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As filed with the Securities and Exchange Commission on June 6, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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LIBBEY INC.
(Exact name of Registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of Incorporation or organization)
34-1559357
(I.R.S. Employer Identification Number)
300 Madison Avenue
Toledo, Ohio 43604
(419) 325-2100
(Address and telephone number of Registrant's principal executive offices)
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Arthur H. Smith
Libbey Inc.
300 Madison Avenue
Toledo, Ohio 43604
(419) 325-2100
(Name, address, including ZIP code, and telephone number,
including area code, of agent for service)
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Copies to:
Carl E. Witschy
Latham & Watkins
Sears Tower, Suite 5800
Chicago, Illinois 60606
(312) 876-7700
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
by the Registrant.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Maximum Amount of
Title of Each Class of Aggregate Offering Registration
Securities to be Registered Price(3)(4) Fee
- ------------------------------------------------------------------------------------------------
<S> <C> <C>
Debt Securities(1)............................
Common Stock, $.01 par value(2) ..............
Total....................................... $100,000,000 $30,303
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</TABLE>
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(1) The Debt Securities registered hereby include such additional amount as
may be necessary so that, if Debt Securities are issued with an
original issue discount, the aggregate initial offering prices of all
Debt Securities will equal $100,000,000.
(2) The Common Stock registered hereby include Preferred Stock Purchase
Rights (the "Rights"). The Rights are associated with and trade with
the Common Stock. The value, if any, attributable to the Rights is
reflected in the market price of the Common Stock. There are also being
registered an indeterminate number of shares of Common Stock as shall
be issuable upon conversion or redemption of Debt Securities registered
hereby.
(3) Estimated solely for purposes of calculating the registration fee,
which is calculated in accordance with Rule 457(o).
(4) Not specified as to each class of securities to be registered hereunder
pursuant to General Instruction II(D) to Form S-3 under the Securities
Act of 1933.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any state in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such state.
SUBJECT TO COMPLETION, DATED JUNE 6, 1997
LIBBEY INC.
DEBT SECURITIES
COMMON STOCK
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Libbey Inc. (the "Company"), directly or through agents, dealers, or
underwriters designated from time to time, may offer, issue and sell, in one or
more series or issuances, up to $100,000,000 in the aggregate of (a) secured or
unsecured debt securities (the "Debt Securities") of the Company, in one or more
series, which may be either senior debt securities (the "Senior Debt
Securities"), senior subordinated debt securities (the "Senior Subordinated Debt
Securities") or subordinated debt securities (the "Subordinated Debt
Securities") and (b) shares of common stock of the Company, par value $.01 per
share (the "Common Stock"), or any combination of the foregoing, either
individually or as units consisting of one or more of the foregoing, each on
terms to be determined at the time of sale. The Debt Securities may be issued as
exchangeable and/or convertible Debt Securities exchangeable for or convertible
into shares of Common Stock. The Debt Securities and the Common Stock are
collectively referred to herein as the "Securities." When a particular series of
Securities is offered, a supplement to this Prospectus (each a "Prospectus
Supplement") will be delivered with this Prospectus. The Prospectus Supplement
will set forth the terms of the offering and sale of the offered Securities.
Except as described more fully herein or as set forth in the Prospectus
Supplement relating to any offered Debt Securities, the Indenture will not
provide holders of Debt Securities protection in the event of a highly-leveraged
transaction, reorganization, restructuring, merger or similar transaction
involving the Company which could adversely affect holders of Debt Securities.
See "Description of Debt Securities -- Consolidation, Merger and Sale of
Assets."
The Company's Common Stock is traded on The New York Stock Exchange
under the symbol LBY. Any Common Stock sold pursuant to a Prospectus Supplement
will be listed on The New York Stock Exchange. On June 5, 1997, the last
reported sale price of the Common Stock on The New York Stock Exchange was
$33.50 per share. The Company has not yet determined whether any of the Debt
Securities offered hereby will be listed on any exchange or over-the-counter
market. If the Company decides to seek listing of any such Securities, the
Prospectus Supplement relating thereto will disclose such exchange or market.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
--------------------
The Securities will be sold directly, through agents, underwriters or
dealers as designated from time to time, or through a combination of such
methods. The Company reserves the sole right to accept, and together with its
agents, from time to time, to reject in whole or in part any proposed purchase
of Securities to be made directly or through agents. If agents of the Company or
any dealers or underwriters are involved in the sale of the Securities in
respect of which this Prospectus is being delivered, the names of such agents,
dealers or underwriters and any applicable commissions or discounts will be set
forth in or may be calculated from the Prospectus Supplement with respect to
such Securities. See "Plan of Distribution" for possible indemnification
arrangements with agents, dealers and underwriters.
This Prospectus may not be used to consummate sales of Securities
unless accompanied by the applicable Prospectus Supplement.
The date of this Prospectus is , 1997.
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AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (together with all amendments
and exhibits thereto, the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the Securities offered
hereby. This Prospectus does not contain all of the information set forth in the
Registration Statement, part of which has been omitted in accordance with the
rules and regulations of the Commission. For further information about the
Company and the Securities offered hereby, reference is made to the Registration
Statement, including the exhibits filed as a part thereof and otherwise
incorporated therein. Statements made in this Prospectus as to the contents of
any agreement or other document referred to herein are qualified by reference to
the copy of such agreement or other document filed as an Exhibit to the
Registration Statement or such other document, each such statement being
qualified in its entirety by such reference.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files periodic reports, proxy statements and other
information with the Commission. The Registration Statement, including the
exhibits thereto, as well as such reports, proxy statements and other
information filed by the Company with the Commission, can be inspected, without
charge, and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Room 1024, Washington D.C., 20549; 7 World
Trade Center, New York, New York 10048 and 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. The Commission also maintains a site on the World Wide
Web at http://www.sec.gov., that contains reports, proxy and other information
regarding registrants that file electronically with the Commission and certain
of the Company's filings are available at such web site. Copies of such
materials can be obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. Reports and
other information concerning the Company can also be inspected at the offices of
the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
INFORMATION INCORPORATED BY REFERENCE
The following documents filed with the Commission pursuant to the
Exchange Act are incorporated by reference in this Prospectus:
(1) the Company's Annual Report on Form 10-K for the year
ended December 31, 1996;
(2) the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1997;
(3) the description of the Common Stock contained in the
Company's Registration Statement on Form 8-A filed on June 16, 1993;
(4) the description of the Preferred Stock Purchase Rights
contained in the Company's Registration Statement on Form 8-A filed on
January 20, 1995; and
(5) all other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this Prospectus and before the termination of the
offering, which shall be deemed to be a part hereof from the date of
filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is incorporated
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or deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
This Prospectus may not be used to consummate sales of offered
securities unless accompanied by a Prospectus Supplement. The delivery of this
Prospectus together with a Prospectus Supplement relating to particular offered
Securities in any jurisdiction shall not constitute an offer in the jurisdiction
of any other securities covered by this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon request, a copy of
any documents incorporated into this Prospectus by reference (other than
exhibits incorporated by reference into such document unless such exhibits are
specifically incorporated by reference therein). Requests for documents should
be submitted to the Corporate Secretary, Libbey Inc., 300 Madison Avenue,
Toledo, Ohio 43604, telephone (419) 325-2100. The information relating to the
Company contained in this Prospectus does not purport to be comprehensive and
should be read together with the information contained in the documents
incorporated or deemed to be incorporated by reference herein.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus, including any documents that are incorporated by
reference as set forth in "Information Incorporated by Reference," contains
forward-looking statements within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act. Such statements are indicated by words
or phrases such as "anticipate," "estimate," "projects," "management believes,"
"the Company believes" and similar words or phrases. Such statements are subject
to certain risks, uncertainties or assumptions. Should one or more of these
risks or uncertainties materialize, or should underlying assumptions prove
incorrect, actual results may vary materially from those anticipated, estimated
or projected. Risks relating to the Company's operations are more fully set
forth in Exhibit 99 to the Company's Annual Report on Form 10-K for the year
ended December 31, 1996, which is incorporated by reference herein.
THE COMPANY
Libbey is the leading producer of glass tableware in North America,
based on sales and unit volume. The Company designs, manufactures and markets,
primarily under the well-recognized LIBBEY(R) brand name, an extensive line of
high quality, machine-made glass beverageware and other glass tableware
including plates, bowls and ashtrays, which it sells to the foodservice
industry, retail stores, industrial and premium users. Known in the marketplace
as America's Glassmaker(TM) the Company has one of the most extensive product
portfolios in the domestic glass tableware industry with over 2,000 SKUs. In
addition, through its October 1995 acquisition of Syracuse China, the Company is
also a leading provider of ceramic dinnerware to the foodservice industry in the
United States.
The principal office of the Company is located at 300 Madison Avenue,
Toledo, Ohio 43604, telephone: (419) 325-2100.
RECENT DEVELOPMENTS
On March 10, 1997, the Company entered into a letter of intent with
Vitro S.A., a leading glass manufacturer in Mexico, for an agreement whereby
the Company will become a joint venture partner in Vitro S.A.'s glassware
business and acquire its WorldCrisa subsidiary in the United States (the
"Proposed Transaction"). The Proposed Transaction will have a cash purchase
price of approximately $100 million, payable by the Company, and includes (i)
the Company becoming a 49% equity holder in Vitrocrisa, Vitro S.A.'s currently
wholly-owned glass tableware and industrial glassware manufacturing subsidiary,
(ii)
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establishing reciprocal distribution agreements whereby the Company will
distribute Vitrocrisa glass tableware products sold into the United States and
Canada, and Vitrocrisa will distribute Libbey glass tableware products in
Mexico, Central and South America, and (iii) the Company's purchase of the
business known as WorldCrisa, a supplier of flatware, dinnerware and other
tabletop products to the foodservice industry in the United States and Canada.
Completion of the Proposed Transaction remains subject to performance of final
due diligence, the negotiation and signing of definitive agreements, Board
approvals of the respective companies and regulatory clearance. The Company
expects the Proposed Transaction to close in July, 1997.
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USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus Supplement, the
Company anticipates that any net proceeds would be used for general corporate
purposes, which may include but are not limited to working capital, capital
expenditures and acquisitions or the repayment or refinancing of indebtedness of
the Company, including indebtedness outstanding under the unsecured credit
agreement among the Company, its Canadian subsidiary and the lenders named
therein (the "Bank Credit Agreement"). The factors which the Company will
consider in any refinancing will include the number of shares of Common Stock
and/or the amount and characteristics of any Debt Securities issued and may
include, among others, the impact of such refinancing on the Company's
liquidity, debt-to-capital ratio and earnings per share. When a particular
series of Securities is offered, the Prospectus Supplement relating thereto will
set forth the Company's intended use for the net proceeds received from the sale
of such Securities. Pending the application of the net proceeds, the Company
expects to invest such proceeds in short-term, interest-bearing instruments or
other investment-grade securities or to reduce indebtedness under its Bank
Credit Agreement.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges
of the Company for the periods indicated.
<TABLE>
<CAPTION>
Fiscal Quarter Fiscal Year Ended December 31,
Ended March 31,
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1997 1996 1996 1995 1994 1993 1992
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<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges 3.1 2.4 4.2 4.2 3.9 2.3 1.5
(a)
</TABLE>
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(a) For the purpose of calculating the ratio of earnings to fixed charges,
earnings consist of income before income taxes and fixed charges. Fixed
charges include interest and amortization of debt expense and that
portion of rentals representative of an interest factor.
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DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and
provisions of the Debt Securities to which any Prospectus Supplement may relate.
The particular terms of the Debt Securities offered by any Prospectus
Supplement, and the extent, if any, to which such general provisions do not
apply to the Debt Securities so offered, will be described in the Prospectus
Supplement relating to such Debt Securities.
Debt Securities may be issued from time to time in series under an
indenture, and one or more indentures supplemental thereto (collectively, the
"Indenture"), between the Company and a trustee to be identified in the
applicable Prospectus Supplement (the "Trustee"). The terms of the Debt
Securities will include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (the "TIA") as in
effect on the date of the Indenture. The Debt Securities will be subject to all
such terms, and potential purchasers of the Debt Securities are referred to the
Indenture and the TIA for a statement thereof. The following summary of certain
provisions of the Indenture does not purport to be complete and is qualified in
its entirety by reference to the Indenture, including the definitions therein of
certain terms used below. A copy of the proposed form of Indenture has been
filed as an exhibit to the Registration Statement of which this Prospectus is a
part. As used under this caption, unless the context otherwise requires,
"Offered Debt Securities" shall mean the Debt Securities offered by this
Prospectus and the accompanying Prospectus Supplement.
GENERAL
The Indenture will provide for the issuance of Debt Securities in
series and will not limit the principal amount of Debt Securities which may be
issued thereunder. In addition, except as may be provided in the Prospectus
Supplement relating to such Debt Securities, the Indenture will not limit the
amount of additional indebtedness the Company may incur.
The applicable Prospectus Supplement or Prospectus Supplements will
describe the following terms of the series of Offered Debt Securities in respect
of which this Prospectus is being delivered: (1) the title of the Offered Debt
Securities; (2) whether the Offered Debt Securities are Senior Debt Securities,
Senior Subordinated Debt Securities or Subordinated Debt Securities or any
combination thereof; (3) any limit upon the aggregate principal amount of the
Offered Debt Securities; (4) the price or prices at which the Offered Debt
Securities will be issued; (5) the date or dates on which the principal of the
Offered Debt Securities is payable; (6) the rate or rates (which may be fixed or
variable) at which the Offered Debt Securities will bear interest, if any, or
the manner in which such rate or rates are determined; (7) the date or dates
from which any such interest will accrue, the interest payment dates on which
any such interest on the Offered Debt Securities will be payable and the record
dates for the determination of holders to whom such interest is payable; (8) the
place or places where the principal of and any interest on the Offered Debt
Securities will be payable; (9) the obligation of the Company, if any, to
redeem, repurchase or repay the Offered Debt Securities in whole or in part
pursuant to any sinking fund or analogous provisions or at the option of the
holders and the price or prices at which and the period or periods within which
and the terms and conditions upon which the Offered Debt Securities shall be
redeemed, repurchased or repaid pursuant to such obligation; (10) the
denominations in which any Offered Debt Securities will be issuable, if other
than denominations of U.S. $1,000 and any integral multiple thereof; (11) if
other than the principal amount thereof, the portion of the principal amount of
the Offered Debt Securities of the series which will be payable upon declaration
of the acceleration of the maturity thereof; (12) any addition to or change in
the covenants which apply to the Offered Debt Securities; (13) any Events of
Default with respect to the Offered Debt Securities, if not otherwise set forth
under "Events of Default"; (14) whether the Offered Debt Securities will be
issued in whole or in part in global form, the terms and conditions, if any,
upon which such global Offered Debt Securities may be exchanged in whole or in
part for other individual securities, and the depositary for the Offered Debt
Securities; (15) the nature and terms of the security for any secured Offered
Debt Securities; and (16) any other terms of the Offered Debt Securities which
terms shall not be inconsistent with the provisions of the Indenture.
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Debt Securities may be issued at a discount from their principal amount
("Original Issue Discount Securities"). Federal income tax considerations and
other special considerations applicable to any such Original Issue Discount
Securities will be described in the applicable Prospectus Supplement.
Debt Securities may be issued in bearer form, with or without coupons.
Federal income tax considerations and other special considerations applicable to
bearer securities will be described in the applicable Prospectus Supplement.
STATUS OF DEBT SECURITIES
The Senior Debt Securities will rank pari passu with all other
unsecured and unsubordinated indebtedness of the Company.
The obligations of the Company pursuant to Senior Subordinated Debt
Securities will be subordinate in right of payment, to the extent and in the
manner set forth in the Indenture, to all Senior Indebtedness of the Company.
With respect to any series of Senior Subordinated Debt Securities, "Senior
Indebtedness" of the Company will be defined to mean the principal of, and
premium, if any, and any interest (including interest accruing subsequent to the
commencement of any proceeding for the bankruptcy or reorganization of the
Company under any applicable bankruptcy, insolvency or similar law now or
hereafter in effect) and all other monetary obligations of every kind or nature
due on or in connection with (a) all indebtedness of the Company whether
heretofore or hereafter incurred (i) for borrowed money or (ii) in connection
with the acquisition by the Company or a subsidiary of the Company of assets
other than in the ordinary course of business, for the payment of which the
Company is liable directly or indirectly by guarantee, letter of credit,
obligation to purchase or acquire or otherwise, or the payment of which is
secured by a lien, charge or encumbrance on assets acquired by the Company, (b)
amendments, modifications, renewals, extensions and deferrals of any such
indebtedness, and (c) any indebtedness issued in exchange for any such
indebtedness (clauses (a) through (c) hereof being collectively referred to
herein as "Debt"); provided, however, that the following will not constitute
Senior Indebtedness with respect to Senior Subordinated Debt Securities: (1) any
Debt as to which, in the instrument evidencing such Debt or pursuant to which
such Debt was issued, it is expressly provided that such Debt is subordinate in
right of payment to all Debt of the Company not expressly subordinated to such
Debt; (2) any Debt which by its terms refers explicitly to the Senior
Subordinated Debt Securities and states that such Debt shall not be senior in
right of payment; and (3) any Debt of the Company in respect of the Senior
Subordinated Debt Securities or any Subordinated Debt Securities.
The obligations of the Company pursuant to Subordinated Debt Securities
will be subordinate in right of payment to all Senior Indebtedness of the
Company and to any Senior Subordinated Debt Securities; provided, however, that
the following will not constitute Senior Indebtedness with respect to
Subordinated Debt Securities: (1) any Debt as to which, in the instrument
evidencing such Debt or pursuant to which such Debt was issued, it is expressly
provided that such Debt is subordinate in right of payment to all Debt of the
Company not expressly subordinated to such Debt; and (2) any Debt of the Company
in respect of Subordinated Debt Securities and any Debt which by its terms
refers explicitly to the Subordinated Debt Securities and states that such Debt
shall not be senior in right of payment.
No payment pursuant to the Senior Subordinated Debt Securities or the
Subordinated Debt Securities, as the case may be, may be made unless all amounts
of principal, premium, if any, and interest then due on all applicable Senior
Indebtedness of the Company shall have been paid in full or if there shall have
occurred and be continuing beyond any applicable grace period a default in any
payment with respect to any such Senior Indebtedness, or if there shall have
occurred any event of default with respect to any such Senior Indebtedness
permitting the holders thereof to accelerate the maturity thereof, or if any
judicial proceeding shall be pending with respect to any such default. However,
the Company may make payments pursuant to the Senior Subordinated Debt
Securities or the
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Subordinated Debt Securities, as the case may be, if a default in payment or an
event of default with respect to the Senior Indebtedness permitting the holder
thereof to accelerate the maturity thereof has occurred and is continuing and
judicial proceedings with respect thereto have not been commenced within a
certain number of days of such default in payment or event of default. Upon any
distribution of the assets of the Company upon dissolution, winding-up,
liquidation or reorganization, the holders of Senior Indebtedness of the Company
will be entitled to receive payment in full of principal, premium, if any, and
interest (including interest accruing subsequent to the commencement of any
proceeding for the bankruptcy or reorganization of the Company under any
applicable bankruptcy, insolvency or similar law now or hereafter in effect)
before any payment is made on the Senior Subordinated Debt Securities or
Subordinated Debt Securities, as applicable. By reason of such subordination, in
the event of insolvency of the Company, holders of Senior Indebtedness of the
Company may receive more, ratably, and holders of the Senior Subordinated Debt
Securities or Subordinated Debt Securities, as applicable, having a claim
pursuant to the Senior Subordinated Debt Securities or Subordinated Debt
Securities, as applicable, may receive less, ratably, than the other creditors
of the Company. Such subordination will not prevent the occurrence of any event
of default (an "Event of Default") in respect of the Senior Subordinated Debt
Securities or the Subordinated Debt Securities.
If the Company offers Debt Securities, the applicable Prospectus
Supplement will set forth the aggregate amount of outstanding indebtedness, if
any, as of the most recent practicable date that by the terms of such Debt
Securities would be senior to such Debt Securities. The applicable Prospectus
Supplement will also set forth any limitation on the issuance by the Company of
any additional senior indebtedness.
CONVERSION RIGHTS
The terms, if any, on which Debt Securities of a series may be
exchanged for or converted into shares of Common Stock will be set forth in the
Prospectus Supplement relating thereto.
EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
Unless otherwise specified in the applicable Prospectus Supplement,
payment of principal, premium, if any, and any interest on the Debt Securities
will be payable, and the exchange of and the transfer of Debt Securities will be
registerable, at the office of the Trustee or at any other office or agency
maintained by the Company for such purpose subject to the limitations of the
Indenture. Unless otherwise indicated in the applicable Prospectus Supplement,
the Debt Securities will be issued in denominations of U.S. $1,000 or integral
multiples thereof. No service charge will be made for any registration of
transfer or exchange of the Debt Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge imposed in
connection therewith.
GLOBAL DEBT SECURITIES
The Debt Securities of a series may be issued in the form of one or
more Global Securities (the "Global Securities") that will be deposited with a
Depositary or its nominee identified in the applicable Prospectus Supplement. In
such a case, one or more Global Securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate principal amount
of outstanding Debt Securities of the series to be represented by such Global
Security or Securities. Each Global Security will be deposited with such
Depositary or nominee or a custodian therefor and will bear a legend regarding
the restrictions on exchanges and registration of transfer thereof referred to
below and any such other matters as may be provided for pursuant to the
applicable Indenture.
Notwithstanding any provision of the Indenture or any Debt Security
described herein, no Global Security may be transferred to, or registered or
exchanged for Debt Securities registered in the name of, any person or entity
other than the Depositary for such Global Security or any nominee of such
Depositary, and no such transfer may be registered, unless (i) the Depositary
has notified the Company
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that it is unwilling or unable to continue as Depositary for such Global
Security or has ceased to be qualified to act as such as required by the
applicable Indenture and, in either case, the Company fails to appoint a
successor Depositary within 90 days after such event, (ii) the Company executes
and delivers to the Trustee an order that such Global Security shall be so
transferable, registrable and exchangeable, and such transfers shall be
registrable, or (iii) there shall exist such circumstances, if any, as may be
described in the applicable Prospectus Supplement. All Debt Securities issued in
exchange for a Global Security or any portion thereof will be registered in such
names as the Depositary may direct.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
will be described in the applicable Prospectus Supplement. The Company expects
that the following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus Supplement,
Debt Securities which are to be represented by a Global Security to be deposited
with or on behalf of a Depositary will be represented by a Global Security
registered in the name of such Depositary or its nominee. Upon the issuance of
such Global Security, and the deposit of such Global Security with or on behalf
of the Depositary for such Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
the Debt Securities represented by such Global Security to the accounts of
institutions that have accounts with such Depositary or its nominee
("participants"). The accounts to be credited will be designated by the
underwriters or agents of such Debt Securities or by the Company, if such Debt
Securities are offered and sold directly by the Company. Ownership of beneficial
interests in such Global Security will be limited to participants or persons
that may hold interests through participants. Ownership of beneficial interests
by participants in such Global Security will be shown on, and the transfer of
that ownership interest will be effected only through, records maintained by the
Depositary or its nominee for such Global Security. Ownership of beneficial
interests in such Global Security by persons that hold through participants will
be shown on, and the transfer of that ownership interest within such participant
will be effected only through, records maintained by such participant. The laws
of some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in certificated form. The foregoing
limitations and such laws may impair the ability to transfer beneficial
interests in such Global Securities.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture. Unless otherwise specified in the applicable Prospectus Supplement,
owners of beneficial interests in such Global Security will not be entitled to
have Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of Debt Securities of such series in certified form and will not be
considered the holders thereof for any purposes under the Indenture.
Accordingly, each person owning a beneficial interest in such Global Security
must rely on the procedures of the Depositary and, if such person is not a
participant, on the procedures of the participant through which such person owns
its interest, to exercise any rights of a holder under the Indenture. If the
Company requests any action of holders or if an owner of a beneficial interest
in such Global Security desires to give any notice or take any action a holder
is entitled to give or take under the Indenture, the Depositary will authorize
the participants to give such notice or take such action, and participants would
authorize beneficial owners owning through such participants to give such notice
or take such action or would otherwise act upon the instructions of beneficial
owners owning through them.
Notwithstanding any other provisions to the contrary in the Indenture,
the rights of the beneficial owners of the Debt Securities to receive payment of
the principal and premium, if any, of and interest on such Debt Securities, on
or after the respective due dates expressed in such Debt Securities, or to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of the
beneficial owners.
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Principal of and any interest on a Global Security will be payable in
the manner described in the applicable Prospectus Supplement.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate with or merge with or into, or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its property or assets to any person unless (a) the Company is the surviving
corporation or the entity or the person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a corporation organized and existing under the laws of the United
States, any state thereof or the District of Columbia; (b) the entity or person
formed by or surviving any such consolidation or merger (if other than the
Company) or the entity or person to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made assumes all the
obligations of the Company under the Debt Securities and the Indenture; and (c)
immediately prior to and after the transaction no Default (as defined in the
Indenture) or Event of Default exists.
Except as may be described in a Prospectus Supplement applicable to a
particular series of Debt Securities, there are no covenants or other provisions
in the Indenture providing for a put or increased interest or otherwise that
would afford holders of Debt Securities additional protection in the event of a
recapitalization transaction, a change of control of the Company or a highly
leveraged transaction.
CERTAIN OTHER COVENANTS
Unless otherwise indicated in this Prospectus or a Prospectus
Supplement, the Debt Securities will not have the benefit of any covenants that
limit or restrict the Company's business or operations, the pledging of the
Company's assets or the incurrence of indebtedness by the Company.
With respect to any series of Senior Subordinated Debt Securities, the
Company will agree not to issue Debt which is, expressly by its terms,
subordinated in right of payment to any other Debt of the Company and which is
not expressly made pari passu with, or subordinate and junior in right of
payment to, the Senior Subordinated Debt Securities.
The applicable Prospectus Supplement will describe any material
covenants in respect of a series of Debt Securities. Other than the covenants of
the Company included in the Indenture as described above or as described in the
applicable Prospectus Supplement, the Indenture will not provide holders of Debt
Securities protection in the event of a highly-leveraged transaction,
reorganization, restructuring, merger or similar transaction involving the
Company which could adversely affect holders of Debt Securities.
EVENTS OF DEFAULT
Unless otherwise specified in the applicable Prospectus Supplement, the
following will constitute Events of Default under the Indenture with respect to
Debt Securities of any series: (a) failure to pay principal of any Debt Security
of that series when due and payable at maturity, upon redemption or otherwise;
(b) failure to pay any interest on any Debt Security of that series when due,
and the Default continues for 60 days; (c) an Event of Default, as defined in
the Debt Securities of that series, occurs and is continuing, or the Company
fails to comply with any of its other agreements in the Debt Securities of that
series or in the Indenture with respect to that series and the Default continues
for the period and after the notice provided therein (and described below); and
(d) certain events of bankruptcy, insolvency or reorganization. A Default under
clause (c) above is not an Event of Default with respect to a particular series
of Debt Securities until the Trustee or the holders of at least 50% in principal
amount of the then outstanding Debt Securities of that series notify the Company
of the Default and the Company does not cure the Default within 60 days after
receipt of the notice. The notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default."
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If an Event of Default with respect to outstanding Debt Securities of
any series (other than an Event or Default relating to certain events of
bankruptcy, insolvency or reorganization) shall occur and be continuing, either
the Trustee or the holders of at least 50% in principal amount of the
outstanding Debt Securities of that series by notice, as provided in the
Indenture, may declare the unpaid principal amount (or, if the Debt Securities
of that series are Original Issue Discount Securities, such lesser amount as may
be specified in the terms of that series) of, and any accrued and unpaid
interest on, all Debt Securities of that series to be due and payable
immediately. However, at any time after a declaration of acceleration with
respect to Debt Securities of any series has been made, but before a judgment or
decree based on such acceleration has been obtained, the holders of a majority
in principal amount of the outstanding Debt Securities of that series may, under
certain circumstances, rescind and annul such acceleration. For information as
to waiver of defaults, see "Modification and Waiver" below.
The Indenture will provide that, subject to the duty of the Trustee
during an Event of Default to act with the required standard of care, the
Trustee will be under no obligation to exercise any of its rights or powers
under the applicable Indenture at the request or direction of any of the
holders, unless such holders shall have offered to the Trustee reasonable
security or indemnity. Subject to certain provisions, including those requiring
security or indemnification of the Trustee, the holders of a majority in
principal amount of the outstanding Debt Securities of any series will 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 Debt Securities of that series.
The Company will be required to furnish to the Trustee under the
Indenture annually a statement as to the performance by the Company of its
obligations under that Indenture and as to any default in such performance.
MODIFICATION AND WAIVER
Subject to certain exceptions, the Company and the Trustee may amend
the Indenture or the Debt Securities with the written consent of the holders of
a majority in principal amount of the then outstanding Debt Securities of each
series affected by the amendment with each series voting as a separate class.
The holders of a majority in principal amount of the then outstanding Debt
Securities of any series may also waive compliance in a particular instance by
the Company with any provision of the Indenture with respect to the Debt
Securities of that series; provided, however, that without the consent of each
holder of Debt Securities of such series affected, an amendment or waiver may
not (i) reduce the percentage of the principal amount of Debt Securities whose
holders must consent to an amendment or waiver; (ii) reduce the rate or change
the time for payment of interest on any Debt Security (including default
interest); (iii) reduce the principal of or premium, if any, or change the fixed
maturity of any Debt Security, or reduce the amount of, or postpone the date
fixed for, redemption or the payment of any sinking fund or analogous obligation
with respect thereto; (iv) make any Debt Security payable in currency other than
that stated in the Debt Security; (v) make any change in the provisions
concerning waivers of Default or Events of Default by holders or the rights of
holders to recover the principal of, premium, if any, or interest on, any Debt
Security; (vi) waive a default in the payment of the principal of, or interest
on, any Debt Security, except as otherwise provided in the Indenture or (vii)
reduce the principal amount of Original Issue Discount Securities payable upon
acceleration of the maturity thereof. The Company and the Trustee may amend the
Indenture or the Debt Securities without notice to or the consent of any holder
of a Debt Security: (i) to cure any ambiguity, defect or inconsistency; (ii) to
comply with the Indenture's provisions with respect to successor corporations;
(iii) to comply with any requirements of the Commission in connection with the
qualification of the Indenture under the TIA; (iv) to provide for Debt
Securities in addition to or in place of certificated Debt Securities; (v) to
add to, change or eliminate any of the provisions of the Indenture in respect of
one of more series of Debt Securities, provided, however, that any such
addition, change or elimination (A) shall neither (1) apply to any Debt Security
of any series created prior to the execution of such amendment and entitled to
the benefit of such provision, nor (2) modify the rights of a holder of any such
Debt Security with respect to such provision, or (B) shall become effective only
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when there is no outstanding Debt Security of any series created prior to such
amendment and entitled to the benefit of such provision; (vi) to make any change
that does not adversely affect in any material respect the interest of any
holder; or (vii) to establish additional series of Debt Securities as permitted
by the Indenture.
The holders of a majority in principal amount of the then outstanding
Debt Securities of any series, by notice to the Trustee, may waive an existing
Default or Event of Default and its consequences except a Default or Event of
Default in the payment of the principal of, or any interest on, any Debt
Security with respect to the Debt Securities of that series; provided, however,
that the holders of a majority in principal amount of the outstanding Debt
Securities of any series may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration.
DEFEASANCE OF DEBT SECURITIES AND CERTAIN COVENANTS IN CERTAIN CIRCUMSTANCES
LEGAL DEFEASANCE. Unless otherwise specified in the applicable
Prospectus Supplement, the Indenture will provide that the Company may be
discharged from any and all obligations in respect of the Debt Securities of any
series (except for certain obligations to register the transfer or exchange of
Debt Securities of such series, to replace stolen, lost or mutilated Debt
Securities of such series, and to maintain paying agencies and certain
provisions relating to the treatment of funds held by paying agents) on the 91st
day after the date of the deposit with the Trustee, in trust, of cash and/or
U.S. government obligations, that, through the payment of interest and principal
in respect thereof in accordance with their terms, will provide money in an
amount sufficient in the opinion of a nationally recognized firm of independent
public accountants to pay and discharge each installment of principal (and
premium, if any) and interest, if any, on and any mandatory sinking fund
payments in respect of the Debt Securities of such series on the stated maturity
of such payments in accordance with the terms of the Indenture and such Debt
Securities. Such discharge may occur only if, among other things, the Company
has received from, or there has been published by, the United States Internal
Revenue Service a ruling, or, since the date of execution of the Indenture,
there has been a change in the applicable United States federal income tax law,
in either case to the effect that holders of the Debt Securities of such series
will not recognize income, gain or loss for United States federal income tax
purposes as a result of such deposit, defeasance and discharge and will be
subject to United States federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such deposit,
defeasance and discharge had not occurred.
DEFEASANCE OF CERTAIN COVENANTS. Unless otherwise specified in the
applicable Prospectus Supplement, the Indenture will provide that unless
otherwise provided by the terms of the applicable series of Debt Securities,
upon compliance with certain conditions, on the 91st day after the date of
deposit referred to below, the Company may omit to comply with the restrictive
covenants contained in the Indenture, as well as any additional covenants
contained in a supplement to the Indenture, a Board Resolution or an Officers'
Certificate delivered pursuant thereto. The conditions include: the deposit with
the Trustee of cash and/or U.S. government obligations, that, through the
payment of interest and principal in respect thereof in accordance with their
terms, will provide money in an amount sufficient in the opinion of a nationally
recognized firm of independent public accountants to pay principal, premium, if
any, and interest, if any, on and any mandatory sinking fund payments in respect
of the Debt Securities of such series on the stated maturity of such payments in
accordance with the terms of the Indenture and such Debt Securities; and the
delivery to the Trustee of an opinion of counsel to the effect that the holders
of the Debt Securities of such series will not recognize income, gain or loss
for United States federal income tax purposes as a result of such deposit and
related covenant defeasance and will be subject to United States federal income
tax in the same amount and in the same manner and at the same times as would
have been the case if such deposit and related covenant defeasance had not
occurred.
DEFEASANCE AND EVENTS OF DEFAULT. In the event the Company exercises
its option to omit compliance with certain covenants of the Indenture with
respect to any series of Debt Securities and
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the Debt Securities of such series are declared due and payable because of the
occurrence of any Event of Default, the amount of cash and/or U.S. government
obligations on deposit with the Trustee will be sufficient to pay amounts due on
the Debt Securities of such series at the time of their stated maturity but may
not be sufficient to pay amounts due on the Debt Securities of such series at
the time of the acceleration resulting from such Event of Default. However, the
Company will remain liable for such payments.
REGARDING THE TRUSTEES
The Trustee with respect to any series of Debt Securities will be
identified in the Prospectus Supplement relating to such Debt Securities. The
Indenture and provisions of the TIA incorporated by reference therein contain
certain limitations on the rights of the Trustee, should it become a creditor of
the Company, to obtain payment of claims in certain cases, or to realize on
certain property received in respect of any such claim, as security or
otherwise. The Trustee and its affiliates may engage in, and will be permitted
to continue to engage in, other transactions with the Company and its
affiliates; provided, however, that if it acquires any conflicting interest (as
defined in the TIA), it must eliminate such conflict or resign.
The holders of a majority in principal amount of the then outstanding
Debt Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
Trustee. The TIA and the Indenture provide that in case an Event of Default
shall occur (and be continuing), the Trustee will be required, in the exercise
of its rights and powers, to use the degree of care and skill of a prudent man
in the conduct of his own affairs. Subject to such provision, the Trustee will
be under no obligation to exercise any of its rights or powers under the
Indenture at the request of any of the holders of the Debt Securities issued
thereunder, unless they have offered to the Trustee indemnity satisfactory to
it.
DESCRIPTION OF CAPITAL STOCK
Pursuant to the Company's Restated Certificate of Incorporation (the
"Certificate"), the Company is authorized to issue an aggregate of 55,000,000
shares of stock, consisting of 50,000,000 shares of Common Stock and 5,000,000
shares of preferred stock, par value $.01 per share (the "Preferred Stock").
At June 5, 1997, there were 15,160,621 shares of Common Stock outstanding and
no shares of Preferred Stock outstanding. In addition, 200,000 shares of
Preferred Stock have been authorized and reserved for issuance in connection
with the Rights described below.
COMMON STOCK
Each holder of Common Stock is entitled to one vote for each share
owned of record on all matters voted upon by stockholders, and, except as
described below, a majority vote is required for all action to be taken by
stockholders. Holders of Common Stock are entitled to receive ratably such
dividends as may be declared by the Board of Directors of the Company on the
Common Stock out of funds legally available therefore, subject to the dividend
rights of any Preferred Stock that may be issued. The declaration and payment
of dividends are restricted by the provisions of the Company's Bank Credit
Agreement. In the event of a liquidation, dissolution or winding-up of the
Company, the holders of Common Stock are entitled to share equally and ratably
in the assets of the Company, if any, remaining after the payment of all debts
and liabilities of the Company and the liquidation preference of any
outstanding Preferred Stock. The holders of Common Stock have no preemptive
rights, cumulative voting rights, or rights to convert shares of Common Stock
into any other securities, and the Common Stock is not subject to any
redemption or sinking fund provisions.
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The Certificate also provides for a classified Board of Directors
consisting of three classes as nearly equal in size as practicable. Each class
holds office until the third annual meeting for election of directors following
the election of such class. No director may be removed except upon a vote of a
majority of the Board of Directors or upon a vote of 80% of the stockholders,
and the provisions of the Certificate relating to the classified Board may be
amended only upon a vote of the holders of at least 80% of the outstanding
shares of Common Stock.
The Certificate provides that except under certain circumstances,
directors of the Company shall not be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duties as a director.
That provision does not exonerate the directors from liability under federal
securities laws, and has no effect on any nonmonetary remedies that may be
available to the Company or its stockholders. The Certificate and the By-laws of
the Company provide for indemnification of the officers and directors of the
Company to the full extent permitted by applicable law.
The Common Stock is listed on the New York Stock Exchange. The transfer
agent and registrar for the Common Stock is The Bank of New York.
SECTION 203 OF THE DELAWARE LAW
The Company is subject to Section 203 of the Delaware General
Corporation Law, which generally prohibits a publicly held Delaware corporation
from engaging in a "business combination" with an "interested stockholder" for
a period of three years after the time of the transaction in which the person
became an interested stockholder, unless (i) prior to such time, the board of
directors of the corporation approved the business combination or the
transaction which resulted in the stockholder becoming an interested
stockholder, (ii) upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the interested stockholder owns
at least 85% of the outstanding voting stock, or (iii) at or subsequent to such
time the business combination is approved by the board of directors and by the
affirmative vote of at least 66-2/3% of the outstanding voting stock which is
not owned by the interested stockholder. A "business combination" includes
mergers, asset sales and other transactions resulting in a financial benefit to
the interested stockholder. An "interested stockholder" is a person who,
together with affiliates and associates, owns (or within three years, did own)
15% or more of the corporation's voting stock.
PREFERRED STOCK PURCHASE RIGHTS
Each share of Common Stock includes one preferred stock purchase right
(the "Rights"), which are associated with and trade with the Common Stock. Each
Right entitles the registered holder thereof, after the Rights become
exercisable and until January 4, 2005 (or the earlier redemption, exchange or
termination of the Rights), to purchase from the Company one one-hundredth
(1/100th) of a share of Series A Junior Participating Preferred Stock, par
value $.01 per share (the "Preferred Shares"), at a price of $55 per one
one-hundredth (1/100th) of a Preferred Share, subject to certain antidilution
adjustments (the "Purchase Price"). The Rights are represented by the Common
Stock certificates and do not become exercisable or transferable apart from the
Common Stock until the earlier to occur of (i) ten (10) days following a public
announcement that a Person or group of affiliated or associated Persons has
become an Acquiring Person (a Person or group of affiliated or associated
Persons who has acquired, or obtained the right to acquire, beneficial
ownership of 20% or more of the Common Stock), or (ii) ten
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(10) days after a Person or group commences, or announces an intention to
commence, a tender or exchange offer, the consummation of which would result in
the beneficial ownership by a Person or group of 20% or more of the Common
Stock (the earlier of (i) and (ii) being called the "Distribution Date"). The
Board of Directors has the power, under certain circumstances, to postpone the
Distribution Date. Separate certificates representing the Rights will be mailed
to holders of record of the Common Stock as of the close of business on the
Distribution Date. The Rights will first become exercisable on the
Distribution Date, unless earlier redeemed or exchanged, and may then begin
trading separately from the Common Stock. The Rights will at no time have any
voting rights.
Each Preferred Share purchasable upon exercise of the Rights
will be entitled to a minimum preferential quarterly dividend payment of $1.00
per share but will be entitled to an aggregate dividend of 100 times the
dividend, if any, declared per share of Common Stock. In the event of
liquidation, the holders of the Preferred Shares will be entitled to a minimum
preferential liquidation payment of $100 per share but will be entitled to an
aggregate payment of 100 times the payment made per share of Common Stock.
Finally, in the event of any merger, consolidation or other transaction in
which shares of Common Stock are exchanged, each Preferred Share will be
entitled to receive 100 times the amount received per share of Common Stock.
These rights are protected by customary antidilution provisions. Because of the
nature of the Preferred Shares' dividend, liquidation and voting rights,
the value of one one-hundredth of a Preferred Share purchasable upon exercise
of each Right should approximate the value of one share of Common Stock.
In the event that a Person becomes an Acquiring Person (except
pursuant to certain cash offers for all outstanding shares of Common Stock
approved by the Board of Directors of the Company) or if the Company were the
surviving corporation in a merger with an Acquiring Person or any affiliate or
associate of an Acquiring Person and the shares of Common Stock were not changed
or exchanged, each holder of a Right, other than Rights that are or were
acquired or beneficially owned by the Acquiring Person (which Rights will
thereafter be void), will thereafter have the right to receive upon the exercise
thereof at the then current Purchase Price of the Right, that number of shares
of Common Stock having a market value of two times the then current Purchase
Price of one Right. With certain exceptions, in the event that, following the
time that a Person has become an Acquiring Person, the Company were acquired in
a merger or other business combination transaction or more than 50% of its
assets or earning power were sold, proper provision shall be made so that each
holder of a Right shall thereafter have the right to receive, upon the
exercise thereof at the then current Purchase Price of the Right, that number of
shares of common stock of the acquiring company which at the time of such
transaction would have a market value of two times the then current Purchase
Price of one Right.
At any time after a Person becomes an Acquiring Person and
prior to the acquisition by such Acquiring Person of 50% or more of the then
outstanding shares of Common Stock, the Board of Directors may cause the Company
to acquire the Rights (other than Rights owned by an Acquiring Person which have
become void), in whole or in part, in exchange for that number of shares of
Common Stock having an aggregate value equal to the Spread (the excess of the
value of the shares of Common Stock issuable upon exercise of a Right after a
Person becomes an Acquiring Person over the Purchase Price) per Right (subject
to adjustment).
The Rights may be redeemed in whole, but not in part, at a
price of $.001 per Right (the "Redemption Price") by the Board of Directors at
any time prior to the close of business on the tenth day following the first
date of public announcement that a Person or group has become an Acquiring
Person. The Board of Directors has the power, under certain circumstances, to
extend the ten-day
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redemption period. Under certain circumstances set forth in the Rights
Agreement, the decision to redeem or to lengthen or shorten the redemption
period shall require the concurrence of a majority of the continuing directors.
Immediately upon the action of the Board of Directors of the Company electing
to redeem the Rights, the Company shall make an announcement thereof, and upon
such election, the right to exercise the Rights will terminate and the only
right of the holders of Rights will be to receive the Redemption Price.
The Rights will expire on January 4, 2005 (unless earlier
redeemed, exchanged or terminated). The Bank of New York is the Rights Agent.
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PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters for
public offering and sale by them and may also sell the Securities to investors
directly or through agents. Any such underwriter, or agent involved in the offer
and sale of Securities will be named in the applicable Prospectus Supplement.
The Company has reserved the right to sell or exchange Securities directly to
investors on its own behalf in those jurisdictions where and in such manner as
it is authorized to do so.
The distribution of the Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, or at negotiated prices. Sales of Common Stock offered
hereby may be effected from time to time in one or more transactions on the New
York Stock Exchange or in negotiated transactions or a combination of such
methods. The Company may also, from time to time, authorize dealers, acting as
the Company's agents, to offer and sell Securities upon the terms and conditions
as are set forth in the applicable Prospectus Supplement. In connection with the
sale of Securities, underwriters may receive compensation from the Company in
the form of underwriting discounts or commissions and may also receive
commissions from purchasers of the Securities for whom they may act as agent.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as
agent. Any such underwriter, dealer or agent will be identified, and any such
compensation received from the Company will be described, in the Prospectus
Supplement. Unless otherwise indicated in a Prospectus Supplement, an agent will
be acting on a best efforts basis and a dealer will purchase Securities as a
principal, and may then resell such Securities at varying prices to be
determined by the dealer.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the applicable Prospectus Supplement. Dealers and agents
participating in the distribution of Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the Securities may be deemed to be underwriting
discounts and commissions. Underwriters, dealers and agents may be entitled,
under agreements entered into with the Company, to indemnification against and
contribution toward certain civil liabilities, including liabilities under the
Securities Act, and to reimbursement by the Company for certain expenses.
To facilitate an offering of a series of Securities, certain persons
participating in the offering may engage in transactions that stabilize,
maintain, or otherwise affect the price of the Securities. This may include
over-allotments or short sales of the Securities, which involves the sale by
persons participating in the offering of more Securities than have been sold to
them by the Company. In such circumstances, such persons would cover such
over-allotments or short positions by purchasing in the open market or by
exercising the over-allotment option granted to such persons. In addition, such
persons may stabilize or maintain the price of the Securities by bidding for or
purchasing Securities in the open market or by imposing penalty bids, whereby
selling concessions allowed to dealers participating in any such offering may be
reclaimed if Securities sold by them are repurchased in connection with
stabilization transactions. The effect of these transactions may be to stabilize
or maintain the market price of the Securities at a level above that which might
otherwise prevail in the open market. Such transactions, if commenced, may be
discontinued at any time.
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Certain of the underwriters, dealers or agents and their associates may
engage in transactions with and perform services for the Company in the ordinary
course of business, including refinancing of the Company's indebtedness. See
"Use of Proceeds."
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LEGAL MATTERS
Certain legal matters with respect to the Securities offered hereby
will be passed upon for the Company by Latham & Watkins, Chicago, Illinois.
Certain legal matters will be passed upon for any agents or underwriters by
counsel for such agents or underwriters identified in the applicable Prospectus
Supplement. Such persons do not have the power to vote or dispose of such shares
of Common Stock.
EXPERTS
The consolidated financial statements of Libbey Inc. appearing in the
Company's Annual Report (Form 10-K) for the year ended December 31, 1996, have
been audited by Ernst & Young LLP, independent auditors, as set forth in their
report thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST
NOT BE RELIED UPON AS HAVING BEEN SO AUTHORIZED. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY BY ANYONE IN
ANY JURISDICTION IN WHICH SUCH OFFER TO SELL IS NOT AUTHORIZED, OR IN WHICH THE
PERSON IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
--------------
TABLE OF CONTENTS
PAGE
----
Available Information...................................................... 2
Information Incorporated by Reference...................................... 2
The Company................................................................ 3
Recent Developments........................................................ 3
Use of Proceeds............................................................ 5
Ratios of Earnings to Fixed Charges........................................ 5
Description of Debt Securities............................................. 6
Description of Capital Stock .............................................. 13
Plan of Distribution....................................................... 17
Legal Matters.............................................................. 19
Experts ................................................................... 19
[LOGO]
LIBBEY INC.
$100,000,000
DEBT SECURITIES
COMMON STOCK
--------------
PROSPECTUS
--------------
, 1997
================================================================================
<PAGE> 22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses to be paid by the Company in connection with the
distribution of the securities being registered are as set forth in the
following table:
<TABLE>
<S> <C>
Securities and Exchange Commission Fee................... $30,303
*Rating Agency Fees....................................... 100,000
*Legal Fees and Expenses.................................. 125,000
*Accounting Fees and Expenses............................. 100,000
*Printing Expenses........................................ 100,000
*Blue Sky Fees ........................................... 10,000
*Trustee/Issuing & Paying Agent Fees and Expenses......... 25,000
*Transfer Agent Fees & Expenses........................... 20,000
*Miscellaneous 20,000
--------
*Total .......................................... $530,303
========
</TABLE>
- ----------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is a Delaware corporation. Subsection (b)(7) of Section 102
of the Delaware General Corporation Law (the "DGCL"), enables a corporation in
its original certificate of incorporation or an amendment thereto to eliminate
or limit the personal liability of a director to the corporation or its
stockholders for monetary damages for violations of the director's fiduciary
duty, except (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit.
Subsection (a) of Section 145 of the DGCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation),
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with such action,
suit or proceeding provided that such director or officer acted in good faith in
a manner reasonably believed to be in, or not opposed to, the best interests of
the corporation, and, with respect to any criminal action or proceeding,
provided further that such director or officer had no reasonable cause to
believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
director or officer, or former director or officer, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its
II-1
<PAGE> 23
favor by reason of the fact that such person acted in any of the capacities set
forth above, against expenses (including attorneys' fees) actually and
reasonably incurred in connection with the defense or settlement of such action
or suit provided that such director or officer acted in good faith and in a
manner reasonably believed to be in, or not opposed to, the best interests of
the corporation, except that no indemnification may be made in respect to any
claim, issue or matter as to which such director or officer shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all of the circumstances of the case, such director or officer is fairly
and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a director or officer
of a corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys fees) actually and reasonably incurred by him in connection
therewith; that indemnification and advancement of expenses provided for, by, or
granted pursuant to Section 145 shall not be deemed exclusive of any other
rights to which the indemnified party may be entitled; and empowers the
corporation to purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted against him or
incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liabilities under Section 145.
Article VII of the Restated Certificate of Incorporation (filed as
Exhibit 3.1) of the Company provides for the elimination of liability of
directors to the extent permitted by Section 102(b)(7) of the DGCL. Article III,
Section 13 of the By-Laws of the Company (filed as Exhibit 3.2) provides for
indemnification of the officers and directors of the Company to the extent
permitted by applicable law.
The Company has in effect insurance policies in the amount of $30
million covering all of its directors and officers.
II-2
<PAGE> 24
ITEM 16. EXHIBITS
*1.1 Form of Underwriting Agreement.
3.1 Restated Certificate of Incorporation of Libbey Inc. (filed as
Exhibit 3.1 to Registrant's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1993, and incorporated by reference
herein).
3.2 Amended and Restated Bylaws of Libbey Inc. (filed as Exhibit
3.2 to Registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1993 and incorporated by reference
herein).
4.1 Form of Indenture.
5 Opinion of Latham & Watkins.
12 Statement regarding Computation of Ratios.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5).
24 Powers of Attorney (contained on Page II-5).
- ----------
* To be filed by a report on Form 8-K pursuant to Regulation S-K, Item
601(b)
II-3
<PAGE> 25
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
provided, however, that the information required to be included in a
post-effective amendment by paragraphs (a)(1)(i) and (a)(1)(ii) above may be
contained in periodic reports filed by the Registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 and (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions or otherwise, the
Registrant has been advised that in the opinion of the Securities and
II-4
<PAGE> 26
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore unenforceable. In the event that
a claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of their counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
(j) The undersigned Registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee to act
under Subsection (a) of Section 310 of the Trust Indenture Act (the "Act") in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
II-5
<PAGE> 27
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL
OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF TOLEDO, OHIO ON JUNE 6, 1997.
LIBBEY INC.
By /s/ Kenneth G. Wilkes
--------------------------------------------
Kenneth G. Wilkes
Vice President, Chief Financial Officer and
Treasurer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Arthur H. Smith, Kenneth G.
Wilkes and John F. Meier, and each of them, with full power of substitution and
full power to act without the other, his true and lawful attorney-in-fact and
agent to act for him in his name, place and stead, in any and all capacities, to
sign a registration statement on Form S-3 and any or all amendments thereto
(including without limitation any post-effective amendments thereto), and any
registration statement for the same offering that is to be effective under Rule
462(b) of the Securities Act, and to file each of the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises in order to
effectuate the same as fully, to all intents and purposes, as they or he might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY EACH OF THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ John F. Meier
- --------------------------- Chairman of the Board of June 6, 1997
(John F. Meier) Directors and Chief Executive
Officer (Principal Executive
Officer)
/s/ Kenneth G. Wilkes
- --------------------------- Vice President, Chief Financial June 6, 1997
(Kenneth G. Wilkes) Officer and Treasurer (Principal
Financial and Accounting
Officer)
/s/ Richard I. Reynolds
- --------------------------- Director, Executive Vice June 6, 1997
(Richard I. Reynolds) President, Chief Operations
Officer
/s/ William A. Foley
- --------------------------- Director June 6, 1997
(William A. Foley)
/s/ Terry L. Wilkison
- --------------------------- Director June 6, 1997
(Terry L. Wilkison)
/s/ Peter C. McC. Howell
- --------------------------- Director June 6, 1997
(Peter C. McC. Howell)
/s/ Gary L. Moreau
- --------------------------- Director June 6, 1997
(Gary L. Moreau)
II-6
<PAGE> 28
EXHIBIT INDEX
*1.1 Form of Underwriting Agreement.
3.1 Restated Certificate of Incorporation of Libbey Inc. (filed as
Exhibit 3.1 to Registrant's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1993, and incorporated by reference
herein).
3.2 Amended and Restated Bylaws of Libbey Inc. (filed as Exhibit
3.2 to Registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1993 and incorporated by reference
herein).
4.1 Form of Indenture.
5 Opinion of Latham & Watkins.
12 Statement regarding Computation of Ratios.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5).
24 Powers of Attorney (contained on Page II-5).
- ----------
* To be filed by a report on Form 8-K pursuant to Regulation S-K,
Item 601(b)
<PAGE> 1
Exhibit 4.1
LIBBEY INC.
as Issuer
and
[ ],
as Trustee
INDENTURE
dated as of _______________, 199_
<PAGE> 2
TABLE OF CONTENTS
PAGE
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE .................... 1
Section 1.01. Certain Definitions .................................... 1
Section 1.02. Other Definitions ...................................... 4
Section 1.03. Incorporation by Reference of Trust Indenture Act ...... 5
Section 1.04. Rules of Construction .................................. 5
ARTICLE 2. THE SECURITIES ................................................ 5
Section 2.01. Unlimited In Amount, Issuable In Series, Form and Dating 5
Section 2.02. Execution and Authentication ........................... 8
Section 2.03. Registrar and Paying Agent ............................. 8
Section 2.04. Paying Agent to Hold Money in Trust .................... 8
Section 2.05. Securityholder Lists ................................... 9
Section 2.06. Transfer and Exchange .................................. 9
Section 2.07. Replacement Securities ................................. 10
Section 2.08. Outstanding Securities ................................. 10
Section 2.09. Temporary Securities ................................... 10
Section 2.10. Cancellation ........................................... 11
Section 2.11. Defaulted Interest ..................................... 11
Section 2.12. Special Record Dates ................................... 11
Section 2.13. Global Securities ...................................... 12
Section 2.14. CUSIP Numbers .......................................... 13
ARTICLE 3. REDEMPTION .................................................... 13
Section 3.01. Notices to Trustee ..................................... 13
Section 3.02. Selection of Securities to Be Redeemed ................. 14
Section 3.03. Notice of Redemption ................................... 14
Section 3.04. Effect of Notice of Redemption ......................... 15
Section 3.05. Deposit of Redemption Price ............................ 15
Section 3.06. Securities Redeemed in Part ............................ 15
ARTICLE 4. COVENANTS ..................................................... 15
Section 4.01. Payment of Securities .................................. 15
Section 4.02. Maintenance of Office or Agency ........................ 16
Section 4.03. Commission Reports ..................................... 16
Section 4.04. Compliance Certificate ................................. 17
Section 4.05. Taxes .................................................. 17
Section 4.06. Stay, Extension and Usury Laws ......................... 17
Section 4.07. Corporate Existence .................................... 17
i
<PAGE> 3
Section 4.08. Calculation of Original Issue Discount ................. 18
ARTICLE 5. SUCCESSORS .................................................... 18
Section 5.01. When Company May Merge, etc ............................ 18
Section 5.02. Successor Corporation Substituted ...................... 18
ARTICLE 6. DEFAULTS AND REMEDIES ......................................... 19
Section 6.01. Events of Default ...................................... 19
Section 6.02. Acceleration ........................................... 20
Section 6.03. Other Remedies ......................................... 21
Section 6.04. Waiver of Past Defaults ................................ 21
Section 6.05. Control by Majority .................................... 21
Section 6.06. Limitation on Suits .................................... 21
Section 6.07. Rights of Holders to Receive Payment ................... 22
Section 6.08. Collection Suit by Trustee ............................. 22
Section 6.09. Trustee May File Proofs of Claim ....................... 22
Section 6.10. Priorities ............................................. 23
Section 6.11. Undertaking for Costs .................................. 23
ARTICLE 7. TRUSTEE ....................................................... 24
Section 7.01. Duties of Trustee ...................................... 24
Section 7.02. Rights of Trustee ...................................... 25
Section 7.03. Individual Rights of Trustee ........................... 26
Section 7.04. Trustee's Disclaimer ................................... 26
Section 7.05. Notice of Defaults ..................................... 26
Section 7.06. Reports by Trustee to Holders .......................... 26
Section 7.07. Compensation and Indemnity ............................. 27
Section 7.08. Replacement of Trustee ................................. 27
Section 7.09. Successor Trustee by Merger, etc ....................... 29
Section 7.10. Eligibility; Disqualification .......................... 29
Section 7.11. Preferential Collection of Claims Against Company ...... 29
ARTICLE 8. SATISFACTION AND DISCHARGE; DEFEASANCE ........................ 29
Section 8.01. Satisfaction and Discharge of Indenture ................ 29
Section 8.02. Application of Trust Funds; Indemnification ............ 30
Section 8.03. Legal Defeasance of Securities of any Series ........... 31
Section 8.04. Covenant Defeasance .................................... 33
Section 8.05. Repayment to Company ................................... 34
ARTICLE 9. SUPPLEMENTS, AMENDMENTS AND WAIVERS ........................... 34
Section 9.01. Without Consent of Holders ............................. 34
ii
<PAGE> 4
Section 9.02. With Consent of Holders ................................ 35
Section 9.03. Revocation and Effect of Consents ...................... 36
Section 9.04. Notation on or Exchange of Securities .................. 36
Section 9.05. Trustee to Sign Amendments, etc ........................ 36
ARTICLE 10. MISCELLANEOUS ................................................ 36
Section 10.01. Indenture Subject to Trust Indenture Act ............. 36
Section 10.02. Notices .............................................. 37
Section 10.03. Communication By Holders With Other Holders .......... 38
Section 10.04. Certificate and Opinion as to Conditions Precedent.... 38
Section 10.05. Statements Required in Certificate or Opinion ........ 38
Section 10.06. Rules by Trustee and Agents .......................... 38
Section 10.07. Legal Holidays ....................................... 39
Section 10.08. No Recourse Against Others ........................... 39
Section 10.09. Counterparts ......................................... 39
Section 10.10. Governing Law ........................................ 39
Section 10.11. Severability ......................................... 39
Section 10.12. Effect of Headings, Table of Contents, etc ........... 39
Section 10.13. Successors and Assigns ............................... 39
Section 10.14. No Interpretation of Other Agreements ................ 40
iii
<PAGE> 5
CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
310(a)(1) ................................................................7.10
(a)(2) ..............................................................7.10
(a)(3) ..............................................................N.A.
(a)(4) ..............................................................N.A.
(a)(5) ..............................................................7.10
(b) .....................................................7.03, 7.08; 7.10
(c) .................................................................N.A.
311(a) ...................................................................7.11
(b) .................................................................7.11
(c) .................................................................N.A.
312(a) ...................................................................2.05
(b).................................................................10.03
(c).................................................................10.03
313(a) ...................................................................7.06
(b) .................................................................7.06
(c) ..........................................................7.06; 10.02
(d) .................................................................7.06
314(a) ............................................................4.03; 10.02
(b) .................................................................N.A.
(c)(1) .............................................................10.04
(c)(2) .............................................................10.04
(c)(3) .............................................................N.A.
(d) .................................................................N.A.
(e) ................................................................10.05
(f) .................................................................N.A.
315(a) ......................................................7.01(b)(ii), 7.02
(b) ....................................................7.02, 7.05; 10.02
(c) ........................................................7.01(a), 7.02
(d) .......................................................7.01(d), 7.02
(e) ................................................................6.11
316(a)(last sentence) ................................................2.13(f)
(a)(1)(A) ...........................................................6.05
(a)(1)(B) ..........................................................6.04
(a)(2) .............................................................N.A.
(b) ................................................................6.07
(c) ..........................................................2.12; 9.03
317(a)(1) ...............................................................6.08
(a)(2) .............................................................6.09
(b) ................................................................2.04
318(a) ..................................................................10.01
(b) .................................................................N.A.
* (c).................................................................10.01
- ---------------
N.A. means not applicable.
* THIS CROSS-REFERENCE TABLE IS NOT PART OF THE INDENTURE.
iv
<PAGE> 6
INDENTURE dated as of ______, 199_ between Libbey Inc., a Delaware
corporation (the "Company"), and ____________________, a __________ banking
corporation, as Trustee (the "Trustee").
[The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its debentures,
notes or other evidences of indebtedness to be issued in one or more series (the
"Securities"), as herein provided, up to such principal amount as may from time
to time be authorized in or pursuant to one or more resolutions of the Board of
Directors or by supplemental indenture.]
Each party agrees as follows for the benefit of the other party
and for the equal and ratable benefit of the Holders of each series of the
Securities:
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. CERTAIN DEFINITIONS.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," "controlled by" and "under common control with"), as
used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting stock, by
agreement or otherwise.
"Agent" means any Registrar, Paying Agent, authenticating agent or
co-Registrar.
"Board of Directors" means the Board of Directors of the Company
or any authorized committee thereof.
"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 or pursuant to authorization by the Board of Directors
and to be in full force and effect on the date of such certification (and
delivered to the Trustee, if appropriate).
"Closing Date" means the date on which the Securities of a
particular series were originally issued under this Indenture.
"Commission" means the Securities and Exchange Commission.
"Company" means the party named as such above until a successor
replaces it pursuant to this Indenture and thereafter means the successor.
1
<PAGE> 7
"Company Order" means a written order signed in the name of the
Company by two Officers, one of whom must be the Company's principal executive
officer, principal financial officer or principal accounting officer.
"Company Request" means a written request signed in the name of
the Company by its Chairman of the Board, a President or a Vice President, and
by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Corporate Trust Office" shall mean the corporate trust office of
the Trustee, which shall initially be 101 Barclay Street, Floor 21 West, New
York, New York 10286.
"Default" means any event that is, or with the passage of time or
the giving of notice or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the person designated as Depositary for such series by the Company,
which Depositary shall be a clearing agency registered under the Exchange Act;
and if at any time there is more than one such person, "Depositary" as used with
respect to the Securities of any series shall mean the Depositary with respect
to the Securities of such series.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are applicable to the circumstances as of
the Closing Date.
"Global Security" shall mean a Security issued to evidence all or
a part of any series of Securities that is executed by the Company and
authenticated and delivered by the Trustee to a Depositary or pursuant to such
Depositary's instructions, all in accordance with this Indenture and pursuant to
Section 2.01, which shall be registered as to principal and interest in the name
of such Depositary or its nominee.
"Holder" or "Securityholder" means a Person in whose name a
Security is registered in the register of Securities kept by the Registrar.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Interest" when used with respect to an Original Issue Discount
Security that by its terms bears interest only after maturity, means interest
payable after maturity.
2
<PAGE> 8
"Maturity" when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, any Vice-President, the Treasurer, the Controller, the Secretary, any
Assistant Treasurer or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two
Officers, one of whom must be the Chief Executive Officer, the President, the
Chief Financial Officer, the Treasurer or the principal accounting officer of
the Company.
"Opinion of Counsel" means a written opinion from legal counsel
who is reasonably acceptable to the Trustee. The counsel may be an employee of
or counsel to the Company or the Trustee.
"Original Issue Discount Security" means any Security which
provides that an amount less than its principal amount is due and payable upon
acceleration after an Event of Default.
"Person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"principal" of a Security means the principal amount due on the
Stated Maturity of the Security plus the premium, if any, on the Security.
"Securities" means the Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" means any corporation, partnership or limited
liability company of which the Company, or the Company and one or more
Subsidiaries, or any one or more Subsidiaries, directly or indirectly owns or
own (i) in the case of a corporation, voting securities entitling the holders
thereof to elect a majority of the directors, either at all times or so long as
there is no default or contingency which permits the holders of any other class
of securities to vote for the election of one or more directors, (ii) in the
case of a partnership, at least a majority of the general partnership interests
and at least a majority of total outstanding partnership
3
<PAGE> 9
interests or (iii) in the case of a limited liability company, at least a
majority of the membership interests.
"TIA" means the Trust Indenture Act of 1939, as amended from time
to time, and as in effect on the date of execution of this Indenture; provided,
however, that in the event the TIA is amended after such date, "TIA" means, to
the extent required by such amendment, the Trust Indenture Act, as so amended.
"Trustee" means the party named as such above until a successor
becomes such pursuant to this Indenture and thereafter means or includes each
party who is then a trustee hereunder, and if at any time there is more than one
such party, "Trustee" as used with respect to the Securities of any series means
the Trustee with respect to Securities of that series. If Trustees with respect
to different series of Securities are trustees under this Indenture, nothing
herein shall constitute the Trustees co-trustees of the same trust, and each
Trustee shall be the trustee of a trust separate and apart from any trust
administered by any other Trustee with respect to a different series of
Securities.
"Trust Officer" means the Chairman of the Board, the President or
any other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America that is not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation evidenced by such
depository receipt.
SECTION 1.02. OTHER DEFINITIONS.
<TABLE>
<CAPTION>
Term Defined in Section
---- ------------------
<S> <C>
"Bankruptcy Law" 6.01
"Custodian" 6.01
"Event of Default" 6.01
"Legal Holiday" 10.07
"Paying Agent" 2.03
"Place of Payment" 2.01
"redemption price" 3.03
"Registrar" 2.03
</TABLE>
4
<PAGE> 10
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities.
"indenture securityholder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the Securities means the Company and any successor
obligor on the Securities.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
under the TIA have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and in the
plural include the singular; and
(v) provisions apply to successive events and transactions.
ARTICLE 2.
THE SECURITIES
SECTION 2.01. UNLIMITED IN AMOUNT, ISSUABLE IN SERIES, FORM AND DATING.
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution or an Officers' Certificate
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<PAGE> 11
pursuant to authority granted under a Board Resolution or established in one or
more indentures supplemental hereto, prior to the issuance of Securities of any
series:
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(b) any limit upon the aggregate principal amount of
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to this Article 2);
(c) the price or prices (expressed as a percentage of the
aggregate principal amount thereof) at which the Securities of the
series will be issued;
(d) the date or dates on which the principal of the Securities
of the series is payable;
(e) the rate or rates that may be fixed or variable at which
the Securities of the series shall bear interest, if any, or the manner
in which such rate or rates shall be determined, the date or dates from
which such interest shall accrue, the interest payment dates on which
such interest shall be payable and the record dates for the
determination of Holders to whom interest is payable;
(f) the place or places where the principal of and any
interest on Securities of the series shall be payable, if other than as
provided herein;
(g) the price or prices at which (if any), the period or
periods within which (if any) and the terms and conditions upon which
(if other than as provided herein) Securities of the series may be
redeemed, in whole or in part, at the option, or as an obligation, of
the Company;
(h) the obligation, if any, of the Company to redeem, purchase
or repay Securities of the series, in whole or in part, pursuant to any
sinking fund or analogous provisions or at the option of a Holder
thereof and the price or prices at which and the period and periods
within which and the terms and conditions upon which Securities of the
series shall be redeemed, purchased or repaid pursuant to such
obligation;
(i) if other than denominations of $1,000 and any multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(j) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 6.02 hereof;
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<PAGE> 12
(k) any addition to or change in the covenants set forth in
Article 4 that applies to Securities of the series;
(l) any Events of Default with respect to the Securities of a
particular series, if not set forth herein;
(m) the Trustee for the series of Securities;
(n) whether the Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities; the
terms and conditions, if any, upon which such Global Security or
Securities may be exchanged in whole or in part for other individual
Securities, and the Depositary for such Global Security and Securities;
(o) the provisions, if any, relating to any security provided
for the Securities of the series;
(p) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, but which may
modify or delete any provision of this Indenture with respect to such
series; provided, however, that no such term may modify or delete any
provision hereof if imposed by the TIA; and provided, further, that any
modification or deletion of the rights, duties or immunities of the
Trustee hereunder shall have been consented to in writing by the
Trustee).
All Securities of any series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution or Officers' Certificate or in any such indenture
supplemental hereto.
The principal of and any interest on the Securities shall be
payable at the office or agency of the Company designated in the form of
Security for the series (each such place herein called the "Place of Payment");
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the address of the Person entitled thereto as such
address shall appear in the register of Securities referred to in Section 2.03
hereof.
Each Security shall be in one of the forms approved from time to
time by or pursuant to a Board Resolution or Officers' Certificate, or
established in one or more indentures supplemental hereto. Prior to the delivery
of a Security to the Trustee for authentication in any form approved by or
pursuant to a Board Resolution or Officers' Certificate, the Company shall
deliver to the Trustee the Board Resolution or Officers' Certificate by or
pursuant to which such form of Security has been approved, which Board
Resolution or Officers' Certificate shall have attached thereto a true and
correct copy of the form of Security that has been approved by or pursuant
thereto.
The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage. Each Security shall be dated the
date of its authentication.
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SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Securities for the Company by manual
or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue upon
a Company Order.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Securities of
a particular series may be presented for registration of transfer or for
exchange (the "Registrar") and an office or agency where Securities of that
series may be presented for payment (a "Paying Agent"). The Registrar for a
particular series of Securities shall keep a register of the Securities of that
series and of their transfer and exchange. The Company may appoint one or more
co-Registrars and one or more additional paying agents for each series of
Securities. The term "Paying Agent" includes any additional paying agent. The
Company may change any Paying Agent, Registrar or co-Registrar without prior
notice to any Securityholder. The Company shall notify the Trustee in writing of
the name and address of any Agent not a party to this Indenture.
If the Company fails to maintain a Registrar or Paying Agent for
any series of Securities, the Trustee shall act as such. The Company or any of
its Affiliates may act as Paying Agent, Registrar or co-Registrar.
The Company hereby appoints the Trustee the initial Registrar and
Paying Agent for each series of Securities unless another Registrar or Paying
Agent, as the case may be, is appointed prior to the time Securities of that
series are first issued.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
Whenever the Company has one or more Paying Agents it will, prior
to each due date of the principal of or interest on, any Securities, deposit
with a Paying Agent a sum sufficient to pay the principal or interest so
becoming due, such sum to be held in trust for the
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<PAGE> 14
benefit of the Persons entitled to such principal or interest, 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 shall require each Paying Agent other than the Trustee
to agree in writing that such Paying Agent will hold in trust for the benefit of
the Securityholders of the particular series for which it is acting, or the
Trustee, all money held by the Paying Agent for the payment of principal or
interest on the Securities of such series, and that such Paying Agent will
notify the Trustee of any Default by the Company or any other obligor of the
series of Securities in making any such payment and at any time during the
continuance of any such Default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying Agent. If
the Company or an Affiliate acts as Paying Agent, it shall segregate and hold in
a separate trust fund for the benefit of the Securityholders of the particular
series for which it is acting all money held by it as Paying Agent. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon so doing, the Paying Agent (if other than the Company or an
Affiliate of the Company) shall have no further liability for such money. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Securities.
SECTION 2.05. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders, separately by series, and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least seven business days before each interest payment date
and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders, separately by series, relating to such interest
payment date or request, as the case may be.
SECTION 2.06. TRANSFER AND EXCHANGE.
Where Securities of a series are presented to the Registrar or a
co-Registrar with a request to register a transfer or to exchange them for an
equal principal amount of Securities of the same series of other authorized
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met. To permit registrations of
transfers and exchanges, the Company shall issue and the Trustee shall
authenticate Securities at the Registrar's request.
No service charge shall be made for any registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2.09, 2.13, 3.06 or 9.04).
The Company need not issue, and the Registrar or co-Registrar need
not register the transfer or exchange of, (i) any Security of a particular
series during a period beginning at the opening of business 15 days before the
day of any selection of Securities of that series for
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<PAGE> 15
redemption under Section 3.02 and ending at the close of business on the day of
selection, or (ii) any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security of that series being redeemed in
part.
SECTION 2.07. REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Security of same series if the Company's and the Trustee's
requirements are met. The Trustee or the Company may require an indemnity bond
to be furnished which is sufficient in the judgment of both to protect the
Company, the Trustee, and any Agent from any loss which any of them may suffer
if a Security is replaced. The Company may charge such Holder for its expenses
in replacing a Security.
Every replacement Security is an obligation of the Company and
shall be entitled to all the benefit of the Indenture equally and
proportionately with any and all other Securities of the same series.
SECTION 2.08. OUTSTANDING SECURITIES.
The Securities of any series outstanding at any time are all the
Securities of that series authenticated by the Trustee except for those
cancelled by it, those delivered to it for cancellation, and those described in
this Section as not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they cease
to be outstanding and interest on them ceases to accrue.
Except as set forth in Section 2.10 hereof, a Security does not
cease to be outstanding because the Company or an Affiliate holds the Security.
For each series of Original Issue Discount Securities, the
principal amount of such Securities that shall be deemed to be outstanding and
used to determine whether the necessary Holders have given any request, demand,
authorization, direction, notice, consent or waiver shall be the principal
amount of such Securities that could be declared to be due and payable upon
acceleration upon an Event of Default as of the date of such determination. When
requested by the Trustee, the Company shall advise the Trustee of such amount,
showing its computations in reasonable detail.
SECTION 2.09. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Securities upon a
written order of the Company signed
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<PAGE> 16
by one Officer of the Company. Temporary Securities shall be substantially in
the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive Securities
in exchange for temporary Securities.
Holders of temporary securities shall be entitled to all of the
benefits of this Indenture.
SECTION 2.10. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall return such
cancelled Securities to the Company at the Company's written request. The
Company may not issue new Securities to replace Securities that it has paid or
that have been delivered to the Trustee for cancellation.
SECTION 2.11. DEFAULTED INTEREST.
If the Company fails to make a payment of interest on any series
of Securities, it shall pay such defaulted interest plus (to the extent lawful)
any interest payable on the defaulted interest, in any lawful manner. It may
elect to pay such defaulted interest, plus any such interest payable on it, to
the Persons who are Holders of such Securities on which the interest is due on a
subsequent special record date. The Company shall notify the Trustee in writing
of the amount of defaulted interest proposed to be paid on each such Security.
The Company shall fix any such record date and payment date for such payment. At
least 15 days before any such record date, the Company shall mail to
Securityholders affected thereby a notice that states the record date, payment
date, and amount of such interest to be paid.
SECTION 2.12. SPECIAL RECORD DATES.
(a) The Company may, but shall not be obligated to, set a
record date for the purpose of determining the identity of Holders
entitled to consent to any supplement, amendment or waiver permitted by
this Indenture. If a record date is fixed, the Holders of Securities of
that series outstanding on such record date, and no other Holders,
shall be entitled to consent to such supplement, amendment or waiver or
revoke any consent previously given, whether or not such Holders remain
Holders after such record date. No consent shall be valid or effective
for more than 90 days after such record date unless consents from
Holders of the principal amount of Securities of that series required
hereunder for such amendment or waiver to be effective shall have also
been given and not revoked within such 90-day period.
(b) The Company may, but shall not be obligated to, fix any
day as a record date for the purpose of determining the Holders of any
series of Securities entitled to join in the giving or making of any
notice of Default, any declaration of acceleration,
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<PAGE> 17
any request to institute proceedings or any other similar direction. If
a record date is fixed, the Holders of Securities of that series
outstanding 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, however, that no such action shall be effective hereunder
unless taken on or prior to the date 90 days after such record date.
SECTION 2.13. GLOBAL SECURITIES.
(a) Terms of Securities. A Board Resolution, a supplemental
indenture hereto or an Officers' Certificate shall establish whether
the Securities of a series shall be issued in whole or in part in the
form of one or more Global Securities and the Depositary for such
Global Security or Securities.
(b) Transfer and Exchange. Notwithstanding any provisions to
the contrary contained in Section 2.06 of this Indenture and in
addition thereto, any Global Security shall be exchangeable pursuant to
Section 2.06 of this Indenture for securities registered in the names
of Holders other than the Depositary for such Security or its nominee
only if (i) such Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for such Global Security or if at
any time such Depositary ceases to be a clearing agency registered
under the Exchange Act, and, in either case, the Company fails to
appoint a successor Depositary within 90 days of such event or (ii) the
Company executes and delivers to the Trustee an Officers' Certificate
to the effect that such Global Security shall be so exchangeable. Any
Global Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Securities registered in such names as the
Depositary shall direct in writing in an aggregate principal amount
equal to the principal amount of the Global Security with like tenor
and terms.
Except as provided in this paragraph (b) of this Section, a
Global Security may not be transferred except as a whole by the
Depositary with respect to such Global Security to a nominee of such
Depositary, by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such a successor
Depositary.
(c) Legend. Any Global Security issued hereunder shall bear a
legend in substantially the following form:
"Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), New York, New York, to the issuer or its
agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such
other name as may be requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or such other entity as
may be requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS
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<PAGE> 18
WRONGFUL inasmuch as the registered owner hereof, Cede & Co. has
an interest herein."
"Transfer of this Global Security shall be limited to
transfers in whole, but not in part, to nominees of DTC or to a
successor thereof or such successor's nominee and limited to
transfers made in accordance with the restrictions set forth in
the Indenture referred to herein."
(d) Acts of Holders. The Depositary, as a Holder, may appoint
agents and otherwise authorize participants to give or take any
request, demand, authorization, direction, notice, consent, waiver or
other action which a Holder is entitled to give or take under this
Indenture.
(e) Payments. Notwithstanding the other provisions of this
Indenture, unless otherwise specified as contemplated by Section 2.01
hereof, payment of the principal of and interest, if any, on any Global
Security shall be made to the Person specified therein.
(f) Consents, Declaration and Directions. Except as provided
in paragraph (e) of this Section, the Company, the Trustee and any
Agent shall treat a Person as the Holder of such principal amount of
outstanding Securities of such series represented by a Global Security
as shall be specified in a written statement of the Depositary with
respect to such Global Security, for purposes of obtaining any
consents, declarations or directions required to be given by the
Holders pursuant to this Indenture.
SECTION 2.14. CUSIP NUMBERS.
The Company in issuing any series of Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on such Securities or as contained in any notice and that
reliance may be placed only on the other identification numbers printed on such
Securities, and any such action relating to such notice shall not be affected by
any defect in or omission of such numbers in such notice. The Company shall
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE 3.
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Securities of any series pursuant
to any optional redemption provisions thereof, it shall notify the Trustee of
the redemption date and the principal amount of Securities of that series to be
redeemed.
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<PAGE> 19
The Company shall give the notice provided for in this Section at
least 45 days before the redemption date (unless a shorter notice period shall
be satisfactory to the Trustee), which notice shall specify the provisions of
such Security pursuant to which the Company elects to redeem such Securities.
If the Company elects to reduce the principal amount of Securities
of any series to be redeemed pursuant to mandatory redemption provisions
thereof, it shall notify the Trustee of the amount of, and the basis for, any
such reduction. If the Company elects to credit against any such mandatory
redemption Securities it has not previously delivered to the Trustee for
cancellation, it shall deliver such Securities with such notice.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed,
the Trustee shall select the Securities of that series to be redeemed by a
method that complies with the requirements of any exchange on which the
Securities of that series are listed, or, if the Securities of that series are
not listed on an exchange, by lot or by such other method as the Trustee deems
appropriate. The Trustee shall make the selection not more than 75 days and not
less than 30 days before the redemption date from Securities of that series
outstanding and not previously called for redemption. Except as otherwise
provided as to any particular series of Securities, Securities and portions
thereof that the Trustee selects shall be in amounts equal to the minimum
authorized denomination for Securities of the series to be redeemed or any
integral multiple thereof. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company promptly in writing of the
Securities or portions of Securities to be called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
Except as otherwise provided as to any particular series of
Securities, at least 30 days but not more than 60 days before a redemption date,
the Company shall mail a notice of redemption to each Holder whose Securities
are to be redeemed.
The notice shall identify the Securities of the series to be
redeemed and shall state:
(1) the redemption date;
(2) the redemption price fixed in accordance with the terms of the
Securities of the series to be redeemed, plus accrued interest, if any,
to the date fixed for redemption (the "redemption price");
(3) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
redemption date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion will be
issued;
(4) the name and address of the Paying Agent;
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<PAGE> 20
(5) that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in payment of the redemption
price, interest on Securities called for redemption ceases to accrue on
and after the redemption date; and
(7) the CUSIP number, if any, of the Securities to be redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense. The notice mailed in the
manner herein provided shall be conclusively presumed to have been duly given
whether or not the Holder receives such notice. In any case, failure to give
such notice by mail or any defect in the notice of the Holder of any Security
shall not affect the validity of the proceeding for the redemption of any other
Security.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Securities called for redemption become due and payable on the
redemption date for the redemption price. Upon surrender to the Paying Agent,
such Securities will be paid at the Redemption Price.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or before 10:00 a.m. New York City time on the redemption date,
the Company shall deposit with the Paying Agent (or, if the Company or any
Affiliate is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the redemption price of all Securities called for redemption
on that date other than Securities that have previously been delivered by the
Company to the Trustee for cancellation. The Paying Agent shall return to the
Company any money not required for that purpose.
SECTION 3.06. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder at the expense of
the Company a new Security of same series equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE 4.
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay or cause to be paid the principal of and
interest on the Securities on the dates and in the manner provided in this
Indenture and the Securities. Principal and interest shall be considered paid on
the date due if the Paying Agent, if other than the
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<PAGE> 21
Company or an Affiliate, holds as of 10:00 a.m. Eastern Time on that date
immediately available funds designated for and sufficient to pay all principal
and interest then due.
To the extent lawful, the Company shall pay interest on overdue
principal and overdue installments of interest at the rate per annum borne by
the applicable series of Securities.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, The City
of New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee or Registrar) where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
Company shall 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.
The Company may also from time to time designate one or more other
offices or agencies where the Securities 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 the
Borough of Manhattan, The City of New York for such purposes. The Company shall
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.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03.
SECTION 4.03. COMMISSION REPORTS.
The Company shall deliver to the Trustee within 15 days after it
files them with the Commission copies of the annual reports and of the
information, documents, and other reports (or copies of such portions of any of
the foregoing as the Commission may by rules and regulations prescribe) that the
Company is required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act; provided, however the Company shall not be required to
deliver to the Trustee any materials for which the Company has sought and
received confidential treatment by the Commission. The Company also shall comply
with the other provisions of TIA Section 314(a).
Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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SECTION 4.04. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company, commencing within 120 days after
December 31, 1997, an Officers' Certificate stating that in the course of the
performance by the signers of their duties as officers of the Company, they
would normally have knowledge of any failure by the Company to comply with all
conditions, or default by the Company with respect to any covenants, under this
Indenture, and further stating whether or not they have knowledge of any such
failure or default and, if so, specifying each such failure or default and the
nature thereof. For purposes of this Section, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided for in this Indenture. The certificate need not comply with Section
10.04 hereof.
The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon becoming aware of any
Default or Event of Default, an Officers' Certificate specifying such Default or
Event of Default and what action the Company is taking or proposes to take with
respect thereto.
SECTION 4.05. TAXES.
The Company shall pay prior to delinquency, all material taxes,
assessments, and governmental levies except as contested in good faith by
appropriate proceedings.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that 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 shall not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though
no such law has been enacted.
SECTION 4.07. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of each Subsidiary and (ii) the
rights (charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Subsidiaries, 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 its Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders.
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SECTION 4.08. CALCULATION OF ORIGINAL ISSUE DISCOUNT.
If, as of the end of any fiscal year of the Company, the Company
has any outstanding Original Issue Discount Securities under the Indenture, the
Company shall file with the Trustee promptly following the end of such fiscal
year (i) a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on such Original Issue
Discount Securities as of the end of such year and (ii) such other specific
information relating to such original issue discount as may then be required
under the Internal Revenue Code of 1986, as amended from time to time.
ARTICLE 5.
SUCCESSORS
SECTION 5.01. WHEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate or merge with or into (whether
or not the Company is the surviving corporation), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its properties
or assets in one or more related transactions to any Person unless:
(1) the Company is the surviving corporation or the Person
formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made is a corporation
organized and existing under the laws of the United States, any state
thereof or the District of Columbia;
(2) the Person formed by or assuming any such consolidation or
merger (if other than the Company) or the Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have
been made assumes by supplemental indenture all the obligations of the
Company under the Securities and this Indenture; and
(3) immediately prior to and after giving effect to the
transaction no Default or Event of Default shall have occurred and be
continuing.
The Company shall deliver to the Trustee on or prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any transfer by the Company
(other than by lease) of all or substantially all of the assets of the Company
in accordance with Section 5.01 hereof, the successor corporation formed by such
consolidation or into which the Company is merged or to which such transfer is
made shall succeed to, and be substituted for, and may
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exercise every right and power of, the Company under this Indenture with the
same effect as if such successor corporation had been named as the Company
herein. In the event of any such transfer, the predecessor Company shall be
released and discharged from all liabilities and obligations in respect of the
Securities and the Indenture, and the predecessor Company may be dissolved,
wound up or liquidated at any time thereafter.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" occurs with respect to Securities of any
particular series if, unless in the establishing Board Resolution, Officers'
Certificate or supplemental indenture hereto, it is provided that such series
shall not have the benefit of said Event of Default:
(1) the Company defaults in the payment of interest on any
Security of that series when the same becomes due and payable and the
Default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of
any Security of that series when the same becomes due and payable at
maturity, upon redemption or otherwise;
(3) an Event of Default, as defined in the Securities of that
series, occurs and is continuing, or the Company fails to comply with
any of its other agreements in the Securities of that series or in this
Indenture with respect to that series and the Default continues for the
period and after the notice specified below;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against
it in an involuntary case;
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property;
(D) makes a general assignment for the benefit of its
creditors; or
(E) admits in writing its inability generally to pay its
debts as the same become due.
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(5) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary
case;
(B) appoints a Custodian of the Company or for all or
substantially all of its property; or
(C) orders the liquidation of the Company;
and the order or decree remains unstayed and in effect for 60 days.
(6) any other Event of Default provided with respect to
Securities of that series which is specified in a Board Resolution,
Officers' Certificate or supplemental indenture establishing that
series of Securities.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
A Default under clause (3) above is not an Event of Default with
respect to a particular series of Securities until the Trustee or the Holders of
at least 50% in principal amount of the then outstanding Securities of that
series notify the Company of the Default and the Company does not cure the
Default within 60 days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a "Notice of
Default." Such notice shall be given by the Trustee if so requested in writing
by the Holders of 50% of the principal amount of the then outstanding Securities
of that series.
SECTION 6.02. ACCELERATION.
If an Event of Default with respect to Securities of any series
(other than an Event of Default specified in clauses (4) and (5) of Section
6.01) occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 50% in principal amount of the then outstanding Securities
of that series by notice to the Company and the Trustee, may declare the unpaid
principal (or, in the case of Original Issue Discount Securities, such lesser
amount as may be provided for in such Securities) of and any accrued interest on
all the Securities of that series to be due and payable on the Securities of
that series. Upon such declaration the principal (or such lesser amount) and
interest shall be due and payable immediately. If an Event of Default specified
in clause (4) or (5) of Section 6.01 occurs, all of such amount shall become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Holder. The Holders of a majority in principal amount of
the then outstanding Securities of that series by notice to the Trustee may
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default with
respect to that series have been cured or waived except nonpayment of principal
(or such lesser amount) or interest that has become due solely because of the
acceleration.
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SECTION 6.03. OTHER REMEDIES.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may pursue any available remedy to collect
the payment of principal or interest on the Securities of that series or to
enforce the performance of any provision of the Securities of that series or
this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Subject to Section 9.02, the Holders of a majority in principal
amount of the then outstanding Securities of any series, by notice to the
Trustee, may waive an existing Default or Event of Default with respect to that
series and its consequences except a Default or Event of Default in the payment
of the principal (including any mandatory sinking fund or like payment) of or
interest on any Security of that series (provided, however, that the Holders of
a majority in principal amount of the outstanding Securities of any series may
rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration).
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the then
outstanding Securities of any series may direct the time, method and place of
conducting any proceeding for any remedy with respect to that series available
to the Trustee or exercising any trust or power conferred on it. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that is unduly prejudicial to the rights of another Holder of
Securities of that series, or that may involve the Trustee in personal
liability. The Trustee may take any other action which it deems proper that is
not inconsistent with any such direction.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of Securities of any series may not pursue a remedy with
respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default with respect to that series;
(2) the Holders of at least 50% in principal amount of the
then outstanding Securities of that series make a written request to
the Trustee to pursue the remedy;
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(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Securities of that series do
not give the Trustee a direction inconsistent with the request.
No Holder of any series of Securities may use this Indenture to prejudice the
rights of another Holder of Securities of that series or to obtain a preference
or priority over another Holder of Securities of that series.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Security to receive payment of principal of and interest, if
any, on the Security, on or after the respective due dates expressed in the
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
the Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(1) or (2) hereof
occurs and is continuing with respect to Securities of any series, the Trustee
may recover judgment in its own name and as trustee of an express trust against
the Company for the whole amount of principal (or such portion of the principal
as may be specified as due upon acceleration at that time in the terms of that
series of Securities) and interest, if any, remaining unpaid on the Securities
of that series then outstanding, together with (to the extent lawful) interest
on overdue principal and interest, and such further amount as shall be
sufficient to cover the costs and, to the extent lawful, expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and any other amounts due the Trustee under
Section 7.07 hereof.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and the Securityholders allowed in any judicial proceedings relative to
the Company (or any other obligor on the Securities), its creditors or its
property and shall be entitled to and empowered to collect and receive any money
or other property payable or deliverable on any such claims and to distribute
the same, and any custodian in any such judicial proceedings 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 to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent
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and counsel, and any other amounts due the Trustee under Section 7.07 hereof.
Nothing contained herein shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Securityholder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money with respect to Securities of
any series pursuant to this Article, it shall pay out the money in the following
order:
First: to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including
payment of all compensation, expense and
liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;
Second: to Securityholders for amounts due and unpaid on
the Securities of such series for principal and
interest, ratably, without preference or priority
of any kind, according to the amounts due and
payable on the Securities of such series for
principal and interest, respectively; and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders of Securities of any series pursuant to this Section. The Trustee
shall notify the Company in writing reasonably in advance of any such record
date and payment date.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defense made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 hereof or a suit by Holders of more than 10% in
principal amount of the then outstanding Securities of any series.
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ARTICLE 7.
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default
known to the Trustee:
(i) the duties of the Trustee shall be determined
solely by the express provisions of this Indenture
or the TIA and the Trustee need perform only those
duties that are specifically set forth in this
Indenture or the TIA and no others, and no implied
covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions
to determine whether or not they conform to the
requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a responsible
officer of the Trustee, unless it is proved that
the Trustee was negligent in ascertaining the
pertinent facts; and
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(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in
accordance with a direction received by it pursuant
to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is
subject to paragraphs (a), (b) and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee may
refuse to perform any duty or exercise any right or power unless it
receives security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the
Company. Absent written instruction from the Company, the Trustee shall
not be required to invest any such money. Money held in trust by the
Trustee need not be segregated from other funds except to the extent
required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
Subject to TIA Section 315(a) through (d):
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. 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.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both. The
Trustee shall not be liable for any action it takes or omits to take in
good faith in reliance on such Officers' Certificate or Opinion of
Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or
within its rights or powers under the Indenture, unless the Trustee's
conduct constitutes negligence.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
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(f) The Trustee may consult with counsel of its selection and
may rely upon the advice of such counsel or any Opinion of Counsel.
(g) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Trust Officer of the Trustee has
actual knowledge thereof or unless written notice of any event that is
in fact such a default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Securities
generally or the Securities of a particular series, as the case may be,
and this Indenture.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to TIA
Sections 310(b) and 311.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Securities, it shall not be accountable for the
Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities other than its certificate of
authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default with respect to the Securities of
any series occurs and is continuing and if it is known to the Trustee, the
Trustee shall mail to all Holders of Securities of that series a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment on any such Security, the Trustee
may withhold the notice if and so long as a committee of its Trust Officers in
good faith determines that withholding the notice is in the interests of such
Securityholders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after May 15 in each year, the Trustee with respect
to any series of Securities shall mail to Holders of Securities of that series
as provided in TIA Section 313(c) a brief report dated as of such May 15 that
complies with TIA Section 313(a) (if such report is required by TIA Section
313(a)). The Trustee shall also comply with TIA Section 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be mailed to the Company and filed with the Commission and
each stock exchange on which any of the Securities are listed, as required by
TIA Section 313(d). The Company shall notify the Trustee when the Securities are
listed on any stock exchange.
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SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed upon in writing for its services hereunder. The
Company shall reimburse the Trustee upon written request for all reasonable
out-of-pocket expenses incurred by it. Such expenses shall include the
reasonable compensation and out-of-pocket expenses of the Trustee's agents and
counsel.
The Company shall indemnify each of the Trustee or any predecessor
Trustee for any loss, liability, damage, claims or expenses, including taxes
(other than taxes based upon, measured by or determined by the income of the
Trustee) incurred by it, without negligence or bad faith on its part, in
connection with the administration of this Indenture and its duties hereunder.
The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee in its capacity as Trustee, except money or property
held in trust to pay principal and interest on particular Securities. Such lien
will survive the satisfaction and discharge of this Indenture.
If the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(4) or (5) hereof occurs, the expenses and
the compensation for the services will be intended to constitute expenses of
administration under any applicable Bankruptcy Law.
This Section 7.07 shall survive the termination of this Indenture.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee with respect to one or
more or all series of Securities and appointment of a successor Trustee shall
become effective only upon the successor Trustee's acceptance of appointment as
provided in this Section.
The Trustee may resign with respect to one or more or all series
of Securities by so notifying the Company in writing. The Holders of a majority
in principal amount of the then outstanding Securities of any series may remove
the Trustee as to that series by so notifying the Trustee in writing and may
appoint a successor Trustee with the Company's consent. The Company may remove
the Trustee with respect to one or more or all series of Securities if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent;
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(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If, as to any series of Securities, the Trustee resigns or is
removed or if a vacancy exists in the office of Trustee for any reason, the
Company shall promptly appoint a successor Trustee for that series. Within one
year after the successor Trustee with respect to any series takes office, the
Holders of a majority in principal amount of the then outstanding Securities of
that series may appoint a successor Trustee to replace the successor Trustee
appointed by the Company. If a successor Trustee as to a particular series does
not take office within 60 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Company or the Holders of at least 10% in principal
amount of the then outstanding Securities of that series may petition any court
of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof with
respect to any series, any Holder of Securities of that series who satisfies the
requirements of TIA Section 310(b) may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for that series.
A successor Trustee as to any series of Securities shall deliver a
written acceptance of its appointment to the retiring Trustee and to the
Company. Immediately after that, the retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee (subject to the lien
provided for in Section 7.07 hereof), the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture as to that series.
The successor Trustee shall mail a notice of its succession to the Holders of
Securities of that series.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 hereof shall continue
for the benefit of the retiring trustee.
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 that (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)
shall contain such provisions as shall be 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
or desirable to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; provided, however, that nothing herein or in
such supplemental Indenture shall constitute such Trustee co-trustees of the
same trust and that each
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such Trustee shall be trustee of a trust hereunder separate and apart from any
trust hereunder administered by any other such Trustee.
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.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee as to any series of Securities consolidates, merges
or converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Trustee as to that series.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
Each series of Securities shall always have a Trustee who
satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee as
to any series of Securities shall always have a combined capital and surplus of
at least $25,000,000 as set forth in its most recent published annual report of
condition. The Trustee is subject to TIA Section 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 8.
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 8.01. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Order 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
(a) either
(i) all Securities theretofore authenticated and
delivered (other than Securities that have been destroyed,
lost or stolen and that have been replaced or paid) have been
delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the
Trustee for cancellation
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(1) have become due and payable, or
(2) will become due and payable at their Stated
Maturity within one year, or
(3) 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, or
(4) are deemed paid and discharged pursuant to
Section 8.03, as applicable;
and the Company, in the case of (1), (2) or (3) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust an
amount sufficient for the purpose of paying and discharging the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and interest to the date of
such deposit (in the case of Securities that have become due and
payable on or prior to the date of such deposit) or to the Stated
Maturity or redemption date, as the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) 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 7.07 hereof, and, if
money shall have been deposited with the Trustee pursuant to clause (a) of this
Section or if money or obligations shall have been deposited with or received by
the Trustee pursuant to Section 8.03 hereof, the obligations of the Trustee
under Sections 8.02 and 8.05 hereof shall survive.
SECTION 8.02. APPLICATION OF TRUST FUNDS; INDEMNIFICATION.
(a) Subject to the provisions of Section 8.05 hereof, all
money deposited with the Trustee pursuant to Section 8.01 hereof, all
money and U.S. Government Obligations deposited with the Trustee
pursuant to Section 8.03 or 8.04 hereof and all money received by the
Trustee in respect of U.S. Government Obligations deposited with the
Trustee pursuant to Section 8.03 or 8.04 hereof, 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 interest for whose payment such money has been deposited
with or received by the Trustee or to make mandatory sinking fund
payments or analogous payments as contemplated by Sections 8.03 and
8.04 hereof.
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<PAGE> 36
(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against
U.S. Government Obligations deposited pursuant to Sections 8.03 or 8.04
hereof or the interest and principal received in respect of such
obligations other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time
to time upon Company Request any U.S. Government Obligations or money
held by it as provided in Sections 8.03 or 8.04 hereof that, in the
opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to
the Trustee, are then in excess of the amount thereof which then would
have been required to be deposited for the purpose for which such U.S.
Government Obligations or money were deposited or received. This
provision shall not authorize the sale by the Trustee of any U.S.
Government Obligations held under this Indenture.
SECTION 8.03. LEGAL DEFEASANCE OF SECURITIES OF ANY SERIES.
Unless this Section 8.03 is otherwise specified to be inapplicable
to Securities of any series, the Company shall be deemed to have paid and
discharged the entire indebtedness on all the outstanding Securities of any such
series on the 91st day after the date of the deposit referred to in subparagraph
(d) hereof, and the provisions of this Indenture, as it relates to such
outstanding Securities of such series, shall no longer be in effect (and the
Trustee, at the expense of the Company, shall, upon Company Request, execute
proper instruments acknowledging the same), except as to:
(a) the rights of Holders of Securities of such series to
receive, from the trust funds described in subparagraph (d) hereof, (i)
payment of the principal of each installment of principal of or
interest on the outstanding Securities of such series on the Stated
Maturity of such principal of or interest and (ii) the benefit of any
mandatory sinking fund payments applicable to the Securities of such
series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and the Securities of such
series;
(b) the Company's obligations with respect to such Securities
of such series under Sections 2.03, 2.06 and 2.07 hereof; and
(c) the rights, powers, trust and immunities of the Trustee
hereunder and the duties of the Trustee under Section 8.02 hereof and
the duty of the Trustee to authenticate Securities of such series
issued on registration of transfer of exchange;
provided that, the following conditions shall have been satisfied:
(d) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for and
dedicated solely to the benefit of the Holders of such Securities, cash
in U.S. Dollars and/or U.S. Government
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<PAGE> 37
Obligations which through the payment of interest and principal in
respect thereof, in accordance with their terms, will provide (and
without reinvestment and assuming no tax liability will be imposed on
such Trustee), not later than one day before the due date of any
payment of money, an amount in cash, 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 each installment of principal (including mandatory sinking
fund or analogous payments) of and interest, if any, on all the
Securities of such series on the dates such installments of interest or
principal are due;
(e) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other material
agreement or instrument to which the Company is a party or by which it
is bound;
(f) no Default or Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit or during the period ending on the 91st day after
such date;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel to the effect that (i)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of execution
of this Indenture, there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Holders of the
Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount
and in the same manner and at the same times as would have been the
case if such deposit, defeasance and discharge had not occurred;
(h) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of the Securities of
such series over any other creditors of the Company or with the intent
of defeating, hindering, delaying or defrauding any other creditors of
the Company;
(i) such deposit shall not result in the trust arising from
such deposit constituting an investment company (as defined in the
Investment Company Act of 1940, as amended), or such trust shall be
qualified under such Act or exempt from regulation thereunder; and
(j) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance
contemplated by this Section have been complied with.
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SECTION 8.04. COVENANT DEFEASANCE.
Unless this Section 8.04 is otherwise inapplicable to Securities
of any series, on and after the 91st day after the date of the deposit referred
to in subparagraph (a) hereof, the Company may omit to comply with any term,
provision or condition set forth under Sections 4.03, 4.04, 4.05, 4.06, 4.07,
4.08 and 5.01 hereof as well as any additional covenants contained in a
supplemental indenture hereto for a particular series of Securities or a Board
Resolution or an Officers' Certificate delivered pursuant to Section 2.01(n)
hereof (and the failure to comply with any such provisions shall not constitute
a Default or Event of Default under Section 6.01 hereof) and the occurrence of
any event described in clause (e) of Section 6.01 hereof shall not constitute a
Default or Event of Default hereunder, with respect to the Securities of such
series, provided that the following conditions shall have been satisfied:
(a) With reference to this Section 8.04, the Company has
deposited or caused to be irrevocably deposited (except as provided in
Section 8.03 hereof) with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities, cash in U.S. Dollars and/or
U.S. Government Obligations which through the payment of interest and
principal in respect thereof, in accordance with their terms, will
provide (and without reinvestment and assuming no tax liability will be
imposed on such Trustee), not later than one day before the due date of
any payment of money, an amount in cash, sufficient, in the opinion of
a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay principal and interest, if any, on and any
mandatory sinking fund in respect of the Securities of such series on
the dates such installments of interest or principal are due;
(b) Such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other material
agreement or instrument to which the Company is a party or by which it
is bound;
(c) No Default or Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit or during the period ending on the 91st day after
such date;
(d) The Company shall have delivered to the Trustee an Opinion
of Counsel confirming that Holders of the Securities of such series
will not recognize income, gain or loss for federal income tax purposes
as a result of such deposit and defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such deposit and defeasance
had not occurred;
(e) The Company shall have delivered to the Trustee an
Officers' Certificate stating the deposit was not made by the Company
with the intent of preferring the Holders of the Securities of such
series over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the
Company; and
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<PAGE> 39
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the defeasance
contemplated by this Section have been complied with.
SECTION 8.05. REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall pay to the Company upon the
Company's request any money held by them for the payment of principal or
interest that remains unclaimed for two years after the date upon which such
payment shall have become due. After payment to the Company, Securityholders
entitled to the money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another Person.
ARTICLE 9.
SUPPLEMENTS, AMENDMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee as to any series of Securities may
supplement or amend this Indenture or the Securities without notice to or the
consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the TIA;
(4) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities,
provided, however, 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 outstanding Security of any series
created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision;
(6) to make any change that does not adversely affect in any
material respect the interests of the Securityholders of any series; or
(7) to establish additional series of Securities as permitted
by Section 2.01 hereof.
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SECTION 9.02. WITH CONSENT OF HOLDERS.
Subject to Section 6.07, the Company and the Trustee as to any
series of Securities may amend this Indenture or the Securities of that series
with the written consent of the Holders of a majority in principal amount of the
then outstanding Securities of each series affected by the amendment, with each
such series voting as a separate class. The Holders of a majority in principal
amount of the then outstanding Securities of any series may also waive
compliance in a particular instance by the Company with any provision of this
Indenture with respect to that series or the Securities of that series;
provided, however, that without the consent of each Securityholder affected, an
amendment or waiver may not:
(1) reduce the percentage of the principal amount of
Securities whose Holders must consent to an amendment or waiver;
(2) reduce the amount of, or postpone the date fixed for, the
payment of any sinking fund or analogous provision;
(3) reduce the rate of, or change the time for payment of
interest on, any Security;
(4) reduce the principal of or change the fixed maturity of
any Security or waive a redemption payment or alter the redemption
provisions with respect thereto;
(5) make any Security payable in money other than that stated
in the Security (including defaulted interest);
(6) reduce the principal amount of Original Issue Discount
Securities payable upon acceleration of the maturity thereof;
(7) make any change in Section 6.04, 6.07 or 9.02 (this
sentence); or
(8) waive a default in the payment of the principal of, or
interest on, any Security, except to the extent otherwise provided for
in Section 6.02 hereof.
An amendment or waiver under this Section that waives, changes or
eliminates any covenant or other provision of this Indenture that has expressly
been included solely for the benefit of one or more particular series of
Securities, or that 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 the consent of the Holders under
this Section to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.
The Company shall mail supplemental indentures to Holders upon
request. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture or waiver.
35
<PAGE> 41
SECTION 9.03. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to it by
a Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security; provided, however, that unless a record date shall have
been established pursuant to Section 2.12(a) hereof, any such Holder or
subsequent Holder may revoke the consent as to his Security or portion of a
Security if the Trustee receives the notice of revocation before the date on
which the amendment or waiver becomes effective. An amendment or waiver shall
become effective on receipt by the Trustee of consents from the Holders of the
requisite percentage principal amount of the outstanding Securities of any
series, and thereafter shall bind every Holder of Securities of that series.
SECTION 9.04. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment or waiver changes the terms of a Security: (a) the
Trustee may require the Holder of the Security to deliver it to the Trustee, the
Trustee may, at the written direction of the Company and at the Company's
expense, place an appropriate notation on the Security about the changed terms
and return it to the Holder and the Trustee may place an appropriate notation on
any Security thereafter authenticated; or (b) if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms.
SECTION 9.05. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall receive an Opinion of Counsel stating that the
execution of any amendment or waiver proposed pursuant to this Article is
authorized or permitted by this Indenture. Subject to the preceding sentence,
the Trustee shall sign such amendment or waiver if the same does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Trustee
may, but shall not be obligated to, execute any such amendment, supplement or
waiver that affects the Trustee's own rights, duties, liabilities or immunities
under this Indenture or otherwise.
ARTICLE 10.
MISCELLANEOUS
SECTION 10.01. INDENTURE SUBJECT TO TRUST INDENTURE ACT.
This Indenture is subject to the provisions of the TIA that are
required to be part of this Indenture, and shall, to the extent applicable, be
governed by such provisions.
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SECTION 10.02. NOTICES.
Any notice or communication is duly given if in writing and
delivered in person or sent by first-class mail (registered or certified, return
receipt requested), telecopier or overnight air courier guaranteeing next-day
delivery, addressed as follows:
If to the Company:
Libbey Inc.
300 Madison Avenue
Toledo, Ohio 43604
Attention: Treasurer
Telephone: (419)
Facsimile: (419)
If to the Trustee:
_________________________
_________________________
_________________________
Attention: ______________
Telephone: ______________
Facsimile: ______________
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next-day delivery.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address shown on the register kept by the Registrar.
Failure to mail a notice or communication to a Securityholder or any defect in
it shall not affect its sufficiency with respect to other Securityholders. If
the Company mails a notice or communication to Securityholders, it shall mail a
copy to the Trustee at the same time.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
37
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SECTION 10.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the certificate
provided for in Section 4.03 hereof) shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(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 such Person, he or she
has made such examination or investigation as is necessary to enable
him or her 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 or not, in the opinion of such
Person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel may
rely on an officer's certificate or certificates of public officials.
SECTION 10.06. RULES BY TRUSTEE AND AGENTS.
The Trustee as to Securities of any series may make reasonable
rules for action by or at a meeting of Holders of Securities of that series. The
Registrar and any Paying Agent or Authenticating Agent may make reasonable rules
and set reasonable requirements for their functions.
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<PAGE> 44
SECTION 10.07. LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday or a day on which
banking institutions in New York, New York or Toledo, Ohio, are not required to
be open. If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period.
SECTION 10.08. NO RECOURSE AGAINST OTHERS.
A past, present or future director, officer, employee, stockholder
or incorporator, as such, of the Company or any successor corporation shall not
have any liability for any obligations of the Company under any series of
Securities or the Indenture or for any claim based on, in respect of, or by
reason of such obligations or their creation. Each Securityholder by accepting a
Security waives and releases all such liability. The waiver and release are part
of the consideration of issuance of the Securities.
SECTION 10.09. COUNTERPARTS.
This Indenture may be executed by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 10.10. GOVERNING LAW.
The internal laws of the State of New York shall govern this
Indenture and the Securities, without regard to the conflict of laws provisions
thereof.
SECTION 10.11. SEVERABILITY.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 10.12. EFFECT OF HEADINGS, TABLE OF CONTENTS, ETC.
The Article and Section headings herein and the table of contents
are for convenience only and shall not affect the construction hereof.
SECTION 10.13. SUCCESSORS AND ASSIGNS.
All covenants and agreements of the Company in this Indenture and
the Securities shall bind its successors and assigns. All agreements of the
Trustee in this Indenture shall bind its successor.
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<PAGE> 45
SECTION 10.14. NO INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any Subsidiary. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
[signature page follows]
40
<PAGE> 46
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, all as of the date first above written.
LIBBEY INC.
BY:
------------------------------------
Name:
Title:
[ ],
as Trustee
BY:
------------------------------------
Name:
Title:
<PAGE> 1
Exhibit 5
June 6, 1997
Libbey Inc.
300 Madison Avenue
Toledo, Ohio 43604
Re: $100,000,000 Aggregate Offering Price of Securities
---------------------------------------------------
of Libbey Inc.
--------------
Ladies and Gentlemen:
In connection with the registration statement on Form S-3 (the
"Registration Statement") filed on June 6, 1997 with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), you have requested our opinion with respect to the matters
set forth below.
You have provided us with a draft prospectus (the "Prospectus") which
is a part of the Registration Statement. The Prospectus provides that it will be
supplemented in the future by one or more supplements to the Prospectus (each a
"Prospectus Supplement"). The Prospectus as supplemented by various Prospectus
Supplements will provide for the registration by the Libbey Inc., a Delaware
corporation (the "Company"), of up to $100,000,000 aggregate offering price of
(i) one or more series of senior, senior subordinated or subordinated debt
securities (the "Debt Securities") or (ii) shares of common stock, par value
$.01 per share (the "Common Stock"). The Debt Securities and Common Stock are
collectively referred to herein as the "Securities." Any Debt Securities may be
exchangeable and/or convertible into shares of Common Stock. The Debt
Securities may be issued pursuant to one or more indentures and one or more
supplements thereto (collectively, the "Indentures"), in each case between the
Company and a trustee (each, a "Trustee").
In our capacity as your special counsel in connection with the
Registration Statement, we are generally familiar with the proceedings taken and
proposed to be taken
<PAGE> 2
Libbey Inc.
June 6, 1997
Page 2
by the Company in connection with the authorization and issuance of the
Securities. For purposes of this opinion, we have assumed that such proceedings
will be timely and properly completed, in accordance with all requirements of
applicable federal, Delaware and New York laws, in the manner presently
proposed.
We have made such legal and factual examinations and inquiries,
including an examination of originals and copies certified or otherwise
identified to our satisfaction of all such documents, corporate records and
instruments of the Company, as we have deemed necessary or appropriate for
purposes of this opinion. In our examination, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals,
and the conformity to authentic original documents of all documents submitted to
us as copies.
We are opining herein as to the effect on the subject transaction only
of the federal securities laws of the United States, the General Corporation Law
of the State of Delaware and with respect to opinion paragraph 1 below, the
internal laws of the State of New York, and we express no opinion with respect
to the applicability thereto, or the effect thereon, of the laws of any other
jurisdiction or, in the case of Delaware, any others laws, or as to any matters
of municipal law or the laws of any local agencies within any state.
Subject to the foregoing and the other qualifications set forth herein,
it is our opinion that, as of the date hereof:
1. When (a) the Debt Securities have been duly established in
accordance with the terms of the applicable Indenture (including, without
limitation, the adoption by the Board of Directors of the Company of a
resolution duly authorizing the issuance and delivery of the Debt Securities),
duly authenticated by the Trustee and duly executed and delivered on behalf of
the Company against payment therefor in accordance with the terms and provisions
of the applicable Indenture and as contemplated by the Registration Statement,
the Prospectus and the related Prospectus Supplement(s), and (b) when the
Registration Statement and any required post-effective amendment thereto have
all become effective under the Securities Act, and (c) assuming that the terms
of the Debt Securities as executed and delivered are as described in the
Registration Statement, the Prospectus and the related Prospectus
Supplement(s), and (d) assuming that the Debt Securities as executed and
delivered do not violate any law applicable to the Company or result in a
default under or breach of any agreement or instrument binding upon the
Company, and (e) assuming that the Debt Securities as executed and delivered
comply with all requirements and restrictions, in any, applicable to the
Company, whether imposed by any court or governmental or
<PAGE> 3
Libbey Inc.
June 6, 1997
Page 3
regulatory body having jurisdiction over the Company, and (f) assuming that the
Debt Securities are then issued and sold as contemplated in the Registration
Statement, the Prospectus and the related Prospectus Supplement(s), the Debt
Securities will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with the terms of the
Debt Securities.
2. The Company has the authority pursuant to its Certificate of
Incorporation to issue up to 50,000,000 shares of Common Stock. Upon adoption
by the Board of Directors of the Company of a resolution in form and content as
required by applicable law and upon issuance and delivery of and payment for
such shares in the manner contemplated by the Registration Statement, the
Prospectus and the related Prospectus Supplement(s) and by such resolution,
such shares of Common Stock (including any Common Stock duly issued upon the
exchange or conversion of Debt Securities that are exchangeable or convertible
into Common Stock) will be validly issued, fully paid and nonassessable.
The opinions set forth in paragraph 1 above are subject to the
following exceptions, limitations and qualifications: (i) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights and remedies of
creditors; (ii) the effect of general principles of equity regardless of
whether enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be brought;
(iii) the unenforceability under certain circumstances under law or court
decisions of provisions providing for the indemnification of, or contribution
to, a party with respect to a liability where such indemnification or
contribution is contrary to public policy; (iv) we express no opinion
concerning the enforceability of any waiver of rights or defenses with respect
to stay, extension or usury laws; and (v) we express no opinion with respect to
whether acceleration of Debt Securities may affect the collectibility of any
portion of the stated principal amount thereof which might be determined to
constitute unearned interest thereon.
We assume for purposes of this opinion that the Company has been duly
incorporated and is validly existing as a corporation under the laws of the
State of Delaware and has the corporate power and authority to issue and sell
the Securities; that the applicable Indenture has been duly authorized by all
necessary corporate action by the Company, has been duly executed and delivered
by the Company and constitutes the legally valid and binding obligation of the
Company enforceable against the Company in accordance with its terms; the
Trustee for each Indenture is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; the the Trustee is
duly qualified to engage in the activities contemplated by the applicable
Indenture; that the applicable Indenture has been duly authorized, executed and
delivered by the Trustee and constitutes a legally valid and binding obligation
of the
<PAGE> 4
Libbey Inc.
June 6, 1997
Page 4
Trustee, enforceable against the Trustee in accordance with its terms; that the
Trustee is in compliance, generally and with respect to acting as Trustee under
the applicable Indenture, with all applicable laws and regulations; and that
the Trustee has the requisite organizational and legal power and authority to
perform its obligations under the applicable Indenture.
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus included therein.
Very truly yours,
/s/ Latham & Watkins
<PAGE> 1
EXHIBIT 12
LIBBEY INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(000's)
<TABLE>
<CAPTION>
3 Months 3 Months YEARS ENDED DECEMBER 31,
-----------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Consolidated income before income taxes $7,641 $6,514 $53,536 $49,709 $45,196 $30,657 $20,769
Add:
Interest and amortization of debt expense 3,301 4,120 14,962 13,974 13,797 23,064 44,703
Interest portion of rental expense 404 417 1,557 1,487 1,461 1,402 1,163
--------------------------------------------------------------------------
Income as adjusted $11,346 $11,051 $70,055 $65,170 $60,454 $55,123 $66,635
==========================================================================
Fixed charges:
Interest and amortization of debt expense $3,301 $4,120 $14,962 $13,974 $13,797 $23,064 $44,703
Capitalized interest 130 69
Interest portion of rental expense 404 417 1,557 1,487 1,461 1,402 1,163
--------------------------------------------------------------------------
Total fixed charges $3,705 $4,537 $16,519 $15,591 $15,327 $24,466 $45,866
==========================================================================
Ratio of earnings to fixed charges 3.1 2.4 4.2 4.2 3.9 2.3 1.5
===========================================================================
</TABLE>
Consolidated income before income taxes in 1992 is before cumulative effect of
changes in accounting for postretirement benefits other than pensions.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 and related Prospectus of Libbey Inc. for
the registration of $100 million of debt securities and common stock and to the
incorporation by reference therein of our report dated February 3, 1997, except
as to Note 14, as to which the date is March 10, 1997, with respect to the
consolidated financial statements and schedule of Libbey Inc. included in the
Annual Report (Form 10-K) of Libbey Inc. for the year ended December 31, 1996,
filed with the Securities and Exchange Commission.
Ernst & Young LLP
Toledo, Ohio
June 6, 1997
