or requirement of notice provided under the Indenture). Such
certificate need not include a reference to any non-compliance that has been
fully cured prior to the date as of which such certificate speaks.
SECTION 3.6 Securityholders Lists. If and so long as the Trustee
shall not be the Security registrar for the Securities of any series, the Issuer
will furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the holders of the
Securities of such series pursuant to Section 312 of the Trust Indenture Act of
1939 (a) semi-annually not more than 15 days after each record date for the
payment of interest on such Securities, as hereinabove specified, as of such
record date and on dates to be determined pursuant to Section 2.3 for
non-interest bearing securities in each year, and (b) at such other times as the
Trustee may request in writing, within thirty days after receipt by the Issuer
of any such request as of a date not more than 15 days prior to the time such
information is furnished.
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SECTION 3.7 Reports by the Issuer. So long as any of the Securities
remain outstanding, the Issuer covenants to file with the Trustee, within
15 days after the Issuer is required to file the same with the Commission,
copies of the annual reports and of the information, documents, and other
reports which the Issuer may be required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
provided, however, that the Issuer shall have no obligation to file such
reports with the Trustee as long as no Securities of any series are
outstanding.
SECTION 3.8 Reports by the Trustee. Any Trustee's report required
under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on
or before July 15 in each year following the date hereof, so long as any
Securities are outstanding hereunder, and shall be dated as of a date convenient
to the Trustee no more than 60 nor less than 45 days prior thereto.
SECTION 3.9 Notice to Trustee. The Issuer shall provide written
notice to the Trustee within 30 days of the occurrence of any Event of Default
under Section 4.1.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default. "Event of Default" with respect to Securities of any series
wherever used herein, means each one of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body:
(a) default in the payment of any instalment of interest upon any of
the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal on any
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise;
or
(c) default in the payment of any sinking fund instalment as and when
the same shall become due and payable by the terms of the Securities of
such series; or
(d) default in the performance, or breach, of any covenant or
agreement of the Issuer in respect of the Securities of such series (other
than a covenant or agreement in respect of the Securities of such series a
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default in whose performance or whose breach is elsewhere in this Section
specifically dealt with, and continuance of such default or breach for a
period of 90 days after the date on which there has been given, by
registered or certified mail, to the Issuer by the Trustee or to the Issuer
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of all series affected thereby, a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(e) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee, custodian,
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trustee or sequestrator (or similar official) of the Issuer or for any
substantial part of its property or ordering the winding up or liquidation
of its affairs, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(f) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under
any such law, or consent to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Issuer or for any substantial part of its
property, or make any general assignment for the benefit of creditors; or
(g) any other Event of Default provided in the supplemental indenture
or resolution of the Board of Directors under which such series of
Securities is issued or in the form of Security for such series.
If an Event of Default described in clauses (a), (b), (c), (d) or (g) above (if
the Event of Default under clause (d) or (g), as the case may be, is with
respect to less than all series of Securities then Outstanding) occurs and is
continuing, then, and in each and every such case, unless the principal of all
of the Securities of such series shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding hereunder (each such
series voting as a separate class) by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire principal (or,
if the Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series)
of all Securities of such series and the interest accrued thereon, if any, to be
due and payable immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default described in clause (d) or
(g) (if the Event of Default under clause (d) or (g), as the case may be, is
with respect to all series of Securities then Outstanding), (e) or (f)
occurs and is continuing, then and in each and every such case, unless the
principal of all the Securities shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of all the Securities then Outstanding hereunder (treated as one class),
by notice in writing to the Issuer (and the to Trustee if given by
Securityholders), may declare the entire principal (or, if any Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of all the Securities then outstanding and
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
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The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as the
case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Issuer shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities of such series (or of all the Securities, as the case may be) and
the principal of any and all Securities of such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series (or at the respective rates of interest or Yields to Maturity of all the
Securities, as the case may be) to the date of such payment or deposit) and such
amount as shall be sufficient to cover reasonable compensation to the Trustee,
its agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of negligence
or bad faith, and if any and all Events of Default under the Indenture, other
than the non-payment of the principal of Securities which shall have become due
by acceleration, shall have been cured, waived or otherwise remedied as provided
herein -- then and in every such case the holders of a majority in aggregate
principal amount of all the Securities of such series, each series voting as a
separate class (or of all the Securities, as the case may be, voting as a single
class), then outstanding, by written notice to the Issuer and to the Trustee,
may waive all defaults with respect to such series (or with respect to all the
Securities, as the case may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
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SECTION 4.2 Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Issuer covenants that (a) in case default shall be made in the
payment of any instalment of interest on any of the Securities of any series
when such interest shall have become due and payable, and such default shall
have continued for a period of 30 days or (b) in case default shall be made in
the payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or by declaration or
otherwise -- then upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of series for
principal or interest, as the case may be (with interest to the date of such
payment upon the overdue principal and to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series); and in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including reasonable compensation to
the Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee except as a result of its negligence or
bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the Holders,
whether or not the principal of and interest on the Securities of such series be
overdue.
In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon such Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon such Securities, wherever
situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or
any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other
obligor upon
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the Securities of any series, or to the creditors or property of the Issuer
or such other obligor, the Trustee, irrespective of whether the principal of
any Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand pursuant to the provisions of this Section, shall be entitled
and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are original
issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) owing and unpaid in respect of the
securities of any series, and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and each
predecessor Trustee, and their respective agents, attorneys and counsel,
and for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as a
result of negligence or bad faith) and of the Securityholders allowed in
any judicial proceedings relative to the Issuer or other obligor upon the
Securities of any series, or to the creditors or property of the Issuer or
such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities of any series in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee shall
consent to the making of payments directly to the Securityholders, to pay
to the Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith and all other amounts
due to the Trustee or any predecessor Trustee pursuant to Section 5.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan or reorganization,
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arrangement, adjustment or composition affecting the Securities of any series or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Securityholder in any such proceeding except, as aforesaid,
to vote for the election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities or the production thereof on any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Securities in respect of which such action was
taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Securities in respect to which such action was taken, and it
shall not be necessary to make any Holders of such Securities parties to any
such proceedings.
SECTION 4.3 Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of any series shall be applied in
the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series
in respect of which monies have been collected, including reasonable
compensation to the Trustee and each predecessor Trustee and their
respective agents and attorneys and of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith, and all other
amounts due to the Trustee or any predecessor Trustee pursuant to Section
5.6;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of
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such interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: in case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities
of such series; and in case such moneys shall be insufficient to pay in
full the whole amount so due and unpaid upon the Securities of such series,
then to the payment of such principal and interest or yield to maturity,
without preference or priority of principal over interest or yield to
maturity, or of interest or yield to maturity over principal, or of any
instalment of interest over any other instalment of interest, or of any
Security of such series over any other Security of such series, ratably to
the aggregate of such principal and accrued and unpaid interest or yield to
maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or any
other person lawfully entitled thereto.
SECTION 4.4 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings. In
case the Trustee shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such
case the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the
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Securityholders shall continue as though no such proceedings had been taken.
SECTION 4.6 Limitations on Suits by Securityholders. No holder of
any Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the holders of
not less than 25% in aggregate principal amount of the securities of such series
then outstanding shall have made written request upon the Trustee to institute
such action or proceedings in its own name as trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 4.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security with every other
taker and Holder and the Trustee, that no one or more Holders of Securities of
any series shall have any right in any manner whatever by virtue or by availing
of any provision of this Indenture to affect, disturb or prejudice the rights of
any other such Holder of Securities, or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
SECTION 4.7 Unconditional Right of Securityholders to Institute
Certain Suits. Notwithstanding any other provision in this Indenture and any
provision of any Security, the right of any Holder of any Security to receive
payment of the principal of and interest on such Security on or after the
respective due dates expressed in such Security, or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 4.8 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 4.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Securityholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
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every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 4.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or
by the Securityholders.
SECTION 4.9 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each series affected (with each
series voting as a separate class) at the time outstanding shall
have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series by
this Indenture; provided that such direction shall not be otherwise than in
accordance with law and the provisions of this Indenture and provided further
that (subject to the provisions of Section 5.1) the Trustee shall have the right
to decline to follow any such direction if the Trustee, being advised by
counsel, shall determine that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith by its board of directors, the
executive committee, or a trust committee of directors or Responsible Officers
of the Trustee shall determine that the action or proceedings so directed would
involve the Trustee in personal liability or if the Trustee in good faith shall
so determine that the actions or forebearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders of the
Securities of all series so affected not joining in the giving of said
direction, it being understood that (subject to Section 5.1) the Trustee shall
have no duty to ascertain whether or not such actions or forebearances are
unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 4.10 Waiver of Past Defaults. Prior to a declaration of the
acceleration of the maturity of the Securities of any series as provided in
Section 4.1, the Holders of a majority in aggregate principal amount of the
Securities of such series at the time outstanding (each such series voting as a
separate class) may on behalf of the Holders of all the
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Securities of such series waive any past default or Event of Default described
in clause (d) or (g) of Section 4.1 which relates to less than all series of
Securities then Outstanding, except a default in respect of a covenant or
provision hereof which cannot be modified or amended without the consent of each
Holder affected as provided in Section 7.2. Prior to a declaration of
acceleration of the maturity of the Securities of any series as provided in
Section 4.1, the Holders of Securities of a majority in principal amount of all
the Securities then Outstanding (voting as one class) may on behalf of
all Holders waive any past default or Event of Default referred to in said
clause (d) or (g) which relates to all series of Securities then Outstanding, or
described in clause (e) or (f) of Section 4.1, except a default in respect
of a covenant or provision hereof which cannot be modified or amended without
the consent of the Holder of each Security affected as provided in Section 7.2.
In the case of any such waiver, the Issuer, the Trustee and the Holders of the
Securities of each series affected shall be restored to their former positions
and rights hereunder, respectively.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 4.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall give to the Securityholders of any
series, as the names and addresses of such Holders appear on the registry books,
notice by mail of all defaults known to the Trustee which have occurred with
respect to such series, such notice to be transmitted within 90 days after the
occurrence thereof, unless such defaults shall have been cured before the giving
of such notice (the term "default" or "defaults" for the purposes of this
Section being hereby defined to mean any event or condition which is, or with
notice or lapse of time or both would become, an Event of Default); provided
that, except in the case of default in the payment of the principal of or
interest on any of the Securities of such series, or in the payment of any
sinking or purchase fund instalment with respect to the Securities of such
series, the Trustee shall be protected in withholding such notice if and sc long
as the board of directors, the executive committee, or a trust committee of
directors or trustees and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Securityholders of such series.
SECTION 4.12 Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion
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require, in any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clauses (d) or (h) of Section 4.1 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities Outstanding affected thereby, or in the
case of any suit relating to or arising under clauses (d) (if the suit relates
to all the Securities then Outstanding), (a), (f) or (g) of Section 4.1, 10% in
aggregate principal amount of all Securities Outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or interest on any Security on or after the due date expressed in
such Security.
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event of
Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect
to such series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived) the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to
the securities of any series and after the
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curing or waiving of all such Events of Default with respect to such series
which may have occurred:
(i) the duties and obligations of the Trustee with respect to
the Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders pursuant to Section 4.9 relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 5.1 are in furtherance of and subject
to Sections 315 and 316 of the Trust Indenture Act of 1939.
SECTION 5.2 Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act of 1939, and subject to Section 5.1:
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(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by the secretary or an assistant secretary of the
Issuer;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or opinion of counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note,
coupon, security, or other paper or document unless requested in writing so
to do by the Holders of not less than a majority in aggregate principal
amount of the Securities of all series affected then outstanding; provided
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or
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liabilities as a condition to proceeding; the reasonable expenses of every
such investigation reasonably requested by the Holders as aforesaid shall
be paid by the Issuer or, if paid by the Trustee or any predecessor
trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
SECTION 5.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Issuer of any of the Securities or of the proceeds thereof.
SECTION 5.4 Trustee and Agents May Hold Securities; Collections,
etc. The Trustee or any agent of the Issuer or the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities with the
same rights it would have if it were not the Trustee or such agent and may
otherwise deal with the Issuer and receive, collect, hold and retain
collections from the Issuer with the same rights it would have if it were not
the Trustee or such agent.
SECTION 5.5 Moneys Held by Trustee. Subject to the provisions of
Section 9.8 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 5.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its
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employ) except to the extent any such expense, disbursement or advance may arise
from its negligence or bad faith. The Issuer also covenants to indemnify the
Trustee and each predecessor trustee for, and to hold it harmless against, any
loss, liability or expense arising out of or in connection with the acceptance
or administration of this Indenture or the trusts hereunder and the performance
of its duties hereunder, including the costs and expenses of defending itself
against or investigating any claim of liability in the premises, except to the
extent such loss liability or expense is due to the negligence or bad faith of
the Trustee or such predecessor trustee. The obligations of the Issuer under
this Section to compensate and indemnify the Trustee and each predecessor
trustee and to pay or reimburse the Trustee and each predecessor trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of this Indenture.
Such additional indebtedness shall be a senior claim to that of the Securities
upon all property and funds hold or collected by the Trustee as such, except
funds held in trust for the benefit of the holders of particular Securities, and
the Securities are hereby subordinated to such senior claim.
SECTION 5.7 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 5.1 and 5.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 5.8 Persons Eligible for Appointment as Trustee. The Trustee
for each series of Securities hereunder shall at all times be a corporation
having a combined capital and surplus of at least $50,000,000, and which is
eligible in accordance with the provisions of Section 310(a) of the Trust
Indenture Act of 1939. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of a Federal, State or
District of Columbia supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published.
SECTION 5.9 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign with respect to one or more or all series of Securities by
giving written notice of
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resignation to the Issuer and by mailing notice thereof by first class mail to
Holders of the applicable series of Securities at their last addresses as they
shall appear on the Security register. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee or trustees. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee, or
any Securityholder who has been a bona fide Holder of a Security or Securities
of the applicable series for at least six months may, subject to the provisions
of Section 4.12, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939 with respect to any
series of Securities after written request therefor by the Issuer or
by any Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 310(a) of the Trust Indenture Act of 1939
and shall fail to resign after written request therefor by the Issuer
or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a bankrupt
or insolvent, or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to Section 315(e) of
the Trust Indenture Act of 1939, any
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Securityholder who has been a bona fide Holder of a Security or Securities of
such series for at least six months may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee with respect to such
series. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 6.1 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 5.9 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
5.10.
SECTION 5.10 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 5.9 shall execute and deliver
to the Issuer and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 9.8,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 5.6.
If a successor trustee is appointed with respect to the securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
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provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
Upon acceptance of appointment by any successor trustee as provided in
this Section 5.10, the Issuer shall mail notice thereof by first-class mail to
the Holders of Securities of any series for which such successor trustee is
acting as trustee at their last addresses as they shall appear in the Security
register. If the acceptance of appointment is substantially contemporaneous
with the resignation, then the notice called for by the preceding sentence may
be combined with the notice called for by Section 5.9. If the Issuer fails to
mail such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Issuer.
SECTION 5.11 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation or national banking association into which
the Trustee may be merged or converted or with which it may be consolidated, or
any corporation or national banking association resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation or national banking association succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation or national banking association shall be eligible
under the provisions of Section 5.8, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor
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trustee or to authenticate Securities of any series in the name of any
predecessor trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders in
person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee. Proof of execution of any
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Sections 5.1 and 5.2)
conclusive in favor of the Trustee and the Issuer, if made in the manner
provided in this Article.
SECTION 6.2 Proof of Execution of Instruments and of Holding of
Securities; Record Date. Subject to Sections 5.1 and 5.2, the execution of
any instrument by a Securityholder or his agent or proxy may be proved in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Securities shall be proved by the Security register or by a
certificate of the registrar thereof. The Issuer may set a record date for
purposes of determining the identity of holders of Securities of any series
entitled to vote or consent to any action referred to in Section 6.1, which
record date may be set at any time or from time to time by notice to the
Trustee, for any date or dates (in the case of any adjournment or
reconsideration) not more than 60 days nor less than five days prior to the
proposed date of such vote or consent, and thereafter, notwithstanding any
other provisions hereof, only Holders of Securities of such series of record
on such record date shall be entitled to so vote or give such consent or
revoke such vote or consent.
SECTION 6.3 Holders to be Treated as Owners. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the
person in whose name any Security shall be registered upon the Security
register for such series as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of
or on account of the principal of and, subject to the provisions of this
Indenture, interest on such Security and for all other
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purposes; and neither the Issuer nor the Trustee nor any agent of the Issuer
or the Trustee shall be affected by any notice to the contrary. All such
payments so made to any such person, or upon his order, shall be valid, and,
to the extent of the sum or sums so paid, effectual to satisfy and discharge
the liability for moneys payable upon any such Security.
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount
of Outstanding Securities of any or all series have concurred in any
direction, consent or waiver under this Indenture, Securities which are owned
by the Issuer or any other obligor on the Securities with respect to which
such determination is being made or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver only Securities which the Trustee knows
are so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Issuer or any
other obligor upon the Securities or any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities. In case of a dispute as
to such right, the advice of counsel shall be full protection in respect of
any decision made by the Trustee in accordance with such advice. Upon request
of the Trustee, the Issuer shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known by the
Issuer to be owned or held by or for the account of any of the
above-described persons; and, subject to Sections 5.1 and 5.2, the Trustee
shall be entitled to accept such Officers' Certificate as conclusive evidence
of the facts therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such determination.
SECTION 6.5 Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in
Section 6.1, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the
case may be, specified in this Indenture in connection with such action, any
Holder of a Security the serial number of which is shown by the evidence to
be included among the serial numbers of the Securities the Holders of which
have consented to such action may, by filing written notice at the Corporate
Trust Office and upon proof of holding as provided in this Article, revoke
such action so far as concerns such Security. Except as aforesaid any such
action
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taken by the Holder of any Security shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Security and of any
Securities issued in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon any such Security.
Any action taken by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified
in this Indenture in connection with such action shall be conclusively
binding upon the Issuer, the Trustee and the Holders of all the Securities
affected by such action.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto for one or more of the
following purposes:
(a) to convoy, transfer, assign, mortgage or pledge to the Trustee
as security for the Securities of one or more series any property or
assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer
pursuant to Article Eight;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as its Board of Directors and the
Trustee shall consider to be for the protection of the Holders of
Securities, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default permitting
the enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; provided, that in respect of any such
additional covenant, restriction, condition or provision such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit the remedies
available to the Trustee upon such an Event of Default or may limit the
right of the Holders of a majority in aggregate principal amount of the
Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental
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indenture which may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture; or to make such other
provisions in regard to matters or questions arising under this
Indenture or under any supplemental indenture as the Board of Directors
may deem necessary or desirable and which shall not adversely affect the
interests of the Holders of the Securities in any material respect;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3; and
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee,
pursuant to the requirements of Section 5.10.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 7.2.
SECTION 7.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Article Six) of
the Holders of not less than a majority in aggregate principal amount of the
Securities at the time outstanding of all series affected by such
supplemental indenture (voting as one class), the Issuer, when authorized by
a resolution of its Board of Directors, and the Trustee may, from time to
time and at any time, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Securities of each such series; provided, that no such supplemental indenture
shall (a) extend the final maturity of any Security, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption thereof or reduce the
amount of the principal of an Original Issue Discount Security that would be
due and payable upon an acceleration of the maturity thereof pursuant to
Section 4.1 or the amount thereof provable in
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bankruptcy pursuant to Section 4.2, or impair or affect the right of any
Securityholder to institute suit for the payment thereof or, if the
Securities provide therefor, any right of repayment at the option of the
Securityholder without the consent of the Holder of each Security so
affected, or (b) reduce the aforesaid percentage of Securities of any series,
the consent of the Holders of which is required for any such supplemental
indenture, without the consent of the Holders of each Security so affected.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors certified by the secretary or an
assistant secretary of the Issuer authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Securityholders as aforesaid and other documents, if any,
required by Section 6.1, the Trustee shall join with the Issuer in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture,
or otherwise, in which case the Trustee may in its discretion, but shall not
be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Issuer
shall mail a notice thereof by first class mail to the Holders of Securities
of each series affected thereby at their addresses as they shall appear on
the registry books of the Issuer, setting forth in general terms the
substance of such supplemental indenture. Any failure of the Issuer to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 7.3 Effect of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Issuer and the
Holders of Securities of each series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 7.4 Documents to Be Given to Trustee. The Trustee,
subject to the provisions of Sections 5.1 and 5.2, may receive an Officers'
Certificate and an Opinion of Counsel as
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conclusive evidence that any supplemental indenture executed pursuant to this
Article Seven complies with the applicable provisions of this Indenture.
SECTION 7.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series
as to any matter provided for by such supplemental indenture or as to any
action taken at any such meeting. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any modification of
this Indenture contained in any such supplemental indenture may be prepared
by the Issuer, authenticated by the Trustee and delivered in exchange for the
Securities of such series then outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 Issuer May Consolidate, etc., on Certain Terms. The
Issuer covenants that it will not merge or consolidate with any other
corporation or sell or convey all or substantially all of its assets to any
Person, unless (i) either the Issuer shall be the continuing corporation, or
the successor corporation or the Person which acquires by sale or conveyance
substantially all the assets of the Issuer (if other than the Issuer) shall
expressly assume the due and punctual payment of the principal of and
interest on all the Securities, according to their tenor, and the due and
punctual performance and observance of all of the covenants and agreements of
this Indenture to be performed or observed by the Issuer, by supplemental
indenture satisfactory to the Trustee, executed and delivered to the Trustee
by such corporation, and (ii) the Issuer or such successor corporation, as
the case may be, shall not, immediately after such merger or consolidation,
or such sale or conveyance, be in default in the performance of any such
covenant or agreement.
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SECTION 8.2 Successor Corporation Substituted. In case of any
such consolidation, merger, sale or conveyance in which the Issuer is not the
continuing corporation, and following such an assumption by the successor
corporation, such successor corporation shall succeed to and be substituted
for the Issuer, with the same effect as if it had been named herein. Such
successor corporation may cause to be signed, and may issue either in its own
name or in the name of the Issuer prior to such succession any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Issuer and delivered to the Trustee; and, upon the order of such
successor corporation instead of the Issuer and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have
been signed and delivered by the officers of the Issuer to the Trustee for
authentication, and any Securities which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All of the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though
all of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease) the Issuer or any successor corporation which
shall theretofore have become such in the manner described in this Article
shall be discharged from all
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obligations and covenants under this Indenture and the Securities and may be
liquidated and dissolved.
SECTION 8.3 Opinion of Counsel to Trustee. The Trustee, subject
to the provisions of Sections 5.1 and 5.2, may receive an opinion of Counsel,
prepared in accordance with Section 11.5, as conclusive evidence that any
such consolidation, merger, sale, lease or conveyance, and any such
assumption, and any such liquidation or dissolution, complies with the
applicable provisions of this Indenture.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture. If at any
time (a) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any series outstanding hereunder (other
than Securities of such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.9) as and when the
same shall have become due and payable, or (b) the Issuer shall have
delivered to the Trustee for cancellation all securities of any series
theretofore authenticated (other than any Securities of such series which
shall have been destroyed, lost or stolen and which shall have been replaced
or paid as provided in Section 2.9) or (c) (i) all the securities of such
series not theretofore delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable
within one year or may, at the option of the Issuer, be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption, and (ii) the issuer shall have irrevocably deposited
or caused to be deposited with the Trustee as trust funds the entire amount
in cash (other than moneys repaid by the Trustee or any paying agent to the
issuer in accordance with Section 9.8) or direct obligations of the United
States of America, backed by its full faith and credit, maturing as to
principal and interest in such amounts and at such times as will insure the
availability of cash sufficient to pay at maturity or upon redemption all
Securities of such series (other than any Securities of such series which
shall have been destroyed, lost or stolen and which shall have been replaced
or paid as provided in Section 2.9) not theretofore delivered to the Trustee
for cancellation, including principal and interest due or to become due on or
prior to such date of maturity as the case may be, and if, in any such case,
the Issuer shall also pay or cause to be paid all other sums payable
hereunder by the Issuer with respect to Securities of such series, then this
Indenture shall cease to be of further effect with respect to Securities of
such series (except as to (i) rights of registration of transfer and exchange
of securities of such series, and the Issuer's right of optional redemption,
if any,
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(ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities, (iii) rights of holders to receive payments of principal thereof
and interest thereon upon the original stated due dates therefor (but not
upon acceleration) and remaining rights of the holders to receive mandatory
sinking fund payments, if any, in each case solely out of property so
deposited with the Trustee, and (iv) the rights, obligations and immunities
of the Trustee hereunder, and the Trustee, on demand of the Issuer
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Issuer, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture with
respect to such series; provided, that the rights of Holders of the
Securities to receive amounts in respect of principal of and interest on the
Securities held by them shall not be delayed longer than required by
then-applicable mandatory rules or policies of any securities exchange upon
which the Securities are listed. The Issuer agrees to reimburse the Trustee
for any costs or expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any, services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Securities
of such series.
SECTION 9.2 Issuer's Option to Effect Defeasance or Covenant
Defeasance. In addition to discharge of the Indenture pursuant to Section
9.1, with respect to any series of Securities where the exact amount of
principal and interest due on which can be determined at the time of making
the deposit referred to in Section 9.5(a), the Issuer may at its option by
resolution of the Board of Directors elect at any time either (a) to effect a
defeasance (as defined in Section 9.3) of the Securities of such series under
Section 9.3 or (b) to effect a covenant defeasance (as defined in Section
9.4) of the Securities of such series under Section 9.4, in each case upon
compliance with the applicable conditions set forth below in this Article
Nine.
SECTION 9.3 Defeasance and Discharge. Upon the Issuer's exercise
of the option set forth in clause (a) of Section 9.2 with respect to the
Securities of a series, the issuer shall be deemed to have been discharged
from its obligations with respect to the Securities of such series on and
after the date the conditions precedent set forth in Section 9.5 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance
means that the Issuer shall be deemed to have paid and discharged the entire
indebtedness represented by the Securities of such series and to have
satisfied all its other obligations under the Securities of such series and
under this Indenture relating to the Securities of such series (and the
Trustee, at the expense of the Issuer, shall execute proper instruments
acknowledging the same), except for, (i) rights of registration of transfer
and exchange of Securities of such series, and the Issuer's right of optional
redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost
or stolen Securities, (iii) rights of holders to receive payments of
principal thereof and interest thereon, upon the original stated
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due dates therefor (but not upon acceleration), and remaining rights of the
holders to receive mandatory sinking fund payments, if any, in each case
solely from the trust funds described in Section 9.5(a); and (iv) the rights,
obligations and immunities of the Trustee hereunder. Subject to compliance
with this Article Nine, the Issuer may exercise its option under this Section
9.3 notwithstanding the prior exercise of its option under Section 9.4 with
respect to the Securities of such series.
SECTION 9.4 Covenant Defeasance. Upon the Issuer's exercise of
the option set forth in clause (b) of Section 9.2 with respect to the
Securities of a series, the Issuer shall be released from its obligations
under Sections 3.9, 3.10 and 8.1 with respect to the Securities of such
series on and after the date the conditions precedent set forth in Section
9.5 are satisfied (hereinafter, "covenant defeasance"). For this purpose,
such covenant defeasance means that, with respect to the Securities of such
series, the Issuer may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section,
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or by reason of any reference in any such Section to any
other provision herein or in any other document and such omission to comply
shall not constitute an Event of Default under Section 4.1, but the remainder
of this Indenture and such Securities shall be unaffected thereby.
SECTION 9.5 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions precedent to the application of either
Section 9.3 or Section 9.4 to the Securities of such series:
(a) the Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust
funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the holders of the Securities of such series
(i) money in an amount, or (ii) direct obligations of the United States
of America, backed by its full faith and credit, which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment in respect of the Securities of such series,
money in an amount, or (iii) a combination thereof, sufficient (without
consideration of any reinvestment of such money, principal or interest),
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee to pay and discharge, (A) the principal of and interest on all
Securities of such series on each date such principal or interest is due
and payable and (B) any mandatory sinking fund payments on the dates on
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which such payments are due and payable in accordance with the terms of
this Indenture and the Securities of such series. Before such a deposit
the Issuer may make arrangements satisfactory to the Trustee for the
redemption of the Securities of such series at a future date or dates in
accordance with Article Eleven, if applicable to the Securities of such
series, which shall be given effect in applying the foregoing.
(b) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing (i) on
the date of such deposit or (ii) insofar as Subsections 4.1(f) and
4.1(g) are concerned, at any time during the period ending on the 121st
day after the date of such deposit or, if longer, ending on the date
following the expiration of the longest preference period applicable to
the Issuer in respect of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(c) Such defeasance or covenant defeasance will not (i) cause the
Trustee for the Securities of such series to have a conflicting interest
for purposes of the Trust Indenture Act of 1939 with respect to any
securities of the Issuer or (ii) result in the trust arising from such
deposit to constitute, unless it is qualified as, a regulated investment
company under the Investment Company Act of 1940, as amended.
(d) Such defeasance or covenant defeasance will not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Issuer is a party or by
which it is bound.
(e) If the Securities of such series are then listed on any
national securities exchange registered under the Securities Exchange
Act of 1934, as amended, the Issuer shall have delivered to the Trustee
an Opinion of Counsel to the effect that the exercise of the option
under Section 9.3 or 9.4, as the case may be, will not cause such
Securities to be delisted.
(f) In the case of an election under Section 9.3, the Issuer shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Issuer has received from the United States Internal Revenue Service (the
"IRS") a private letter ruling, (ii) there has been published by the IRS
a general revenue ruling, or (iii) since the date of this Indenture
there has been a change in the applicable Federal income tax law, in
each case to the effect that, and based thereon such opinion 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 such
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defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred.
(g) in the case of an election under Section 9.4, the Issuer shall
have delivered to the Trustee an opinion of Counsel to the effect that
the holders of the Securities of such series will not recognize income,
gain or loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.
(h) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which
may be imposed on the Issuer in connection therewith pursuant to Section
2.3.
(i) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
9.3 or the covenant defeasance under Section 9.4 (as the case may be)
have been complied with.
SECTION 9.6 Application by Trustee of Funds Deposited for Payment
of Securities. Subject to Section 9.8, all moneys deposited with the Trustee
pursuant to Section 9.1 or 9.5 shall be held in trust and applied by it to
the payment, either directly or through any paying agent (including the
Issuer acting as its own paying agent), to the Holders of the particular
Securities of such series for the payment or redemption of which such moneys
have been deposited with the Trustee, of all sums due and to become due
thereon for principal and interest; but such money need not be segregated
from other funds except to the extent required by law.
SECTION 9.7 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent under
the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 9.8 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of or interest on any
Security of any series and not applied but remaining unclaimed for two years
after the date upon which such principal or interest shall have become due
and
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payable, shall, upon the written request of the Issuer and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be repaid to the Issuer by the Trustee for such
series or such paying agent, and the Holder of the Security of such series
shall, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property laws, thereafter look only to the
Issuer for any payment which such Holder may be entitled to collect, and all
liability of the Trustee or any paying agent with respect to such moneys
shall thereupon cease.
SECTION 9.9 Indemnity for Direct Obligations of the United States.
The Issuer shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the money or the direct obligations of
the United States of America deposited pursuant to Section 9.1 or 9.5 or the
principal or interest received in respect of such obligations.
SECTION 9.10 Reinstatement. If the Trustee or the paying agent is
unable to apply any money or direct obligations of the United States of
America in accordance with Section 9.1 or 9.5 by reason of any legal
proceedings or order or judgment or any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Issuer's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Nine until such time as the Trustee or paying agent is permitted
to apply all such money in accordance with this Article Nine; provided that,
if the Issuer makes any payment of principal of or interest on any such
Security following the reinstatement of its obligations, the Issuer shall be
subrogated to the rights of the holders of such Securities to receive such
payment from the money or direct obligations of the United States of America
held by the Trustee or the paying agent.
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 Incorporators, Shareholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
shareholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of
law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities
49
<PAGE>
by the holders thereof and as part of the consideration for, and as a
condition of, the issue of the Securities.
SECTION 10.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders. Nothing in this Indenture or in the Securities,
expressed or implied, shall give or be construed to give to any person, firm
or corporation, other than the parties hereto and their successors and the
Holders of the Securities, any legal or equitable right, remedy or claim
under this Indenture or under any covenant or provision herein contained, all
such covenants and provisions being for the sole benefit of the parties
hereto and their successors and of the Holders of the Securities.
SECTION 10.3 Successors and Assigns of Issuer Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Issuer shall bind its successors and
assigns, whether so expressed or not.
SECTION 10.4 Notices and Demands on Issuer, Trustee and
Securityholders. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders of Securities to or on the Issuer may be given or served by being
deposited postage prepaid, first-class mail (except as otherwise specifically
provided herein) addressed (until another address of the Issuer is filed by
the Issuer with the Trustee) to Tyco International Ltd. at The Gibbons
Building, 10 Queen Street, Suite 301, Hamilton HM 11, Bermuda, Attention:
Treasurer, with a copy to Tyco International (US) Inc. at One Tyco Park, Exeter,
New Hampshire 03833, Attention: Treasurer. Any notice, direction, request or
demand by the Issuer or any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made and received at the Corporate Trust office.
Where this Indenture provides for notice to Holders, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Security register. In any
case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Issuer
and Securityholders when such notice is
50
<PAGE>
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be a sufficient giving of such notice.
SECTION 10.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent
have been complied with, except that in the case of any such application or
demand as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or
demand, no additional certificate or opinion need be furnished.
Each certificate (other than those provided for in Section 3.5 and
Section 11.5) or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with respect to which
is in the possession of the Issuer, upon the certificate, statement or
opinion of or representations by an officer of officers of the Issuer, unless
such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous.
Any certificate, statement or opinion of an officer of the Issuer
or of counsel may be based, insofar as it relates to accounting matters, upon
a certificate or opinion of or repre-
51
<PAGE>
sentations by an accountant or firm of accountants in the employ of the
Issuer, unless such officer or counsel, as the case may be, knows that the
certificate or opinion or representations with respect to the accounting
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm
is independent.
SECTION 10.6 Payments Due on Saturdays, Sundays and Holidays. If
the date of maturity of interest on or principal of the Securities of any
series or the date fixed for redemption or repayment of any such Security
shall not be a Business Day, then payment of interest or principal need not
be made on such date, but may be made on the next succeeding Business Day
with the same force and affect as if made on the date of maturity or the date
fixed for redemption, and no interest shall accrue for the period after such
date.
SECTION 10.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in
this Indenture by operation of Sections 310 to 317, inclusive, of the Trust
Indenture Act of 1939 (an "incorporated provision"), such incorporated
provision shall control.
SECTION 10.8 New York Law to Govern. This Indenture and each
Security shall be deemed to be a contract under the laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
such State, without regard to principles of the conflict of laws thereof.
SECTION 10.9 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 10.10 Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.1 Applicability of Article. The provisions of this
Article shall be applicable to the securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 2.3 for Securities of such series.
52
<PAGE>
SECTION 11.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear upon the
registry books. Any notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security of a series designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Securities, that such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, that interest accrued to the date
fixed for redemption will be paid as specified in such notice and that on and
after said date interest thereon or on the portions thereof to be redeemed will
cease to accrue. In case any Security of a series is to be redeemed in part
only the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of
such series in principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
At least one Business Day prior to the redemption date specified in
the notice of redemption given as provided in this Section, the Issuer will
deposit with the Trustee or with one or more paying agents (or, if the Issuer is
acting as its own paying agent, set aside, segregate and hold in trust as
provided in Section 3.4) an amount of money sufficient to redeem on the
redemption date all the Securities of such series so called for redemption at
the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If less than all the outstanding Securities of a series
are to be redeemed, the Issuer will deliver to the Trustee at least 10 days
before the notice of redemption referred to in the first paragraph of this
Section 11.2 is first mailed to Holders, but no less than 45 days prior to the
date fixed for redemption, an Officers' Certificate stating the aggregate
principal amount of Securities to be redeemed.
53
<PAGE>
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed in whole or in part. Securities may be
redeemed in part in multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee shall promptly
notify the issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series selected for
partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 11.3 Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue and, except as provided in Sections 5.5 and 9.8, such Securities shall
cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
said securities or the specified portions thereof shall be paid and redeemed by
the Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that any semiannual payment
of interest becoming due on the date fixed for redemption shall be payable to
the Holders of such Securities registered as such on the relevant record date
subject to the terms and provisions of Section 2.4 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by the Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such
54
<PAGE>
series, of authorized denominations, in principal amount equal to the unredeemed
portion of the Security so presented.
SECTION 11.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Issuer and
delivered to the Trustee at least 40 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Issuer or (b) an entity specifically
identified in such written statement directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer.
SECTION 11.5 Mandatory and Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of Securities of
any series is herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of Securities
of any series is herein referred to as an "optional sinking fund payment." The
date on which a sinking fund payment is to be made is herein referred to as the
"sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.7, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or
(c) receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price specified in
such Securities.
On or before the forty-fifth day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee a written
statement (which need not contain the statements required by Section 10.5)
signed by an authorized officer of the Issuer (a) specifying the portion of the
mandatory sinking fund payment to be satisfied by payment of cash and the
portion to be satisfied by credit of Securities of such series, (b) stating that
none of the Securities of such series has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of Default with
respect to such series have occurred (which have not been waived or cured) and
55
<PAGE>
are continuing and (d) stating whether or not the Issuer intends to exercise its
right to make an optional sinking fund payment with respect to such series and,
if so, specifying the amount of such optional sinking fund payment which the
issuer intends to pay on or before the next succeeding sinking fund payment
date. Any Securities of such series to be credited and required to be delivered
to the Trustee in order for the Issuer to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.10 to the Trustee with such
written statement (or reasonably promptly thereafter if acceptable to the
Trustee). Such written statement shall be irrevocable and upon its receipt by
the Trustee the Issuer shall become unconditionally obligated to make all the
cash payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on or before any
such forty-fifth day, to deliver such written statement and Securities specified
in this paragraph, if any, shall not constitute a default but shall constitute,
on and as of such date, the irrevocable election of the Issuer (i) that the
mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such series in respect thereof and (ii) that the
Issuer will make no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or a lesser sum if the Issuer shall so request) with respect to
the Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of securities of such
series at the sinking fund redemption price together with accrued interest to
the date fixed for redemption. If such amount shall be $50,000 or less and the
Issuer makes no such request then it shall be carried over until a sum in excess
of $50,000 is available. The Trustee shall select, in the manner provided in
Section 11.2, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such series to absorb said cash, as nearly as
may be, and shall (if requested in writing by the Issuer) inform the Issuer of
the serial numbers of the Securities of such series (or portions thereof) so
selected. Securities of any series which are (a) owned by the Issuer or an
entity known by the Trustee to be directly or indirectly controlling or
controlled by or under
56
<PAGE>
direct or indirect common control with the Issuer, as shown by the Security
register, and not known to the Trustee to have been pledged or hypothecated by
the Issuer or any such entity or (b) identified in an officers' Certificate at
least 60 days prior to the sinking fund payment date as being beneficially owned
by, and not pledged or hypothecated by, the Issuer or an entity directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer shall be excluded from Securities of such series
eligible for selection for redemption. The Trustee, in the name and at the
expense of the Issuer (or the Issuer, if it shall so request the Trustee in
writing) shall cause notice of redemption of the Securities of such series to be
given in substantially the manner provided in Section 11.2 (and with the effect
provided in Section 11.3) for the redemption of Securities of such series in
part at the option of the Issuer. The amount of any sinking fund payments not
so applied or allocated to the redemption of Securities of such series shall be
added to the next cash sinking fund payment for such series and, together with
such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date of
the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
At least one Business Day before each sinking fund payment date, the
Issuer shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Securities
to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or mail any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article Four and held for the payment of all such Securities.
In case such Event of Default shall have been waived as provided in Section 4.9
or the default cured on or before the forty-fifth day preceding the sinking fund
payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
57
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of __________ __, 1998.
TYCO INTERNATIONAL LTD.
By
--------------------------------
Attest:
By
-------------------------
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION, as Trustee
By
--------------------------------
Attest:
BY
-------------------------
58
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Amendment No. 2 to the
Registration Statement on Form S-3 of our report dated November 21, 1997 on our
audits of the Consolidated Financial Statements and the Consolidated Financial
Statement Schedule of Tyco International Ltd. as of September 30, 1997 and
December 31, 1996 and for the nine months ended September 30, 1997 and for each
of the two years in the period ended December 31, 1996, which report is included
in the Company's Transition Report on Form 10-K for the period ended September
30, 1997. We also consent to the reference to our firm under the caption
"Experts."
COOPERS & LYBRAND
Hamilton, Bermuda
February 10, 1998
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Amendment No. 2 to the
Registration Statement on Form S-3 of our report dated July 10, 1997, which is
included in the Company's Transition Report on Form 10-K for the period ended
September 30, 1997, on our audits of the Consolidated Financial Statements and
the Consolidated Financial Statement Schedule of Tyco International Ltd.
(subsequently renamed Tyco International (US) Inc.) as of December 31, 1996 and
for the years ended December 31, 1996 and June 30, 1995, (not presented
separately therein). We also consent to the reference to our firm under the
caption "Experts."
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
February 10, 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Amendment No. 2 to the Registration Statement of our report
dated January 31, 1997 on our audits of the consolidated financial statements of
Keystone International, Inc. and subsidiaries as of December 31, 1996 and for
each of the two years in the period then ended, included in the Tyco
International Ltd. Transition Report on Form 10-K for the year ended September
30, 1997, and to all references to our Firm included in this Registration
Statement.
ARTHUR ANDERSEN LLP
February 10, 1998
Houston, Texas
<PAGE>
Exhibit 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
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)_____
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-3781471
(I.R.S. Employer Identification No.)
100 Wall Street, New York, NY 10005
(Address of principal executive offices) (Zip Code)
-----------------------
For information, contact:
Dennis Calabrese, President
First Trust of New York, National Association
100 Wall Street, 16th Floor
New York, NY 10005
(212) 361-2502
-----------------------
Tyco International Ltd.
(Exact name obligor as specified in its charter)
Bermuda Not Applicable
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
The Gibbons Building 03833
10 Queen Street, Suite 301 (Zip Code)
Hamilton, HMII, Bermuda
(Address of principal executive offices)
-----------------------
Debt Securities
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
Comptroller of the Currency Washington D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
Item 2. Affiliations with Obligor
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None
Item 16. List of Exhibits
Exhibit 1 Articles of Association of First Trust of New York,
National Association, incorporated herein by reference
to Exhibit 1 of Form T-1, Registration No. 33-83774.
Exhibit 2 Certificate of Authority to Commence Business for First
Trust of New York, National Association, incorporated
herein by reference to Exhibit 2 of Form T-1,
Registration No. 33-83774.
Exhibit 3 Authorization of the Trustee to exercise corporate trust
powers for First Trust of New York, National
Association, incorporated herein by reference to
Exhibit 3 of Form T-1, Registration No. 33-83774.
Exhibit 4 By-Laws of First Trust of New York, National
Association, Incorporated herein by reference to
Exhibit 4 of Form T-1, Registration No. 33-55851.
Exhibit 5 Not applicable.
Exhibit 6 Consent of First Trust of New York, National
Association, required by Section 321(b) of the Act,
incorporated herein by reference to Exhibit 6 of Form
T-1, Registration No. 33-83774.
Exhibit 7 Report of Condition of First Trust of New York, National
Association, as of the close of business on December
31, 1997 published pursuant to law or the
requirements of its supervising or examining
authority.
-2-
<PAGE>
Exhibit 8 Not applicable.
Exhibit 9 Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
as amended, the trustee, First Trust of New York, National Association, a
national banking association organized and existing under the laws of the
United States of America, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in The
City of New York and State of New York, on the 9th day of February, 1998.
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
By /s/ Geovanni Barris
-----------------------
Geovanni Barris
Assistant Vice President
<PAGE>
Exhibit 7
First Trust of New York, N.A.
Statement of Financial Condition
As of 12/31/97
($000's)
<TABLE>
<CAPTION>
Assets 12/31/97
--------
<S> <C>
Cash and Due From Depository Institutions $37,537
Federal Reserve Stock 3,439
Fixed Assets 698
Intangible Assets 74,459
Other Assets 6,072
Total Assets $122,205
Liabilities
Other Liabilities 8,020
Total Liabilities 8,020
Equity
Common and Preferred Stock 1,000
Surplus 120,932
Undivided Profits (7,747)
Total Equity Capital 114,185
Total Liabilities and Equity Capital $122,205
</TABLE>
To the best of the undersigned's determination, as of this date the above
financial information is true and correct.
First Trust of New York, N.A.
By:
-------------------------
Geovanni Barris
Assistant Vice President
Date: February 9, 1998
