FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
(Mark One)
(X)Quarterly Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the quarterly period ended June 30, 1996
OR
( )Transition Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the transition period from __________ to __________
Commission File Number 001-10109
BECKMAN INSTRUMENTS, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-104-0600
(State of Incorporation) (I.R.S. Employer
Identification No.)
2500 Harbor Boulevard, Fullerton, California 92834
(Address of principal executive offices) (Zip Code)
(714) 871-4848
(Registrant's telephone number including area code)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15 (d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes (X) No ( ).
APPLICABLE ONLY TO CORPORATE ISSUERS:
Outstanding shares of common stock, $0.10 par value, as
of July 15, 1996: 28,508,525 shares.
<PAGE>
PART I
FINANCIAL INFORMATION
Item 1. Financial Statements Page
Condensed Consolidated Statements of Earnings
for the three and six month periods ended
June 30, 1996 and 1995 3
Condensed Consolidated Balance Sheets as
of June 30, 1996 and December 31, 1995 4
Condensed Consolidated Statements of Cash
Flows for the six month periods ended
June 30, 1996 and 1995 5
Notes to Condensed Consolidated Financial
Statements 6
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 8
PART II
OTHER INFORMATION
Item 1. Legal Proceedings 10
Item 2. Changes In Securities 10
Item 3. Defaults Upon Senior Securities 10
Item 4. Submission of Matters to a Vote of Security-Holders 10
Item 5. Other Information 10
Item 6. Exhibits and Reports on Form 8-K 11
<PAGE>
BECKMAN INSTRUMENTS, INC.
SECOND QUARTER REPORT
CONDENSED CONSOLIDATED STATEMENTS OF EARNINGS
(Dollars in Millions, Except Amounts Per Share)
Unaudited
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
1996 1995 1996 1995
---- ---- ---- ----
<S> <C> <C> <C> <C>
Sales $265.2 $230.6 $490.0 $435.6
Operating costs and expenses:
Cost of sales 123.6 108.0 228.5 205.2
Selling, general and
administrative 83.3 73.8 157.0 139.0
Research and development 27.3 22.0 52.0 44.1
Restructuring charge - 3.4 - 6.5
------ ------ ------ ------
234.2 207.2 437.5 394.8
------ ------ ------ ------
Operating income 31.0 23.4 52.5 40.8
Nonoperating income (expense):
Interest income 1.4 1.1 2.7 2.4
Interest expense (4.5) (3.0) (7.6) (5.8)
Other, net 0.4 (0.6) 1.2 (0.9)
------ ------ ------ ------
(2.7) (2.5) (3.7) (4.3)
------ ------ ------ ------
Earnings before income taxes 28.3 20.9 48.8 36.5
Income tax provision 9.3 7.1 16.1 12.4
------ ------ ------ ------
Net earnings $ 19.0 $ 13.8 $ 32.7 $ 24.1
====== ====== ====== ======
Weighted average common shares and
common share equivalents - 29,034 28,674 29,147 28,749
(thousands)
Net earnings per share $ 0.65 $ 0.48 $ 1.12 $ 0.84
Dividends declared per share $ 0.13 $ 0.11 $ 0.26 $ 0.22
</TABLE>
See accompanying notes to condensed consolidated financial statements.
<PAGE>
BECKMAN INSTRUMENTS, INC.
CONSOLIDATED BALANCE SHEETS
(Dollars in Millions)
Unaudited
<TABLE>
<CAPTION>
June 30, December 31,
1996 1995
---- ----
<S> <C> <C>
Assets
Current assets:
Cash and equivalents $ 10.7 $ 26.2
Short-term investments 9.8 8.2
Trade receivables and other 286.7 288.8
Inventories 197.3 166.2
Deferred income taxes 26.4 29.4
Other current assets 12.4 14.5
------ ------
Total current assets 543.3 533.3
Property, plant and equipment, net 253.4 252.1
Deferred income taxes 62.3 59.8
Other assets 69.9 62.6
------ ------
Total assets $928.9 $907.8
====== ======
Liabilities and Stockholders's Equity
Current liabilities:
Notes payable $ 23.6 $ 15.8
Accounts payable and accrued expenses 188.6 190.5
Income taxes 51.8 44.9
------ ------
Total current liabilities 264.0 251.2
Long-term debt, less current maturities 188.2 162.7
Other liabilities 124.9 146.0
------ ------
Total liabilities 577.1 559.9
------ ------
Stockholders' equity 351.8 347.9
------ ------
Total liabilities and stockholders'equity $928.9 $907.8
====== ======
</TABLE>
See accompanying notes to condensed consolidated financial statements.
<PAGE>
BECKMAN INSTRUMENTS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Dollars in Millions)
Unaudited
<TABLE>
<CAPTION>
Six Months Ended
June 30,
1996 1995
---- ----
<S> <C> <C>
Cash Flows from Operating Activities
Net earnings $ 32.7 $ 24.1
Adjustments to reconcile net earnings to net
cash provided (used) by operating activities:
Depreciation and amortization 41.3 36.1
Net deferred income taxes 0.1 (2.5)
Changes in assets and liabilities:
Trade receivables and other (2.0) 0.1
Inventories (33.0) (17.7)
Accounts payable and accrued expenses 5.4 (6.7)
Restructuring reserve (5.5) (10.3)
Accrued income taxes 7.0 2.2
Other (25.9) (13.8)
------ ------
Net cash provided
by operating activities 20.1 11.5
------ ------
Cash Flows from Investing Activities
Additions to property, plant and equipment (47.5) (51.5)
Net disposals of property, plant and equipment 5.4 6.8
Purchases of short-term investments (1.5) (5.7)
Investments (1.0) (11.7)
------ ------
Net cash used by investing activities (44.6) (62.1)
------ ------
Cash Flows from Financing Activities
Dividends to stockholders (7.4) (6.2)
Proceeds from issuance of stock 11.2 9.0
Purchase of treasury stock (27.3) (7.3)
Notes payable borrowings, net 5.6 17.3
Long-term debt borrowings 107.7 9.3
Long-term debt reductions (80.5) -
Other (0.5) (0.8)
------ ------
Net cash provided
by financing activities 8.8 21.3
------ ------
Effect of exchange rates on cash and equivalents 0.2 0.2
------ ------
Decrease in cash and equivalents (15.5) (29.1)
Cash and equivalents -- beginning of period 26.2 44.2
------ ------
Cash and equivalents -- end of period $ 10.7 $ 15.1
====== ======
Supplemental Disclosures of Cash Flow Information
Cash paid during the period for:
Interest $ 8.4 $ 2.9
Income taxes $ 8.5 $ 13.3
Noncash investing and financing activities:
Purchase of equipment under capital
lease obligation $ 1.8 $ 1.6
</TABLE>
See accompanying notes to condensed consolidated financial statements.
<PAGE>
BECKMAN INSTRUMENTS, INC.
Notes To
Condensed Consolidated Financial Statements
(Dollars in Millions, Except Amounts Per Share)
1 Report by Management
In the opinion of the Company, the accompanying unaudited
condensed consolidated financial statements reflect all
adjustments, consisting only of normal recurring accruals,
necessary for a fair presentation of the results for the periods.
The statements are prepared in accordance with the requirements
of Form 10-Q and do not include all disclosures required by
generally accepted accounting principles or those made in the
Annual Report on Form 10-K/A for 1995 which is on file with the
Securities and Exchange Commission.
The results of operations for the period ended June 30, 1996 are
not necessarily indicative of the results to be expected for the
year ending December 31, 1996.
2 Use of Estimates
The preparation of financial statements in conformity with
generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts
of assets and liabilities, the disclosure of contingent assets
and liabilities at the date of the financial statements, and the
reported amounts of sales and expenses during the reporting
period. Actual results could differ from those estimates.
3 Stock-Based Compensation
The Company has adopted Statement of Financial Accounting Standards
No. 123, "Accounting for Stock-Based Compensation." Accordingly, the
Company continues to follow the guidance of Accounting Principles
Board Opinion No. 25, "Accounting for Stock Issued to Employees." As
a result, compensation related to stock options is determined at the
grant date as the difference between the grant price and the fair
market value of the underlying common shares. Generally, the Company
issues stock options with a grant price equal to the fair market value
of the Company's common shares.
4 Earnings Per Share
Earnings per share is computed including the effect of common share
equivalents. Common share equivalents represent the dilutive effect
of outstanding stock options. Primary earnings per share approximates
fully diluted earnings per share.
5 Inventories
Inventories are comprised of the following:
<TABLE>
<CAPTION>
June 30, December 31,
1996 1995
---- ----
<S> <C> <C>
Finished products $130.0 $117.7
Raw materials, parts and assemblies 55.7 40.5
Work in-process 11.6 8.0
------ ------
$197.3 $166.2
====== ======
</TABLE>
6 Long-Term Debt
Effective June 1, 1996, the Company issued $100 debentures bearing an
interest rate of 7.05% due June 1, 2026. The debentures are
redeemable at the option of the holder on June 1, 2006. The Company
has the option to redeem the debentures at any time after June 1,
2006. Interest is payable semi-annually on June 1 and December 1.
Debt issuance costs of approximately $1.2 are being amortized to
interest expense over the term of the debentures.
7 Investments
Effective January 2, 1996, the Company acquired Hybritech
Incorporated, a San Diego-based life sciences and diagnostic company,
for a purchase price not material to the Company. The acquisition
expanded the Company's ability to develop and manufacture high
sensitivity immunoassays, including cancer tests. The acquisition was
accounted for as a purchase.
8 Contingencies
Litigation
As previously reported, the pubic prosecutor in Palermo (Sicily),
Italy is investigating the activities of officials at a local
government hospital and laboratory as well as representatives of the
principal worldwide companies marketing diagnostic equipment in
Palermo, including the Company's Italian subsidiary. The inquiry
focuses on past leasing practices for placement of diagnostic
equipment which were common industry-wide practices throughout Italy,
but now are alleged to be improper. The court hearings scheduled for
mid-May 1996 to allow the prosecutor to present evidence of alleged
improper conduct in order to persuade the Court to hold a trial were
postponed to mid-September 1996. The Company believes the evidence in
the case is weak and insufficient to support a criminal conviction.
In addition to the previously reported activities in Palermo, the
public prosecutor in Campobasso (southern Italy) has named a plurality
of individuals from approximately twenty companies relating to alleged
improper equipment leasing practices which as stated previously, were
common industry-wide practices throughout Italy. One such named
individual is a former employee of the Company's Italian subsidiary
which had less than approximately forty thousand dollars of sales in
Campobasso over the time period in question. The Company's attorneys
are seeking a dismissal based on such a limited business volume.
The Company and its subsidiaries are involved in a number of lawsuits
which the Company considers normal in view of its size and the nature
of its business. The Company does not believe that any liability
resulting from any such lawsuits, or the matter described above, will
have a material adverse effect on its operations or financial
position.
<PAGE>
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
(Dollars in millions, except per share amounts)
Operations
Sales for the second quarter and six month period ended June 30,
1996 were $265.2 and $490.0,an increase of $34.6 and $54.4 as
compared with the same periods from the prior year. Excluding
the impact of changes in foreign currency exchange rates, second
quarter sales were $39.6 higher compared to the same period in
1995 and the six months reported sales were higher by about $58.7
compared to last year. Sales for the North American diagnostic
business increased over the prior year. The North American
bioresearch business continues to be impacted by decreased
government funding in 1996, however, began to recover slightly in
the second quarter. International diagnostic and bioresearch
sales for the first six months continue to be strong with 8%
growth over the prior year despite unfavorable foreign currency
impacts in the current year. European markets continue to be
impacted by a recession and cost containment initiatives in
several European health care systems. International sales are
expected to continue to be impacted by weak markets, particularly
in Europe.
Operating income for the second quarter and six months ended June
30, 1996 were $31.0 and $52.5, representing an increase of 32.5%
and 28.7% over the same periods in 1995. Operating income in
1995 included a restructuring charge of $3.4 and $6.5 for the
second quarter and six months, related to the reorganization and
restructuring program completed in 1995. Cost of sales for the
second quarter and six months increased over the same period in
the prior year, but remained constant as a percent of sales.
Selling, general and administrative expenses in the second
quarter and six months of 1996 increased, compared to the same
period last year, but remained comparable as a percentage of
sales. Research and development expenses increased over the
second quarter and first six months of last year, although only a
slight increase as a percentage of sales.
The reorganization and restructuring plan announced in the fourth
quarter of 1993 has resulted in year-to-date 1996 savings of
about $25 which are mainly attributable to the reduction of more
than 1,400 personnel from 1993. The Company anticipates savings
from the restructuring program to be about $50 in 1996, but not
incremental to earnings due to certain transition costs, general
salary and cost increases, as well as fluctuating foreign
currencies.
Nonoperating expenses increased by $0.2 for the second quarter
and decreased $0.6 for the first six months compared to prior
year.
Earnings before income taxes for the second quarter increased to
$28.3 from $20.9 in the second quarter of 1995 and the first six
months increased to $48.8 from $36.5 in the prior year (1995
included a restructuring charge of $3.4 for the second quarter
and $6.5 for the first six months). The effective tax rate
decreased to 33% from 34% in the prior year as a result of a
lower tax rate in the U.S. due to the utilization of foreign tax
credits.
Net earnings for the second quarter and first six months of 1996
increased to $19.0 and $32.7 or $0.65 and $1.12 per share
compared to the corresponding amounts in 1995 of $13.8 and $24.1,
or $0.48 and $0.84 per share. Net earnings in 1995 included a
restructuring charge of $3.4($0.08 per share) for the second
quarter and $6.5 ($0.15 per share) for the first six months.
Financial Condition
For the six months ended June 30, 1996, the Company had positive
cash flow from operating activities of $20.1. This represents an
increase of $8.6 from the same period in 1995. Contributing to
the increase was decreased restructuring expenditures and the
change in accounts payable and accrued expenses.
For the six months ended June 30, 1996, the Company had negative
cash flow from investing activities of $44.6, representing a
decrease in cash used of $17.5 over the same period in 1995.
This change was primarily a result of decreased additions to
property, plant and equipment, short-term investments and equity
investments in the current year.
The ratio of debt to capitalization at June 30, 1996 was 37.6%
compared to 33.9% at December 31, 1995. The ratio of current
assets to current liabilities at June 30, 1996 of 2.1 is
comparable to December 31, 1995. The Company believes it has
adequate financial resources to meet expected cash flow
requirements for the foreseeable future.
On June 6, 1996, the Company paid a quarterly cash dividend of
$0.13 per share of common stock for a total of $3.7. On June 6,
1996, the Board of Directors declared a $0.13 per share dividend
payable on September 12, 1996.
On April 5, 1996, the Company filed a registration statement with
the SEC on Form S-3 which was subsequently declared effective by
the SEC, permitting the Company to issue up to $200 of debt
during the next two years. Effective June 1, 1996, the Company
issued $100 of debentures bearing an interest rate of 7.05% per
annum due June 1, 2026. The net proceeds of approximately $99
were used to pay down the Company's borrowings from its
commercial paper program.
<PAGE>
PART II
OTHER INFORMATION
Item 1. Legal Proceedings
As previously reported, the public prosecutor
in Palermo (Sicily), Italy is investigating the
activities of officials at a local government
hospital and laboratory as well as representatives
of the principal worldwide companies marketing
diagnostic equipment in Palermo, including the
Company's Italian subsidiary. The inquiry focuses
on past leasing practices for placement of
diagnostic equipment which were common industry-wide
practices throughout Italy, but now are alleged to
be improper. The court hearings scheduled for mid-
May 1996 to allow the prosecutor to present evidence
of alleged improper conduct in order to persuade the
Court to hold a trial were postponed to mid-
September 1996. The Company believes the evidence
in the case is weak and insufficient to support a
criminal conviction.
In addition to the previously reported
activities in Palermo, the public prosecutor in
Campobasso (southern Italy) has named a plurality of
individuals from approximately twenty companies
relating to alleged improper equipment leasing
practices which as stated previously, were common
industry-wide practices throughout Italy. One such
named individual is a former employee of the
Company's Italian subsidiary which had less than
approximately forty thousand dollars of sales in
Campobasso over the time period in question. The
Company's attorneys are seeking a dismissal based on
such a limited business volume.
Item 2. Changes In Securities
None.
Item 3. Defaults Upon Senior Securities
None.
Item 4. Submission of Matters to a Vote of Security-Holders
None.
Item 5. Other Information
None.
Item 6. Exhibits and Reports on Form 8-K
a) Exhibits
10.1 Senior Indenture between the Company and
The First National Bank of Chicago as Trustee,
dated as of May 15, 1996.
10.2 7.05% Debentures Due June 1, 2026.
10.3 Agreement Regarding Retirement Benefits of
Fidencio M. Mares, adopted and dated April 30,
1996, between the Company and Fidencio M. Mares.
11. Statement re Computation of Per Share Earnings:
This information is set forth in Note 4 Earnings
Per Share of the Condensed Consolidated Financial
Statements included in Part I herein.
15. Independent Accountants' Review Report,
July 18, 1996
27. Financial Data Schedule
b) Reports on Form 8-K
None.
<PAGE>
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized.
BECKMAN INSTRUMENTS, INC.
(Registrant)
Date: July 24, 1996 by /s/ William H. May
William H. May
Vice President, General
Counsel and Secretary
Date: July 24, 1996 by /s/ James T. Glover
James T. Glover
Vice President and
Controller (Principal
Accounting Officer)
<PAGE>
EXHIBIT INDEX
FORM 10-Q, SECOND QUARTER, 1996
Exhibit
Number Description
- ------- -----------
10.1 Senior Indenture between the Company and The
First National Bank of Chicago as Trustee, dated as
of May 15, 1996.
10.2 7.05% Debentures Due June 1, 2026.
10.3 Agreement Regarding Retirement Benefits of
Fidencio M. Mares, adopted and dated April 30, 1996,
between the Company and Fidencio M. Mares.
11. Statement re Computation of Per Share Earnings:
This information is set forth in Note 4 Earnings Per
Share of the Condensed Consolidated Financial
Statements included in Part I herein.
15. Independent Accountants' Review Report, July 18, 1996
27. Financial Data Schedule
Exhibit 10.1
BECKMAN INSTRUMENTS, INC.
AND
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
______________
Senior Indenture
Dated as of May 15, 1996
______________
<PAGE>
--------------------------------------------------
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
Section 310(a)(1) 609
(a)(2) 609
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 608
610
Section 311(a) 613
(b) 613
Section 312(a) 701
702
(b) 702
(c) 702
Section 313(a) 703
(b) 703
(c) 703
(d) 703
Section 314(a) 704
(a)(4) 101
1004
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
Section 315(a) 601
(b) 602
(c) 601
(d) 601
(e) 514
Section 316(a) 101
(a)(1)(A) 502
512
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 508
(c) 104
Section 317(a)(1) 503
(a)(2) 504
(b) 1003
Section 318(a) 107
___________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
__________
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RECITALS OF THE COMPANY 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions 1
Act 2
Affiliate 2
Attributable Value 2
Authenticating Agent 2
Board of Directors 2
Board Resolution 2
Business Day 2
Commission 3
Company 3
Company Request 3
Company Order 3
Consolidated Net Tangible Assets 3
Conversion Price 3
Corporate Trust Office 3
corporation 3
Covenant Defeasance 3
Defaulted Interest 3
Defeasance 3
Depositary 3
Equipment Held for Resale 4
Event of Default 4
Exchange Act 4
Expiration Date 4
Global Security 4
Holder 4
Indenture 4
Interest 4
Interest Payment Date 4
Investment Company Act 4
Lien 4
Maturity 4
<PAGE>
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Notice of Default 5
Officers' Certificate 5
Opinion of Counsel 5
Original Issue Discount Security 5
Outstanding 5
Paying Agent 6
Person 6
Place of Payment 6
Predecessor Security 6
Principal Property 6
Redemption Date 6
Redemption Price 7
Regular Record Date 7
Responsible Officer 7
Restricted Subsidiary 7
Securities 7
Securities Act 7
Security Register 7
Security Registrar 7
Special Record Date 7
Stated Maturity 7
Subsidiary 7
Trust Indenture Act 7
Trustee 8
U.S. Government Obligation 8
Vice President 8
SECTION 102. Compliance Certificates and Opinions 8
SECTION 103. Form of Documents Delivered to Trustee 9
SECTION 104. Acts of Holders; Record Dates 9
SECTION 105. Notices, Etc., to Trustee and Company 11
SECTION 106. Notice to Holders; Waiver 12
SECTION 107. Conflict with Trust Indenture Act 12
SECTION 108. Effect of Headings and Table of Contents 12
SECTION 109. Successors and Assigns 12
SECTION 110. Separability Clause 13
SECTION 111. Benefits of Indenture 13
SECTION 112. Governing Law 13
SECTION 113. Legal Holidays 13
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally 13
SECTION 202. Form of Face of Security 14
<PAGE>
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SECTION 203. Form of Reverse of Security 16
SECTION 204. Form of Legend for Global Securities 21
SECTION 205. Form of Trustee's Certificate of Authentication 22
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series 22
SECTION 302. Denominations 25
SECTION 303. Execution, Authentication, Delivery and Dating 25
SECTION 304. Temporary Securities 26
SECTION 305. Registration, Registration of Transfer and Exchang 27
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities 29
SECTION 307. Payment of Interest; Interest Rights Preserved 29
SECTION 308. Persons Deemed Owners 31
SECTION 309. Cancellation 31
SECTION 310. Computation of Interest 31
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Page
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SECTION 401. Satisfaction and Discharge of Indenture 32
SECTION 402. Application of Trust Money 33
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default 33
SECTION 502. Acceleration of Maturity; Rescission and Annulmen 35
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee 36
SECTION 504. Trustee May File Proofs of Claim 37
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities 37
SECTION 506. Application of Money Collected 38
SECTION 507. Limitation on Suits 38
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest 39
<PAGE>
Page
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SECTION 509. Restoration of Rights and Remedies 39
SECTION 510. Rights and Remedies Cumulative 39
SECTION 511. Delay or Omission Not Waiver 39
SECTION 512. Control by Holders 40
SECTION 513. Waiver of Past Defaults 40
SECTION 514. Undertaking for Costs 40
SECTION 515. Waiver of Usury, Stay or Extension Laws 41
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities 41
SECTION 602. Notice of Defaults 41
SECTION 603. Certain Rights of Trustee 42
SECTION 604. Not Responsible for Recitals or Issuance of Securities 43
SECTION 605. May Hold Securities 43
SECTION 606. Money Held in Trust 43
SECTION 607. Compensation and Reimbursement 43
SECTION 608. Conflicting Interests 44
SECTION 609. Corporate Trustee Required; Eligibility 44
SECTION 610. Resignation and Removal; Appointment of Successor 44
SECTION 611. Acceptance of Appointment by Successor 46
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business 47
SECTION 613. Preferential Collection of Claims Against Company 47
SECTION 614. Appointment of Authenticating Agent 47
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders 49
SECTION 702. Preservation of Information; Communications to Holders 49
SECTION 703. Reports by Trustee 50
SECTION 704. Reports by Company 50
<PAGE>
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms 50
SECTION 802. Successor Substituted 51
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders 52
SECTION 902. Supplemental Indentures With Consent of Holders 53
SECTION 903. Execution of Supplemental Indentures 54
SECTION 904. Effect of Supplemental Indentures 54
SECTION 905. Conformity with Trust Indenture Act 54
SECTION 906.Reference in Securities to Supplemental Indentures 55
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest 55
SECTION 1002. Maintenance of Office or Agency 55
SECTION 1003. Money for Securities Payments to Be Held in Trust 56
SECTION 1004. Statement by Officers as to Default 57
SECTION 1005. Existence 57
SECTION 1006. Maintenance of Properties 57
SECTION 1007. Payment of Taxes and Other Claims 57
SECTION 1008. Limitation on Liens 58
SECTION 1009. Limitation on Sale and Leaseback Transactions 59
SECTION 1010. Waiver of Certain Covenants 60
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article 60
SECTION 1102 Election to Redeem; Notice to Trustee 60
SECTION 1103. Selection by Trustee of Securities to Be Redeemed 61
SECTION 1104. Notice of Redemption 61
SECTION 1105. Deposit of Redemption Price 62
SECTION 1106. Securities Payable on Redemption Date 62
SECTION 1107. Securities Redeemed in Part 63
<PAGE>
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ARTICLE TWELVE
CONVERSION OF SECURITIES
SECTION 1201. Applicability; Conversion Privilege and Conversion
Price 63
SECTION 1202. Exercise of Conversion Privilege 64
SECTION 1203. Fractions of Shares 64
SECTION 1204. Adjustment of Conversion Price 65
SECTION 1205. Notice of Adjustments of Conversion Price 69
SECTION 1206. Notice of Certain Corporate Action 69
SECTION 1207. Company to Reserve Common Stock 70
SECTION 1208. Taxes on Conversions 70
SECTION 1209. Covenant as to Common Stock 70
SECTION 1210. Cancellation of Converted Securities 70
SECTION 1211. Provisions in Case of Consolidation, Merger or
Sale of Assets 71
SECTION 1212. Responsibility of Trustee 71
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 1301. Applicability of Article 72
SECTION 1302. Satisfaction of Sinking Fund Payments with Securities 72
SECTION 1303. Redemption of Securities for Sinking Fund 72
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or
Covenant Defeasance 73
SECTION 1402. Defeasance and Discharge 73
SECTION 1403. Covenant Defeasance 74
SECTION 1404. Conditions to Defeasance or Covenant Defeasance 74
SECTION 1405. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous Provisions 76
SECTION 1406. Reinstatement 77
__________________
NOTE: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE>
INDENTURE, dated as of May 15, 1996, between Beckman
Instruments, Inc., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the
"Company"), having its principal office at 2500 Harbor Boulevard,
Fullerton, California 92634 and The First National Bank of
Chicago, a national banking association duly organized and
existing under the laws of the United States, as Trustee (herein
called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time
to time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the "Securities"), to be issued in
one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually
agreed, for the equal and proportionate benefit of all Holders of
the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles, and, except as
otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such
accounting principles as are generally accepted-at the date
of this instrument-at the date of such computation;
(4) unless the context otherwise requires, any
reference to an "Article" or a "Section" refers to an
Article or a Section, as the case may be, of this Indenture;
and
(5) 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.
"Act," when used with respect to any Holder, has the
meaning specified in Section 104.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Attributable Value," when used with respect to any
sale and leaseback transaction means, as of the time of
determination, the total obligation (discounted to present value
at the highest rate of interest specified by the terms of any
series of Securities then Outstanding compounded semi-annually)
of the lessee for rental payments (other than amounts required to
be paid on account of property taxes as well as maintenance,
repairs, insurance, water rates and other items which do not
constitute payments for property rights) during the remaining
portion of the base term of the lease included in such sale and
leaseback transaction.
"Authenticating Agent" means any Person authorized by
the Trustee pursuant to Section 614 to act on behalf of the
Trustee to authenticate Securities of one or more series.
"Board of Directors" means either the board of
directors of the Company or any duly authorized committee of that
board.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day," when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in that
Place of Payment are authorized or obligated by law or executive
order to close.
"Commission" means the Securities and Exchange
Commission, from time to time constituted, created under the
Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the "Company" in
the first paragraph of this instrument until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor Person.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Net Tangible Assets" of the Company means
the aggregate amount of assets (less applicable reserves and
other properly deductible items) after deducting therefrom (a)
all current liabilities (excluding any indebtedness for money
borrowed having a maturity of less than 12 months from the date
of the most recent consolidated balance sheet of the Company but
which by its terms is renewable or extendable beyond 12 months
from such date at the option of the borrower) and (b) all
goodwill, trade names, patents, unamortized debt discount and
expense and any other like intangibles, all as set forth on the
most recent consolidated balance sheet of the Company and
computed in accordance with generally accepted accounting
principles.
"Conversion Price" has the meaning specified in
Section 1201.
"Corporate Trust Office" means the principal office of
the Trustee in the City of Chicago, Illinois at which at any
particular time its corporate trust business shall be
administered.
"corporation" means a corporation, association,
company, joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1403.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1402.
"Depositary" means, with respect to Securities of any
series issuable in whole or in part in the form of one or more
Global Securities, a clearing agency registered under the
Exchange Act that is designated to act as Depositary for such
Securities as contemplated by Section 301.
"Equipment Held for Resale" means instrument systems
and related accessories and components manufactured or assembled
by the Company that are owned and held for placement in
facilities of the Company's customers.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and
any statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all
or part of the Securities of any series and bears the legend set
forth in Section 204 (or such legend as may be specified as
contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally
executed and as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term "Indenture" shall
also include the terms of particular series of Securities
established as contemplated by Section 301.
"interest," when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an instalment of interest on such Security.
"Investment Company Act" means the Investment Company
Act of 1940 and any statute successor thereto, in each case as
amended from time to time.
"Lien" means, with respect to any property or assets,
any mortgage or deed of trust, pledge, hypothecation, assignment,
security interest, lien, encumbrance, or other security
arrangement of any kind or nature whatsoever on or with respect
to such property or assets (including any conditional sale or
other title retention agreement having substantially the same
economic effect as any of the foregoing).
"Maturity," when used with respect to any Security,
means the date on which the principal of such Security or an
instalment of principal becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind
specified in Section 501(4) or 501(5).
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 1004
shall be the principal executive, financial or accounting officer
of the Company.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company, and who shall be
reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security
which provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities,
means, as of the date of determination, all Securities heretofore
authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been
effected pursuant to Section 1402; and
(4) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have
given, made or taken any request, demand, authorization,
direction, notice, consent, waiver or other action hereunder as
of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall
be the amount of the principal thereof which would be due and
payable as of such date upon acceleration of the Maturity thereof
to such date pursuant to Section 502, (B) if, as of such date,
the principal amount payable at the Stated Maturity of a Security
is not determinable, the principal amount of such Security which
shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 301, (C) the
principal amount of a Security denominated in one or more foreign
currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of
such date in the manner provided as contemplated by Section 301,
of the principal amount of such Security (or, in the case of a
Security described in Clause (A) or (B) above, of the amount
determined as provided in such Clause), and (D) Securities owned
by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice,
consent, waiver or other action, only Securities which the
Trustee knows to be 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 Company or any other
obligor upon the Securities or any Affiliate of the Company or of
such other obligor.
"Paying Agent" means any Person authorized by the
Company to pay the principal of or any premium or interest on any
Securities on behalf of the Company.
"Person" means any individual, corporation,
partnership, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the
Securities of any series, means the place or places where the
principal of and any premium and interest on the Securities of
that series are payable as specified as contemplated by
Section 301.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Principal Property" means any real property of the
Company or any of its Subsidiaries, and any equipment located at
or comprising a part of any such property, having a net book
value, as of the date of determination, in excess of the greater
of $50,000,000 and 10% of Consolidated Net Tangible Assets of the
Company; provided, however, that Principal Property shall not
include Equipment Held for Resale.
"Redemption Date," when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"Redemption Price," when used with respect to any
Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the
date specified for that purpose as contemplated by Section 301.
"Responsible Officer," when used with respect to the
Trustee, means the chairman or any vice-chairman of the board of
directors, the chairman or any vice-chairman of the executive
committee of the board of directors, the chairman of the trust
committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any
other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" means any Subsidiary of the
Company which owns or leases a Principal Property.
"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any
Securities authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 and
any statute successor thereto, in each case as amended from time
to time.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any
Security or any instalment of principal thereof or interest
thereon, means the date specified in such Security as the fixed
date on which the principal of such Security or such instalment
of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries,
or by the Company and one or more other Subsidiaries. For the
purposes of this definition, "voting stock" means stock which
ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock
has such voting power by reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this instrument until a successor Trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee
with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified
in Section 1404.
"Vice President," when used with respect to the Company
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 "vice president."
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture,
the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and
any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture
(except for certificates provided for in Section 1004) shall
include,
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(2) 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;
(3) a statement that, in the opinion of each such
individual, 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
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the matters upon which his certificate or opinion is
based are erroneous. Any such certificate or opinion of counsel
may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders may be embodied
in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders 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 and, where it is
hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in
any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the
Security Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall
bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such
action is made upon such Security.
The Company may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities of
any series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or
taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this
paragraph shall not apply with respect to, the giving or making
of any notice, declaration, request or direction referred to in
the next paragraph. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant
series on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and
of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Company,
at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to
be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in
Section 106.
The Trustee may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities of
any series entitled to join in the giving or making of (i) any
Notice of Default, (ii) any declaration of acceleration referred
to in Section 502, (iii) any request to institute proceedings
referred to in Section 507(2) or (iv) any direction referred to
in Section 512, in each case with respect to Securities of such
series. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities of such series on such record
date, and no other Holders, shall be entitled to join in such
notice, declaration, request or direction, whether or not such
Holders remain Holders after such record date; provided that no
such action shall be effective hereunder unless taken on or prior
to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action
for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and
of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Trustee,
at the Company's expense, shall cause notice of such record date,
the proposed action by Holders and the applicable Expiration Date
to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in
Section 106.
With respect to any record date set pursuant to this
Section, the party hereto which sets such record dates may
designate any day as the "Expiration Date" and from time to time
may change the Expiration Date to any earlier or later day;
provided that no such change shall be effective unless notice of
the proposed new Expiration Date is given to the other party
hereto in writing, and to each Holder of Securities of the
relevant series in the manner set forth in Section 106, on or
prior to the existing Expiration Date. If an Expiration Date is
not designated with respect to any record date set pursuant to
this Section, the party hereto which set such record date shall
be deemed to have initially designated the 180th day after such
record date as the Expiration Date with respect thereto, subject
to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record
date.
Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any
particular Security may do so with regard to all or any part of
the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal
amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished
to, or filed with,
(1) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Services
Division, or
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-
class postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first
paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such
event, at his address as it appears in the Security Register, not
later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice.
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 regular mail
service or by reason of any other cause it shall be impracticable
to give such notice by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts
with a provision of the Trust Indenture Act which is required
under the Trust Indenture Act to be a part of and govern this
Indenture, the latter provision shall control. If any provision
of this Indenture modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table
of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express
or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders, any
benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by
and construed in accordance with the law of the State of New
York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities (other than a
provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any) need not be made at
such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially
the form set forth in this Article, or in such other form as
shall be established by or pursuant to a Board Resolution 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 such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or
Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as
evidenced by their execution thereof. If the form of Securities
of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall
be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery
of the Company Order contemplated by Section 303 for the
authentication and delivery of such 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 202. Form of Face of Security.
(Insert any legend required by the Internal Revenue
Code and the regulations thereunder.)
BECKMAN INSTRUMENTS, INC.
(Insert title of Securities)
No. _________ $ ________
Beckman Instruments, Inc., a corporation duly organized
and existing under the laws of the State of Delaware (herein
called the "Company," which term includes any successor Person
under the Indenture hereinafter referred to), for value received,
hereby promises to pay to ___________________________________, or
registered assigns, the principal sum of
__________________________________________ Dollars on
_____________________________________ (if the Security is to bear
interest prior to Maturity, insert - , and to pay interest
thereon from _________ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-
annually on ________ and ________ in each year, commencing
_______, at the rate of ___% per annum, until the principal
hereof is paid or made available for payment (if applicable,
insert - , provided that any principal and premium, and any such
instalment of interest, which is overdue shall bear interest at
the rate of ___% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for
payment, and such interest shall be payable on demand). The
interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be
paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be the
_____ or _____ (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of Securities of this series not less
than 10 days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities
of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said
Indenture).
(If the Security is not to bear interest prior to Maturity,
insert - The principal of this Security shall not bear interest
except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such
case the overdue principal and any overdue premium shall bear
interest at the rate of ___% per annum (to the extent that the
payment of such interest shall be legally enforceable), from the
dates such amounts are due until they are paid or made available
for payment. Interest on any overdue principal or premium shall
be payable on demand. (Any such interest on overdue principal or
premium which is not paid on demand shall bear interest at the
rate of _____% per annum (to the extent that the payment of such
interest on interest shall be legally enforceable), from the date
of such demand until the amount so demanded is paid or made
available for payment. Interest on any overdue interest shall be
payable on demand.))
Payment of the principal of (and premium, if any) and
(if applicable, insert - any such) interest on this Security will
be made at the office or agency of the Company maintained for
that purpose in __________, in such coin or currency of the
United States of America as at the time of payment is legal
tender for payment of public and private debts (if applicable,
insert - ; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the
Security Register).
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
<PAGE>
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated:
BECKMAN INSTRUMENTS, INC.
By _______________________
Attest:
_____________________
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture,
dated as of May 15, 1996 (herein called the "Indenture," which
term shall have the meaning assigned to it in such instrument),
between the Company and The First National Bank of Chicago, as
Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), and reference is hereby
made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Securities and of the
terms upon which the Securities are, and are to be, authenticated
and delivered. This Security is one of the series designated on
the face hereof (if applicable, insert - , limited in aggregate
principal amount to $_______)).
(If applicable, insert - Subject to and upon compliance
with the provisions of the Indenture, the Holder of this Security
is entitled, at his option, at any time on or before the close of
business on _________________ or in case this Security or a
portion hereof is called for redemption, then in respect of this
Security or such portion hereof until and including, but (unless
the Company defaults in making the payment due upon redemption)
not after, the close of business on the Redemption Date, to
convert this Security (or any portion of the principal amount
hereof which is $1,000 or an integral multiple thereof), at the
principal amount hereof, or of such portion, into fully paid and
non-assessable shares (calculated as to each conversion to the
nearest 1/100 of a share) of Common Stock of the Company at a
Conversion Price of $_________ per share of Common Stock (or at
the current adjusted Conversion Price if an adjustment has been
made as provided in the Indenture) by surrender of this Security,
duly endorsed or assigned to the Company or in blank, to the
Company at its office or agency in the City of ____________, or
in the City of _______________, accompanied by written notice to
the Company that the Holder hereof elects to convert this
Security, or if less than the entire principal amount hereof is
to be converted, the portion hereof to be converted, and, in case
such surrender shall be made during the period from the close of
business on any Regular Record Date next preceding any Interest
Payment Date to the opening of business on such Interest Payment
Date (unless this Security or the portion thereof being converted
has been called for redemption on a Redemption Date within such
period), also accompanied by payment in New York Clearing House
or other funds acceptable to the Company of an amount equal to
the interest payable on such Interest Payment Date on the
principal amount of this Security then being converted. Subject
to the aforesaid requirement for payment and, in the case of a
conversion after the Regular Record Date next preceding any
Interest Payment Date and on or before such Interest Payment
Date, to the right of the Holder of this Security (or any
Predecessor Security) of record at such Regular Record Date to
receive an instalment of interest (with certain exceptions
provided in the Indenture), no payment or adjustment is to be
made on conversion for interest accrued hereon or for dividends
on the Common Stock issued on conversion. No fractional shares or
scrip representing fractional shares of Common Stock will be
issued on conversion, but instead of any fractional interest the
Company shall pay a cash adjustment as provided in the Indenture.
The Conversion Price is subject to adjustment as provided in the
Indenture. In addition, the Indenture provides that in case of
certain consolidations or mergers to which the Company is a party
or the sale or transfer of all or substantially all of the assets
of the Company, the Indenture shall be amended, without the
consent of any Holders of Securities, so that this Security, if
then outstanding, will be convertible thereafter, during the
period this Security shall be convertible as specified above,
only into the kind and amount of securities, cash and other
property receivable upon the consolidation, merger, sale or
transfer by a holder of the number of shares of Common Stock of
the Company into which this Security might have been converted
immediately prior to such consolidation, merger, sale or
transfer, assuming such holder of Common Stock of the Company
failed to exercise his rights of election, if any, as to the kind
or amount of securities, cash and other property receivable upon
such consolidation, merger, sale or transfer (provided that if
the kind or amount of securities, cash and other property so
receivable is not the same for each non-electing share of Common
Stock of the Company, then the kind and amount of securities,
cash and other property so receivable by each non-electing share
shall be deemed to be the kind and amount so receivable per share
by a plurality of the non-electing shares).)
(If applicable, insert - The Securities of this series
are subject to redemption upon not less than 30 days' notice by
mail, (if applicable, insert - (1) on _______ in any year
commencing with the year _____ and ending with the year _____
through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and
(2)) at any time (if applicable, insert - on or after _____,
19___), as a whole or in part, at the election of the Company, at
the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed (if applicable, insert - on or
before __________, ___%, and if redeemed) during the 12-month
period beginning ________ of the years indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to ___% of the
principal amount, together in the case of any such redemption (if
applicable, insert - (whether through operation of the sinking
fund or otherwise)) with accrued interest to the Redemption Date,
but interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.)
(If applicable, insert - The Securities of this series
are subject to redemption upon not less than 30 days' notice by
mail, (1) on __________ in any year commencing with the year ___
and ending with the year ___ through operation of the sinking
fund for this series at the Redemption Prices for redemption
through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at
any time (if applicable, insert - on or after ________), as a
whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation
of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-
month period beginning _________ of the years indicated,
Redemption Price Redemption Price For
For Redemption Redemption Otherwise
Through Operation of Than Through Operation
Year the Sinking Fund of the Sinking Fund
---- -------------------- ----------------------
and thereafter at a Redemption Price equal to ___% of the
principal amount, together in the case of any such redemption
(whether through operation of the sinking fund or otherwise) with
accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.)
(If applicable, insert - Notwithstanding the foregoing,
the Company may not, prior to _________, redeem any Securities of
this series as contemplated by (if applicable, insert -
Clause (2) of) the preceding paragraph as a part of, or in
anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest
cost to the Company (calculated in accordance with generally
accepted financial practice) of less than ____% per annum.)
(If applicable, insert - The sinking fund for this
series provides for the redemption on _______ in each year
beginning with the year ______ and ending with the year _____ of
(if applicable, insert - not less than $_______ ("mandatory
sinking fund") and not more than) $______ aggregate principal
amount of Securities of this series. Securities of this series
acquired or redeemed by the Company otherwise than through (if
applicable, insert - mandatory) sinking fund payments may be
credited against subsequent (if applicable, insert - mandatory)
sinking fund payments otherwise required to be made (if applicable,
insert - , in the inverse order in which they become due).)
(If the Security is subject to redemption of any kind,
insert - In the event of redemption of this Security in part
only, a new Security or Securities of this series and of like
tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.)
(If applicable, insert - The Indenture contains
provisions for defeasance at any time of (the entire indebtedness
of this Security) (or) (certain restrictive covenants and Events
of Default with respect to this Security) (, in each case) upon
compliance with certain conditions set forth in the Indenture.)
(If the Security is not an Original Issue Discount
Security, insert - If an Event of Default with respect to
Securities of this series shall occur and be continuing, the
principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the
Indenture.)
(If the Security is an Original Issue Discount
Security, insert - If an Event of Default with respect to
Securities of this series shall occur and be continuing, an
amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to - insert
formula for determining the amount. Upon payment (i) of the
amount of principal so declared due and payable and (ii) of
interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be
legally enforceable), all of the Company's obligations in respect
of the payment of the principal of and premium and interest, if
any, on the Securities of this series shall terminate.)
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of at least a majority in principal amount
of the Securities at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the
Securities of each series at the time Outstanding, on behalf of
the Holders of all Securities of such series, to waive compliance
by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less
than 25% in principal amount of the Securities of this series at
the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity,
and the Trustee shall not have received from the Holders of a
majority in principal amount of Securities of this series at the
time Outstanding a direction inconsistent with such request, and
shall have failed to institute any such proceeding, for 60 days
after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of
the Company in any place where the principal of and any premium
and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in
registered form without coupons in denominations of $_______ and
any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name
this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
SECTION 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section
301 for the Securities evidenced thereby, every Global Security
authenticated and delivered hereunder shall bear a legend in
substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO
TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED,
IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
<PAGE>
SECTION 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be
in substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
As Trustee
By_________________________________
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. 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 Board Resolution
and, subject to Section 303, set forth, or determined in the
manner provided, 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
Securities of any other series);
(2) any limit upon the aggregate principal amount of
the Securities of the series which 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 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to
Section 303, are deemed never to have been authenticated and
delivered hereunder);
(3) the Person to whom any interest on a Security of
the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of any
Securities of the series is payable;
(5) the rate or rates at which any Securities of the
series shall bear interest, if any, the date or dates from
which any such interest shall accrue, the Interest Payment
Dates on which any such interest shall be payable and the
Regular Record Date for any such interest payable on any
Interest Payment Date;
(6) the place or places where the principal of and any
premium and interest on any Securities of the series shall
be payable;
(7) the period or periods within which, the price or
prices at which and the terms and conditions upon which any
Securities of the series may be redeemed, in whole or in
part, at the option of the Company and, if other than by a
Board Resolution, the manner in which any election by the
Company to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem
or purchase any Securities of the series pursuant to any
sinking fund or analogous provisions or at the option of the
Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon
which any Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which any
Securities of the series shall be issuable;
(10) if the amount of principal of or any premium or
interest on any Securities of the series may be determined
with reference to an index or pursuant to a formula, the
manner in which such amounts shall be determined;
(11) if other than the currency of the United States of
America, the currency, currencies or currency units in which
the principal of or any premium or interest on any
Securities of the series shall be payable and the manner of
determining the equivalent thereof in the currency of the
United States of America for any purpose, including for
purposes of the definition of "Outstanding" in Section 101;
(12) if the principal of or any premium or interest on
any Securities of the series is to be payable, at the
election of the Company or the Holder thereof, in one or
more currencies or currency units other than that or those
in which such Securities are stated to be payable, the
currency, currencies or currency units in which the
principal of or any premium or interest on such Securities
as to which such election is made shall be payable, the
periods within which and the terms and conditions upon which
such election is to be made and the amount so payable (or
the manner in which such amount shall be determined);
(13) if other than the entire principal amount thereof,
the portion of the principal amount of any Securities of the
series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to
Section 502;
(14) if the principal amount payable at the Stated
Maturity of any Securities of the series will not be
determinable as of any one or more dates prior to the Stated
Maturity, the amount which shall be deemed to be the
principal amount of such Securities as of any such date for
any purpose thereunder or hereunder, including the principal
amount thereof which shall be due and payable upon any
Maturity other than the Stated Maturity or which shall be
deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such
amount deemed to be the principal amount shall be
determined);
(15) if applicable, that the Securities of the series,
in whole or any specified part, shall be defeasible pursuant
to Section 1402 or Section 1403 or both such Sections and,
if other than by a Board Resolution, the manner in which any
election by the Company to defease such Securities shall be
evidenced;
(16) if applicable, that any Securities of the series
shall be issuable in whole or in part in the form of one or
more Global Securities and, in such case, the respective
Depositaries for such Global Securities, the form of any
legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in
Section 204 and any circumstances in addition to or in lieu
of those set forth in Clause (2) of the last paragraph of
Section 305 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and
any transfer of such Global Security in whole or in part may
be registered, in the name or names of Persons other than
the Depositary for such Global Security or a nominee
thereof;
(17) if applicable, that the Securities of the series
shall be convertible as provided in Article Twelve;
(18) any addition to or change in the Events of Default
which applies to any Securities of the series and any change
in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and
payable pursuant to Section 502;
(19) any addition to or change in the covenants set
forth in Article Ten which applies to Securities of the
series; and
(20) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture,
except as permitted by Section 901(5)).
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 the Board Resolution referred to
above and (subject to Section 303) set forth, or determined in
the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered
to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable only in
registered form without coupons and only in such denominations as
shall be specified as contemplated by Section 301. In the absence
of any such specified denomination with respect to the Securities
of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the
Company by its Chairman of the Board, its Vice Chairman of the
Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or
one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee
for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee
in accordance with the Company Order shall authenticate and
deliver such Securities. If the form or terms of the Securities
of the series have been established by or pursuant to one or more
Board Resolutions as permitted by Sections 201 and 301, 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 601) shall be fully protected in relying
upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been
established by or pursuant to Board Resolution as permitted
by Section 201, that such form has been established in
conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been
established by or pursuant to Board Resolution as permitted
by Section 301, that such terms have been established in
conformity with the provisions of this Indenture; and
(3) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally
binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue of
such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of
the preceding paragraph, if all Securities of a series are not to
be originally issued at one time, it shall not be necessary to
deliver the Officers' Certificate otherwise required pursuant to
Section 301 or the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in
Section 309, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the
Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of
Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary
Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one
or more definitive Securities of the same series, of any
authorized denominations and of like tenor and aggregate
principal amount. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and
tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate
Trust Office of the Trustee a register (the register maintained
in such office and in any other office or agency of the Company
in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of
Securities. The Trustee is hereby appointed "Security Registrar"
for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any
Security of a series at the office or agency of the Company in a
Place of Payment for that series, the Company shall execute, and
the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities
of the same series, of any authorized denominations and of like
tenor and aggregate principal amount.
At the option of the Holder, Securities of any series
may be exchanged for other Securities of the same series, of any
authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer
or exchange of Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required by
the Company or the Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any
transfer.
If the Securities of any series (or of any series and
specified tenor) are to be redeemed in part, the Company shall
not be required (A) to issue, register the transfer of or
exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at
the opening of business 15 days before the day of the mailing of
a notice of redemption of any such Securities selected for
redemption under Section 1103 and ending at the close of business
on the day of such mailing, or (B) to register the transfer of or
exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being
redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below
shall apply only to Global Securities:
(1) Each Global Security authenticated under this
Indenture shall be registered in the name of the Depositary
designated for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this
Indenture.
(2) Notwithstanding any other provision in this
Indenture, no Global Security may be exchanged in whole or
in part for Securities registered, and no transfer of a
Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such
Global Security or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling
or unable to continue as Depositary for such Global Security
or (ii) has ceased to be a clearing agency registered under
the Exchange Act, (B) there shall have occurred and be
continuing an Event of Default with respect to such Global
Security or (C) there shall exist such circumstances, if
any, in addition to or in lieu of the foregoing as have been
specified for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a
Global Security for other Securities may be made in whole or
in part, and all Securities issued in exchange for a Global
Security or any portion thereof shall be registered in such
names as the Depositary for such Global Security shall
direct.
(4) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu
of, a Global Security or any portion thereof, whether
pursuant to this Section, Section 304, 306, 906 or 1107 or
otherwise, shall be authenticated and delivered in the form
of, and shall be, a Global Security, unless such Security is
registered in the name of a Person other than the Depositary
for such Global Security or a nominee thereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of
the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction,
loss or theft of any Security and (ii) such security or indemnity
as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same series and of
like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security,
pay such Security.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to
this Section in lieu of any destroyed, lost or stolen Security
shall constitute an original additional contractual obligation of
the Company, 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 this Indenture equally and
proportionately with any and all other Securities of that series
duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by
Section 301 with respect to any series of Securities, interest on
any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest.
Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of
any Defaulted Interest to the Persons in whose names
the Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee
in writing of the amount of Defaulted Interest proposed
to be paid on each Security of such series and the date
of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be given to each
Holder of Securities of such series in the manner set
forth in Section 106, not less than 10 days prior to
such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in
whose names the Securities of such series (or their
respective Predecessor Securities) are registered at
the close of business on such Special Record Date and
shall no longer be payable pursuant to the following
Clause (2).
(2) The Company may make payment of any
Defaulted Interest on the Securities of any series in
any other lawful manner not inconsistent with the
requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall
be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section,
each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
In the case of any Security that is converted after any
Regular Record Date and on or prior to the next succeeding
Interest Payment Date (other than any Security whose Maturity is
prior to such Interest Payment Date), interest shall be payable
on such Interest Payment Date notwithstanding such conversion,
and such interest (whether or not punctually paid or duly
provided for) shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at
the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding
sentence, in the case of any Security that is converted, interest
after the date of conversion of such Security shall not be
payable.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the
purpose of receiving payment of principal of and any premium and
(subject to Section 307) any interest on such Security and for
all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee
(or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities
held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a
360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be
of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated
and delivered (other than (i) Securities which have
been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore
been deposited in trust or segregated and held in trust
by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii)
above, has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose money
in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of
such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under
Section 607, the obligations of the Trustee to any Authenticating
Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of Clause (1) of this
Section, the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of
Section 1003, all money deposited with the Trustee pursuant to
Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of
the principal and any premium and interest for whose payment such
money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," wherever used herein with respect
to Securities of any series, means any one of the following
events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any
premium on any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of a Security of that
series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other
than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities
other than that series), and continuance of such default or
breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding
Securities of that series 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
(5) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company
(including a default with respect to Securities of any
series other than that series) having an aggregate principal
amount outstanding of at least $15,000,000, or under any
mortgage, indenture or instrument (including this Indenture)
under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by
the Company having an aggregate principal amount outstanding
of at least $15,000,000, whether such indebtedness now
exists or shall hereafter be created, which default
(A) shall constitute a failure to pay any portion of the
principal of such indebtedness when due and payable after
the expiration of any applicable grace period with respect
thereto or (B) shall have resulted in such indebtedness
becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable,
without, in the case of Clause (A), such indebtedness having
been discharged or without, in the case of Clause (B), such
indebtedness having been discharged or such acceleration
having been rescinded or annulled, in each such case within
a period of 10 days after there shall have been given, by
registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of
that series a written notice specifying such default and
requiring the Company to cause such indebtedness to be
discharged or cause such acceleration to be rescinded or
annulled, as the case may be, and stating that such notice
is a "Notice of Default" hereunder; provided, however, that,
subject to the provisions of Sections 601 and 602, the
Trustee shall not be deemed to have knowledge of such
default unless either (A) a Responsible Officer of the
Trustee shall have actual knowledge of such default or
(B) the Trustee shall have received written notice thereof
from the Company, from any Holder, from the holder of any
such indebtedness or from the trustee under any such
mortgage, indenture or other instrument; or
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order
adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of
the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
(7) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of
a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by
it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State law, or the
consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or of any substantial
part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company
in furtherance of any such action; or
(8) any other Event of Default provided with respect
to Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 501(6) or 501(7)) with respect to Securities
of any series at the time Outstanding occurs and is continuing,
then in every such case the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Securities of
that series may declare the principal amount of all the
Securities of that series (or, if any Securities of that series
are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified by the
terms thereof) to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of
Default specified in Section 501(6) or 501 (7) with respect to
Securities of any series at the time Outstanding occurs, the
principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be
specified by the terms thereof) shall automatically, and without
any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.
At any time after such a declaration of acceleration
with respect to Securities of any series has been made and before
a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided,
the Holders of a majority in principal amount of the Outstanding
Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on)
any Securities of that series which have become due
otherwise than by such declaration of acceleration and
any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel;
and
(2) all Events of Default with respect to Securities
of that series, other than the non-payment of the principal
of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived
as provided in Section 513.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on
any Security when such interest becomes due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal
of (or premium, if any, on) any Security at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities for principal and any premium
and interest and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal
and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel.
If an Event of Default with respect to Securities of
any series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the
Company (or any other obligor upon the Securities), its property
or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to
collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and
any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to
authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such
proceeding; provided, however, that the Trustee may, on behalf of
the Holders, vote for the election of a trustee in bankruptcy or
similar official and be a member of a creditors' or other similar
committee.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or
the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment
has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this
Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of
such money on account of principal or any premium or interest,
upon presentation of the Securities and the notation thereon of
the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 607; and
SECOND: To the payment of the amounts then due and
unpaid for principal of and any premium and interest on the
Securities in respect of which or for the benefit of which
such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and
payable on such Securities for principal and any premium
and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any
right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to
the Securities of that series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of
the Outstanding Securities of that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or
to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal
of and any premium and (subject to Section 307) interest on such
Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date)
and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and
the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies
of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity
or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of
any Securities to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in aggregate principal amount
of the Outstanding Securities of any series 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, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 513. Waiver of Past Defaults.
The Holders of at least a majority in principal amount
of the Outstanding Securities of any series may on behalf of the
Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of or any premium
or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to
exist, and any Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, a court may
require any party litigant in such suit to file an undertaking to
pay the costs of such suit, and may assess costs against any such
party litigant, in the manner and to the extent provided in the
Trust Indenture Act; provided that neither this Section nor the
Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any
suit instituted by the Company.
SECTION 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any usury, stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be
as provided by the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to
Securities of any series, the Trustee shall give the Holders of
Securities of such series notice of such default as and to the
extent provided by the Trust Indenture Act; provided, however,
that in the case of any default of the character specified in
Section 501(4) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of
time or both would become, an Event of Default with respect to
Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request
or Company Order, and any resolution of the Board of
Directors shall be sufficiently evidenced by a Board
Resolution;
(3) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney; and
(7) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities,
except the Trustee's certificates of authentication, shall be
taken as the statements of the Company, and neither the Trustee
nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company,
in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not
be segregated from other funds except to the extent required by
law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with
the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of
the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its
powers or duties hereunder.
SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the
Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture. To the
extent permitted by such Act, the Trustee shall not be deemed to
have a conflicting interest by virtue of being a trustee under
this Indenture with respect to Securities of more than one
series, or a trustee under the Subordinated Indenture, dated as
of ________, 1996, between the Company and the Trustee.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee
hereunder with respect to the Securities of each series, which
may be Trustee hereunder for Securities of one or more other
series. Each Trustee shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law
or to the requirements of its supervising or examining authority,
then for the purposes of this Section and to the extent permitted
by the Trust Indenture Act, the combined capital and surplus of
such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee with respect to the
Securities of any series shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements
of Section 611.
The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof
to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608
after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (B) subject
to Section 514, any Holder who has been a bona fide Holder of a
Security 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 with respect to all
Securities and the appointment of a successor Trustee or
Trustees.
If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or
more series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after
such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable
requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and
accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security 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 appointment of a successor Trustee with
respect to the Securities of such series.
The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect
to the Securities of any series to all Holders of Securities of
such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to
the Securities of such series and the address of its Corporate
Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor
Trustee so appointed shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of
the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder.
In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not
all) series, the Company, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect
to all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) 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 hereunder separate and apart from
any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates.
Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in the first or second
preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor
of the Company (or any other obligor upon the Securities), the
Trustee shall be subject to the provisions of the Trust Indenture
Act regarding the collection of claims against the Company (or
any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or
Agents with respect to one or more series of Securities which
shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed
on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall
at all times be a corporation organized and doing business under
the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed
to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may
be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the Company.
The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders
of Securities of the series with respect to which such
Authenticating Agent will serve. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under
this Section, and the Trustee shall be entitled to be reimbursed
for such payments, subject to the provisions of Section 607.
If an appointment with respect to one or more series is
made pursuant to this Section, the Securities of such series may
have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternative certificate of authentication
in the following form:
<PAGE>
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
As Trustee
By_________________________________,
As Authenticating Agent
By_________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than June 30 and July 31 in each
year, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders of Securities of each
series as of the preceding June 15 or December 15, as the case
may be, and
(2) at such other times as the Trustee may
request in writing, within 30 days after the receipt by
the Company of any such request, a list of similar form
and content as of a date not more than 15 days prior to
the time such list is furnished;
excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 701 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar.
The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither
the Company nor the Trustee nor any agent of either of them shall
be held accountable by reason of any disclosure of information as
to names and addresses of Holders made pursuant to the Trust
Indenture Act.
SECTION 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as
may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the
Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents
and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act
shall be filed with the Trustee within 15 days after the same is
so required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into
any other Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, and the
Company shall not permit any Person to consolidate with or merge
into the Company or convey, transfer or lease its properties and
assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or
merge into another Person or convey, transfer or lease its
properties and assets substantially as an entirety to any
Person, the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be
a corporation, partnership or trust or other entity
organized and validly existing under the laws of the United
States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual
payment of the principal of and any premium and interest on
all the Securities and the performance or observance of
every covenant of this Indenture on the part of the Company
to be performed or observed;
(2) immediately after giving effect to such
transaction and treating any indebtedness which becomes an
obligation of the Company or any Subsidiary as a result of
such transaction as having been incurred by the Company or
such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time
or both, would become an Event of Default, shall have
happened and be continuing;
(3) if, as a result of any such consolidation or
merger or such conveyance, transfer or lease, properties or
assets of the Company would become subject to a mortgage,
pledge, lien, security interest or other encumbrance which
would not be permitted by this Indenture, the Company or
such successor Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the
Securities equally and ratably with (or prior to) all
indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger
of the Company into, any other Person or any conveyance, transfer
or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 801, the
successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had
been named as the Company herein, and thereafter, except in the
case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the
Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any
of the following purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities
(and if such additional Events of Default are to be for the
benefit of less than all series of Securities, stating that
such additional Events of Default are expressly being
included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form,
registrable or not registrable as to principal, and with or
without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the
provisions of this Indenture in respect of one or more
series of Securities, provided that any such addition,
change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of
such provision nor (ii) modify the rights of the Holder of
any such Security with respect to such provision or
(B) shall become effective only when there is no such
Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of
any series as permitted by Sections 201 and 301; or
(8) 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 611; or
(9) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other
provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to
this Clause (9) shall not adversely affect the interests of
the Holders of Securities of any series in any material
respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of at least a majority
in principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders
delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may 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 modifying in any
manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder
of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or
any instalment of principal of or interest on, any Security,
or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption
thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security which
would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502, or change
any Place of Payment where, or the coin or currency in
which, any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided
for in this Indenture, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1010, except to increase any such
percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant
changes in this Section and Section 1010, or the deletion of
this proviso, in accordance with the requirements of
Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article
or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject
to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but 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.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under
this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to
this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of
each series of Securities that it will duly and punctually pay
the principal of and any premium and interest on the Securities
of that series in accordance with the terms of the Securities and
this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for
any series of Securities an office or agency where Securities of
that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of
transfer or exchange, where Securities may be surrendered for
conversion and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or
more other offices or agencies where the Securities of one or
more series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of
any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other
office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or
before each due date of the principal of or any premium or
interest on any of the Securities of that series, segregate and
hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest
so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify
the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying
Agents for any series of Securities, it will, prior to each due
date of the principal of or any premium or interest on any
Securities of that series, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent for any series
of Securities other than the Trustee to execute and deliver to
the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (1) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and
(2) during the continuance of any default by the Company (or any
other obligor upon the Securities of that series) in the making
of any payment in respect of the Securities of that series, upon
the written request of the Trustee, forthwith pay to the Trustee
all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of or any premium or interest on any Security of
any series and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall
be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder
of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language,
customarily published on each Business Day and of general
circulation in the City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within
120 days after the end of each fiscal year of the Company ending
after the date hereof, an Officers' Certificate, stating whether
or not to the best knowledge of the signers thereof the Company
is in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture (without
regard to any period of grace or requirement of notice provided
hereunder) and, if the Company shall be in default, specifying
all such defaults and the nature and status thereof of which they
may have knowledge.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause
to be done all things necessary to preserve and keep in full
force and effect its existence, rights (charter and statutory)
and franchises; provided, however, that the Company shall not be
required to preserve any such right or franchise if the Board of
Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company
and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties used or useful in
the conduct of its business or the business of any Subsidiary to
be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to
be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section
shall prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is,
in the judgment of the Company, desirable in the conduct of its
business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid
or discharged, before the same shall become delinquent, (1) all
taxes, assessments and governmental charges levied or imposed
upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged
any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 1008. Limitation on Liens.
The Company will not, and will not permit any
Restricted Subsidiary to, create, incur, issue, assume or
guarantee any indebtedness of the Company or any Subsidiary
secured by a Lien upon any Principal Property, or upon shares of
capital stock or evidences of indebtedness issued by any
Restricted Subsidiary and owned by the Company or any Restricted
Subsidiary, now owned or hereafter owned by the Company, without
making effective provision to secure all of the Securities of
each series then outstanding by such Lien, equally and ratably
with any and all other indebtedness thereby secured, so long as
such indebtedness shall be so secured.
The foregoing restrictions shall not apply, however, to
(1) Liens on any property existing at the time of the acquisition
thereof; (2) Liens on property of a corporation existing at the
time such corporation is merged into or consolidated with the
Company or a Restricted Subsidiary or at the time of a sale,
lease or other disposition of the properties of such corporation
(or a division thereof) as an entirety or substantially as an
entirety to the Company or a Restricted Subsidiary, provided that
such Lien as a result of such merger, consolidation, sale, lease
or other disposition is not extended to property owned by the
Company or such Restricted Subsidiary immediately prior thereto;
(3) Liens on property of a corporation existing at the time such
corporation becomes a Restricted Subsidiary; (4) Liens securing
indebtedness of a Restricted Subsidiary to the Company or to
another Restricted Subsidiary; (5) Liens to secure all or part of
the cost of acquisition, construction, development or improvement
of the underlying property, or to secure indebtedness incurred to
provide funds for any such purpose, provided that the commitment
of the creditor to extend the credit secured by any such Lien
shall have been obtained not later than twenty-four months after
the later of (a) the completion of the acquisition, construction,
development or improvement of such property or (b) the placing in
operation of such property or of such property as so constructed,
developed or improved; (6) Liens on any property created, assumed
or otherwise brought into existence in contemplation of the sale
or other disposition of the underlying property, whether directly
or indirectly, by way of share disposition or otherwise; provided
that the Company must have disposed of such property within
180 days from the creation of such Liens and any indebtedness
secured by such Liens shall be without recourse to the Company or
any Subsidiary; (7) Liens in favor of the United States of
America or any State thereof, or any department, agency or
instrumentality or political subdivision thereof, to secure
partial, progress, advance or other payments; (8) Liens to secure
indebtedness of joint ventures in which the Company or a
Restricted Subsidiary has an interest, to the extent such Liens
are on property or assets of, or equity interests in, such joint
ventures; (9) Liens on Equipment Held for Resale; and (10) any
indebtedness secured by Liens existing on the date of the
Indenture or any extension, renewal or replacement or refunding
of any Lien existing on the date of the Indenture or referred to
in clauses (1) to (3) or (5); provided, however, that the
aggregate principal amount of indebtedness secured thereby and
not otherwise authorized by clauses (1) to (3) or (5), shall not
exceed the aggregate principal amount of indebtedness, plus any
premium or fee payable in connection with any such extension,
renewal, replacement, or refunding, so secured at the time of
such extension, renewal, replacement or refunding.
Notwithstanding the restrictions described above, the
Company and its Restricted Subsidiaries may incur, issue, assume
or guarantee debt secured by Liens without equally and ratably
securing the Securities of each series then outstanding,
provided, that at the time of such incurrence, issuance,
assumption or guarantee, after giving effect thereto and to the
retirement of any indebtedness which is concurrently being
retired, the aggregate amount of all outstanding indebtedness
secured by Liens so incurred, other than any indebtedness secured
by Liens permitted as described in clauses (1) through (10)
above, and together with all outstanding Attributable Value of
all sale and leaseback transactions permitted as described in
Section 1009 hereof does not exceed 15% of the Consolidated Net
Tangible Assets (defined below) of the Company.
SECTION 1009. Limitation on Sale and Leaseback Transactions.
Sale and leaseback transactions by the Company or any
Restricted Subsidiary involving any Principal Property are
prohibited unless either (1) the Company or its Restricted
Subsidiaries would be entitled pursuant to the provisions
described in clauses (1) through (10) of the second paragraph of
Section 1008 hereof to issue assume or guarantee indebtedness
secured by a Lien on such Principal Property without equally and
ratably securing the Securities of each series than outstanding
or (2) the Company or such Restricted Subsidiary shall apply, or
cause to be applied to the retirement of its secured debt within
120 days after the effective date of the sale and leaseback
transaction, an amount not less than the greater of (i) the net
proceeds of the sale of the Principal Property leased pursuant to
such arrangement or (ii) the fair market value of the Principal
Property so leased. This restriction will not apply to a sale and
leaseback transaction between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries or involving the
taking back of a lease for a period of less than three years.
Notwithstanding the restrictions described above, the
Company or any Restricted Subsidiary may enter into a sale and
leaseback transaction provided, that at the time of such
transaction, after giving effect thereto, the Attributable Value
thereof, together with all indebtedness secured by Liens
permitted pursuant to Section 1008 hereto other than all
indebtedness secured by Liens permitted as described in clauses
(1) through (10) of the second paragraph of Section 1008 hereof
and other than the Attributable Value of such sale and leaseback
transactions permitted by the preceding paragraph, does not
exceed 15% of Consolidated Net Tangible Assets of the Company.
SECTION 1010. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by
Section 301 for Securities of such series, the Company may, with
respect to the Securities of any series, omit in any particular
instance to comply with any term, provision or condition set
forth in any covenant provided pursuant to Section 301(18),
901(2) or 901(7) for the benefit of the Holders of such series or
in Sections 1008 or 1009, if before the time for such compliance
the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by
Section 301 for such Securities) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution or in another manner
specified as contemplated by Section 301 for such Securities. In
case of any redemption at the election of the Company of less
than all the Securities of any series (including any such
redemption affecting only a single Security), the Company shall,
at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In
the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be
redeemed (unless all the Securities of such series and of a
specified tenor are to be redeemed or unless such redemption
affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities
of such series not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which
may provide for the selection for redemption of a portion of the
principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Security. If
less than all the Securities of such series and of a specified
tenor are to be redeemed (unless such redemption affects only a
single Security), the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series and
specified tenor not previously called for redemption in
accordance with the preceding sentence.
The Trustee shall promptly notify the Company in
writing of the Securities selected for redemption as aforesaid
and, in case of any Securities selected for partial redemption as
aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall
not apply with respect to any redemption affecting only a single
Security, whether such Security is to be redeemed in whole or in
part. In the case of any such redemption in part, the unredeemed
portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class
mail, postage prepaid, mailed not less than 30 nor more than
60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any
series consisting of more than a single Security are to be
redeemed, the identification (and, in the case of partial
redemption of any such Securities, the principal amounts) of
the particular Securities to be redeemed and, if less than
all the Outstanding Securities of any series consisting of a
single Security are to be redeemed, the principal amount of
the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be
redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(5) the place or places where each such Security is to
be surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such
is the case.
Notice of redemption of Securities to be redeemed at
the election of the Company shall be given by the Company or, at
the Company's request, by the Trustee in the name and at the
expense of the Company and shall be irrevocable.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall
be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
the Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified,
and from and after such date (unless the Company shall default in
the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided,
however, that, unless otherwise specified as contemplated by
Section 301, installments of interest whose Stated Maturity is on
or prior to the Redemption Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of
Section 307.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal and any
premium shall, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall
be surrendered at a Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or
his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or
Securities of the same series and of like tenor, of any
authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
ARTICLE TWELVE
CONVERSION OF SECURITIES
SECTION 1201. Applicability; Conversion Privilege and Conversion Price.
Securities of any series which are convertible into
Common Stock of the Company shall be convertible in accordance
with their terms and (except as otherwise specified as
contemplated by Section 301 for Securities of any series) in
accordance with this Article.
Subject to and upon compliance with the provisions of
this Article, at the option of the Holder thereof, any Security
of a series which is convertible or any portion of the principal
amount thereof which is $1,000 or an integral multiple of $1,000
may be converted at the principal amount thereof, or of such
portion thereof, into fully paid and nonassessable shares
(calculated as to each conversion to the nearest 1/100 of a
share) of Common Stock of the Company, at the Conversion Price,
determined as hereinafter provided, in effect at the time of
conversion. Such conversion privilege shall expire at the close
of business on the date specified for Securities of such series.
In case a Security or portion thereof is called for redemption,
such conversion right in respect of the Security or portion so
called shall expire at the close of business on the Redemption
Date, unless the company defaults in making the payment due upon
redemption.
The price at which shares of Common Stock shall be
delivered upon conversion (herein called the "Conversion Price")
shall be the price specified in relation to Securities of such
series pursuant to Section 301. The Conversion Price shall be
adjusted in certain instances as provided in paragraphs (1), (2),
(3), (4), (5), (6) and (9) of Section 1204.
SECTION 1202. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the
Holder of any Security to be converted shall surrender such
Security, duly endorsed or assigned to the Company or in blank,
at any office or agency of the Company maintained for that
purpose pursuant to Section 1002, accompanied by written notice
to the Company at such office or agency that the Holder elects to
convert such Security or, if less than the entire principal
amount thereof is to be converted, the portion thereof to be
converted. Securities surrendered for conversion during the
period from the close of business on any Regular Record Date next
preceding any Interest Payment Date to the opening of business on
such Interest Payment Date shall (except in the case of
Securities or portions thereof which have been called for
redemption on a Redemption Date within such period) be
accompanied by payment in New York Clearing House funds or other
funds acceptable to the Company of an amount equal to the
interest payable on such Interest Payment Date on the principal
amount of Securities being surrendered for conversion. Except as
provided in the preceding sentence and subject to the fourth
paragraph of Section 307, no payment or adjustment shall be made
upon any conversion on account of any interest accrued on the
Securities surrendered for conversion or on account of any
dividends on the Common Stock issued upon conversion.
Securities shall be deemed to have been converted
immediately prior to the close of business on the day of
surrender of such Securities for conversion in accordance with
the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the person
or persons entitled to receive the Common Stock issuable upon
conversion shall be treated for all purposes as the record holder
or holders of such Common Stock at such time. As promptly as
practicable on or after the conversion date, the Company shall
issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock
issuable upon conversion, together with payment in lieu of any
fraction of a share, as provided in Section 1203.
In the case of any Security (including any Global
Security) which is converted in part only, upon such conversion
the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a
new Security or Securities of authorized denominations in
aggregate principal amount equal to the unconverted portion of
the principal amount of such Security; provided that if a Global
Security is so converted in part, the new Global Security shall
be in a denomination equal to the unconverted portion of the
principal amount of the Global Security so converted in part.
SECTION 1203. Fractions of Shares.
No fractional shares of Common Stock shall be issued
upon conversion of Securities. If more than one Security shall be
surrendered for conversion at one time by the same Holder, the
number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal
amount of the Securities (or specified portions thereof), so
surrendered. Instead of any fractional share of Common Stock
which would otherwise be issuable upon conversion of any Security
or Securities (or specified portions thereof) the Company shall
pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction of the market price per share of
Common Stock (determined as provided in the last sentence of
paragraph 6 of Section 1204) at the close of business on the day
of conversion.
SECTION 1204. Adjustment of Conversion Price.
(1) In case the Company shall pay or make a dividend
or other distribution on any class of capital stock of the
Company in Common Stock, the conversion price in effect at the
opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such dividend
or other distribution shall be reduced by multiplying such
Conversion Price by a fraction of which the numerator shall be
the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the
total number of shares constituting such dividend or other
distribution, such reduction to become effective immediately
after the opening of business on the day following the date fixed
for such determination. For the purposes of this paragraph (1),
the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but
shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. The
Company will not pay any dividend or make any distribution on
shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights or warrants
to all holders of its Common Stock entitling them to subscribe
for or purchase shares of Common Stock at a price per share less
than the current market price per share (determined as provided
in paragraph (8) of this Section) of the Common Stock on the date
fixed for the determination of stockholders entitled to receive
such rights or warrants, the Conversion Price in effect at the
opening of business on the day following the date fixed for such
determination shall be reduced by multiplying such Conversion
Price by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on
the date fixed for such determination plus the number of shares
of Common Stock which the aggregate of the offering price of the
total number of shares of Common Stock so offered for
subscription or purchase would purchase at such current market
price and the denominator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for
such determination plus the number of shares of Common Stock so
offered for subscription or purchase, such reduction to become
effective immediately after the opening of business on the day
following the date fixed for such determination. For the purposes
of this paragraph (2), the number of shares of Common Stock at
any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company will not issue any rights or
warrants in respect of shares of Common Stock held in the
treasury of the Company.
(3) In case outstanding shares of Common Stock shall
be subdivided into a greater number of shares of Common Stock,
the Conversion Price in effect at the opening of business on the
day following the day upon which such subdivision becomes
effective shall be proportionately reduced, and, conversely, in
case outstanding shares of Common Stock shall each be combined
into a smaller number of shares of Common Stock, the Conversion
Price in effect at the opening of business on the day following
the day upon which such combination becomes effective shall be
proportionately increased, such reduction or increase, as the
case may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision
or combination becomes effective.
(4) In case the Company shall, by dividend or
otherwise, distribute to all holders of its Common Stock
evidences of its indebtedness or assets (including securities,
but excluding any rights or warrants referred to in paragraph (2)
of this SECTION, any dividend or distribution paid in cash out of
the retained surplus of the Company and any dividend or
distribution referred to in paragraph (1) of this Section), the
conversion price shall be adjusted so that the same shall equal
the price determined by multiplying the Conversion Price in
effect immediately prior to the close of business on the date
fixed for the determination of stockholders entitled to receive
such distribution by a fraction of which the numerator shall be
the current market price per share (determined as provided in
paragraph (8) of this Section) of the Common Stock on the date
fixed for such determination less the then fair market value (as
determined by the Board of Directors, whose determination shall
be conclusive and described in a Board Resolution filed with the
Trustee) of the portion of the assets or evidences of
indebtedness so distributed applicable to one share of Common
Stock and the denominator shall be such current market price per
share of the Common Stock, such adjustment to become effective
immediately prior to the opening of business on the day following
the date fixed for the determination of stockholders entitled to
receive such distribution.
(5) In case the Company shall, by dividend or
otherwise, distribute to all holders of its Common Stock cash
(excluding any cash that is distributed upon a merger or
consolidation to which Section 1211 applies or as part of a
distribution referred to in paragraph (4) of this Section) in an
aggregate amount that, combined together with (I) the aggregate
amount of any other cash distributions to all holders of its
Common Stock made exclusively in cash within the 12 months
preceding the date of payment of such distribution and in respect
of which no adjustment pursuant to this paragraph (5) has been
made and (II) the aggregate of any cash plus the fair market
value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution) of other consideration payable in respect of any
tender offer (of the type described paragraph (6) below) by the
Company or any of its subsidiaries for all or any portion of the
Common Stock concluded within the 12 months preceding the date of
payment of such distribution and in respect of which no
adjustment pursuant to paragraph (6) of this Section has been
made, exceeds 10% of the product of the current market price per
share of the Common Stock on the date for the determination of
holders of shares of Common Stock entitled to receive such
distribution times the number of shares of all classes of Common
Stock outstanding on such date, then, and in each such case,
immediately after the close of business on such date for
determination, the Conversion Price shall be adjusted so that the
same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the close of
business on the date fixed for determination of the stockholders
entitled to receive such distribution by a fraction (i) the
numerator of which shall be equal to the current market price per
share (determined as provided in paragraph (8) of this Section)
of the Common Stock on the date fixed for such determination less
an amount equal to the quotient of (x) the excess of such
combined amount over such 10% and (y) the number of shares of
Common Stock outstanding on such date for determination and (ii)
the denominator of which shall be equal to the current market
price per share (determined as provided in paragraph (8) of this
Section) of the Common Stock on such date for determination.
(6) In case, after the date of this Indenture, a tender or
exchange offer (other than an odd-lot offer) made by the Company
or any Subsidiary for all or any portion of the Common Stock
shall expire and such tender or exchange offer shall involve the
payment by the Company or such Subsidiary of consideration per
share of the Common Stock having a fair market value (as
determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution) at the last time (the "Expiration Time") tenders or
exchanges may be made pursuant to such tender or exchange offer
(as it shall have been amended) that exceeds 110% of the current
market price per share (determined as provided in paragraph (8)
of this Section) of the Common Stock as of the Trading Day next
succeeding the Expiration Time, the Conversion Price shall be
reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to
the effectiveness of the Conversion Price reduction contemplated
by this subparagraph (6) by a fraction of which the numerator
shall be the sum of the products of the number of shares of the
Common Stock outstanding (including any tendered or exchanged
shares) at the Expiration Time multiplied by the respective
current market price per share (determined as provided in
paragraph (8) of this Section) of the Common Stock on the Trading
Day next succeeding the Expiration Time and the denominator shall
be the sum of (x) the fair market value (determined as aforesaid)
of the aggregate consideration payable to stockholders based on
the acceptance (up to any maximum specified in the terms of the
tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares
deemed so accepted, up to any such maximum, being referred to as
the "Purchased Shares") and (y) the product of the number of
shares of the Common Stock outstanding (less any Purchased
Shares) at the Expiration Time and the current market price per
share (determined as provided in paragraph (8) of this Section)
of the Common Stock on the Trading Day next succeeding the
Expiration Time, such reduction to become effective immediately
prior to the opening of business on the day following the
Expiration Time.
(7) The reclassification of Common Stock into
securities other than Common Stock (other than any
reclassification upon a consolidation or merger to which Section
1211 applies) shall be deemed to involve (a) a distribution of
such securities other than Common Stock to all holders of Common
Stock (and the effective date of such reclassification shall be
deemed to be "the date fixed for the determination of
stockholders entitled to receive such distribution" and "the date
fixed for such determination" with the meaning of paragraph (4)
of this Section), and (b) a subdivision or combination, as the
case may be, of the number of shares of Common Stock outstanding
immediately prior to such reclassification into the number of
shares of Common Stock outstanding immediately thereafter (and
the effective date of such reclassification shall be deemed to be
"the day upon which such subdivision becomes effective" or "the
day upon which such combination becomes effective", as the case
may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (3) of this
Section).
(8) For the purpose of computation under paragraphs
(2), (4), (5) and (6) of this Section, the current market price
per share of Common Stock on any date shall be deemed to be the
average of the daily closing prices for the 15 consecutive
Business Days selected by the Company commencing not less than 20
nor more than 30 Business Days before the day in question. The
closing price for each day shall be the last reported sales price
regular way on the composite tape or, in case no such reported
sale takes place on such day, the average of the reported closing
bid and asked prices regular way, in either case on the New York
Stock Exchange or, if the Common Stock is not listed or admitted
to trading on such Exchange, on the principal national securities
exchange on which the Common Stock is listed or admitted to
trading or, if not listed or admitted to trading on any national
securities exchange, the average of the closing bid and asked
prices as furnished by any New York Stock Exchange member firm
selected from time to time by the Company for that purpose.
(9) The Company may make such reductions in the
Conversion Price, in addition to those required by paragraphs
(1), (2), (3), (4), (5) and (6) of this Section, as it considers
to be advisable in order that any event treated for Federal
income tax purposes as a dividend of stock or stock rights shall
not be taxable to the recipients.
(10) Notwithstanding the provisions of this Article,
the Conversion Price per share shall not be reduced to less than
the par value thereof as a result of any adjustment made
hereunder unless, under applicable law then in effect, Securities
may be converted, at such lower Conversion Price, into legally
issued fully-paid and nonassessable shares of Common Stock.
(11) The granting of the right to purchase shares of
Common Stock (whether from treasury shares or otherwise) pursuant
to any dividend or interest reinvestment plan and/or any Common
Stock purchase plan providing for the reinvestment of dividends
or interest payable on securities of the Company and/or the
investment of periodic optional payments and/or stock option
plans and/or employee benefit or similar plans at a price per
share of not less than 95 percent of the current market price per
share (determined as provided in such plans) of the Common Stock
(so long as such right to purchase is in no case evidenced by the
delivery of rights or warrants) shall not be deemed to constitute
an issue of rights or warrants by the Company.
(12) No adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or
decrease of at least one percent in such Conversion Price;
provided, however, that any adjustment which by reason of this
paragraph (12) is not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this Article shall be made to the nearest cent
or to the nearest 1/100 of a share, as the case may be.
SECTION 1205. Notice of Adjustments of Conversion Price.
Whenever the Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion
Price in accordance with Section 1204 and shall prepare a
certificate signed by the principal financial officer or
principal accounting officer of the Company setting forth
the adjusted Conversion Price and showing in reasonable
detail the facts upon which such adjustment is based, and
such certificate shall forthwith be filed at the Corporate
Trust Office of the Trustee and at each office or agency
maintained for the purpose of conversion of Securities
pursuant to Section 1002; and
(b) a notice stating that the Conversion Price has
been adjusted and setting forth the adjusted Conversion
Price shall forthwith be required, and as soon as
practicable after it is required, such notice shall be
mailed by the Company to all Holders at their last addresses
as they shall appear in the Security Register.
SECTION 1206. Notice of Certain Corporate Action.
In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in
cash out of its earned surplus; or
(b) the Company shall authorize the granting to all
holders of its Common Stock of rights or warrants to
subscribe for or purchase any shares of capital stock of any
class or of any other rights; or
(c) of any reclassification of the Common Stock of the
Company (other than a subdivision or combination of its
outstanding shares of Common Stock), or of any consolidation
or merger to which the Company is a party and for which
approval of any stockholders of the Company is required, or
of the sale or transfer of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then the Company shall cause to be filed at each office or agency
maintained for the purpose of conversion of Securities pursuant
to Section 1002, and shall cause to be mailed to all Holders at
their last addresses as they shall appear in the Security
Register, at least 20 days (or 10 days in any case specified in
Clause (a) or (b) above) prior to the applicable record date
hereinafter specified, a notice stating (x) the date on which a
record is to be taken for the purpose of such dividend,
distribution, rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record
to be entitled to such dividend, distribution, rights or warrants
are to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders
of Common Stock of record shall be entitled to exchange their
shares of Common Stock for securities, cash or other property, if
any, deliverable upon such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up.
The failure to give notice required by this Section or any defect
therein shall not affect the legality or validity of any
dividend, distribution, rights, warrants, reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation
or winding up, or the vote on any such action.
SECTION 1207. Company to Reserve Common Stock.
The Company shall at all times reserve and keep
available, free from pre-emptive rights, out of its authorized
but unissued Common Stock, for the purpose of effecting the
conversion of Securities, the full number of shares of Common
Stock then issuable upon the conversion of all Outstanding
Securities.
SECTION 1208. Taxes on Conversions.
The Company will pay any and all taxes that may be
payable in respect of the issue or delivery of shares of Common
Stock on conversion of Securities pursuant hereto. The Company
shall not, however, be required to pay any tax which may be
payable in respect of any transfer involved in the issue and
delivery of shares of Common Stock in a name other than that of
the Holder of the Security or Securities to be converted, and no
such issue or delivery shall be made unless and until the person
requesting such issue has paid to the Company the amount of any
such tax, or has established to the satisfaction of the Company
that such tax has been paid.
SECTION 1209. Covenant as to Common Stock.
The Company covenants that all shares of Common Stock
which may be issued upon conversion of Securities will upon issue
be fully paid and nonassessable and, except as provided in
Section 1208, the Company will pay all taxes, liens and charges
with respect to the issue thereof.
SECTION 1210. Cancellation of Converted Securities.
All Securities delivered for conversion shall be
delivered to the Trustee to be cancelled by or at the direction
of the Trustee, which shall dispose of the same as provided in
Section 309.
SECTION 1211. Provisions in Case of Consolidation, Merger or Sale
of Assets.
In case of any consolidation of the Company with, or
merger of the Company into, any other Person, or in case of any
merger of another Person into the Company (other than a merger
which does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock of
the Company), or in case of any sale or transfer of all or
substantially all of the assets of the Company, the Person formed
by such consolidation or resulting from such merger or which
acquires such assets, as the case may be, shall execute and
deliver to the Trustee a supplemental indenture providing that
the Holder of each convertible Security then Outstanding shall
have the right thereafter, during the period such Security shall
be convertible as specified in Section 1201, to convert such
Security only into the kind and amount of securities, cash and
other property receivable upon such consolidation, merger, sale
or transfer by a holder of the number of shares of Common Stock
of the Company into which such Security might have been converted
immediately prior to such consolidation, merger, sale or
transfer, assuming such holder of Common Stock of the Company
failed to exercise his rights of election, if any, as to the kind
or amount of securities, cash and other property receivable upon
such consolidation, merger, sale or transfer (provided that if
the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer is
not the same for each share of Common Stock of the Company in
respect of which such rights of election shall not have been
exercised ("non-electing share"), then for the purpose of this
Section the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, sale or
transfer by each non-electing share shall be deemed to be the
kind and amount so receivable per share by a plurality of the
non-electing shares).
Such supplemental indenture shall provide for
adjustments which, for events subsequent to the effective date of
such supplemental indenture shall be as nearly equivalent as may
be practicable to the adjustments provided for in this Article.
The above provisions of this Section shall similarly apply to
successive consolidations, mergers, sales or transfers.
SECTION 1212. Responsibility of Trustee.
Neither the Trustee nor any conversion agent shall at
any time be under any duty or responsibility to any Holder of
Securities to determine whether any fact exists which may require
any adjustment of the Conversion Price, or with respect to the
nature or extent of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same. Neither
the Trustee nor any conversion agent shall be accountable with
respect to the registration, validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities or
property, which may at any time be issued or delivered upon the
conversion of any Security; and neither the Trustee nor any
conversion agent makes any representation with respect thereto.
Neither the Trustee nor any conversion agent shall be responsible
for any failure of the Company to issue or transfer or deliver
any Common Stock or stock certificates or other securities or
property or to make any cash payment upon the surrender of any
Security for the purpose of conversion or to comply with any of
the covenants of the Company contained in this Article Twelve.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 1301. Applicability of Article.
The provisions of this Article shall be applicable to
any sinking fund for the retirement of Securities of any series
except as otherwise specified as contemplated by Section 301 for
such Securities.
The minimum amount of any sinking fund payment provided
for by the terms of any Securities 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 such Securities
is herein referred to as an "optional sinking fund payment." If
provided for by the terms of any Securities, the cash amount of
any sinking fund payment may be subject to reduction as provided
in Section 1302. Each sinking fund payment shall be applied to
the redemption of Securities as provided for by the terms of such
Securities.
SECTION 1302. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a
series (other than any previously called for redemption) and
(2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to any Securities of such
series required to be made pursuant to the terms of such
Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have
not been previously so credited. The Securities to be so credited
shall be received and credited for such purpose by the Trustee at
the Redemption Price, as specified in the Securities so to be
redeemed, for redemption through operation of the sinking fund
and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1303. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund
payment date for any Securities, the Company will deliver to the
Trustee an Officers' Certificate specifying the amount of the
next ensuing sinking fund payment for such Securities pursuant to
the terms of such Securities, the portion thereof, if any, which
is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting
Securities pursuant to Section 1302 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 45 days
prior to each such sinking fund payment date, the Trustee shall
select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption
of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to
have Section 1402 or Section 1403 applied to any Securities or
any series of Securities, as the case may be, designated pursuant
to Section 301 as being defeasible pursuant to such Section 1402
or 1403, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions
set forth below in this Article. Any such election shall be
evidenced by a Board Resolution or in another manner specified as
contemplated by Section 301 for such Securities.
SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to
have this Section applied to any Securities or any series of
Securities, as the case may be, the Company shall be deemed to
have been discharged from its obligations with respect to such
Securities as provided in this Section on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter
called "Defeasance"). For this purpose, such Defeasance means
that the Company shall be deemed to have paid and discharged the
entire indebtedness represented by such Securities and to have
satisfied all its other obligations under such Securities and
this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following
which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1404 and
as more fully set forth in such Section, payments in respect of
the principal of and any premium and interest on such Securities
when payments are due, (2) the Company's obligations with respect
to such Securities under Sections 304, 305, 306, 1002 and 1003,
(3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (4) this Article. Subject to compliance
with this Article, the Company may exercise its option (if any)
to have this Section applied to any Securities notwithstanding
the prior exercise of its option (if any) to have Section 1403
applied to such Securities.
SECTION 1403. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to
have this Section applied to any Securities or any series of
Securities, as the case may be, (1) the Company shall be released
from its obligations under Section 801(3), Sections 1006 through
1009, inclusive, and any covenants provided pursuant to
Section 301(18), 901(2) or 901(7) for the benefit of the Holders
of such Securities and (2) the occurrence of any event specified
in Sections 501(4) (with respect to any of Section 801(3),
Sections 1006 through 1009, inclusive, and any such covenants
provided pursuant to Section 301(18), 901(2) or 901(7)), 501(5)
and 501(8) shall be deemed not to be or result in an Event of
Default, in each case with respect to such Securities as provided
in this Section on and after the date the conditions set forth in
Section 1404 are satisfied (hereinafter called "Covenant
Defeasance"). For this purpose, such Covenant Defeasance means
that, with respect to such Securities, the Company may omit to
comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section
(to the extent so specified in the case of Section 501(4)),
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, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the
application of Section 1402 or Section 1403 to any Securities or
any series of Securities, as the case may be:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
which satisfies the requirements contemplated by Section 609
and agrees to comply with the provisions of this Article
applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the
Holders of such Securities, (A) money in an amount, or
(B) U.S. Government Obligations 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, money in an amount,
or (C) a combination thereof, in each case sufficient, 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 (or any such other
qualifying trustee) to pay and discharge, the principal of
and any premium and interest on such Securities on the
respective Stated Maturities, in accordance with the terms
of this Indenture and such Securities. As used herein, "U.S.
Government Obligation" means (x) any security which is (i) a
direct obligation of the United States of America for the
payment of which the full faith and credit of the United
States of America is pledged or (ii) an obligation of a
Person controlled or supervised by and acting as an agency
or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America,
which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with
respect to any U.S. Government Obligation which is specified
in Clause (x) above and held by such bank for the account of
the holder of such depositary receipt, or with respect to
any specific payment of principal of or interest on any U.S.
Government Obligation which is so specified and held,
provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount
received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.
(2) In the event of an election to have Section 1402
apply to any Securities or any series of Securities, as the
case may be, the Company shall have delivered to the Trustee
an Opinion of Counsel stating that (A) the Company has
received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this
instrument, there has been a change in the applicable
Federal income tax law, in either case (A) or (B) to the
effect that, and based thereon such opinion shall confirm
that, the Holders of such Securities will not recognize gain
or loss for Federal income tax purposes as a result of the
deposit, Defeasance and discharge to be effected with
respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit, Defeasance
and discharge were not to occur.
(3) In the event of an election to have Section 1403
apply to any Securities or any series of Securities, as the
case may be, the Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that the Holders of such
Securities will not recognize gain or loss for Federal
income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to such Securities
and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would be
the case if such deposit and Covenant Defeasance were not to
occur.
(4) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that neither such
Securities nor any other Securities of the same series, if
then listed on any securities exchange, will be delisted as
a result of such deposit.
(5) No event which is, or after notice or lapse of
time or both would become, an Event of Default with respect
to such Securities or any other Securities shall have
occurred and be continuing at the time of such deposit or,
with regard to any such event specified in Sections 501(6)
and (7), at any time on or prior to the 90th day after the
date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such
90th day).
(6) Such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest within the
meaning of the Trust Indenture Act (assuming all Securities
are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default
under, any other agreement or instrument to which the
Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not
result in the trust arising from such deposit constituting
an investment company within the meaning of the Investment
Company Act unless such trust shall be registered under such
Act or exempt from registration thereunder.
(9) The Company shall have delivered to the Trustee
an Officer's Certificate and an Opinion of Counsel, each
stating that all conditions precedent with respect to such
Defeasance or Covenant Defeasance have been complied with.
SECTION 1405. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of
Section 1003, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee or
other qualifying trustee (solely for purposes of this Section and
Section 1406, the Trustee and any such other trustee are referred
to collectively as the "Trustee") pursuant to Section 1404 in
respect of any Securities shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through
any such Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in
respect of principal and any premium and interest, but money so
held in trust need not be segregated from other funds except to
the extent required by law.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations deposited pursuant to Section 1404 or
the principal and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account
of the Holders of Outstanding Securities.
Anything in this Article to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 1404
with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be
required to be deposited to effect the Defeasance or Covenant
Defeasance, as the case may be, with respect to such Securities.
SECTION 1406. Reinstatement.
If the Trustee or the Paying Agent is unable to apply
any money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been
discharged or released pursuant to Section 1402 or 1403 shall be
revived and reinstated as though no deposit had occurred pursuant
to this Article with respect to such Securities, until such time
as the Trustee or Paying Agent is permitted to apply all money
held in trust pursuant to Section 1405 with respect to such
Securities in accordance with this Article; provided, however,
that if the Company makes any payment of principal of or any
premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to
receive such payment from the money so held in trust.
________________________
<PAGE>
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
In Witness Whereof, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
BECKMAN INSTRUMENTS, INC.
By /s/ D.K. Wilson
Attest:
/s/ William H. May
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ John R. Prendiville
Attest:
/s/ Barbara Grosse
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of ________, ____, before me personally
came ___________________, to me known, who, being by me duly
sworn, did depose and say that he is ______________ of
____________________________, one of the corporations described
in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that
he signed his name thereto by like authority.
____________________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of ________, ____, before me
personally came ___________________, to me known, who, being by
me duly sworn, did depose and say that he is ______________ of
____________________________, one of the corporations described
in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that
he signed his name thereto by like authority.
____________________________
EXHIBIT 10.2
CUSIP No. 075816 AA 6
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN
WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
Unless this certificate is presented by an
authorized representative of The Depository Trust Company, a
New York corporation ("DTC"), to Beckman Instruments, Inc.
or its agent for registration of transfer, exchange, or
payment, and any certificate issued is registered in the
name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein.
BECKMAN INSTRUMENTS, INC.
7.05% Debentures Due June 1, 2026
No. A-1 $100,000,000
BECKMAN INSTRUMENTS, INC., a corporation duly
organized and existing under the laws of the State of
Delaware (herein called the "Company", which term includes
any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
Cede & Co., or registered assigns, the principal sum of One
Hundred Million Dollars ($100,000,000) on June 1, 2026, and
to pay interest thereon from May 30, 1996 or from the most
recent Interest Payment Date to which interest has been paid
or duly provided for, semi-annually on June 1 and December 1
in each year, commencing December 1, 1996, at the rate of
7.05% per annum, until the principal hereof is paid or made
available for payment. The interest so payable, and
punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to
the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which
shall be the May 15 or November 15 (whether or not a
Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice
whereof shall be mailed to Holders of Securities of this
series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which the Securities of this series may be
listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
Interest on the Securities shall be computed on the basis of
a 360-day year of twelve 30-day months.
Payment of the principal of (and premium, if any)
and interest on this Security will be made at the office or
agency of the Company maintained for that purpose in The
Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of
payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall
appear in the Security Register.
Reference is hereby made to the further provisions
of this Security set forth on the reverse hereof, which
further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon
has been executed by the Trustee referred to on the reverse
hereof by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
BECKMAN INSTRUMENTS, INC.
By /s/ D.K. Wilson
Attest:
/s/ William H. May
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
Dated: May 30, 1996 THE FIRST NATIONAL BANK OF CHICAGO,
As Trustee
By /s/ Barbara Grosse
Authorized Signatory
<PAGE>
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under a Senior
Indenture, dated as of May 15, 1996 (herein called the
"Indenture", which term shall have the meaning assigned to
it in such instrument), between the Company and The First
National Bank of Chicago, as Trustee (herein called the
"Trustee," which term includes any successor trustee under
the Indenture), and reference is hereby made to the
Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities
and of the terms upon which the Securities are, and are to
be, authenticated and delivered. This Security is one of the
series designated on the face hereof, limited in aggregate
principal amount to $100,000,000.
Subject to and upon compliance with the provisions
set forth herein, each Holder shall have the right, at such
Holder's option, to require the Company to repay, and if
such right is exercised the Company shall repay, all or any
part of such Holder's Securities on June 1, 2006 (the
"Repayment Date") at a price (the "Repayment Price") equal
to 100% of the principal amount thereof, together with
accrued interest to June 1, 2006.
To exercise such right, the Holder of this
Security shall surrender this Security, at the office or
agency of the Company in New York, New York during the
period beginning on April 1, 2006 and ending at 5:00 PM (New
York City time) on May 1, 2006 (or, if May 1, 2006 is not a
Business Day, the next succeeding Business Day), with the
form entitled "Option to Elect Repayment on June 1, 2006" on
the reverse hereof duly completed. Any such notice received
by the Company during the period beginning on April 1, 2006
and ending at 5:00 PM (New York City time) on May 1, 2006
(or, if May 1, 2006 is not a Business Day, the next
succeeding Business Day) shall be irrevocable. If the
Repayment Date falls between any Regular Record Date and the
next succeeding Interest Payment Date, this Security must be
accompanied by payment from the Holder of an amount equal to
the interest thereon which the registered Holder thereof is
to receive on such Interest Payment Date. The repayment
option may be exercised by any Holder for less than the
entire principal amount of this Security, provided that the
principal amount with respect to which such right is
exercised must be equal to $1,000 or an integral multiple of
$1,000. All questions as to the validity, form, eligibility
(including time of receipt) and acceptance of this Security
for repayment shall be determined by the Company, whose
determination shall be final and binding.
Failure by the Company to repay the Securities
when required as described in the preceding paragraphs will
result in an Event of Default under the Indenture.
The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, in
whole or in part, at the option of the Company at any time
after June 1, 2006 at a Redemption Price equal to the
greater of (i) 100% of the principal amount of the
Securities so redeemed or (ii) as determined by an
Independent Investment Banker, the sum of the present values
of the remaining scheduled payments of principal and
interest thereon discounted to the redemption date on a
semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate, plus,
in each case, accrued interest thereon to the Redemption
Date.
"Adjusted Treasury Rate" means, with respect to
any Redemption Date, the rate per annum equal to the
semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Redemption
Date, plus 0.10%.
"Comparable Treasury Issue" means the United
States Treasury security selected by an Independent
Investment Banker as having a maturity comparable to the
remaining term of the Security to be redeemed that would be
utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the
remaining term of such Security. "Independent Investment
Banker" means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the
Company.
"Comparable Treasury Price" means, with respect to
any Redemption Date, (i) the average of the bid and asked
prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) on the third
Business Day preceding such Redemption Date, as set forth in
the daily statistical release (or any successor release)
published by the Federal Reserve Bank of New York and
designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any
successor release) is not published or does not contain such
prices on such Business Day, (A) the Reference Treasury
Dealer Quotations for such Redemption Date, after excluding
the highest and lowest such Reference Treasury Dealer
Quotations, or (B) if the Trustee obtains fewer than three
such Reference Treasury Dealer Quotations, the average of
all such Quotations. "Reference Treasury Dealer Quotations"
means, with respect to each Reference Treasury Dealer and
any Redemption Date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Trustee by
such Treasury Reference Dealer at 5:00 p.m. on the third
Business Day preceding such Redemption Date.
"Reference Treasury Dealer" means each of Goldman,
Sachs & Co., Citicorp Securities, Inc., First Chicago
Capital Markets, Inc. and Morgan Stanley & Co. Incorporated
and their respective successors; provided, however, that if
any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary
Treasury Dealer"), the Company shall substitute therefor
another Primary Treasury Dealer.
In the event of redemption of this Security in
part only, a new Security or Securities of this series and
of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the
cancellation hereof.
Upon a Change of Control Triggering Event, each
Holder of Securities of this series shall have the right to
require that the Company repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of such
Securities at a repurchase price in cash equal to 100% of
the aggregate principal amount of the Securities tendered
for repurchase plus accrued interest, if any, to the date of
such repurchase.
Within 30 days following any Change of Control
Triggering Event, the Company shall be required to mail a
notice to each Holder of Securities of this series (with a
copy to the Trustee) stating (1) that a Change of Control
Triggering Event has occurred and that such Holder has the
right to require the Company to repurchase such Holder's
Securities at a repurchase price in cash equal to 100% of
the aggregate principal amount thereof plus accrued
interest, if any, to the date of repurchase (the "Change of
Control Offer"); (2) the repurchase date, which shall be a
Business Day and be not earlier than 20 Business Days or
later than 60 Business days from the date such notice is
mailed (the "Repurchase Date"); (3) that interest on any
Securities tendered for repurchase will continue to accrue;
(4) that interest on any Securities accepted for payment
pursuant to the Change of Control Offer shall cease to
accrue after the repurchase of any Securities on the
Repurchase Date; (5) that Holders electing to have
Securities purchased pursuant to the Change of Control Offer
will be required to surrender such Securities, with the form
entitled "Opinion to Elect Purchase" on the reverse hereof
duly completed, to the Trustee at the address specified in
the notice prior to the close of business on the Business
Day prior to the Repurchase Date; (6) that holders of
Debentures will be entitled to withdraw their election on
the terms and conditions set forth in such notice; and (7)
that holders of Debentures that elect to have their
Debentures purchased only in part will be issued new
Debentures in a principal amount equal to the then
unpurchased portion of the Debentures surrendered.
On the Repurchase Date, the Company shall (i)
accept for payment such surrendered Debentures or portions
thereof tendered pursuant to the Change of Control Offer;
(ii) deposit with the Trustee money sufficient to pay the
purchase price of all Debentures or portions thereof so
tendered and (iii) deliver or cause to be delivered to the
Trustee Debentures so accepted with an officers' certificate
identifying the Debentures or portions thereof so tendered.
The Company shall publicly announce the result of the Change
of Control Offer as soon as practicable after the Repurchase
Date.
"Business Day" means any day other than a day on
which banking institutions in the Borough of Manhattan, The
City and State of New York, are authorized to close.
"Change of Control" means the occurrence of any of
the following: (i) the sale, lease, transfer, conveyance or
other disposition (other than by way of merger or
consolidation), in one or a series of related transactions,
of all or substantially all of the assets of the Company and
its Subsidiaries taken as a whole to any "person" (as such
terms is used in Section 13(d)(3) of the Exchange Act), (ii)
the adoption of a plan relating to the liquidation or
dissolution of the Company, or (iii) the consummation of any
transaction (including, without limitation, any merger or
consolidation) the result of which is that any "person" (as
defined above), becomes the "beneficial owner" (as such term
is defined in Rule 13d-3 and Rule 13d-5 under the Exchange
Act), directly or indirectly, of more than 35% of the voting
stock of the Company.
"Change of Control Downgrade" means, with respect
to any Change of Control, a downgrade in the rating assigned
to the Debentures by two Rating Agencies arising out of or
otherwise attributable to such Change of Control (whether or
not such Change of Control has occurred at the time of such
downgrade), unless, after giving effect to such downgrade,
the rating assigned to the Debentures by either of such two
Rating Agencies is Investment Grade. For purposes of the
foregoing, and without limiting the generality thereof, a
Change of Control Downgrade with respect to any Change of
Control shall be deemed to have occurred if such Change of
Control Downgrade occurs during a 90-day period beginning
prior to and ending after the occurrence of such Change of
Control.
"Change of Control Triggering Event" means the
later to occur of (i) any Change of Control and (ii) a
Change of Control Downgrade with respect to such Change of
Control. Both a Change of Control and a Change of Control
Downgrade shall be required for a Change of Control
Triggering Event to occur.
"Investment Grade" means a rating in one of the
four highest categories (without regard to subcategories
within such rating categories) by a Rating Agency.
"Rating Agency" means each of Standard & Poor's
Ratings Group, Duff & Phelps Credit Rating Co. and Moody's
Investors Service, Inc. (or, in either case, if such Person
ceases to rate the Debentures for reasons outside the
control of the Company, any other "nationally recognized
statistical rating organization" (within the meaning of Rule
15c3-1(c)(2)(iv)(F) under the Exchange Act) selected by the
Company as a replacement Rating Agency).
The Indenture contains provisions for defeasance
of the entire indebtedness of this Security or certain
restrictive covenants with respect to this Security, in each
case upon compliance with certain conditions set forth in
the Indenture.
If an Event of Default with respect to Securities
of this series shall occur and be continuing, the principal
of the Securities of this series may be declared due and
payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification
of the rights and obligations of the Company and the rights
of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding
of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages
in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities
of such series, to waive compliance by the Company with
certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Security shall
be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued
upon the transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is
made upon this Security.
As provided in and subject to the provisions of
the Indenture, the Holder of this Security shall not have
the right to institute any proceeding with respect to the
Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a
continuing Event of Default with respect to the Securities
of this series, the Holders of not less than 25% in
principal amount of the Securities of this series at the
time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable
indemnity, and the Trustee shall not have received from the
Holders of a majority in principal amount of Securities of
this series at the time Outstanding a direction inconsistent
with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice,
request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or
any premium or interest hereon on or after the respective
due dates expressed herein.
No reference herein to the Indenture and no
provision of this Security or of the Indenture shall alter
or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and any premium
and interest on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to
certain limitations therein set forth, the transfer of this
Security is registrable in the Security Register, upon
surrender of this Security for transfer at the office or
agency of the Company in any place where the principal of
and any premium and interest on this Security are payable,
duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or
his attorney duly authorized in writing, and thereupon one
or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate
principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in
registered form without coupons in denominations of $1,000
and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and
of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such
transfer or exchange, but the Company may require payment of
a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to due presentment of this Security for
transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name
this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
All terms used in this Security which are defined
in the Indenture shall have the meanings assigned to them in
the Indenture.
The Indenture and the Securities shall be governed
by and construed in accordance with the law of the State of
New York.
Option to Elect Repayment on June 1, 2006
The undersigned registered Holder of this Security
hereby irrevocably exercises the option to require the
Company to repay this Security or portion thereof (which is
$1,000 or an integral multiple thereof) below designated on
June 1, 2006, in accordance with the terms of such Security,
and directs that payment be made to the registered Holder
hereof unless a different name has been indicated below.
Any amount required to be paid by the undersigned on account
of interest accompanies this Security.
Dated: ________________, 2006
Signature(s) must be Holder's Signature:
guaranteed if payment is to be
made other than to and in the name
of the registered Holder. ________________________
__________________________________ Portion of Security to
Signature Guarante be repayed (in integral
multiples of $1,000) if
other than the full
principal amount
thereof:
Fill in for payment of Repayment
Price if to be made otherwise than _______________________
to the registered Holder
__________________________________
Name
__________________________________
Address
__________________________________
Please print name and address
(including zip code)
SOCIAL SECURITY OR TAXPAYER
IDENTIFICATION NUMBER
__________________________________
<PAGE>
Option to Elect Purchase
The undersigned registered Holder of this Security
hereby irrevocably exercises the option to require the
Company to repurchase this Security or portion thereof
(which is $1,000 or an integral multiple thereof) below
designated on the Repurchase Date and in accordance with the
terms set forth in the notice of Change of Control Offer
distributed by the Company in accordance with the terms of
such Security, and directs that payment be made to the
registered Holder hereof unless a different name has been
indicated below. Any amount required to be paid by the
undersigned on account of interest accompanies this
Security.
Dated: ________________
Signature(s) must be Holder's Signature:
guaranteed if payment is to be
made other than to and in the name
of the registered Holder. _______________________
__________________________________ Portion of Security to
Signature Guarantee be repayed (in Integral
multiples of $1,000) if
other than the full
principal amount
thereof:
Fill in for payment of Repayment
Price if to be made otherwise than _______________________
to the registered Holder
__________________________________
Name
__________________________________
Address
__________________________________
Please print name and address
(including zip code)
SOCIAL SECURITY OR TAXPAYER
IDENTIFICATION NUMBER
__________________________________
Exhibit 10.3
AGREEMENT REGARDING RETIREMENT BENEFITS
OF FIDENCIO M. MARES
WHEREAS, Beckman Instruments, Inc. (the "Company") maintains
the Beckman Instruments, Inc. Supplemental Pension Plan (the
"Supplemental Plan"); and
WHEREAS, the Company may amend the Supplemental Plan
pursuant to a resolution of the Board of Directors of the
Company, which resolution was adopted April 4, 1996; and
WHEREAS, the Company desires to amend the Supplemental Plan
in order to finalize an employment incentive agreement with
Fidencio M. Mares (the "Executive") for increased retirement
benefits upon his completion of at least five years of service
with the Company and his attainment of eligibility for retirement
under the Company's Pension Plan.
NOW, THEREFORE, this Agreement between the Company and the
Executive ("Agreement") is hereby adopted this 30th day of April,
1996.
1. Retirement Supplement. Executive's aggregate pension
benefit from the Beckman Instruments, Inc. Pension Plan ("Pension
Plan") and the Beckman Instruments, Inc. Supplemental Pension
Plan ("Supplemental Plan") shall be determined by adding three
(3) years to Executive's actual age and three (3) years to
Executive's actual Benefit Service. The age and service credits
granted under this Agreement shall be applied when the
Executive's single life benefit is being determined, and if an
optional form of benefit is payable pursuant to the terms of the
Pension Plan and the Supplemental Plan, the additional 3 years
shall not again be applied in determining an optional form of
benefit. Accordingly, any optional form of benefit shall be
Actuarially Equivalent (as defined in the Pension Plan), using
Executive's actual age, to the single life benefit. Any
additional benefit due as a result of the retirement supplement
provided herein shall be payable from the Supplemental Plan
(along with any other benefits which would otherwise be payable
from the Supplement Plan, if any). The benefit payable from the
Pension Plan shall not be changed.
2. Eligibility Requirements. Executive is not eligible
for the enhanced retirement benefit under this Agreement unless
he satisfies both the requirement of at least five years of
service and attainment of eligibility for retirement under the
Company's Pension Plan.
3. This Agreement shall be considered an exhibit to the
Supplemental Plan and shall constitute an official plan document
for the Supplemental Plan.
4. This Agreement shall be construed in accordance with
applicable federal law, and to the extent that state law is not
preempted by federal law, according to the laws of the State of
California.
5. This Agreement shall not modify any of the terms and
conditions of Executive's employment except as explicitly set
forth herein.
6. This Agreement is the entire agreement between the
parties and supercedes any and all prior and contemporaneous oral
and written agreements and discussions regarding the subject of
enhanced retirement benefits discussed herein. The parties may
only amend this Agreement by the mutual execution of a document
referencing this Agreement and pursuant to a resolution of the
Company's Board of Directors approving such amendment.
This Agreement is entered into this 30th day of April, 1996.
EXECUTIVE
By /s/ Fidencio M. Mares
Fidencio M. Mares
COMPANY
BECKMAN INSTRUMENTS, INC.
By /s/ Louis T. Rosso
Louis T. Rosso
Chairman and
Chief Executive Officer
KPMG Peat Marwick LLP Exhibit 15
Certified Public Accountants
Orange County Office
Center Tower
650 Town Center Drive
Costa Mesa, CA 92626
Independent Accountants' Review Report
The Stockholders and Board of Directors
Beckman Instruments, Inc.:
We have reviewed the condensed consolidated balance sheet of Beckman
Instruments, Inc. and subsidiaries as of June 30, 1996, and the related
condensed consolidated statements of earnings and cash flows for the
three-month and six-month periods ended June 30, 1996 and 1995. These
condensed consolidated financial statements are the responsibility of
the Company's management.
We conducted our review in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical
procedures to financial data and making inquiries of persons responsible
for financial and accounting matters. It is substantially less in scope
than an audit conducted in accordance with generally accepted auditing
standards, the objective of which is the expression of an opinion
regarding the financial statements taken as a whole. Accordingly, we do
not express such an opinion.
Based on our review, we are not aware of any material modifications that
should be made to the condensed consolidated financial statements
referred to above for them to be in conformity with generally accepted
accounting principles.
We have previously audited, in accordance with generally accepted
auditing standards, the consolidated balance sheet of Beckman
Instruments, Inc. and subsidiaries as of December 31, 1995, and the
related consolidated statements of operations and cash flows for the
year then ended (not presented herein); and in our report dated January
19, 1996, we expressed an unqualified opinion on those consolidated
financial statements. In our opinion, the information set forth in the
accompanying condensed consolidated balance sheet as of December 31,
1995, is fairly stated, in all material respects, in relation to the
consolidated balance sheet from which it has been derived.
(KPMG Peat Marwick LLP)
Orange County, California
July 18, 1996
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Condensed Consolidated Balance Sheet and the Condensed Statement of Earnings and
is qualified in its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> JUN-30-1996
<CASH> 11
<SECURITIES> 10
<RECEIVABLES> 298
<ALLOWANCES> 11
<INVENTORY> 197
<CURRENT-ASSETS> 543
<PP&E> 661
<DEPRECIATION> 408
<TOTAL-ASSETS> 929
<CURRENT-LIABILITIES> 264
<BONDS> 188
0
0
<COMMON> 3
<OTHER-SE> 349
<TOTAL-LIABILITY-AND-EQUITY> 929
<SALES> 413
<TOTAL-REVENUES> 490
<CGS> 179
<TOTAL-COSTS> 228
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 8
<INCOME-PRETAX> 49
<INCOME-TAX> 16
<INCOME-CONTINUING> 33
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 33
<EPS-PRIMARY> 1.12
<EPS-DILUTED> 1.12
</TABLE>
