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As filed with the Securities and Exchange Commission on December 17, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORMS S-3
REGISTRATION STATEMENT
UNDER
THIS SECURITIES ACT OF 1933
----------------------
CMGI, INC.
(Exact name of Registrant as Specified in its Charter)
DELAWARE 04-2921333
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
100 BRICKSTONE SQUARE, ANDOVER, MASSACHUSETTS 01810
(978) 684-3600
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
----------------------
DAVID S. WETHERELL
PRESIDENT, CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
CMGI, INC.
100 BRICKSTONE SQUARE
ANDOVER, MASSACHUSETTS 01810
(978) 684-3600
(Name, Address, Including Zip Code, and
Telephone Number, Including Area Code, of Agent For Service)
----------------------
Copies to:
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<S> <C> <C>
WILLIAM WILLIAMS II MARK G. BORDEN DAVID J. GOLDSCHMIDT
VICE PRESIDENT AND GENERAL COUNSEL HALE AND DORR LLP SKADDEN, ARPS, SLATE, MEAGHER &
CMGI, INC. 60 STATE STREET FLOM LLP
100 BRICKSTONE SQUARE BOSTON, MASSACHUSETTS 02109 919 THIRD AVENUE
ANDOVER, MASSACHUSETTS 01810 (617) 526-6000 NEW YORK, NEW YORK 10022
(978) 684-3600 (212) 735-3000
</TABLE>
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Approximate date of commencement of proposed sale to the public: From
time to time on and after the date on which this registration statement becomes
effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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Title Of Each Class of Amount To Be Proposed Maximum Proposed Amount Of
Securities to be Registered Registered(1) Offering Price Maximum Aggregate Registration Fee
Per Unit(1)(2) Offering Price(1)(2)
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par value per share
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Preferred Stock, $0.01 par value per share
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Senior Notes
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Subordinated Notes
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Total $1,000,000,000 $264,000
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(1) Such indeterminate number of shares of common stock and preferred stock and
such indeterminate principal amount of senior notes and subordinated notes
as may from time to time be issued at indeterminate prices.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(3) In no event will the aggregate initial public offering price of all
securities issued from time to time pursuant to this registration statement
exceed $1,000,000,000. The aggregate amount of Common Stock registered
hereunder is further limited to that which is permissible under Rule
415(a)(4) of the Securities Act. The securities registered hereunder may be
sold separately or as units with other securities registered hereunder.
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.
<PAGE>
********************************************************************************
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
********************************************************************************
Subject to completion, preliminary prospectus dated December 17, 1999
Prospectus
$1,000,000,000
CMGI, INC.
Common Stock, Preferred Stock and Debt Securities
-------------------------------
CMGI, Inc. may sell:
. common stock to the public;
. preferred stock to the public; and
. debt securities to the public.
-------------------------------
We urge you to read this prospectus and the accompanying prospectus
supplement, which will describe the specific terms of the common stock, the
preferred stock and the debt securities, carefully before you make your
investment decision.
-------------------------------
The Securities and Exchange Commission and state securities regulators have
not approved or disapproved of these securities or determined if this prospectus
or the accompanying prospectus supplement is truthful or complete. Any
representation to the contrary is a criminal offense.
-------------------------------
This prospectus may not be used to sell securities unless accompanied by a
prospectus supplement.
, 1999
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TABLE OF CONTENTS
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Page
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ABOUT THIS PROSPECTUS............................................. 1
CMGI, INC......................................................... 1
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS.. 1
USE OF PROCEEDS................................................... 1
DESCRIPTION OF SECURITIES......................................... 1
DESCRIPTION OF CAPITAL STOCK...................................... 2
DESCRIPTION OF DEBT SECURITIES.................................... 7
PLAN OF DISTRIBUTION.............................................. 11
LEGAL MATTERS..................................................... 12
EXPERTS........................................................... 12
WHERE YOU CAN FIND MORE INFORMATION ABOUT US...................... 13
</TABLE>
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CMGI, INC.
CMGI develops and operates Internet and fulfillment service companies.
CMGI's Internet strategy includes the internal development and operation of
majority-owned subsidiaries as well as taking strategic positions in other
Internet companies that have demonstrated synergies with CMGI'S core businesses.
CMGI's strategy also envisions and promotes opportunities for synergistic
business relationships among the Internet companies within its portfolio. In
addition, CMGI provides fulfillment services through their wholly owned
subsidiaries, SalesLink Corporation, InSolutions Incorporated and On-Demand
Solution.
Our principal executive office is located at 100 Brickstone Square,
Andover, Massachusetts 01810, and our telephone number is (978) 684-3600.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Commission using a "shelf" registration process. Under this shelf process, we
may sell any combination of the securities described in this prospectus in one
of more offerings up to a total dollar amount of $1,000,000,000. This
prospectus provides you with a general description of the securities we may
offer. Each time we sell securities, we will provide a prospectus supplement
that will contain specific information about the terms of that offering. The
prospectus supplement may also add, update or change information contained in
this prospectus. You should read both this prospectus and any prospectus
supplement together with additional information described under the heading
"Where You Can Find More Information About Us."
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth our consolidated ratio of earnings to fixed
charges, the deficiency of our consolidated earnings to cover fixed charges, our
consolidated ratio of earnings to combined fixed charges and preferred stock
dividends and the deficiency of our consolidated earnings to cover combined
fixed charges and preferred stock dividends for the periods indicated.
<TABLE>
<CAPTION>
Three months ended
Years Ended July 31, October 31,
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1995 1996 1997 1998 1999 1999
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(in thousands of dollars, except ratios)
<S> <C> <C> <C> <C> <C> <C>
Consolidated ratio of
earnings to fixed charges 17.50 55.71 N/A 11.58 76.52 N/A
Deficiency of consolidated
earnings to cover fixed
charges N/A N/A $(12,122) N/A N/A $(179,634)
Consolidated ratio of
earnings to combined
fixed charges and
preferred stock dividends 17.50 55.71 N/A 11.58 65.71 N/A
Deficiency of consolidated
earnings to cover
combined fixed charges and
preferred stock dividends N/A N/A $(12,122) N/A N/A $(181,869)
</TABLE>
For the purposes of computing the ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividends, earnings
consist of pretax income (loss) from continuing operations before adjustment for
minority interest in consolidated subsidiaries and income or loss from equity
investees plus fixed charges. Fixed charges consist of interest expense,
amortized premiums, discounts and capitalized expenses related to indebtedness,
an estimate of the interest component within rental expenses and preference
security dividend requirements of consolidated subsidiaries.
USE OF PROCEEDS
Except as otherwise set forth in the applicable prospectus supplement, CMGI
intends to use the proceeds of any securities sold for general corporate
purposes, including working capital, acquisitions, retirement of debt and other
business opportunities.
DESCRIPTION OF SECURITIES
This prospectus contains a summary of the common stock, preferred stock and
debt securities of CMGI. These summaries are not meant to be a complete
description of each security. However, this prospectus and the accompanying
prospectus supplement contain the material terms and conditions for each
security.
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DESCRIPTION OF CAPITAL STOCK
The following description of our common stock and preferred stock, together
with the additional information included in any applicable prospectus
supplements, summarizes the material terms and provisions of these types of
securities. For the complete terms of our common stock and preferred stock,
please refer to our restated certificate of incorporation and restated by-laws
that are incorporated by reference into the registration statement which
includes this prospectus.
Our authorized capital stock consists of 405,000,000 shares. Those shares
consist of 400,000,000 shares of common stock, par value $0.01 per share, and
5,000,000 shares of preferred stock, par value $0.01 per share, of which
250 shares are designated Series A convertible preferred stock, 50,000 shares
are designated Series B convertible preferred stock and 375,000 shares are
designated Series C convertible preferred stock. We will describe the specific
terms of any common stock or preferred stock we may offer in a prospectus
supplement. If indicated in a prospectus supplement, the terms of any common
stock or preferred stock offered under that prospectus supplement may differ
from the terms described below.
COMMON STOCK
Voting Rights. Each holder of common stock is entitled to one vote on all
matters to be voted upon by stockholders for each share held on the record date
for such vote.
Dividends. The holders of common stock, after preferences of holders of
preferred stock, are entitled to receive dividends when, as and if declared by
the board of directors out of funds legally available for dividends.
Liquidation and Dissolution. If we are liquidated or dissolved, the
holders of the common stock will be entitled to share in our assets available
for distribution to stockholders in proportion to the amount of common stock
they own. The amount available for common stockholders is calculated after
payment of liabilities. Holders of preferred stock will receive their
preferential share of our assets before the holders of the common stock receive
any assets.
Other Rights. Holders of the common stock have no right to:
. convert the common stock into any other security,
. have the common stock redeemed, or
. purchase additional shares of common stock to maintain their
proportionate interest.
The common stock does not have cumulative voting rights, which means that the
holders of a majority of the shares can elect all the directors and that the
holders of the remaining shares will not be able to elect any directors. All
outstanding shares of common stock are, and all shares of common stock offered
under a prospectus supplement when issued will be upon payment, validly issued,
fully paid and nonassessable.
Transfer Agent. We have appointed Boston EquiServe, L.P. as the transfer
agent and registrar for our common stock.
PREFERRED STOCK
General. Our restated certificate of incorporation authorizes the board of
directors to issue, without any further action by the stockholders, the
preferred stock in one or more series, to establish from time to time the number
of shares to be included in each series, and to fix the designation, powers,
preferences and rights of the shares of each series and the qualifications,
limitations or restrictions thereof, including voting rights, dividend rights,
conversion rights, liquidation preferences, redemption privileges and sinking
fund terms. The rights, preferences, privileges and restrictions of the
preferred stock of each series will be fixed by the certificate of
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designation relating to that series. Any or all of the rights of the preferred
stock may be greater than the rights of the common stock.
Voting Rights. The Delaware corporation statute provides that the holders
of preferred stock will have the right to vote separately as a class on any
proposal involving fundamental changes in the rights of holders of such
preferred stock.
Conversion or Exchange. The prospectus supplement will describe the terms,
if any, on which the preferred stock may be convertible into or exchangeable or
redeemable for our common stock, debt securities or other preferred stock. These
terms will include provisions as to whether conversion, exchange or redemption
is mandatory, at the option of the holder or at our option. These provisions may
allow or require the number of shares of our common stock or other securities to
be received by the holders of preferred stock to be adjusted.
In addition, the preferred stock could have other rights, including
economic rights senior to our common stock, so that the issuance of the
preferred stock could adversely affect the market value of our common stock.
The issuance of the preferred stock may also have the effect of delaying,
deferring or preventing a change in control of us without any action by the
stockholders.
SERIES B CONVERTIBLE PREFERRED STOCK AND SERIES C CONVERTIBLE PREFERRED STOCK
Voting Rights. Holders of shares of Series B convertible preferred stock
and Series C convertible preferred stock have no voting rights except as
otherwise provided by the Delaware corporation statute and our restated
certificate of incorporation. On such matters where the holders of shares of
Series B convertible preferred stock and Series C convertible preferred stock
have a right to vote with the holders of common stock, they are entitled to vote
their shares on an as-converted basis. Our restated certificate of incorporation
also gives the holders of shares of each of Series B convertible preferred stock
and Series C convertible preferred stock the right to vote on enumerated actions
that if taken by us would impair their rights, preferences and privileges. Prior
to us taking any such action, the affirmative vote of the holders of a majority
of the outstanding shares of the affected series of preferred stock is required.
Dividend Rights. Series B convertible preferred stock does not bear any
dividends. Holders of Series C convertible preferred stock are entitled to
receive when, as and if declared by the board of directors, out of funds legally
available for dividends, cumulative dividends equal to two percent per annum of
the stated value of $1,000 per share, payable semiannually in arrears, either in
cash or, at our option, through an adjustment to the liquidation preference per
share. Such adjustments, if any, will also increase the number of shares of
common stock into which shares of Series C convertible preferred stock is
convertible.
Liquidation and Dissolution. In the event of any liquidation or
dissolution of us,
. the holders of Series B convertible preferred stock are entitled to
receive, prior to any distribution to holders of common stock or
Series C convertible preferred stock, an amount equal to the stated
value of $1,000 per share plus four percent per annum of the stated
value since the date of issuance, and
. the holders of Series C convertible preferred stock are entitled to
receive, prior to any distribution to holders of common stock, an amount
equal to the stated value of $1,000 per share plus all adjustments to
the liquidation preference plus accrued but unpaid dividends to which no
adjustment has been made (the sum of which is referred to as the
liquidation preference).
Our restated certificate of incorporation specifies that upon the
occurrence of enumerated corporate events, including a consolidation or merger
where we are not the surviving corporation, the holders of Series B convertible
preferred stock may elect to:
. treat as a liquidation event and receive a liquidation distribution
equal to 118% of the stated value plus four percent per annum of the
stated value since the date of issuance; or
. have the conversion price for each share of Series B convertible
preferred stock adjusted accordingly.
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Our restated certificate of incorporation specifies that upon the
occurrence of enumerated corporate events, including the consummation of a
transaction in which our stockholders do not own at least 50% of the voting
power of the combined company, the holders of two-thirds of the outstanding
shares of Series C convertible preferred stock may elect either:
. to treat such events as a liquidation event and receive a
liquidation distribution; or
. to have the conversion price for each share of Series C convertible
preferred stock adjusted accordingly.
Conversion. Subject to certain limitations described in our restated
certificate of incorporation, the Series B convertible preferred stock is
convertible into common stock, based on the stated value per share plus an
amount equal to four percent per annum of the stated value, at a conversion
price of $26.00 per share, prior to giving effect to the two-for-one stock split
we announced on December 15, 1999, until December 21, 1999 or until the earlier
occurrence of certain events specified in our restated certificate of
incorporation. After December 21, 1999 or the earlier occurrence of such
specified events, the conversion price is based on a formula which is linked to
the market price of our common stock. The maximum number of shares of common
stock into which the outstanding shares of Series B convertible preferred stock
may be converted is 4,166,668, prior to giving effect to the two-for-one stock
split we announced on December 15, 1999, subject to adjustment as set forth in
the restated certificate of incorporation. The Series B convertible preferred
stock automatically converts into common stock on December 22, 2000.
The shares of Series C convertible preferred stock are segregated into
three equal tranches of 125,000 shares each. The shares in each tranche have
identical rights and preferences except as to conversion. The shares in each
tranche are convertible into common stock, based on the liquidation preference
per share, at prices of $91.43, $75.15 and $75.32 per share, prior to giving
effect to the two-for-one stock split we announced on December 15, 1999,
respectively. The conversion price calculated for each tranche is also subject
to adjustment for certain actions described in our restated certificate of
incorporation. Shares of Series C convertible preferred stock may be converted
into common stock at any time at the option of the holders and automatically
convert into common stock on June 30, 2002, as described in the restated
certificate of incorporation.
The restated certificate of incorporation provides that a holder of
Series C convertible preferred stock may not at its option convert such shares
into common stock totalling more than 9.9% of outstanding shares of common stock
or 4.9% if such holder also owns Series B convertible preferred stock.
Redemption Rights. We are required to redeem shares of Series B
convertible preferred stock upon the occurrence of circumstances specified in
our restated certificate of incorporation, including the assignment of all or
substantially all of our assets or business for the benefit of creditors and the
institution of bankruptcy, insolvency, reorganization or liquidation proceedings
by or against us. In addition, holders of Series B convertible preferred stock
have the right to cause us to redeem their shares under additional specified
circumstances, including our failure either to issue shares of our common stock
upon the conversion of the Series B preferred stock or to maintain the listing
of our common stock on the Nasdaq National Market. The redemption price per
share is the greater of a specified percentage of the stated value of $1,000 per
share of Series B convertible preferred stock plus an amount equal to four
percent per annum of the stated value and the market price of our common stock
during the period specified in our restated certificate of incorporation.
In addition, at any time after December 21, 1999, we have the option to
redeem shares of Series B convertible preferred stock in the event that the
closing price of our common stock is less than $18.25 per share, prior to giving
effect to the two-for-one stock split announced on December 15, 1999, for a
period of ten consecutive trading days. In such event, the redemption price per
share is 115% of the stated value plus an amount equal to four percent per annum
of the stated value.
Holders of shares of Series C convertible preferred stock have the right to
cause us to redeem their shares upon the occurrence of events specified in our
restated certificate of incorporation, including our failure to issue shares of
common stock upon conversion by holders of shares of Series C convertible
preferred stock. The redemption price will be an amount per share equal to the
liquidation preference on the date of notice to us from the holder of Series C
convertible preferred stock demanding redemption.
CERTAIN EFFECTS OF AUTHORIZED BUT UNISSUED STOCK
We have shares of common stock and preferred stock available for future
issuance without stockholder approval. These additional shares may be utilized
for a variety of corporate purposes, including future public offerings to raise
additional capital, facilitate corporate acquisitions or payable as a dividend
on the capital stock.
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The existence of unissued and unreserved common stock and preferred stock
may enable the board of directors to issue shares to persons friendly to current
management or to issue preferred stock with terms that could render more
difficult or discourage an attempt to obtain control of us by means of a merger,
tender offer, proxy contest or otherwise, thereby protecting the continuity of
our management. In addition, the issuance of preferred stock could adversely
affect the voting power of holders of common stock and the likelihood that such
holders will receive dividend payments and payments upon liquidation.
DELAWARE LAW AND CERTAIN PROVISIONS OF THE RESTATED CERTIFICATE OF INCORPORATION
AND THE RESTATED BY-LAWS
Our restated certificate of incorporation and restated by-laws include
provisions that could make it more difficult to acquire us by means of a merger,
tender offer, proxy contest or otherwise. These provisions, as described
below, are expected to discourage certain types of coercive takeover practices
and inadequate takeover bids and to encourage persons seeking to acquire control
of us first to negotiate with us. We believe that the benefits of increased
protection of our potential ability to negotiate with the proponent of an
unfriendly or unsolicited proposal to acquire or restructure us outweigh the
disadvantages of discouraging such proposals because, among other things,
negotiations with respect to such proposals could result in terms more favorable
to us.
Our restated certificate of incorporation and restated by-laws provide that
the board of directors will be divided into three classes of directors, with the
term of each class expiring in a different year. Our restated by-laws provide
that the number of directors will be fixed from time to time exclusively by the
board of directors, but shall consist of not more than fifteen nor less than
three directors. A majority of the board of directors then in office has the
sole authority to fill any vacancies on the board of directors. Our restated
certificate of incorporation provides that directors may be removed only by the
affirmative vote of holders of at least 75% of the voting power of all of the
then outstanding shares of stock entitled to vote generally in the election of
directors, voting together as a single class.
Our restated certificate of incorporation provides that stockholder action
can be taken only at an annual or special meeting of stockholders and prohibits
stockholder action by written consent in lieu of a meeting. Our restated
certificate of incorporation and restated by-laws provide that special meetings
of stockholders can be called by the chairman of the board of directors,
pursuant to a resolution approved by a majority of the total number of directors
which we would have if there were no vacancies on the board of directors, or by
the stockholders owning at least 20% of the stock entitled to vote at the
meeting. The business permitted to be conducted at any special meeting of
stockholders is limited to the business brought before the meeting by the
chairman of the board, or at the request of a majority of the whole board of
directors, or as specified in the stockholders' call for such meeting.
Our restated by-laws set forth an advance notice procedure with regard to
the nomination, other than by or at the direction of the board of directors, of
candidates for election to the board of directors and with regard to business
brought before an annual meeting of stockholders.
Our restated certificate of incorporation and restated by-laws contain
provisions requiring the affirmative vote of the holders of at least 75% of the
voting stock, voting together as a single class, to amend certain provisions of
the restated certificate of incorporation relating primarily to anti-takeover
provisions and to the limitation of director liability.
The restated certificate of incorporation empowers the board of directors,
when considering a tender offer or merger or acquisition proposal, to take into
account factors in addition to potential economic benefits to stockholders.
Such factors may include:
. comparison of the proposed consideration to be received by stockholders in
relation to the then current market price of the capital stock, our estimated
current value in a freely negotiated
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transaction, and our estimated future value as an independent entity;
. the impact of such a transaction on our customers and employees, and its
effect on the communities in which we operate; and
. our ability to fulfill our objectives under applicable statutes and
regulations.
Our restated certificate of incorporation prohibits us from purchasing any
shares of our stock from any person, entity or group that beneficially owns 5%
or more of our voting stock at a price exceeding the average closing price for
the twenty trading business days prior to the purchase date, unless a majority
of our disinterested stockholders approve the transaction. This restriction on
purchases by us does not apply to any offer to purchase shares of a class of our
stock which is made on the same terms and conditions to all holders of that
class of stock, to any purchase of stock owned by such a 5% stockholder
occurring more than two years after such stockholder's last acquisition of our
stock, to any purchase of our stock in accordance with the terms of any stock
option or employee benefit plan, or to any purchase at prevailing market prices
pursuant to a stock purchase program.
Section 203 of the Delaware General Corporation Law is applicable to
corporations organized under the laws of Delaware. Subject to certain exceptions
set forth in the statute, Section 203 of the Delaware General Corporation Law
provides that a corporation shall not engage in any business combination with
any "interested stockholder" for a three-year period following the date that
such stockholder becomes an interested stockholder unless:
. prior to such date, the board of directors of the corporation approved
either the business combination or the transaction which resulted in the
stockholder becoming an interested stockholder;
. upon consummation of the transaction which resulted in the stockholder
becoming an interested stockholder, the interested stockholder owned at least
85% of the voting stock of the corporation outstanding at the time the
transaction commenced, excluding shares owned by directors, officers and certain
employee plans or
. on or subsequent to such date, the business combination is approved by the
board of directors of the corporation and by the affirmative vote of at least
two-thirds of the outstanding voting stock which is not owned by the interested
stockholder.
Except as specified in the statute, an interested stockholder is defined
to mean any person, together with any affiliates and associates, that:
. is the owner of 15% or more of the outstanding voting stock of the
corporation; or
. is an affiliate or associate of the corporation and was the
owner of 15% or more of the outstanding voting stock of the corporation at any
time within three years immediately prior to the relevant date.
Under certain circumstances, Section 203 of the Delaware General Corporation Law
makes it more difficult for an interested stockholder to effect various business
combinations with a corporation for a three-year period, although the
stockholders may, by adopting an amendment to the corporation's certificate of
incorporation or by-laws, elect not to be governed by this section, effective
twelve months after adoption. Our restated certificate of incorporation and
restated by-laws do not exclude us from the restrictions imposed under Section
203 of the Delaware General Corporation Law. It is anticipated that the
provisions of Section 203 of the Delaware General Corporation Law may encourage
companies interested in acquiring us to negotiate in advance with the board of
directors.
Our restated certificate of incorporation contains a provision requiring
the affirmative vote of the holders of at least 75% of the voting stock, voting
together as a single class, to approve any business combination not approved by
the affirmative vote of a majority of the total number of directors. This
requirement is in addition to the requirements of Section 203 of the Delaware
General Corporation Law described above.
DIRECTORS' LIABILITY
Our restated certificate of incorporation provides that a member of the
board of directors shall not be personally liable to us or our stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability:
. for any breach of the director's duty of loyalty to us or our stockholders;
. for acts or omissions by the director not in good faith or which involve
intentional misconduct or a knowing violation of law;
. under section 174 of the Delaware General Corporation Law relating to the
declaration of dividends and purchase or redemption of shares in violation of
the Delaware General Corporation Law; or
. for transactions from which the director derived an improper personal
benefit.
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Our restated certificate of incorporation also provides for indemnification
of directors and officers to the fullest extent authorized by Delaware law.
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 may not apply to the debt
securities so offered will be described in the prospectus supplement relating to
such debt securities. For more information please refer to the indenture among
CMGI and a trustee to be selected, relating to the issuance of the senior notes,
and the indenture among CMGI and a trustee to be selected, relating to issuance
of the subordinated notes. Forms of these documents are filed as exhibits to
the registration statement, which includes this prospectus.
The senior notes will be issued under the senior indenture to be entered
into between CMGI and the trustee named in the senior indenture. The
subordinated notes will be issued under the subordinated indenture to be entered
into between CMGI and the trustee named in the subordinated indenture. As used
herein, the term "indentures" refers to both the senior indenture and the
subordinated indenture. The indentures will be qualified under the Trust
Indenture Act. As used herein, the term "debenture trustee" refers to either the
senior trustee or the subordinated trustee, as applicable.
The following summaries of certain material provisions of the senior notes,
the subordinated notes and the Indentures are subject to, and qualified in their
entirety by reference to, all the provisions of the indenture applicable to a
particular series of debt securities, including the definitions therein of
certain terms. Except as otherwise indicated, the terms of the senior indenture
and the subordinated indenture are identical.
GENERAL
Each prospectus supplement will describe the following terms relating to a
series of notes:
. the title;
. any limit on the amount that may be issued;
. whether or not such series of notes will be issued in global form, the
terms and who the depository will be;
. the maturity date(s);
. the annual interest rate(s) (which may be fixed or variable) or the
method for determining the rate(s) and the date(s) interest will begin
to accrue, the date(s) interest will be payable and the regular record
dates for interest payment dates or the method for determining such
date(s);
. the place(s) where payments shall be payable;
. CMGI's right, if any, to defer payment of interest and the maximum
length of any such deferral period;
. the date, if any, after which, and the price(s) at which, such series
of notes may, pursuant to any optional redemption provisions, be
redeemed at CMGI's option, and other related terms and provisions;
7
<PAGE>
. the date(s), if any, on which, and the price(s) at which CMGI is
obligated, pursuant to any mandatory sinking fund provisions or
otherwise, to redeem, or at the holder's option to purchase, such
series of notes and other related terms and provisions;
. the denominations in which such series of notes will be issued, if
other than denominations of $1,000 and any integral multiple thereof;
and
. any other terms (which terms shall not be inconsistent with the
Indenture as supplemented).
CONVERSION OR EXCHANGE RIGHTS
The terms on which a series of notes may be convertible into or
exchangeable for common stock or other securities of CMGI will be set forth in
the prospectus supplement relating thereto. Such terms will include provisions
as to whether conversion or exchange is mandatory, at the option of the holder
or at the option of CMGI, and may include provisions pursuant to which the
number of shares of common stock or other securities of CMGI to be received by
the holders of such series of notes would be subject to adjustment.
CONSOLIDATION, MERGER OR SALE
The indentures do not contain any covenant which restricts the ability of
CMGI to merge or consolidate, or sell, convey, transfer or otherwise dispose of
all or substantially all of its assets. However, any successor or acquirer of
such assets must assume all of the obligations of CMGI under the indentures or
the notes, as appropriate.
EVENTS OF DEFAULT UNDER THE INDENTURE
The following are events of default under the Indentures with respect to
any series of notes issued:
. failure to pay interest when due and such failure continues for 90 days
and the time for payment has not been extended or deferred;
. failure to pay the principal (or premium, if any) when due;
. failure to observe or perform any other covenant contained in the notes
or the indentures (other than a covenant specifically relating to
another series of notes), and such failure continues for 90 days after
CMGI receives notice from the debenture trustee or holders of at least
25% in aggregate principal amount of the outstanding notes of that
series; and
. certain events of bankruptcy, insolvency or reorganization of CMGI.
If an event of default with respect to notes of any series occurs and is
continuing, the debenture trustee or the holders of at least 25% in aggregate
principal amount of the outstanding notes of that series, by notice in writing
to CMGI (and to the debenture trustee if notice is given by such holders), may
declare the unpaid principal of, premium, if any, and accrued interest, if any,
due and payable immediately.
The holders of a majority in principal amount of the outstanding notes of
an affected series may waive any default or event of default with respect to
such series and its consequences, except defaults or events of default regarding
payment of principal, premium, if any, or interest (unless such default or event
of default has been cured in accordance with the indenture).
Any such waiver shall cure such default or event of default.
8
<PAGE>
Subject to the terms of the indentures, if an event of default under an
indenture shall occur and be continuing, the debenture trustee will be under no
obligation to exercise any of its rights or powers under such indenture at the
request or direction of any of the holders of the applicable series of notes,
unless such holders have offered the debenture trustee reasonable indemnity. The
holders of a majority in principal amount of the outstanding notes of any series
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the debenture trustee, or exercising any
trust or power conferred on the debenture trustee, with respect to the notes of
that series, provided that:
. it is not in conflict with any law or the applicable indenture;
. the debenture trustee may take any other action deemed proper by it
which is not inconsistent with such direction; and
. subject to its duties under the Trust Indenture Act, the debenture
trustee need not take any action that might involve it in personal
liability or might be unduly prejudicial to the holders not involved
in the proceeding.
A holder of the notes of any series will only have the right to institute a
proceeding under the indentures or to appoint a receiver or trustee, or to seek
other remedies if:
. the holder has given written notice to the debenture trustee of a
continuing event of default with respect to that series;
. the holders of at least 25% in aggregate principal amount of the
outstanding notes of that series have made written request, and such
holders have offered reasonable indemnity to the debenture trustee to
institute such proceedings as trustee; and
. the debenture trustee does not institute such proceeding, and does not
receive from the holders of a majority in aggregate principal amount
of the outstanding notes of that series other conflicting directions
within 60 days after such notice, request and offer.
These limitations do not apply to a suit instituted by a holder of notes if
CMGI defaults in the payment of the principal, premium, if any, or interest on,
the notes.
CMGI will periodically file statements with the debenture trustee regarding
its compliance with certain of the covenants in the indentures.
MODIFICATION OF INDENTURE; WAIVER
CMGI and the debenture trustee may change an indenture without the consent
of any holders with respect to certain matters, including:
. to fix any ambiguity, defect or inconsistency in such Indenture; and
. to change anything that does not materially adversely affect the
interests of any holder of notes of any series.
In addition, under the indentures, the rights of holders of a series of
notes may be changed by CMGI and the debenture trustee with the written consent
of the holders of at least a majority in aggregate principal amount of the
outstanding notes of each series that is affected. However, the following
changes may only be made with the consent of each holder of any outstanding
notes affected:
9
<PAGE>
. extending the fixed maturity of such series of notes;
. reducing the principal amount, reducing the rate of or extending the
time of payment of interest, or any premium payable upon the
redemption of any such notes; or
. reducing the percentage of notes, the holders of which are required to
consent to any amendment.
FORM, EXCHANGE, AND TRANSFER
The notes of each series will be issuable only in fully registered form
without coupons and, unless otherwise specified in the applicable prospectus
supplement, in denominations of $1,000 and any integral multiple thereof. The
indentures will provide that notes of a series may be issuable in temporary or
permanent global form and may be issued as book-entry securities that will be
deposited with, or on behalf of, The Depository Trust Company or another
depository named by CMGI and identified in a prospectus supplement with respect
to such series.
At the option of the holder, subject to the terms of the Indentures and the
limitations applicable to global securities described in the applicable
prospectus supplement, notes of any series will be exchangeable for other notes
of the same series, in any authorized denomination and of like tenor and
aggregate principal amount.
Subject to the terms of the indentures and the limitations applicable to
global securities set forth in the applicable prospectus supplement, notes may
be presented for exchange or for registration of transfer (duly endorsed or with
the form of transfer endorsed thereon duly executed if so required by CMGI or
the security registrar) at the office of the security registrar or at the office
of any transfer agent designated by CMGI for such purpose. Unless otherwise
provided in the notes to be transferred or exchanged, no service charge will be
made for any registration of transfer or exchange, but CMGI may require payment
of any taxes or other governmental charges. The security registrar and any
transfer agent (in addition to the security registrar) initially designated by
CMGI for any notes will be named in the applicable prospectus supplement. CMGI
may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any
transfer agent acts, except that CMGI will be required to maintain a transfer
agent in each place of payment for the notes of each series.
If the notes of any series are to be redeemed, CMGI will not be required
to:
. issue, register the transfer of, or exchange any notes of that series
during a period beginning at the opening of business 15 days before
the day of mailing of a notice of redemption of any such notes that
may be selected for redemption and ending at the close of business on
the day of such mailing; or
. register the transfer of or exchange any notes so selected for
redemption, in whole or in part, except the unredeemed portion of any
such notes being redeemed in part.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The debenture trustee, other than during the occurrence and continuance of
an event of default under an indenture, undertakes to perform only such duties
as are specifically set forth in the Indentures and, upon an event of default
under an indenture, must use the same degree of care as a prudent person would
exercise or use in the conduct of his or her own affairs. Subject to this
provision, the debenture trustee is under no obligation to exercise any of the
powers given it by the indentures at the request of any holder of notes unless
it is offered reasonable security and indemnity against the costs, expenses and
liabilities that it might incur. The debenture trustee is not
10
<PAGE>
required to spend or risk its own money or otherwise become financially liable
while performing its duties unless it reasonably believes that it will be repaid
or receive adequate indemnity.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable prospectus supplement, payment
of the interest on any notes on any interest payment date will be made to the
person in whose name such notes, or one or more predecessor securities, are
registered at the close of business on the regular record date for such
interest.
Principal of and any premium and interest on the notes of a particular
series will be payable at the office of the paying agents designated by CMGI,
except that unless otherwise indicated in the applicable prospectus supplement,
interest payments may be made by check mailed to the holder. Unless otherwise
indicated in such prospectus supplement, the corporate trust office of the
debenture trustee in The City of New York will be designated as CMGI's sole
paying agent for payments with respect to notes of each series. Any other paying
agents initially designated by CMGI for the notes of a particular series will be
named in the applicable prospectus supplement. CMGI will be required to
maintain a paying agent in each place of payment for the notes of a particular
series.
All moneys paid by CMGI to a paying agent or the debenture trustee for the
payment of the principal of or any premium or interest on any notes which
remains unclaimed at the end of two years after such principal, premium or
interest has become due and payable will be repaid to CMGI, and the holder of
the security thereafter may look only to CMGI for payment thereof.
GOVERNING LAW
The indentures and the notes will be governed by and construed in
accordance with the laws of the State of New York except to the extent that the
Trust Indenture Act shall be applicable.
SUBORDINATION OF SUBORDINATED NOTES
The subordinated notes will be unsecured and will be subordinate and junior
in priority of payment to certain of CMGI's other indebtedness to the extent
described in a prospectus supplement. The subordinated indenture does not limit
the amount of subordinated notes which CMGI may issue, nor does it limit CMGI
from issuing any other secured or unsecured debt.
PLAN OF DISTRIBUTION
CMGI may sell common stock, preferred stock or any series of debt
securities being offered hereby in one or more of the following ways from time
to time:
. to underwriters for resale to the public or to institutional investors;
. directly to institutional investors; or
. through agents to the public or to institutional investors.
The prospectus supplements will set forth the terms of the offering of the
securities, including the name or names of any underwriters or agents, the
purchase price of such securities and the proceeds to CMGI from such sale, any
underwriting discounts or agency fees and other item's constituting
underwriters' or agents' compensation, any initial public offering price, any
discounts or concessions allowed or reallowed or paid to dealers and any
securities exchanges on which such securities may be listed. Such underwriters
or agents may include Goldman, Sachs & Co.
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If underwriters are used in the sale, the securities will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or prices, which may be changed, at market prices prevailing at
the time of sale, at prices related to such prevailing market prices or at
negotiated prices.
Unless otherwise set forth in a prospectus supplement, the obligations of
the underwriters to purchase any series of securities will be subject to certain
conditions precedent and the underwriters will be obligated to purchase all of
such series of securities, if any are purchased.
Underwriters and agents may be entitled under agreements entered into with
CMGI to indemnification by CMGI against certain civil liabilities, including
liabilities under the Securities Act of 1933, or to contribution with respect to
payments which the underwriters or agents may be required to make in respect
thereof. Underwriters and agents may be customers of, engage in transactions
with, or perform services for CMGI and its affiliates in the ordinary course of
business.
Each series of securities will be a new issue of securities and will have
no established trading market other than the common stock which is listed on
Nasdaq. Any common stock sold pursuant to a prospectus supplement will be
eligible for quotation and trading on Nasdaq, subject to official notice of
issuance. Any underwriters to whom securities are sold by CMGI for public
offering and sale may make a market in the securities, but such underwriters
will not be obligated to do so and may discontinue any market making at any time
without notice. The securities, other than the common stock, may or may not be
listed on a national securities exchange or eligible for quotation and trading
on Nasdaq.
LEGAL MATTERS
Certain legal matters in connection with the offered securities will be
passed upon for CMGI by Hale and Dorr LLP, Boston, Massachusetts, and for the
underwriter(s), dealer(s) or agent(s) by Skadden, Arps, Slate, Meagher & Flom
LLP, New York, New York.
EXPERTS
The consolidated financial statements and schedule of CMGI as of July 31,
1999 and 1998, and for each of the years in the three-year period ended July 31,
1999, have been incorporated by reference herein in reliance upon the reports
of KPMG LLP, independent certified public accountants, incorporated by reference
herein, and upon authority of said firm as experts in accounting and auditing.
The financial statements of AltaVista Company for each of the years in the
three-year period ended December 31, 1998, the financial statements of Zip2 for
each of the years in the three-year period ended December 31, 1998, and the
financial statements of Shopping.com for each of the years in the two-year
period ended January 31, 1999, have been incorporated by reference herein in
reliance upon the reports of PricewaterhouseCoopers LLP, independent
accountants, given the authority of said firm as experts in auditing and
accounting. The financial statements of Shopping.com as of the year ended
January 31, 1997, have been incorporated by reference herein in reliance upon
the report of Singer Lewak Greenbaum & Goldstein LLP, independent certified
public accountants, upon the authority of said firm as experts in accounting and
auditing.
The consolidated financial statements of Flycast Communications
Corporation as of December 31, 1997 and 1998 and for each of the three years in
the period ended December 31, 1998, incorporated by reference in this
Registration Statement have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report, which is incorporated herein by reference,
and have been so incorporated in reliance upon the report of such firm given
upon their authority as experts in accounting and auditing.
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WHERE YOU CAN FIND MORE INFORMATION ABOUT US
We file annual, quarterly and special reports, proxy statements,
information statements and other information with the Commission. You can
inspect and copy any such information we file with the Commission at the public
reference facilities the Commission maintains at:
Room 1024, Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
and at the SEC's Regional Offices located at:
Northwestern Atrium Center
Suite 1400
500 West Madison Street
Chicago, Illinois 60661
and
Seven World Trade Center
13th Floor
New York, New York 10048
and you may also obtain copies of such material by mail from the Public
Reference Section of the Commission at:
450 Fifth Street, N.W.
Washington, D.C. 20549
at prescribed rates. Please call the Commission at 1-800-SEC-0330 for further
information on the public reference rooms.
The Commission also maintains a Web site on the World Wide Web, the address
of which is http://www.sec.gov. That site also contains our annual, quarterly
and special reports, proxy statements, information statements and other
information.
This prospectus is part of a registration statement filed by us with the
Commission. It does not contain all the information included or incorporated by
reference in the registration statement. The full registration statement can be
obtained from the Commission as indicated above or from us.
The Commission allows us to "incorporate by reference" information from
other documents that we file with them, which means that we can disclose
important information to you by referring to those documents. The information
incorporated by reference is considered to be a part of this prospectus, and
information that we file later with the Commission will automatically update and
supersede this information. We incorporate by reference the documents listed
below and any future filings we make with the Commission under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the sale of all of the
securities covered by this prospectus:
. Annual Report on Form 10-K for the year ended July 31, 1999,
filed with the Commission on October 29, 1999;
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. Quarterly Report on Form 10-Q for the quarter ended October
31, 1999, filed with the Commission on December 15, 1999;
. Current Reports on Form 8-K or amendments of Current Reports on
Form 8-K filed with the Commission on June 29, 1999, August 12,
1999, September 2, 1999, September 3, 1999, September 27, 1999,
October 1, 1999, November 1, 1999, November 17, 1999 and
December 17, 1999; and
. The description of our common stock contained in our
registration statement on Form 8-A, filed with the Commission
on January 11, 1994 (File No. 000-23262).
Any filings made by CMGI pursuant to the Exchange Act after the date of the
initial filing of the registration statement of which this prospectus is a part
and prior to the effective date of the registration statement shall also be
deemed to be incorporated by reference into this prospectus.
You may request a copy of these filings, at no cost, by writing or
telephoning us using the following contact information:
Catherine Taylor
Director, Investor Relations
CMGI, Inc.
100 Brickstone Square
First Floor
Andover, MA 01810
(978) 684-3600
You should rely only on the information incorporated by reference, provided
in this prospectus or any supplement or that we have referred you to. We have
not authorized anyone else to provide you with different information. You
should not assume that the information in this prospectus or any supplement is
accurate as of any date other than the date on the front of those documents.
However, you should realize that the affairs of CMGI may have changed since the
date of this prospectus. This prospectus will not reflect such changes. You
should not consider this prospectus to be an offer or solicitation relating to
the securities in any jurisdiction in which such an offer or solicitation
relating to the securities is not authorized. Furthermore, you should not
consider this prospectus to be an offer or solicitation relating to the
securities if the person making the offer or solicitation is not qualified to do
so, or if it is unlawful for you to receive such an offer or solicitation.
14
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses to be borne by CMGI in
connection with the offerings described in this registration statement. All
such expenses other than the Commission registration fee are estimates.
<TABLE>
<S> <C>
Commission registration fee......................... $264,000
Transfer Agents, Trustees and Depositary's
Fees and Expenses................................. 25,000
Legal fees and expenses............................. 100,000
Accounting fees and expenses........................ 50,000
Printing and engraving fees and expenses............ 10,000
Miscellaneous fees and expenses (including listing
fees, if applicable).............................. 51,000
--------
Total........................................ $500,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law grants the registrant
the power to indemnify each person 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 by reason of the fact
that he is or was a director, officer, employee or agent of the registrant, or
is or was serving at the request of the registrant as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgements,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the registrant, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, provided, however, no
indemnification shall be made in connection with any proceeding brought by or in
the right of the registrant where the person involved is adjudged to be liable
to the registrant except to the extent approved by a court. Article VII of the
registrant's restated by-laws provides that the registrant shall, to the fullest
extent permitted by applicable law, indemnify each person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding by reason of the fact that he is or was, or has
agreed to become, a director or officer of the registrant, or is or was serving
at the written request of the registrant, as a director, officer, trustee,
partner, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise. The indemnification provided for in Article VII of
the registrant's restated by-laws is expressly not exclusive of any other rights
to which those seeking indemnification may be entitled under any law, agreement
or vote of stockholders or disinterested directors or otherwise, and shall inure
to the benefit of the heirs, executors and administrators of such persons.
Article VII of the registrant's restated by-laws also provides that the
registrant shall have the power to purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
registrant, or is or was serving at the request of the registrant, as a
director, trustee, partner, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against any liability
asserted against and incurred by such person in any such capacity.
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law,
Article EIGHTH of the registrant's restated certificate of incorporation
eliminates a director's personal liability for monetary damages to
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CMGI and its stockholders for breaches of fiduciary duty as a director, except
in circumstances involving a breach of a director's duty of loyalty to the
registrant or its stockholders, acts or omissions not in good faith, intentional
misconduct, knowing violations of the law, self-dealing or the unlawful payment
of dividends or repurchase of stock.
The registrant maintains an insurance policy on behalf of itself and its
subsidiaries, and on behalf of the directors and officers thereof, covering
certain liabilities which may arise as a result of the actions of such directors
and officers.
The registrant has entered into agreements with all of its directors
affirming the registrant's obligation to indemnify them to the fullest extent
permitted by law and providing various other protections.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
1.1 The form of equity underwriting agreement will be filed as an exhibit to a
Current Report of CMGI, Inc. on Form 8-K and incorporated herein by reference.
1.2 The form of debt underwriting agreement will be filed as an exhibit to a
Current Report of CMGI, Inc. on Form 8-K and incorporated herein by reference.
3.1 Restated Certificate of Incorporation of CMGI, Inc. Incorporated by reference
herein from Exhibit 4.1 to CMGI Inc.'s registration statement on Form S-3
(File No. 333-85047) filed with the Commission on August 12, 1999.
3.2 Restated By-laws of CMGI, Inc. Incorporated by reference herein from Exhibit
3.3 to CMGI, Inc.'s registration statement on Form S-4 (File No. 333-92107)
filed with the Commission on December 3, 1999.
4.1 Form of senior indenture.
4.2 Form of subordinated indenture.
4.3 The form of CMGI, Inc. common stock certificate. Incorporated by reference
herein from Exhibit 4.1 to CMGI, Inc.'s Form 10-K filed with the Commission on
October 29, 1999.
4.4 The form of any senior note with respect to each particular series of senior
notes issued hereunder will be filed as an exhibit to a Current Report of
CMGI, Inc. on Form 8-K and incorporated herein by reference.
4.5 The form of any subordinated note with respect to each particular series of
subordinated notes issued hereunder will be filed as an exhibit to a Current
Report of CMGI, Inc. on Form 8-K and incorporated herein by reference.
4.6 The form of any certificate of designation with respect to any preferred stock
issued hereunder and the related form of preferred stock certificate will be
filed as exhibits to a Current Report of CMGI, Inc. on Form 8-K and
incorporated herein by reference.
5.1 Opinion of Hale and Dorr LLP.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
12.1 Statement re: Computation of ratio of earnings to fixed charges and preferred
stock dividends.
23.1 Consent of KPMG LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Singer Lewak Greenbaum & Goldstein LLP.
23.4 Consent of Deloitte & Touche LLP.
23.5 Consent of Hale and Dorr LLP (contained in Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this registration
statement).
25.1 The Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of the Trustee under the Senior Indenture will be
incorporated herein by reference from a subsequent filing in accordance with
Section 305(b)(2) of the Trust Indenture Act of 1939.
25.2 The Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of the Trustee under the Subordinated Indenture will be
incorporated herein by reference from a subsequent filing in accordance with
Section 305(b)(2) of the Trust Indenture Act of 1939.
</TABLE>
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 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
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<PAGE>
(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 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions referred to in Item 15 hereof, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
CMGI hereby undertakes to file an application for the purpose of
determining the eligibility of the applicable trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act of 1939 ("Act") in accordance with
the rules and regulations of the Commission under Section 305(b)(2) of the Act.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, hereunto duly
authorized, in the Town of Andover, the Commonwealth of Massachusetts, on the
16th day of December, 1999.
CMGI, INC.
By: /s/ Andrew J. Hajducky
Andrew J. Hajducky III, CPA
Chief Financial Officer and Treasurer
POWER OF ATTORNEY
We, the undersigned officers and directors of CMGI, Inc., hereby severally
constitute and appoint David S. Wetherell and Andrew J. Hajducky III, and each
of them acting singly, our true and lawful attorneys-in-fact, with full power
granted to them in any and all capacities (including substitutions), to execute
for us and in our names in the capacities indicated below this registration
statement (including any pre- and post-effective amendments), and any related
Rule 462(b) registration statement or amendment thereto, and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, and generally to do all such things in our
name and behalf in our capacities as officers and directors to enable CMGI, Inc.
to comply with the provisions of the Securities Act and all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities indicated as of December 16, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ David S. Wetherell Chairman of the Board, President and Chief Executive
David S. Wetherell Officer (Principal Executive Officer)
/s/ Andrew J. Hajducky III Chief Financial Officer and Treasurer (Principal
Andrew J. Hajducky III, CPA Financial Officer and Principal Accounting Officer)
/s/ William H. Berkman Director
William H. Berkman
/s/ Craig D. Goldman Director
Craig D. Goldman
/s/ Avram Miller Director
Avram Miller
/s/ Robert J. Ranalli Director
Robert J. Ranalli
/s/ William D. Strecker Director
William D. Strecker
</TABLE>
II-5
<PAGE>
Exhibit Index
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
1.1 The form of equity underwriting agreement will be filed as an exhibit to a
Current Report of CMGI, Inc. on Form 8-K and incorporated herein by reference.
1.2 The form of debt underwriting agreement will be filed as an exhibit to a
Current Report of CMGI, Inc. on Form 8-K and incorporated herein by reference.
3.1 Restated Certificate of Incorporation of CMGI, Inc. Incorporated by reference
herein from Exhibit 4.1 to CMGI Inc.'s registration statement on Form S-3
(File No. 333-85047) filed with the Commission on August 12, 1999.
3.2 Restated By-laws of CMGI, Inc. Incorporated by reference herein from Exhibit
3.3 to CMGI, Inc.'s registration statement on Form S-4 (File No. 333-92107)
filed with the Commission on December 3, 1999.
4.1 Form of senior indenture.
4.2 Form of subordinated indenture.
4.3 The form of CMGI, Inc. common stock certificate. Incorporated by reference
herein from Exhibit 4.1 to CMGI, Inc.'s Form 10-K filed with the Commission on
October 29, 1999.
4.4 The form of any senior note with respect to each particular series of senior
notes issued hereunder will be filed as an exhibit to a Current Report of
CMGI, Inc. on Form 8-K and incorporated herein by reference.
4.5 The form of any subordinated note with respect to each particular series of
subordinated notes issued hereunder will be filed as an exhibit to a Current
Report of CMGI, Inc. on Form 8-K and incorporated herein by reference.
4.6 The form of any certificate of designation with respect to any preferred stock
issued hereunder and the related form of preferred stock certificate will be
filed as exhibits to a Current Report of CMGI, Inc. on Form 8-K and
incorporated herein by reference.
5.1 Opinion of Hale and Dorr LLP.
12.1 Statement re: Computation of ratio of earnings to fixed charges and preferred
stock dividends.
23.1 Consent of KPMG LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Singer Lewak Greenbaum & Goldstein LLP.
23.4 Consent of Deloitte & Touche LLP.
23.5 Consent of Hale and Dorr LLP (contained in Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this registration
statement).
25.1 The Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of the Trustee under the Senior Indenture will be
incorporated herein by reference from a subsequent filing in accordance with
Section 305(b)(2) of the Trust Indenture Act of 1939.
25.2 The Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of the Trustee under the Subordinated Indenture will be
incorporated herein by reference from a subsequent filing in accordance with
Section 305(b)(2) of the Trust Indenture Act of 1939.
</TABLE>
<PAGE>
EXHIBIT 4.1
================================================================================
CMGI, INC.,
Issuer
AND
[ ],
Trustee
___________________________________
INDENTURE
Dated as of [ ], 1999
___________________________________
Senior Debt Securities
================================================================================
<PAGE>
CROSS-REFERENCE TABLE(1)
Section of
Trust Indenture Act.............................................. Section of
of 1939, as amended.............................................. Indenture
- ------------------- ----------
310(a)........................................................... 7.09
310(b)........................................................... 7.08
7.10
310(c)........................................................... Inapplicable
311(a)........................................................... 7.13(a)
311(b)........................................................... 7.13(b)
311(c)........................................................... Inapplicable
312(a)........................................................... 5.02(a)
312(b)............................................................ 5.02(b)
312(c)............................................................ 5.02(c)
313(a)............................................................ 5.04(a)
313(b)............................................................ 5.04(b)
313(c)............................................................ 5.04(a)
5.04(b)
313(d)............................................................ 5.04(c)
314(a)............................................................ 5.03
314(b)............................................................ Inapplicable
314(c)............................................................ 13.06
314(d)............................................................ Inapplicable
314(e)............................................................ 13.06
314(f)............................................................ Inapplicable
315(a)............................................................ 7.01(a)
7.02
315(b)............................................................ 6.07
315(c)............................................................ 7.01
315(d)............................................................ 7.01(b)
7.01(c)
315(e)............................................................ 6.07
316(a)............................................................ 6.06
8.04
316(b)............................................................ 6.04
316(c)............................................................ 8.01
317(a)............................................................ 6.02
317(b)............................................................ 4.03
318(a)............................................................ 13.08
- --------------------
1 This Cross-Reference Table does not constitute part of the Indenture and
shall not have any bearing on the interpretation of any of its terms or
provisions.
ii
<PAGE>
TABLE OF CONTENTS(2)
Page
----
PARTIES.................................................................... 1
RECITALS................................................................... 1
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions of Terms........................................ 1
Authenticating Agent........................................ 1
Bankruptcy Law.............................................. 1
Board of Directors.......................................... 1
Board Resolution............................................ 1
Business Day................................................ 1
Certificate................................................. 1
Company..................................................... 1
Corporate Trust Office...................................... 2
Custodian................................................... 2
Default..................................................... 2
Depositary.................................................. 2
Event of Default............................................ 2
Global Security............................................. 2
Governmental Obligations.................................... 2
"herein", "hereof" and "hereunder........................... 2
Indenture................................................... 2
Interest Payment Date....................................... 2
Officers' Certificate....................................... 2
Opinion of Counsel.......................................... 3
Outstanding................................................. 3
Person...................................................... 3
Predecessor Security........................................ 3
Responsible Officer......................................... 3
Securities.................................................. 3
Securityholder.............................................. 3
Subsidiary.................................................. 3
Trustee..................................................... 3
Trust Indenture Act......................................... 3
Voting Stock................................................ 4
iii
<PAGE>
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation and Terms of Securities......................... 4
SECTION 2.02 Form of Securities and Trustee's Certificate................ 5
SECTION 2.03 Denominations: Provisions for Payment...................... 6
SECTION 2.04 Execution and Authentications............................... 7
SECTION 2.05 Registration of Transfer and Exchange....................... 7
SECTION 2.06 Temporary Securities........................................ 8
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Securities............. 9
SECTION 2.08 Cancellation................................................ 9
SECTION 2.09 Benefits of Indenture....................................... 9
SECTION 2.10 Authenticating Agent........................................ 10
SECTION 2.11 Global Securities........................................... 10
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption.................................................. 11
SECTION 3.02 Notice of Redemption........................................ 11
SECTION 3.03 Payment Upon Redemption..................................... 12
SECTION 3.04 Sinking Fund................................................ 12
SECTION 3.05 Satisfaction of Sinking Fund Payments with Securities....... 12
SECTION 3.06 Redemption of Securities for Sinking Fund................... 13
ARTICLE IV
COVENANTS
SECTION 4.01 Payment of Principal, Premium and Interest.................. 13
SECTION 4.02 Maintenance of Office or Agency............................. 13
SECTION 4.03 Paying Agents............................................... 13
SECTION 4.04 Appointment to Fill Vacancy in Office of Trustee............ 14
SECTION 4.05 Compliance with Consolidation Provisions.................... 14
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Names and Addresses of
Securityholders............................................. 15
SECTION 5.02 Preservation Of Information; Communications With
Securityholders............................................. 15
SECTION 5.03 Reports by the Company...................................... 15
SECTION 5.04 Reports by the Trustee...................................... 16
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 6.01 Events of Default........................................... 16
SECTION 6.02 Collection of Indebtedness and Suits for Enforcement
by Trustee.................................................. 17
SECTION 6.03 Application of Moneys Collected............................. 19
SECTION 6.04 Limitation on Suits......................................... 19
SECTION 6.05 Rights and Remedies Cumulative; Delay or Omission
Not Waiver.................................................. 19
SECTION 6.06 Control by Securityholders.................................. 20
SECTION 6.07 Undertaking to Pay Costs.................................... 20
iv
<PAGE>
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities of Trustee.............. 21
SECTION 7.02 Certain Rights of Trustee................................... 22
SECTION 7.03 Trustee Not Responsible for Recitals or Issuance
or Securities............................................... 22
SECTION 7.04 May Hold Securities......................................... 23
SECTION 7.05 Moneys Held in Trust........................................ 23
SECTION 7.06 Compensation and Reimbursement.............................. 23
SECTION 7.07 Reliance on Officers' Certificate........................... 24
SECTION 7.08 Disqualification; Conflicting Interests..................... 24
SECTION 7.09 Corporate Trustee Required; Eligibility..................... 24
SECTION 7.10 Resignation and Removal; Appointment of Successor........... 24
SECTION 7.11 Acceptance of Appointment By Successor...................... 25
SECTION 7.12 Merger, Conversion, Consolidation or Succession
to Business................................................. 26
SECTION 7.13 Preferential Collection of Claims Against the Company....... 26
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence of Action by Securityholders....................... 27
SECTION 8.02 Proof of Execution by Securityholders....................... 27
SECTION 8.03 Who May be Deemed Owners.................................... 27
SECTION 8.04 Certain Securities Owned by Company Disregarded............. 28
SECTION 8.05 Actions Binding on Future Securityholders................... 28
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without the Consent of
Securityholders............................................ 28
SECTION 9.02 Supplemental Indentures With Consent of Securityholders.... 29
SECTION 9.03 Effect of Supplemental Indentures.......................... 29
SECTION 9.04 Securities Affected by Supplemental Indentures............. 30
SECTION 9.05 Execution of Supplemental Indentures....................... 30
ARTICLE X
SUCCESSOR ENTITY
SECTION 10.01 Company May Consolidate, Etc. ............................. 30
SECTION 10.02 Successor Entity Substituted............................... 31
SECTION 10.03 Evidence of Consolidation, Etc. to Trustee................. 31
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction and Discharge of Indenture.................... 31
SECTION 11.02 Discharge of Obligations................................... 32
SECTION 11.03 Deposited Moneys to be Held in Trust....................... 32
SECTION 11.04 Payment of Moneys Held by Paying Agents.................... 32
SECTION 11.05 Repayment to Company....................................... 32
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01 No Recourse................................................ 33
v
<PAGE>
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Effect on Successors and Assigns........................... 33
SECTION 13.02 Actions by Successor....................................... 33
SECTION 13.03 Surrender of Company Powers................................ 33
SECTION 13.04 Notices.................................................... 34
SECTION 13.05 Governing Law.............................................. 34
SECTION 13.06 Treatment of Securities as Debt............................ 34
SECTION 13.07 Compliance Certificates and Opinions....................... 34
SECTION 13.08 Payments on Business Days.................................. 34
SECTION 13.09 Conflict with Trust Indenture Act.......................... 35
SECTION 13.10 Counterparts............................................... 35
SECTION 13.11 Separability............................................... 35
SECTION 13.12 Assignment................................................. 35
(2) This Table of Contents does not constitute part of the Indenture and shall
not have any bearing on the interpretation of any of its terms or
provisions.
vi
<PAGE>
INDENTURE, dated as of [ ], 1999, among CMGI, Inc., a Delaware
corporation (the "Company"), and [ ], as trustee (the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the execution and delivery of this Indenture to provide for the issuance of
unsecured debt securities (hereinafter referred to as the "Securities"), in an
unlimited aggregate principal amount to be issued from time to time in one or
more series as in this Indenture provided, as registered Securities without
coupons, to be authenticated by the certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which the Securities are
to be authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of the
Securities by the holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the holders of Securities:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions of Terms.
The terms defined in this Section (except as in this Indenture otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section and shall include the plural as
well as the singular. All other terms used in this Indenture that are defined
in the Trust Indenture Act of 1939, as amended, or that are by reference in such
Act defined in the Securities Act of 1933, as amended (except as herein
otherwise expressly provided or unless the context otherwise requires), shall
have the meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of the execution of this instrument.
"Authenticating Agent" means an authenticating agent with respect to all
or any of the series of Securities appointed with respect to all or any series
of the Securities by the Trustee pursuant to Section 2.10.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or
state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized committee of such Board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification.
"Business Day" means, with respect to any series of Securities, any day
other than a day on which Federal or State banking institutions in the Borough
of Manhattan, The City of New York, are authorized or obligated by law,
executive order or regulation to close.
"Certificate" means a certificate signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company. The Certificate need not comply with the provisions of Section
13.07.
<PAGE>
"Company" means CMGI, Inc., a corporation duly organized and existing
under the laws of the State of Delaware, and, subject to the provisions of
Article Ten, shall also include its successors and assigns.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at [ ],
except that whenever a provision herein refers to an office or agency of the
Trustee in the Borough of Manhattan, The City of New York, such office is
located, at the date hereof, at [ ].
"Custodian" means any receiver, trustee, assignee, liquidator, or similar
official under any Bankruptcy Law.
"Default" means any event, act or condition that with notice or lapse of
time, or both, would constitute an Event of Default.
"Depositary" means, with respect to Securities of any series, for which
the Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, New York, New York, another clearing
agency, or any successor registered as a clearing agency under the Securities
and Exchange Act of 1934, as amended (the "Exchange Act"), or other applicable
statute or regulation, which, in each case, shall be designated by the Company
pursuant to either Section 2.01 or 2.11.
"Event of Default" means, with respect to Securities of a particular
series any event specified in Section 6.01, continued for the period of time, if
any, therein designated.
"Global Security" means, with respect to any series of Securities, a
Security executed by the Company and delivered by the Trustee to the Depositary
or pursuant to the Depositary's instruction, all in accordance with the
Indenture, which shall be registered in the name of the Depositary or its
nominee.
"Governmental 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, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on any
such Governmental Obligation held by such custodian for the account of the
holder of such depositary receipt; provided, however, that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"herein", "hereof" and "hereunder", and other words of similar import,
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof.
"Interest Payment Date", when used with respect to any installment of
interest on a Security of a particular series, means the date specified in such
Security or in a Board Resolution or in an indenture supplemental hereto with
respect to such series as the fixed date on which an installment of interest
with respect to Securities of that series is due and payable.
2
<PAGE>
"Officers' Certificate" means a certificate signed by the President or a
Vice President and by the Treasurer or an Assistant Treasurer or the Controller
or an Assistant Controller or the Secretary or an Assistant Secretary of the
Company that is delivered to the Trustee in accordance with the terms hereof.
Each such certificate shall include the statements provided for in Section
13.07, if and to the extent required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of legal counsel, who may
be an employee of or counsel for the Company that is delivered to the Trustee in
accordance with the terms hereof. Each such opinion shall include the
statements provided for in Section 13.07, if and to the extent required by the
provisions thereof.
"Outstanding", when used with reference to Securities of any series,
means, subject to the provisions of Section 8.04, as of any particular time,
all Securities of that series theretofore authenticated and delivered by the
Trustee under this Indenture, except (a) Securities theretofore canceled by the
Trustee or any paying agent, or delivered to the Trustee or any paying agent
for cancellation or that have previously been canceled; (b) Securities or
portions thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been
set aside and segregated in trust by the Company (if the Company shall act as
its own paying agent); provided, however, that if such Securities or portions
of such Securities are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and (c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the terms of
Section 2.07.
"Person" means any individual, corporation, partnership, joint-venture,
joint-stock company, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.07 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Responsible Officer" when used with respect to the Trustee means the
Chairman of the Board of Directors, the President, any Vice President, the
Secretary, the Treasurer, any trust officer, any corporate trust officer or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Securities" means the debt Securities authenticated and delivered under
this Indenture.
"Securityholder", "holder of Securities", "registered holder", or other
similar term, means the Person or Persons in whose name or names a particular
Security shall be registered on the books of the Company kept for that purpose
in accordance with the terms of this Indenture.
"Subsidiary" means, with respect to any Person, (i) any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries or
by such Person and one or more of its Subsidiaries, (ii) any general
partnership, joint venture or similar entity, at least a majority of whose
outstanding partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person and one or more
of its Subsidiaries and (iii) any limited partnership of which such Person or
any of its Subsidiaries is a general partner.
"Trustee" means [ ], and, subject to the provisions of Article
Seven, shall also include its successors and assigns, and, if at any time there
is more than one Person acting in such capacity
3
<PAGE>
hereunder, "Trustee" shall mean each such Person. The term "Trustee" as used
with respect to a particular series of the Securities shall mean the trustee
with respect to that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
subject to the provisions of Sections 9.01, 9.02, and 10.01, as in effect at the
date of execution of this instrument.
"Voting Stock", as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than shares,
interests, participations or other equivalents having such power only by reason
of the occurrence of a contingency.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation and Terms of Securities.
(a) 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 up to the aggregate principal amount of Securities of that
series from time to time authorized by or pursuant to a Board Resolution of the
Company or pursuant to one or more indentures supplemental hereto. Prior to the
initial issuance of Securities of any series, there shall be established in or
pursuant to a Board Resolution of the Company, and set forth in an Officers'
Certificate of the Company, or established in one or more indentures
supplemental hereto:
(1) the title of the Security of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
that 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 that series);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest or the manner of calculation of such rate or rates, if any;
(5) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the manner of
determination of such Interest Payment Dates and the record date for the
determination of holders to whom interest is payable on any such Interest
Payment Dates;
(6) the right, if any, to extend the interest payment periods and the
duration of such extension;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions
(including payments made in cash in satisfaction of future sinking fund
obligations) or at the option of a holder thereof and the period or periods
within which, the price or prices at which, and the terms and conditions upon
which, Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
4
<PAGE>
(9) the form of the Securities of the series including the form of the
Certificate of Authentication for such series;
(10) if other than denominations of one thousand U.S. dollars ($1,000)
or any integral multiple thereof, the denominations in which the Securities of
the series shall be issuable;
(11) any and all other terms with respect to such series (which terms
shall not be inconsistent with the terms of this Indenture, as amended by any
supplemental indenture) including any terms which may be required by or
advisable under United States laws or regulations or advisable in connection
with the marketing of Securities of that series;
(12) whether the Securities are issuable as a Global Security and, in
such case, the identity for the Depositary for such series;
(13) whether the Securities will be convertible into shares of common
stock or other securities of the Company and, if so, the terms and conditions
upon which such Securities will be so convertible, including the conversion
price and the conversion period;
(14) 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 6.01;
and
(15) any additional or different Events of Default or restrictive
covenants provided for with respect to the Securities of the series.
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to any
such Board Resolution or in any indentures supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution of the Company, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate of the Company setting forth the terms of the series.
Securities of any particular series may be issued at various times, with
different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different redemption dates.
SECTION 2.02 Form of Securities and Trustee's Certificate.
The Securities of any series and the Trustee's certificate of
authentication to be borne by such Securities shall be substantially of the
tenor and purport as set forth in one or more indentures supplemental hereto or
as provided in a Board Resolution of the Company and as set forth in an
Officers' Certificate of the Company and the and may have such letters, numbers
or other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which Securities
of that series may be listed, or to conform to usage.
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SECTION 2.03 Denominations: Provisions for Payment.
The Securities shall be issuable as registered Securities and in the
denominations of one thousand U.S. dollars ($1,000) or any integral multiple
thereof, subject to Section 2.01(10). The Securities of a particular series
shall bear interest payable on the dates and at the rate specified with respect
to that series. The principal of and the interest on the Securities of any
series, as well as any premium thereon in case of redemption thereof prior to
maturity, shall be payable in the coin or currency of the United States of
America that at the time is legal tender for public and private debt, at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, the City and State of New York. Each Security shall be dated the
date of its authentication. Interest on the Securities shall be computed on the
basis of a 360-day year composed of twelve 30-day months.
The interest installment on any Security that is payable, and is punctually
paid or duly provided for, on any Interest Payment Date for Securities of that
series shall be paid to the Person in whose name said Security (or one or more
Predecessor Securities) is registered at the close of business on the regular
record date for such interest installment. In the event that any Security of a
particular series or portion thereof is called for redemption and the redemption
date is subsequent to a regular record date with respect to any Interest Payment
Date and prior to such Interest Payment Date, interest on such Security will be
paid upon presentation and surrender of such Security as provided in Section
3.03.
Any interest on any Security that is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date for Securities of the same
series (herein called "Defaulted Interest") shall forthwith cease to be payable
to the registered holder on the relevant regular record date by virtue of having
been such holder; and such Defaulted Interest shall be paid by the Company, at
its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or the irrespective
Predecessor Securities) are registered at the close of business on a special
record date for the payment of such Defaulted Interest, which shall be fixed in
the following manner: the Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each such Security and the
date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a special record date for the payment of such
Defaulted Interest which shall not be more than 15 nor less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed, first
class postage prepaid, to each Securityholder at his or her address as it
appears in the Security Register (as hereinafter defined), not less than 10 days
prior to such special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose names
such Securities (or their respective Predecessor Securities) are registered on
such special record date.
(2) The Company may make payment of any Defaulted Interest on any
Securities in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution of the Company or one or
more indentures supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term "regular record date" as
used in this Section with respect to a series of Securities with respect to any
Interest Payment Date for such series shall mean either the fifteenth day of the
month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if such
Interest Payment Date
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is the first day of a month, or the last day of the month immediately preceding
the month in which an Interest Payment Date established for such series pursuant
to Section 2.01 hereof shall occur, if such Interest Payment Date is the
fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each Security of a
series delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other Security of such series shall carry the rights to interest
accrued and unpaid, and to accrue, that were carried by such other Security.
SECTION 2.04 Execution and Authentications.
The Securities shall be signed on behalf of the Company by its President,
or one of its Vice Presidents, or its Treasurer, or one of its Assistant
Treasurers, or its Secretary, or one of its Assistant Secretaries, under its
corporate seal attested by its Secretary or one of its Assistant Secretaries.
Signatures may be in the form of a manual or facsimile signature. The Company
may use the facsimile signature of any Person who shall have been a President or
Vice President thereof, or of any Person who shall have been a Secretary or
Assistant Secretary thereof, notwithstanding the fact that at the time the
Securities shall be authenticated and delivered or disposed of such Person shall
have ceased to be the President or a Vice President, or the Secretary or an
Assistant Secretary, of the Company. The seal of the Company may be in the form
of a facsimile of such seal and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. The Securities may contain such
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Security shall be dated the date of its authentication by the
Trustee.
A Security shall not be valid until authenticated manually by an authorized
signatory of the Trustee, or by an Authenticating Agent. Such signature shall
be conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture. At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for authentication, together
with a written order of the Company for the authentication and delivery of such
Securities, signed by its President or any Vice President and its Secretary or
any Assistant Secretary, and the Trustee in accordance with such written order
shall authenticate and deliver such Securities.
In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating that the form and
terms thereof have been established in conformity with the provisions of this
Indenture.
The Trustee shall not be required to authenticate such Securities if the
issue of such Securities pursuant to this Indenture will affect the Trustee's
own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner that is not reasonably acceptable to the Trustee.
SECTION 2.05 Registration of Transfer and Exchange.
(a) Securities of any series may be exchanged upon presentation thereof at
the office or agency of the Company designated for such purpose in the Borough
of Manhattan, the City and State of New York, for other Securities of such
series of authorized denominations, and for a like aggregate principal amount,
upon payment of a sum sufficient to cover any tax or other governmental charge
in relation thereto, all as provided in this Section. In respect of any
Securities so surrendered for exchange, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in exchange therefor
the Security or Securities of the same series that the Securityholder making the
exchange shall be entitled to receive, bearing numbers not contemporaneously
outstanding.
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(b) The Company shall keep, or cause to be kept, at its office or agency
designated for such purpose in the Borough of Manhattan, the City and State of
New York, or such other location designated by the Company a register or
registers (herein referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall register the
Securities and the transfers of Securities as in this Article provided and which
at all reasonable times shall be open for inspection by the Trustee. The
registrar for the purpose of registering Securities and transfer of Securities
as herein provided shall be appointed as authorized by Board Resolution (the
"Security Registrar").
Upon surrender for transfer of any Security at the office or agency of the
Company designated for such purpose, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in the name of the
transferee or transferees a new Security or Securities of the same series as the
Security presented for a like aggregate principal amount.
All Securities presented or surrendered for exchange or registration of
transfer, as provided in this Section, shall be accompanied (if so required by
the Company or the Security Registrar) by a written instrument or instruments of
transfer, in form satisfactory to the Company or the Security Registrar, duly
executed by the registered holder or by such holder's duly authorized attorney
in writing.
(c) No service charge shall be made for any exchange or registration of
transfer of Securities, or issue of new Securities in case of partial redemption
of any series, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge in relation thereto, other than exchanges
pursuant to Section 2.06, the second paragraph of Section 3.03 and Section 9.04
not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or register
the transfer of any Securities during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of less
than all the Outstanding Securities of the same series and ending at the close
of business on the day of such mailing, nor (ii) to register the transfer of or
exchange any Securities of any series or portions thereof called for redemption.
The provisions of this Section 2.05 are, with respect to any Global Security,
subject to Section 2.11 hereof.
SECTION 2.06 Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and the Trustee shall authenticate and deliver, temporary
Securities (printed, lithographed or typewritten) of any authorized
denomination. Such temporary Securities shall be substantially in the form of
the definitive Securities in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every temporary Security
of any series shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities of such series. Without unnecessary
delay the Company will execute and will furnish definitive Securities of such
series and thereupon any or all temporary Securities of such series may be
surrendered in exchange therefor (without charge to the holders), at the office
or agency of the Company designated for the purpose in the Borough of Manhattan,
the City and State of New York, and the Trustee shall authenticate and such
office or agency shall deliver in exchange for such temporary Securities an
equal aggregate principal amount of definitive Securities of such series, unless
the Company advises the Trustee to the effect that definitive Securities need
not be executed and furnished until further notice from the Company. Until so
exchanged, the temporary Securities of such series shall be entitled to the same
benefits under this Indenture as definitive Securities of such series
authenticated and delivered hereunder.
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated or be
destroyed, lost or stolen, the Company (subject to the next succeeding sentence)
shall execute, and upon the Company's request the Trustee
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(subject as aforesaid) shall authenticate and deliver, a new Security of the
same series, bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Security, or in lieu of and in substitution for
the Security so destroyed, lost or stolen. In every case the applicant for a
substituted Security shall furnish to the Company and the Trustee such security
or indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and the Trustee evidence to their satisfaction of the destruction,
loss or theft of the applicant's Security and of the ownership thereof. The
Trustee may authenticate any such substituted Security and deliver the same upon
the written request or authorization of any officer of the Company. Upon the
issuance of any substituted Security, the Company may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith. In case any Security that has matured or is
about to mature shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the Company and the
Trustee such security or indemnity as they may require to save them harmless,
and, in case of destruction, loss or theft, evidence to the satisfaction of the
Company and the Trustee of the destruction, loss or theft of such Security and
of the ownership thereof.
Every replacement Security issued pursuant to the provisions of this
Section shall constitute an additional contractual obligation of the Company
whether or not the mutilated, destroyed, lost or stolen Security shall be found
at any time, or be enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of the same series duly issued hereunder. All Securities shall be
held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities, and shall preclude (to the extent lawful) any and all
other rights or remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.08 Cancellation.
All Securities surrendered for the purpose of payment, redemption, exchange
or registration of transfer shall, if surrendered to the Company or any paying
agent, be delivered to the Trustee for cancellation, or, if surrendered to the
Trustee, shall be cancelled by it, and no Securities shall be issued in lieu
thereof except as expressly required or permitted by any of the provisions of
this Indenture. On request of the Company at the time of such surrender, the
Trustee shall deliver to the Company canceled Securities held by the Trustee.
In the absence of such request the Trustee may dispose of canceled Securities in
accordance with its standard procedures and deliver a certificate of disposition
to the Company. If the Company shall otherwise acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give or be construed to give to any Person, other than the parties hereto and
the holders of the Securities any legal or equitable right, remedy or claim
under or in respect of this Indenture, or under any covenant, condition or
provision herein contained; all such covenants, conditions and provisions being
for the sole benefit of the parties hereto and of the holders of the Securities.
SECTION 2.10 Authenticating Agent.
So long as any of the Securities of any series remain Outstanding there may
be an Authenticating Agent for any or all such series of Securities which the
Trustee shall have the right to appoint. Said Authenticating Agent shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, transfer or partial redemption thereof, and
Securities so authenticated shall be entitled to the benefits of this
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Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. All references in this Indenture to the authentication
of Securities by the Trustee shall be deemed to include authentication by an
Authenticating Agent for such series. Each Authenticating Agent shall be
acceptable to the Company and shall be a corporation that has a combined capital
and surplus, as most recently reported or determined by it, sufficient under the
laws of any jurisdiction under which it is organized or in which it is doing
business to conduct a trust business, and that is otherwise authorized under
such laws to conduct such business and is subject to supervision or examination
by Federal or State authorities. If at any time any Authenticating Agent shall
cease to be eligible in accordance with these provisions, it shall resign
immediately.
Any Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time (and
upon request by the Company shall) terminate the agency of any Authenticating
Agent by giving written notice of termination to such Authenticating Agent and
to the Company. Upon resignation, termination or cessation of eligibility of
any Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor Authenticating
Agent, upon acceptance of its appointment hereunder, shall become vested with
all the rights, powers and duties of its predecessor hereunder as if originally
named as an Authenticating Agent pursuant hereto.
SECTION 2.11 Global Securities.
(a) If the Company shall establish pursuant to Section 2.01 that the
Securities of a particular series are to be issued as a Global Security, then
the Company shall execute and the Trustee shall, in accordance with Section
2.04, authenticate and deliver, a Global Security that (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
all of the Outstanding Securities of such series, (ii) shall be registered in
the name of the Depositary or its nominee, (iii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary's instruction and (iv)
shall bear a legend substantially to the following effect: "Except as otherwise
provided in Section 2.11 of the Indenture, this Security may be transferred, in
whole but not in part, only to another nominee of the Depositary or to a
successor Depositary or to a nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section 2.05, the Global Security of
a series may be transferred, in whole but not in part and in the manner provided
in Section 2.05, only to another nominee of the Depositary for such series, or
to a successor Depositary for such series selected or approved by the Company or
to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of the Securities notifies
the Company that it is unwilling or unable to continue as Depositary for such
series or if at any time the Depositary for such series shall no longer be
registered or in good standing under the Exchange Act, or other applicable
statute or regulation, and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, this Section 2.11 shall
no longer be applicable to the Securities of such series and the Company will
execute, and subject to Section 2.05, the Trustee will authenticate and deliver
the Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such
Global Security. In addition, the Company may at any time determine that the
Securities of any series shall no longer be represented by a Global Security and
that the provisions of this Section 2.11 shall no longer apply to the Securities
of such series. In such event the Company will execute and subject to Section
2.05, the Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and deliver the Securities of
such series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global
Security. Upon the exchange of the Global Security for such Securities in
definitive registered form without coupons, in authorized denominations, the
Global Security shall be canceled by the Trustee. Such Securities in definitive
registered form issued in exchange for the Global Security pursuant to this
Section 2.11(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to
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instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the
Depositary for delivery to the Persons in whose names such Securities are so
registered.
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption.
The Company may redeem the Securities of any series issued hereunder on and
after the dates and in accordance with the terms established for such series
pursuant to Section 2.01 hereof.
SECTION 3.02 Notice of Redemption.
(a) In case the Company shall desire to exercise such right to redeem all
or, as the case may be, a portion of the Securities of any series in accordance
with the right reserved so to do, the Company shall, or shall cause the Trustee
to, give notice of such redemption to holders of the Securities of such series
to be redeemed by mailing, first class postage prepaid, a notice of such
redemption not less than 30 days and not more than 90 days before the date fixed
for redemption of that series to such holders at their last addresses as they
shall appear upon the Security Register unless a shorter period is specified in
the Securities to be redeemed. Any notice that is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the registered holder receives the notice. In any case, failure duly to give
such notice to the holder of any Security of any series designated for
redemption in whole or in part, or any defect in the notice, shall not affect
the validity of the proceedings for the redemption of any other Securities of
such series or any other series. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing compliance with any
such restriction.
Each such notice of redemption shall specify the date fixed for redemption
and the redemption price at which Securities of that series are to be redeemed,
and shall state that payment of the redemption price of such Securities to be
redeemed will be made at the office or agency of the Company in the Borough of
Manhattan, the City and State of New York, upon presentation and surrender of
such Securities, that interest accrued to the date fixed for redemption will be
paid as specified in said notice, that from and after said date interest will
cease to accrue and that the redemption is for a sinking fund, if such is the
case. If less than all the Securities of a series are to be redeemed, the
notice to the holders of Securities of that series to be redeemed in whole or in
part shall specify the particular Securities to be so redeemed. In case any
Security is to be redeemed in part only, the notice that relates to such
Security shall state the portion of the principal amount thereof to be redeemed,
and shall state that on and after the redemption date, upon surrender of such
Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.
(b) If less than all the Securities of a series are to be redeemed, the
Company shall give the Trustee at least 45 days' notice in advance of the date
fixed for redemption as to the aggregate principal amount of Securities of the
series to be redeemed, and thereupon the Trustee shall select, by lot or in such
other manner as it shall deem appropriate and fair in its discretion and that
may provide for the selection of a portion or portions (equal to one thousand
U.S. dollars ($1,000) or any integral multiple thereof) of the principal amount
of such Securities of a denomination larger than $1,000, the Securities to be
redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Securities to be redeemed, in whole or in part. The Company may,
if and whenever it shall so elect, by delivery of instructions signed on its
behalf by its President or any Vice President, instruct the Trustee or any
paying agent to call all or any part of the Securities of a particular series
for redemption and to give notice of redemption in the manner set forth in this
Section, such notice to be in the name of the Company or its own name as the
Trustee or such paying agent may deem advisable. In any case in which notice of
redemption is to be given by the Trustee or any such paying agent, the Company
shall deliver or cause to be delivered to, or permit
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to remain with, the Trustee or such paying agent, as the case may be, such
Security Register, transfer books or other records, or suitable copies or
extracts therefrom, sufficient to enable the Trustee or such paying agent to
give any notice by mail that may be required under the provisions of this
Section.
SECTION 3.03 Payment Upon Redemption.
(a) If the giving of notice of redemption shall have been completed as
above provided, the Securities or portions of Securities of the series to be
redeemed specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption and interest on such
Securities or portions of Securities shall cease to accrue on and after the date
fixed for redemption, unless the Company shall default in the payment of such
redemption price and accrued interest with respect to any such Security or
portion thereof. On presentation and surrender of such Securities on or after
the date fixed for redemption at the place of payment specified in the notice,
said Securities shall be paid and redeemed at the applicable redemption price
for such series, together with interest accrued thereon to the date fixed for
redemption (but if the date fixed for redemption is an interest payment date,
the interest installment payable on such date shall be payable to the registered
holder at the close of business on the applicable record date pursuant to
Section 2.03).
(b) Upon presentation of any Security of such series that is to be redeemed
in part only, the Company shall execute and the Trustee shall authenticate and
the office or agency where the Security is presented shall deliver to the holder
thereof, at the expense of the Company, a new Security of the same series of
authorized denominations in principal amount equal to the unredeemed portion of
the Security so presented.
SECTION 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to any
sinking fund for the retirement of Securities of a series, except as otherwise
specified as contemplated by Section 2.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 3.05. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series.
SECTION 3.05 Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series (other than
any Securities previously called for redemption) and (ii) may apply as a credit
Securities of a series that have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series, provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the redemption price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 3.06 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of the series, the portion thereof, if any,
that is to be satisfied by delivering and
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crediting Securities of that series pursuant to Section 3.05 and the basis for
such credit and will, together with such Officers' Certificate, deliver to the
Trustee any Securities to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
3.02 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 3.02. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Section 3.03.
ARTICLE IV
COVENANTS
SECTION 4.01 Payment of Principal, Premium and Interest.
The Company will duly and punctually pay or cause to be paid the principal
of (and premium, if any) and interest on the Securities of that series at the
time and place and in the manner provided herein and established with respect to
such Securities.
SECTION 4.02 Maintenance of Office or Agency.
So long as any series of the Securities remain Outstanding, the Company
agrees to maintain an office or agency in the Borough of Manhattan, the City and
State of New York, with respect to each such series and at such other location
or locations as may be designated as provided in this Section 4.02, where (i)
Securities of that series may be presented for payment, (ii) Securities of that
series may be presented as herein above authorized for registration of transfer
and exchange, and (iii) notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be given or served, such
designation to continue with respect to such office or agency until the Company
shall, by written notice signed by its President or a Vice President and
delivered to the trustee, designate some other office or agency for such
purposes or any of them. 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, notices and demands may be made or served
at the Corporate Trust Office of the Trustee, and the Company hereby appoints
the Trustee as its agent to receive all such presentations, notices and demands.
SECTION 4.03 Paying Agents.
(a) If the Company shall appoint one or more paying agents for all or any
series of the Securities, other than the Trustee, the Company will cause each
such paying agent to execute and deliver to the Trustee an instrument in which
such agent shall agree with the Trustee, subject to the provisions of this
Section:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of (and premium, if any) or interest on the Securities
of that series (whether such sums have been paid to it by the Company or by any
other obligor of such Securities) in trust for the benefit of the Persons
entitled thereto;
(2) that it will give the Trustee notice of any failure by the Company
(or by any other obligor of such Securities) to make any payment of the
principal of (and premium, if any) or interest on the Securities of that series
when the same shall be due and payable;
(3) that it will, at any time during the continuance of any failure
referred to in the preceding paragraph (a)(2) above, upon the written request
of the Trustee, forthwith pay to the Trustee all sums so held in trust by such
paying agent; and
(4) that it will perform all other duties of paying agent as set forth
in this Indenture.
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(b) If the Company shall act as its own paying agent with respect to any
series of the Securities, it will on or before each due date of the principal of
(and premium, if any) or interest on Securities of that series, set aside,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay such principal (and premium, if any) or interest so
becoming due on Securities of that series until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of such action, or any failure (by it or any other obligor on such
Securities) to take such action. Whenever the Company shall have one or more
paying agents for any series of Securities, it will, prior to each due date of
the principal of (and premium, if any) or interest on any Securities of that
series, deposit with the paying agent a sum sufficient to pay the principal (an
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such paying agent is the Trustee) the Company will promptly notify the
Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section to the contrary, (i) the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.05, and (ii) the Company may at any time, for the
purpose of obtaining the satisfaction and discharge of this Indenture or for any
other purpose, pay, or direct any paying agent to pay, to the Trustee all sums
held in trust by the Company or such paying agent, such sums to be held by the
Trustee upon the same terms and conditions as those upon which such sums were
held by the Company or such paying agent; and, upon such payment by any paying
agent to the Trustee, such paying agent shall be released from all further
liability with respect to such money.
SECTION 4.04 Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 4.05 Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain Outstanding,
consolidate with or merge into any other Person, in either case where the
Company is not the survivor of such transaction, or sell or convey all or
substantially all of its property to any other company unless the provisions of
Article Ten hereof are complied with.
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Names and Addresses of
Securityholders.
The Company will furnish or cause to be furnished to the Trustee (a) on a
monthly basis on each regular record date (as defined in Section 2.03) a list,
in such form as the Trustee may reasonably require, of the names and addresses
of the holders of each series of Securities as of such regular record date,
provided that the Company shall not be obligated to furnish or cause to furnish
such list at any time that the list shall not differ in any respect from the
most recent list furnished to the Trustee by the Company and (b) at such other
times as the Trustee may request in writing within 30 days after the receipt by
the Company of any such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished; provided,
however, that, in either case, no such list need be furnished for any series for
which the Trustee shall be the Security Registrar.
SECTION 5.02 Preservation Of Information; Communications With
Securityholders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders of
Securities contained in the most recent list furnished to it as provided in
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Section 5.01 and as to the names and addresses of holders of Securities received
by the Trustee in its capacity as Security Registrar (if acting in such
capacity).
(b) The Trustee may destroy any list furnished to it as provided in Section
5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section 312(b) of the
Trust Indenture Act with other Securityholders with respect to their rights
under this Indenture or under the Securities.
SECTION 5.03 Reports by the Company.
(a) The Company covenants and agrees to file with the Trustee, within 15
days after the Company is required to file the same with the Commission, copies
of the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) that the Company may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or
reports pursuant to either of such sections, then to file with the Trustee and
the Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports that may be required pursuant to Section 13
of the Exchange Act, in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such
rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from to time
by the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit by mail, first class
postage prepaid, or reputable over-night delivery service that provides for
evidence of receipt, to the Securityholders, as their names and addresses appear
upon the Security Register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (b) of this Section as may
be required by rules and regulations prescribed from time to time by the
Commission.
SECTION 5.04 Reports by the Trustee.
(a) On or before [ ] in each year in which any of the Securities are
Outstanding, the Trustee shall transmit by mail, first class postage prepaid, to
the Securityholders, as their names and addresses appear upon the Security
Register, a brief report dated as of the preceding [ ], if and to the
extent required under Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) and 313(c) of the Trust
Indenture Act.
(c) A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with the Company, with each stock
exchange upon which any Securities are listed (if so listed) and also with the
Commission. The Company agrees to notify the Trustee when any Securities become
listed on any stock exchange.
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ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 6.01 Events of Default.
(a) Whenever used herein with respect to Securities of a particular series,
"Event of Default" means any one or more of the following events that has
occurred and is continuing:
(1) the Company defaults in the payment of any installment of interest
upon any of the Securities of that series, as and when the same shall become due
and payable, and continuance of such default for a period of 90 days; provided,
however, that a valid extension of an interest payment period by the Company in
accordance with the terms of any indenture supplemental hereto, shall not
constitute a default in the payment of interest for this purpose;
(2) the Company defaults in the payment of the principal of (or
premium, if any, on) any of the Securities of that series as and when the same
shall become due and payable whether at maturity, upon redemption, by
declaration or otherwise, or in any payment required by any sinking or analogous
fund established with respect to that series; provided, however, that a valid
extension of the maturity of such Securities in accordance with the terms of any
indenture supplemental hereto shall not constitute a default in the payment of
principal or premium, if any;
(3) the Company fails to observe or perform any other of its covenants
or agreements with respect to that series contained in this Indenture or
otherwise established with respect to that series of Securities pursuant to
Section 2.01 hereof (other than a covenant or agreement that has been expressly
included in this Indenture solely for the benefit of one or more series of
Securities other than such series) for a period of 90 days after the date on
which written notice of such failure, requiring the same to be remedied and
stating that such notice is a "Notice of Default" hereunder, shall have been
given to the Company by the Trustee, by registered or certified mail, or to the
Company and the Trustee by the holders of at least 25% in principal amount of
the Securities of that series at the time Outstanding;
(4) the Company pursuant to or within the meaning of any Bankruptcy
Law (i) commences a voluntary case, (ii) consents to the entry of an order for
relief against it in an involuntary case, (iii) consents to the appointment of a
Custodian of it or for all or substantially all of its property or (iv) makes a
general assignment for the benefit of its creditors; or
(5) a court of competent jurisdiction enters an order under any
Bankruptcy Law that (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company for all or substantially all of
its property, or (iii) orders the liquidation of the Company, and the order or
decree remains unstayed and in effect for 90 days.
(b) In each and every such case, unless the principal of all the Securities
of that series shall have already become due and payable, either the Trustee or
the holders of not less than 25% in aggregate principal amount of the Securities
of that series then Outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by such Securityholders), may declare the principal
of all the Securities of that series to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable.
(c) At any time after the principal of the Securities of that series shall
have been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the holders of a majority in aggregate principal amount of the
Securities of that series then Outstanding hereunder, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if: (i) the Company has paid or deposited with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Securities
of that series and the principal of (and premium, if any, on) any and all
Securities of that series that shall have become due otherwise than by
acceleration (with interest upon such
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principal and premium, if any, and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of interest, at the
rate per annum expressed in the Securities of that series to the date of such
payment or deposit) and the amount payable to the Trustee under Section 7.06,
and (ii) any and all Events of Default under the Indenture with respect to such
series, other than the nonpayment of principal on Securities of that series that
shall not have become due by their terms, shall have been remedied or waived as
provided in Section 6.06.
No such rescission and annulment shall extend to or shall affect any
subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right with
respect to Securities of that series under this Indenture and such proceedings
shall have been discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been determined adversely to the
Trustee, then and in every such case, subject to any determination in such
proceedings, the Company, and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and powers
of the Company and the Trustee shall continue as though no such proceedings had
been taken.
SECTION 6.02 Collection of Indebtedness and Suits for Enforcement by Trustee.
(a) The Company covenants that (1) in case it shall default in the payment
of any installment of interest on any of the Securities of a series, or any
payment required by any sinking or analogous fund established with respect to
that series as and when the same shall have become due and payable, and such
default shall have continued for a period of 90 Business Days, or (2) in case it
shall default in the payment of the principal of (or premium, if any, on) any of
the Securities of a series when the same shall have become due and payable,
whether upon maturity of the Securities of a series or upon redemption or upon
declaration or otherwise, then, upon demand of the Trustee, the Company will pay
to the Trustee, for the benefit of the holders of the Securities of that series,
the whole amount that then shall have been become due and payable on all such
Securities for principal (and premium, if any) or interest, or both, as the case
may be, with interest upon the overdue principal (and premium, if any) and (to
the extent that payment of such interest is enforceable under applicable law)
upon overdue installments of interest at the rate per annum expressed in the
Securities of that series; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, and the
amount payable to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the
Securities of that series and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company or
other obligor upon the Securities of that series, wherever situated.
(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or judicial proceedings
affected the Company, or its creditors or property, the Trustee shall have power
to intervene in such proceedings and take any action therein that may be
permitted by the court and shall (except as may be otherwise provided by law) be
entitled to file such proofs of claim and other papers and documents as may be
necessary or advisable in order to have the claims of the Trustee and of the
holders of Securities of such series allowed for the entire amount due and
payable by the Company under the Indenture at the date of institution of such
proceedings and for any additional amount that may become due and payable by the
Company after such date, and to collect and receive any moneys or other property
payable or deliverable on any such claim, and to distribute the same after the
deduction of the amount payable to the Trustee under Section 7.06; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Securities of such series to make such
payments to the Trustee, and, in the event that the Trustee shall consent to the
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making of such payments directly to such Securityholders, to pay to the Trustee
any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this Indenture, or
under any of the terms established with respect to Securities of that series,
may be enforced by the Trustee without the possession of any of such Securities,
or the production thereof at any trial or other proceeding relative thereto, and
any such suit or proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall,
after provision for payment to the Trustee of any amounts due under Section
7.06, be for the ratable benefit of the holders of the Securities of such
series.
In case of an Event of Default hereunder, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in the Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
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 of that series or the rights of any holder thereof or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
SECTION 6.03 Application of Moneys Collected.
Any moneys collected by the Trustee pursuant to this Article with respect
to a particular series of Securities shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
moneys on account of principal (or premium, if any) or interest, upon
presentation of the Securities of that series, and notation thereon the payment,
if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of
all amounts payable to the Trustee under Section 7.06; and
SECOND: To the payment of the amounts then due and unpaid upon Securities
of such series for principal (and premium, if any) and interest, in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal (and premium, if any) and interest,
respectively.
SECTION 6.04 Limitation on Suits.
No holder of any Security of any series shall have any right by virtue or
by availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless (i) such holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof with
respect to the Securities of such series specifying such Event of Default, as
hereinbefore provided; (ii) the holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as trustee hereunder; (iii) such holder or holders
shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby;
and (iv) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity, shall have failed to institute any such action, suit or
proceeding and (v) during such 60 day period, the holders of a majority in
principal amount of the Securities of that series do not give the Trustee a
direction inconsistent with the request.
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Notwithstanding anything contained herein to the contrary, any other
provisions of this Indenture, the right of any holder of any Security to receive
payment of the principal of (and premium, if any) and interest on such Security,
as therein provided, on or after the respective due dates expressed in such
Security (or in the case of redemption, on the redemption date), or to institute
suit for the enforcement of any such payment on or after such respective dates
or redemption date, shall not be impaired or affected without the consent of
such holder and by accepting a Security hereunder it is expressly understood,
intended and covenanted by the taker and holder of every Security of such series
with every other such taker and holder and the Trustee, that no one or more
holders of Securities of such series shall have any right in any manner
whatsoever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of the holders of any other of such
Securities, or to obtain or seek to obtain priority over or preference to any
other such holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
holders of Securities of such series. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
SECTION 6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver.
(a) Except as otherwise provided in Section 2.07, all powers and
remedies given by this Article to the Trustee or to the Securityholders shall,
to the extent permitted by law, be deemed cumulative and not exclusive of any
other powers and remedies available to the Trustee or the holders of the
Securities, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture or
otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee or of any holder of any of the
Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or
shall be construed to be a waiver of any such default or on acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article or by law to the Trustee or the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders.
SECTION 6.06 Control by Securityholders.
The holders of a majority in aggregate principal amount of the Securities
of any series at the time Outstanding, determined in accordance with Section
8.01, shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee with respect to such series; provided,
however, that such direction shall not be in conflict with any rule of law or
with this Indenture or be unduly prejudicial to the rights of holders of
Securities of any other series at the time Outstanding determined in accordance
with Section 8.01. Subject to the provisions of Section 7.01, the Trustee shall
have the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee, determine that
the proceeding so directed would involve the Trustee in personal liability. The
holders of a majority in aggregate principal amount of the Securities of any
series at the time Outstanding affected thereby, determined in accordance with
Section 8.01, may on behalf of the holders of all of the Securities of such
series waive any past default in the performance of any of the covenants
contained herein or established pursuant to Section 2.01 with respect to such
series and its consequences, except a default in the payment of the principal
of, or premium, if any, or interest on, any of the Securities of that series as
and when the same shall become due by the terms of such Securities otherwise
than by acceleration (unless such default has been cured and a sum sufficient to
pay all matured installments of interest and principal and any premium has been
deposited with the Trustee (in accordance with Section 6.01(c)). Upon any such
waiver, the default covered thereby shall be deemed to be cured for all purposes
of this Indenture and the Company, the Trustee and the holders of the Securities
of such series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
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SECTION 6.07 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Securities by
such holder's acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the
Outstanding Securities of any series, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established pursuant to this
Indenture.
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a series and after the curing of all Events of
Default with respect to the Securities of that series that may have occurred,
shall undertake to perform with respect to the Securities of such series such
duties and only such duties as are specifically set forth in this Indenture, and
no implied covenants shall be read into this Indenture against the Trustee. In
case an Event of Default with respect to the Securities of a series has occurred
(that has not been cured or waived), the Trustee shall exercise with respect to
Securities of that series 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) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with respect
to the Securities of a series and after the curing or waiving of all such Events
of Default with respect to that series that may have occurred:
(i) the duties and obligations of the Trustee shall with
respect to the Securities of such series be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable with respect
to the Securities of such series except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may with respect to the Securities of such series conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any such
certificates or opinions that by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirement of this
Indenture;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee, was negligent in ascertaining the
pertinent facts;
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(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal amount of the
Securities of any series at the time Outstanding relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee under this Indenture
with respect to the Securities of that series; and
(4) None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there is reasonable ground for believing that
the repayment of such funds or liability is not reasonably assured to it under
the terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
SECTION 7.02 Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, security or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Board Resolution or an instrument
signed in the name of the Company, by the President or any Vice President and by
the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer thereof (unless other evidence in respect thereof is specifically
prescribed herein);
(c) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted hereunder
in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that may be incurred therein or thereby; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an Event
of Default with respect to a series of the Securities (that has not been cured
or waived) to exercise with respect to Securities of that series such of the
rights and powers vested in it by this Indenture, and to 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;
(e) The Trustee shall not be liable for any action taken or omitted to
be taken by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, security, or
other papers or documents, unless requested in writing so to do by the holders
of not less than a majority in principal amount of the Outstanding Securities of
the particular series affected thereby (determined as provided in Section 8.04);
provided, however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such costs, expenses or
liabilities as a condition to so proceeding. The reasonable expense of every
such examination shall be paid by the Company or, if paid by the Trustee, shall
be repaid by the Company upon demand; and
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(g) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 7.03 Trustee Not Responsible for Recitals or Issuance or Securities.
(a) The recitals contained herein and in the Securities shall be taken
as the statements of the Company, and the Trustee assumes no responsibility for
the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use or application by
the Company of any of the Securities or of the proceeds of such Securities, or
for the use or application of any moneys paid over by the Trustee in accordance
with any provision of this Indenture or established pursuant to Section 2.01, or
for the use or application of any moneys received by any paying agent other than
the Trustee.
SECTION 7.04 May Hold Securities.
The Trustee or any paying agent or Security Registrar, in its individual or
any other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not Trustee, paying agent or Security Registrar.
SECTION 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder except such as it
may agree with the Company to pay thereon.
SECTION 7.06 Compensation and Reimbursement.
(a) The Company covenants and agrees to pay to the Trustee, and the
Trustee shall be entitled to, such reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust), as the Company, and the Trustee may from time to time agree in
writing, for all services rendered by it in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee, and, except as otherwise expressly provided herein,
the Company will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all Persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from its negligence or bad faith. The Company also
covenants to indemnify the Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Trustee and arising
out of or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim of
liability in the premises.
(b) The obligations of the Company under this Section to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular
Securities.
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SECTION 7.07 Reliance on Officers' Certificate.
Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Trustee and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted to be taken by it under the provisions of this Indenture
upon the faith thereof.
SECTION 7.08 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
SECTION 7.09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the Securities issued
hereunder which shall at all times be a corporation organized and doing business
under the laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or other Person permitted to
act as trustee by the Commission, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least 50
million U.S. dollars ($50,000,000), and subject to supervision or examination by
Federal, State, Territorial, or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. The Company may not, nor
may any Person directly or indirectly controlling, controlled by, or under
common control with the Company, serve as Trustee. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 7.10.
SECTION 7.10 Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter appointed, may at any time
resign with respect to the Securities of one or more series by giving written
notice thereof to the Company and by transmitting notice of resignation by mail,
first class postage prepaid, to the Securityholders of such series, as their
names and addresses appear upon the Security Register. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee
with respect to Securities of such series by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee with respect to Securities of such series, or any
Securityholder of that series who has been a bona fide holder of a Security or
Securities for at least six months may on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b) In case at any time any one of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
Section 7.08 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Security or Securities for
at least six months; or
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(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding,
or a receiver of the Trustee or of its property shall be appointed or consented
to, or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, the Company may remove the Trustee with
respect to all Securities and appoint a successor trustee by written instrument,
in duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, unless the Trustee's duty to resign is stayed as provided
herein, any Securityholder who has been a bona fide holder of a Security or
Securities for at least six months may, on behalf of that holder and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee. Such court may
thereupon after such notice, if any, as it may deem proper and prescribe, remove
the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to such series by so notifying the Trustee and the Company
and may appoint a successor Trustee for such series with the consent of the
Company.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Securities of a series pursuant to any of
the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section may be
appointed with respect to the Securities of one or more series or all of such
series, and at any time there shall be only one Trustee with respect to the
Securities of any particular series.
SECTION 7.11 Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of a successor trustee with
respect to all Securities, every such successor trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor trustee all the rights, powers, and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor trustee relates, (2)
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust, that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee and that no
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Trustee shall be responsible for any act or failure to act on the part of any
other Trustee hereunder; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein, such retiring Trustee shall
with respect to the Securities of that or those series to which the appointment
of such successor trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture, and each such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor trustee relates; but, on request of the Company or any successor
trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor trustee, to the extent contemplated by such supplemental indenture,
the property and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such
successor trustee relates.
(c) Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at the
time of such acceptance such successor trustee shall be qualified and eligible
under this Article.
(e) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Company shall transmit notice of the succession of such
trustee hereunder by mail, first class postage prepaid, to the Securityholders,
as their names and addresses appear upon the Security Register. If the Company
fails to transmit such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.
SECTION 7.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 7.08 and eligible under the provisions
of Section 7.09, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 7.13 Preferential Collection of Claims Against the Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent included therein.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a majority or
specified percentage in aggregate principal amount of the Securities of a
particular series may take any action (including the making of any demand or
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request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the holders of such
majority or specified percentage of that series have joined therein may be
evidenced by any instrument or any number of instruments of similar tenor
executed by such holders of Securities of that series in Person or by agent or
proxy appointed in writing.
If the Company shall solicit from the Securityholders of any series any
request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of record at the
close of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite proportion
of Outstanding Securities of that series have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the Outstanding Securities of that series
shall be computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
SECTION 8.02 Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01, proof of the execution of any
instrument by a Securityholder (such proof will not require notarization) or his
agent or proxy and proof of the holding by any Person of any of the Securities
shall be sufficient if made in the following manner:
(1) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the Trustee.
(2) The ownership of Securities shall be proved by the Security
Register of such Securities or by a certificate of the Security Registrar
thereof.
(3) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
SECTION 8.03 Who May be Deemed Owners.
Prior to the due presentment for registration of transfer of any Security,
the Company, the Trustee, any paying agent and any Security Registrar may deem
and treat the Person in whose name such Security shall be registered upon the
books of the Company as the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notice of ownership or writing
thereon made by anyone other than the Security Registrar) for the purpose of
receiving payment of or on account of the principal of, premium, if any, and
(subject to Section 2.03) interest on such Security and for all other purposes;
and neither the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
SECTION 8.04 Certain Securities Owned by Company Disregarded.
In determining whether the holders of the requisite aggregate principal
amount of Securities of a particular series have concurred in any direction,
consent of waiver under this Indenture, the Securities of that series that are
owned by the Company or any other obligor on the Securities of that series or by
any Person directly or indirectly controlling or controlled by or under common
control with the Company or any other obligor on the Securities of that series
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Securities of such series that the Trustee actually knows are so owned
shall be so disregarded. The
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Securities so owned that have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section, if the pledgee shall establish to
the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not a Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any such other obligor. In case of a dispute as to such right, any
decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
SECTION 8.05 Actions Binding on Future Securityholders.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any action by the holders of the
majority or percentage in aggregate principal amount of the Securities of a
particular series specified in this Indenture in connection with such action,
any holder of a Security of that series that is shown by the evidence to be
included in the Securities the holders of which have consented to such action
may, by filing written notice with the Trustee, and upon proof of holding as
provided in Section 8.02, revoke such action so far as concerns such Security.
Except as aforesaid any such action taken by the holder of any Security shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Security, and of any Security issued in exchange therefor, on
registration of transfer thereof or in place thereof, irrespective of whether or
not any notation in regard thereto is made upon such Security. Any action taken
by the holders of the majority or percentage in aggregate principal amount of
the Securities of a particular series specified in this Indenture in connection
with such action shall be conclusively binding upon the Company, the Trustee and
the holders of all the Securities of that series.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without the Consent of Securityholders.
In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect), without the
consent of the Securityholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency herein, in the
Securities of any series;
(b) to comply with Article Ten;
(c) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(d) to add to the covenants of the Company for the benefit of the
holders of all or any Series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company;
(e) to add to, delete from, or revise the conditions, limitations, and
restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Securities, as herein set forth;
(f) to make any change that does not adversely affect the rights of
any Securityholder in any material respect; or
(g) to provide for the issuance of and establish the form and terms
and conditions of the Securities of any series as provided in Section 2.01, to
establish the form of any certifications required to be furnished pursuant to
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the terms of this Indenture or any series of Securities, or to add to the rights
of the holders of any series of Securities.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may
be executed by the Company and the Trustee without the consent of the holders of
any of the Securities at the time Outstanding, notwithstanding any of the
provisions of Section 9.02.
SECTION 9.02 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Section 8.01) of the holders of
not less than a majority in aggregate principal amount of the Securities of each
series affected by such supplemental indenture or indentures at the time
Outstanding, the Company, when authorized by Board Resolutions, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as then in effect) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner not covered by
Section 9.01 the rights of the holders of the Securities of such series under
this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the holders of each Security then Outstanding and
affected thereby, (i) extend the fixed maturity of any Securities of any series,
or reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any premium payable upon the redemption
thereof or (ii) reduce the aforesaid percentage of Securities, the holders of
which are required to consent to any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders of any
series affected thereby under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
SECTION 9.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, this Indenture shall, with respect to such
series, be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the holders of Securities
of the series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 9.04 Securities Affected by Supplemental Indentures.
Securities of any series affected by a supplemental indenture,
authenticated and delivered after the execution of such supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, may bear a
notation in form approved by the Company, provided such form meets the
requirements of any exchange upon which such series may be listed, as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of that series so modified as to conform, in the
opinion of the Board of Directors of the Company, to any modification of this
Indenture contained in any such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for the
Securities of that series then Outstanding.
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SECTION 9.05 Execution of Supplemental Indentures.
Upon the request of the Company, accompanied by its Board Resolutions
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders required
to consent thereto as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture. The Trustee, subject to
the provisions of Section 7.01, may receive an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to this Article is
authorized or permitted by, and conforms to, the terms of this Article and that
it is proper for the Trustee under the provisions of this Article to join in the
execution thereof; provided, however, that such Opinion of Counsel need not be
provided in connection with the execution of a supplemental indenture that
establishes the terms of a series of Securities pursuant to Section 2.01 hereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in
general terms the substance of such supplemental indenture, to the
Securityholders of all series affected thereby as their names and addresses
appear upon the Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
ARTICLE X
SUCCESSOR ENTITY
SECTION 10.01 Company May Consolidate, Etc.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other Person
(whether or not affiliated with the Company) or successive consolidations or
mergers in which the Company or its successor or successors shall be a party or
parties, or shall prevent any sale, conveyance, transfer or other disposition of
the property of the Company or its successor or successors as an entirety, or
substantially as an entirety, to any other corporation (whether or not
affiliated with the Company or its successor or successors) authorized to
acquire and operate the same; provided, however, the Company hereby covenants
and agrees that, upon any such consolidation or merger (in each case, if the
Company is not the survivor of such transaction), sale, conveyance, transfer or
other disposition, the due and punctual payment of the principal of (premium, if
any) and interest on all of the Securities of all series in accordance with the
terms of each series, according to their tenor and the due and punctual
performance and observance of all the covenants and conditions of this Indenture
with respect to each series or established with respect to such series pursuant
to Section 2.01 to be kept or performed by the Company shall be expressly
assumed, by supplemental indenture (which shall conform to the provisions of the
Trust Indenture Act, as then in effect) satisfactory in form to the Trustee
executed and delivered to the Trustee by the entity formed by such
consolidation, or into which the Company shall have been merged, or by the
entity which shall have acquired such property.
SECTION 10.02 Successor Entity Substituted.
(a) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition and upon the assumption by the successor entity by
supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the due and punctual payment of the principal of,
premium, if any, and interest on all of the Securities of all series Outstanding
and the due and punctual performance of all of the covenants and conditions of
this Indenture or established with respect to each series of the Securities
pursuant to Section 2.01 to be performed by the Company with respect to each
series, such successor entity shall succeed to and be substituted for the
Company with the same effect as if it had been named as the Company herein, and
thereupon
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the predecessor corporation shall be relieved of all obligations and covenants
under this Indenture and the Securities.
(b) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued as may be
appropriate.
(c) Nothing contained in this Article shall apply to a consolidation
or merger of any Person into the Company where the Company is the survivor of
such transaction, or the acquisition by the Company, by purchase or otherwise,
of all or any part of the property of any other Person (whether or not
affiliated with the Company).
SECTION 10.03 Evidence of Consolidation, Etc. to Trustee.
The Trustee, subject to the provisions of Section 7.01, may receive an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, conveyance, transfer or other disposition, and any such assumption, comply
with the provisions of this Article.
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have delivered to the Trustee for
cancellation all Securities of a series theretofore authenticated (other than
any Securities that shall have ben destroyed, lost or stolen and that shall have
been replaced or paid as provided in Section 2.07) and Securities for whose
payment money or Governmental Obligations have theretofore been deposited in
trust or segregated and held in trust by the Company (and thereupon repaid to
the Company or discharged from such trust, as provided in Section 11.05); or (b)
all such Securities of a particular series not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall deposit or cause to be
deposited with the Trustee as trust funds the entire amount in moneys or
Governmental Obligations sufficient or a combination thereof, 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 at
maturity or upon redemption all Securities of that series not theretofore
delivered to the Trustee for cancellation, including principal (and premium, if
any) and interest due or to become due to such date of maturity or date fixed
for redemption, as the case may be, and if the Company shall also pay or cause
to be paid all other sums payable hereunder with respect to such series by the
Company then this Indenture shall thereupon cease to be of further effect with
respect to such series except for the provisions of Sections 2.03, 2.05, 2.07,
4.01, 4.02, 4.03 and 7.10, that shall survive until the date of maturity or
redemption date, as the case may be, and Sections 7.06 and 11.05, that shall
survive to such date and thereafter, and the Trustee, on demand of the Company
and at the cost and expense of the Company shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to
such series.
SECTION 11.02 Discharge of Obligations.
If at any time all such Securities of a particular series not heretofore
delivered to the Trustee for cancellation or that have not become due and
payable as described in Section 11.01 shall have been paid by the Company by
depositing irrevocably with the Trustee as trust funds moneys or an amount of
Governmental Obligations sufficient to pay at maturity or upon redemption all
such Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or to
become due to such date of maturity or date fixed for redemption, as the case
may be, and if the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company with respect to such series, then after the
date
30
<PAGE>
such moneys or Governmental Obligations, as the case may be, are deposited with
the Trustee the obligations of the Company under this Indenture with respect to
such series shall cease to be of further effect except for the provisions of
Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06, 7.10 and 11.05 hereof that
shall survive until such Securities shall mature and be paid. Thereafter,
Sections 7.06 and 11.05 shall survive.
SECTION 11.03 Deposited Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited with the Trustee pursuant
to Sections 11.01 or 11.02 shall be held in trust and shall be available for
payment as due, either directly or through any paying agent (including the
Company acting as its own paying agent), to the holders of the particular series
of Securities for the payment or redemption of which such moneys or Governmental
Obligations have been deposited with the Trustee.
SECTION 11.04 Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge of this Indenture all
moneys or Governmental Obligations then held by any paying agent under the
provisions of this Indenture shall, upon demand of the Company, be paid to the
Trustee and thereupon such paying agent shall be released from all further
liability with respect to such moneys or Governmental Obligations.
SECTION 11.05 Repayment to Company.
Any moneys or Governmental Obligations deposited with any paying agent or
the Trustee, or then held by the Company, in trust for payment of principal of
or premium or interest on the Securities of a particular series that are not
applied but remain unclaimed by the holders of such Securities for at least two
years after the date upon which the principal of (and premium, if any) or
interest on such Securities shall have respectively become due and payable,
shall be repaid to the Company on May 31 of each year or (if then held by the
Company) shall be discharged from such trust; and thereupon the paying agent and
the Trustee shall be released from all further liability with respect to such
moneys or Governmental Obligations, and the holder of any of the Securities
entitled to receive such payment shall thereafter, as an unsecured general
creditor, look only to the Company for the payment thereof.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01 No Recourse.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or
director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such
predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the Company or of
any predecessor or successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom, are hereby expressly waived
31
<PAGE>
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issuance of such Securities.
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 13.02 Actions by Successor.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
corresponding board, committee or officer of any corporation that shall at the
time be the lawful successor of the Company.
SECTION 13.03 Surrender of Company Powers.
The Company by instrument in writing executed by authority of its Board of
Directors and delivered to the Trustee may surrender any of the powers reserved
to the Company, and thereupon such power so surrendered shall terminate both as
to the Company and as to any successor corporation.
SECTION 13.04 Notices.
Except as otherwise expressly provided herein any notice or demand that by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the holders of Securities to or on the Company may be given
or served by being deposited first class postage prepaid in a post-office
letterbox addressed (until another address is filed in writing by the Company
with the Trustee), as follows: [ ]. Any notice,
election, request or demand by the Company or any Securityholder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made in writing at the Corporate Trust Office of the
Trustee.
SECTION 13.05 Governing Law.
This Indenture and each Security shall be deemed to be a contract made
under the internal laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of said State.
SECTION 13.06 Treatment of Securities as Debt.
It is intended that the Securities will be treated as indebtedness and not
as equity for federal income tax purposes. The provisions of this Indenture
shall be interpreted to further this intention.
SECTION 13.07 Compliance Certificates and Opinions.
(a) Upon any application or demand by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the Company,
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied
32
<PAGE>
with, except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
in this Indenture 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 has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 13.08 Payments on Business Days.
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution,
and as set forth in an Officers' Certificate, or established in one or more
indentures supplemental to this Indenture, in any case where the date of
maturity of interest or principal of any Security or the date of redemption of
any Security shall not be a Business Day, then payment of interest or principal
(and premium, if any) may be made on the next succeeding Business Day with the
same force and effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal date.
SECTION 13.09 Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
SECTION 13.10 Counterparts.
This Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
and the same instrument.
SECTION 13.11 Separability.
In case any one or more of the provisions contained in this Indenture or in
the Securities of any series shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of such Securities,
but this Indenture and such Securities shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
SECTION 13.12 Assignment.
The Company will have the right at all times to assign any of its rights or
obligations under this Indenture to a direct or indirect wholly-owned Subsidiary
of the Company, provided that, in the event of any such assignment, the Company,
will remain liable for all such obligations. Subject to the foregoing, the
Indenture is binding upon and inures to the benefit of the parties thereto and
their respective successors and assigns. This Indenture may not otherwise be
assigned by the parties thereto.
33
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
CMGI, INC.
By:
_____________________________________
Name:
Title:
[ ],
as Trustee
By:
_____________________________________
Name:
Title:
34
<PAGE>
EXHIBIT 4.2
================================================================================
CMGI, INC.,
Issuer
AND
[ ],
Trustee
___________________________________
INDENTURE
Dated as of [ ], 1999
___________________________________
Subordinated Debt Securities
===============================================================================
<PAGE>
CROSS-REFERENCE TABLE(1)
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
- ------------------- ---------
310(a)....................................... 7.09
310(b)....................................... 7.08
7.10
310(c)....................................... Inapplicable
311(a)....................................... 7.13(a)
311(b)....................................... 7.13(b)
311(c)....................................... Inapplicable
312(a)....................................... 5.02(a)
312(b)....................................... 5.02(b)
312(c)....................................... 5.02(c)
313(a)....................................... 5.04(a)
313(b)....................................... 5.04(b)
313(c)....................................... 5.04(a)
5.04(b)
313(d)....................................... 5.04(c)
314(a)....................................... 5.03
314(b)....................................... Inapplicable
314(c)....................................... 13.06
314(d)....................................... Inapplicable
314(e)....................................... 13.06
314(f)....................................... Inapplicable
315(a)....................................... 7.01(a)
7.02
315(b)....................................... 6.07
315(c)....................................... 7.01
315(d)....................................... 7.01(b)
7.01(c)
315(e)....................................... 6.07
316(a)....................................... 6.06
8.04
316(b)....................................... 6.04
316(c)....................................... 8.01
317(a)....................................... 6.02
317(b)....................................... 4.03
318(a)....................................... 13.08
- --------------------
(1) This Cross-Reference Table does not constitute part of the Indenture and
shall not have any bearing on the interpretation of any of its terms or
provisions.
ii
<PAGE>
TABLE OF CONTENTS(2)
Page
----
PARTIES......................................................... 1
RECITALS........................................................ 1
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions of Terms...................... 1
Authenticating Agent...................... 1
Bankruptcy Law............................ 1
Board of Directors........................ 1
Board Resolution.......................... 1
Business Day.............................. 1
Certificate............................... 1
Company................................... 1
Corporate Trust Office.................... 2
Custodian................................. 2
Default................................... 2
Depositary................................ 2
Event of Default.......................... 2
Global Security........................... 2
Governmental Obligations.................. 2
"herein", "hereof" and "hereunder"........ 2
Indenture................................. 2
Interest Payment Date..................... 2
Officers' Certificate..................... 2
Opinion of Counsel........................ 3
Outstanding............................... 3
Person.................................... 3
Predecessor Security...................... 3
Responsible Officer....................... 3
Securities................................ 3
Securityholder............................ 3
Subsidiary................................ 3
Trustee................................... 3
Trust Indenture Act....................... 3
Voting Stock.............................. 4
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation and Terms of Securities....... 4
SECTION 2.02 Form of Securities and Trustee's
Certificate.............................. 5
SECTION 2.03 Denominations: Provisions for Payment..... 6
SECTION 2.04 Execution and Authentications............. 7
SECTION 2.05 Registration of Transfer and Exchange..... 7
iii
<PAGE>
SECTION 2.06 Temporary Securities...................... 8
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen
Securities............................... 9
SECTION 2.08 Cancellation.............................. 9
SECTION 2.09 Benefits of Indenture..................... 9
SECTION 2.10 Authenticating Agent...................... 10
SECTION 2.11 Global Securities......................... 10
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption................................ 11
SECTION 3.02 Notice of Redemption...................... 11
SECTION 3.03 Payment Upon Redemption................... 12
SECTION 3.04 Sinking Fund.............................. 12
SECTION 3.05 Satisfaction of Sinking Fund Payments
with Securities.......................... 12
SECTION 3.06 Redemption of Securities for Sinking
Fund..................................... 13
ARTICLE IV
COVENANTS
SECTION 4.01 Payment of Principal, Premium and
Interest................................. 13
SECTION 4.02 Maintenance of Office or Agency........... 13
SECTION 4.03 Paying Agents............................. 13
SECTION 4.04 Appointment to Fill Vacancy in Office of
Trustee.................................. 14
SECTION 4.05 Compliance with Consolidation Provisions.. 14
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Names and
Addresses of Securityholders............. 15
SECTION 5.03 Reports by the Company.................... 15
SECTION 5.04 Reports by the Trustee.................... 16
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 6.01 Events of Default........................... 16
SECTION 6.02 Collection of Indebtedness and Suits for
Enforcement by Trustee..................... 17
SECTION 6.03 Application of Moneys Collected............. 19
SECTION 6.04 Limitation on Suits......................... 19
SECTION 6.05 Rights and Remedies Cumulative; Delay or
Omission Not Waiver........................ 20
SECTION 6.06 Control by Securityholders.................. 20
SECTION 6.07 Undertaking to Pay Costs.................... 20
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities of
Trustee.................................. 21
SECTION 7.02 Certain Rights of Trustee................. 22
SECTION 7.03 Trustee Not Responsible for Recitals or
Issuance or Securities................... 22
SECTION 7.04 May Hold Securities....................... 23
SECTION 7.05 Moneys Held in Trust...................... 23
SECTION 7.06 Compensation and Reimbursement............ 23
iv
<PAGE>
SECTION 7.07 Reliance on Officers' Certificate......... 24
SECTION 7.08 Disqualification; Conflicting Interests... 24
SECTION 7.09 Corporate Trustee Required; Eligibility... 24
SECTION 7.10 Resignation and Removal; Appointment of
Successor................................ 24
SECTION 7.11 Acceptance of Appointment By Successor.... 25
SECTION 7.12 Merger, Conversion, Consolidation or
Succession to Business................... 26
SECTION 7.13 Preferential Collection of Claims Against
the Company.............................. 26
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence of Action by Securityholders..... 27
SECTION 8.02 Proof of Execution by Securityholders..... 27
SECTION 8.03 Who May be Deemed Owners.................. 27
SECTION 8.04 Certain Securities Owned by Company
Disregarded.............................. 28
SECTION 8.05 Actions Binding on Future
Securityholders.......................... 28
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without the
Consent of Securityholders............... 28
SECTION 9.02 Supplemental Indentures With Consent of
Securityholders.......................... 29
SECTION 9.03 Effect of Supplemental Indentures......... 29
SECTION 9.04 Securities Affected by Supplemental
Indentures............................... 30
SECTION 9.05 Execution of Supplemental Indentures...... 30
ARTICLE X
SUCCESSOR ENTITY
SECTION 10.01 Company May Consolidate, Etc............... 30
SECTION 10.02 Successor Entity Substituted............... 31
SECTION 10.03 Evidence of Consolidation, Etc. to
Trustee................................... 31
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction and Discharge of Indenture... 31
SECTION 11.02 Discharge of Obligations.................. 32
SECTION 11.03 Deposited Moneys to be Held in Trust...... 32
SECTION 11.04 Payment of Moneys Held by Paying Agents... 32
SECTION 11.05 Repayment to Company...................... 32
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01 No Recourse............................... 33
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Effect on Successors and Assigns.......... 33
SECTION 13.02 Actions by Successor...................... 33
SECTION 13.03 Surrender of Company Powers............... 33
SECTION 13.04 Notices................................... 34
SECTION 13.05 Governing Law............................. 34
SECTION 13.06 Treatment of Securities as Debt........... 34
v
<PAGE>
SECTION 13.07 Compliance Certificates and Opinions...... 34
SECTION 13.08 Payments on Business Days................. 34
SECTION 13.09 Conflict with Trust Indenture Act......... 35
SECTION 13.10 Counterparts.............................. 35
SECTION 13.11 Separability.............................. 35
SECTION 13.12 Assignment................................ 35
ARTICLE XIV
SUBORDINATION OF SECURITIES
SECTION 14.01 Subordination Terms....................... 35
(2) This Table of Contents does not constitute part of the Indenture and shall
not have any bearing on the interpretation of any of its terms or
provisions.
vi
<PAGE>
INDENTURE, dated as of [ ], 1999, among CMGI, Inc., a Delaware
corporation (the "Company"), and [ ], as trustee (the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the execution and delivery of this Indenture to provide for the issuance of
unsecured subordinated debt securities (hereinafter referred to as the
"Securities"), in an unlimited aggregate principal amount to be issued from time
to time in one or more series as in this Indenture provided, as registered
Securities without coupons, to be authenticated by the certificate of the
Trustee;
WHEREAS, to provide the terms and conditions upon which the Securities are
to be authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of the
Securities by the holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the holders of Securities:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions of Terms.
The terms defined in this Section (except as in this Indenture otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section and shall include the plural as
well as the singular. All other terms used in this Indenture that are defined
in the Trust Indenture Act of 1939, as amended, or that are by reference in such
Act defined in the Securities Act of 1933,as amended (except as herein otherwise
expressly provided or unless the context otherwise requires), shall have the
meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of the execution of this instrument.
"Authenticating Agent" means an authenticating agent with respect to all
or any of the series of Securities appointed with respect to all or any series
of the Securities by the Trustee pursuant to Section 2.10.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or
state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized committee of such Board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification.
"Business Day" means, with respect to any series of Securities, any day
other than a day on which Federal or State banking institutions in the Borough
of Manhattan, The City of New York, are authorized or obligated by law,
executive order or regulation to close.
"Certificate" means a certificate signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company. The Certificate need not comply with the provisions of Section
13.07.
<PAGE>
"Company" means CMGI, Inc., a corporation duly organized and existing
under the laws of the State of Delaware, and, subject to the provisions of
Article Ten, shall also include its successors and assigns.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at [ ], except that
whenever a provision herein refers to an office or agency of the Trustee in the
Borough of Manhattan, The City of New York, such office is located, at the date
hereof, at [ ].
"Custodian" means any receiver, trustee, assignee, liquidator, or similar
official under any Bankruptcy Law.
"Default" means any event, act or condition that with notice or lapse of
time, or both, would constitute an Event of Default.
"Depositary" means, with respect to Securities of any series, for which
the Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, New York, New York, another clearing
agency, or any successor registered as a clearing agency under the Securities
and Exchange Act of 1934, as amended (the "Exchange Act"), or other applicable
statute or regulation, which, in each case, shall be designated by the Company
pursuant to either Section 2.01 or 2.11.
"Event of Default" means, with respect to Securities of a particular
series any event specified in Section 6.01, continued for the period of time, if
any, therein designated.
"Global Security" means, with respect to any series of Securities, a
Security executed by the Company and delivered by the Trustee to the Depositary
or pursuant to the Depositary's instruction, all in accordance with the
Indenture, which shall be registered in the name of the Depositary or its
nominee.
"Governmental 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, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on any
such Governmental Obligation held by such custodian for the account of the
holder of such depositary receipt; provided, however, that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"herein", "hereof" and "hereunder", and other words of similar import,
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof.
"Interest Payment Date", when used with respect to any installment of
interest on a Security of a particular series, means the date specified in such
Security or in a Board Resolution or in an indenture supplemental hereto with
respect to such series as the fixed date on which an installment of interest
with respect to Securities of that series is due and payable.
"Officers' Certificate" means a certificate signed by the President or a
Vice President and by the Treasurer or an Assistant Treasurer or the Controller
or an Assistant Controller or the Secretary or an Assistant Secretary of
2
<PAGE>
the Company that is delivered to the Trustee in accordance with the terms
hereof. Each such certificate shall include the statements provided for in
Section 13.07, if and to the extent required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of legal counsel, who may
be an employee of or counsel for the Company that is delivered to the Trustee in
accordance with the terms hereof. Each such opinion shall include the
statements provided for in Section 13.07, if and to the extent required by the
provisions thereof.
"Outstanding", when used with reference to Securities of any series,
means, subject to the provisions of Section 8.04, as of any particular time, all
Securities of that series theretofore authenticated and delivered by the Trustee
under this Indenture, except (a) Securities theretofore canceled by the Trustee
or any paying agent, or delivered to the Trustee or any paying agent for
cancellation or that have previously been canceled; (b) Securities or portions
thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been set
aside and segregated in trust by the Company (if the Company shall act as its
own paying agent); provided, however, that if such Securities or portions of
such Securities are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in Article Three provided, or provision
satisfactory to the Trustee shall have been made for giving such notice; and (c)
Securities in lieu of or in substitution for which other Securities shall have
been authenticated and delivered pursuant to the terms of Section 2.07.
"Person" means any individual, corporation, partnership, joint-venture,
joint-stock company, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.07 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Responsible Officer" when used with respect to the Trustee means the
Chairman of the Board of Directors, the President, any Vice President, the
Secretary, the Treasurer, any trust officer, any corporate trust officer or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Securities" means the debt Securities authenticated and delivered under
this Indenture.
"Securityholder", "holder of Securities", "registered holder", or other
similar term, means the Person or Persons in whose name or names a particular
Security shall be registered on the books of the Company kept for that purpose
in accordance with the terms of this Indenture.
"Subsidiary" means, with respect to any Person, (i) any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries or
by such Person and one or more of its Subsidiaries, (ii) any general
partnership, joint venture or similar entity, at least a majority of whose
outstanding partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person and one or more
of its Subsidiaries and (iii) any limited partnership of which such Person or
any of its Subsidiaries is a general partner.
"Trustee" means [ ], and, subject to the provisions
of Article Seven, shall also include its successors and assigns, and, if at any
time there is more than one Person acting in such capacity hereunder, "Trustee"
shall mean each such Person. The term "Trustee" as used with respect to a
particular series of the Securities shall mean the trustee with respect to that
series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
subject to the provisions of Sections 9.01, 9.02, and 10.01, as in effect at the
date of execution of this instrument.
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"Voting Stock", as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than shares,
interests, participations or other equivalents having such power only by reason
of the occurrence of a contingency.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation and Terms of Securities.
(a) 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 up to the aggregate principal amount of Securities of that
series from time to time authorized by or pursuant to a Board Resolution of the
Company or pursuant to one or more indentures supplemental hereto. Prior to the
initial issuance of Securities of any series, there shall be established in or
pursuant to a Board Resolution of the Company, and set forth in an Officers'
Certificate of the Company, or established in one or more indentures
supplemental hereto:
(1) the title of the Security of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
that 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 that series);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest or the manner of calculation of such rate or rates, if any;
(5) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the manner of
determination of such Interest Payment Dates and the record date for the
determination of holders to whom interest is payable on any such Interest
Payment Dates;
(6) the right, if any, to extend the interest payment periods and the
duration of such extension;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions
(including payments made in cash in satisfaction of future sinking fund
obligations) or at the option of a holder thereof and the period or periods
within which, the price or prices at which, and the terms and conditions upon
which, Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(9) the subordination terms of the Securities of the series;
(10) the form of the Securities of the series including the form of the
Certificate of Authentication for such series;
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(11) if other than denominations of one thousand U.S. dollars ($1,000)
or any integral multiple thereof, the denominations in which the Securities of
the series shall be issuable;
(12) any and all other terms with respect to such series (which terms
shall not be inconsistent with the terms of this Indenture, as amended by any
supplemental indenture) including any terms which may be required by or
advisable under United States laws or regulations or advisable in connection
with the marketing of Securities of that series;
(13) whether the Securities are issuable as a Global Security and, in
such case, the identity for the Depositary for such series;
(14) whether the Securities will be convertible into shares of common
stock or other securities of the Company and, if so, the terms and conditions
upon which such Securities will be so convertible, including the conversion
price and the conversion period;
(15) 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 6.01;
and
(16) any additional or different Events of Default or restrictive
covenants provided for with respect to the Securities of the series.
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to any
such Board Resolution or in any indentures supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution of the Company, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate of the Company setting forth the terms of the series.
Securities of any particular series may be issued at various times, with
different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different redemption dates.
SECTION 2.02 Form of Securities and Trustee's Certificate.
The Securities of any series and the Trustee's certificate of
authentication to be borne by such Securities shall be substantially of the
tenor and purport as set forth in one or more indentures supplemental hereto or
as provided in a Board Resolution of the Company and as set forth in an
Officers' Certificate of the Company and the and may have such letters, numbers
or other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which Securities
of that series may be listed, or to conform to usage.
SECTION 2.03 Denominations: Provisions for Payment.
The Securities shall be issuable as registered Securities and in the
denominations of one thousand U.S. dollars ($1,000) or any integral multiple
thereof, subject to Section 2.01(10). The Securities of a particular series
shall bear interest payable on the dates and at the rate specified with respect
to that series. The principal of and the
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interest on the Securities of any series, as well as any premium thereon in case
of redemption thereof prior to maturity, shall be payable in the coin or
currency of the United States of America that at the time is legal tender for
public and private debt, at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, the City and State of New York. Each
Security shall be dated the date of its authentication. Interest on the
Securities shall be computed on the basis of a 360-day year composed of twelve
30-day months.
The interest installment on any Security that is payable, and is punctually
paid or duly provided for, on any Interest Payment Date for Securities of that
series shall be paid to the Person in whose name said Security (or one or more
Predecessor Securities) is registered at the close of business on the regular
record date for such interest installment. In the event that any Security of a
particular series or portion thereof is called for redemption and the redemption
date is subsequent to a regular record date with respect to any Interest Payment
Date and prior to such Interest Payment Date, interest on such Security will be
paid upon presentation and surrender of such Security as provided in Section
3.03.
Any interest on any Security that is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date for Securities of the same
series (herein called "Defaulted Interest") shall forthwith cease to be payable
to the registered holder on the relevant regular record date by virtue of having
been such holder; and such Defaulted Interest shall be paid by the Company, at
its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on a special
record date for the payment of such Defaulted Interest, which shall be fixed in
the following manner: the Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each such Security and the
date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a special record date for the payment of such
Defaulted Interest which shall not be more than 15 nor less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed, first
class postage prepaid, to each Securityholder at his or her address as it
appears in the Security Register (as hereinafter defined), not less than 10 days
prior to such special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose names
such Securities (or their respective Predecessor Securities) are registered on
such special record date.
(2) The Company may make payment of any Defaulted Interest on any
Securities in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution of the Company or one or
more indentures supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term "regular record date" as
used in this Section with respect to a series of Securities with respect to any
Interest Payment Date for such series shall mean either the fifteenth day of the
month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if such
Interest Payment Date is the first day of a month, or the last day of the month
immediately preceding the month in which an Interest Payment Date established
for such series pursuant to Section 2.01 hereof shall occur, if such Interest
Payment Date is the fifteenth day of a month, whether or not such date is a
Business Day.
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Subject to the foregoing provisions of this Section, each Security of a
series delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other Security of such series shall carry the rights to interest
accrued and unpaid, and to accrue, that were carried by such other Security.
SECTION 2.04 Execution and Authentications.
The Securities shall be signed on behalf of the Company by its President,
or one of its Vice Presidents, or its Treasurer, or one of its Assistant
Treasurers, or its Secretary, or one of its Assistant Secretaries, under its
corporate seal attested by its Secretary or one of its Assistant Secretaries.
Signatures may be in the form of a manual or facsimile signature. The Company
may use the facsimile signature of any Person who shall have been a President or
Vice President thereof, or of any Person who shall have been a Secretary or
Assistant Secretary thereof, notwithstanding the fact that at the time the
Securities shall be authenticated and delivered or disposed of such Person shall
have ceased to be the President or a Vice President, or the Secretary or an
Assistant Secretary, of the Company. The seal of the Company may be in the form
of a facsimile of such seal and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. The Securities may contain such
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Security shall be dated the date of its authentication by the
Trustee.
A Security shall not be valid until authenticated manually by an authorized
signatory of the Trustee, or by an Authenticating Agent. Such signature shall
be conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a written order of the
Company for the authentication and delivery of such Securities, signed by its
President or any Vice President and its Secretary or any Assistant Secretary,
and the Trustee in accordance with such written order shall authenticate and
deliver such Securities.
In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating that the form and
terms thereof have been established in conformity with the provisions of this
Indenture.
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee.
SECTION 2.05 Registration of Transfer and Exchange.
(1) Securities of any series may be exchanged upon presentation thereof at
the office or agency of the Company designated for such purpose in the Borough
of Manhattan, the City and State of New York, for other Securities of such
series of authorized denominations, and for a like aggregate principal amount,
upon payment of a sum sufficient to cover any tax or other governmental charge
in relation thereto, all as provided in this Section. In respect of any
Securities so surrendered for exchange, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in exchange therefor
the Security or Securities of the same series that the Securityholder making the
exchange shall be entitled to receive, bearing numbers not contemporaneously
outstanding.
(2) The Company shall keep, or cause to be kept, at its office or agency
designated for such purpose in the Borough of Manhattan, the City and State of
New York, or such other location designated by the Company a register or
registers (herein referred to as the "Security Register") in which, subject to
such reasonable regulations as
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it may prescribe, the Company shall register the Securities and the transfers of
Securities as in this Article provided and which at all reasonable times shall
be open for inspection by the Trustee. The registrar for the purpose of
registering Securities and transfer of Securities as herein provided shall be
appointed as authorized by Board Resolution (the "Security Registrar").
Upon surrender for transfer of any Security at the office or agency of the
Company designated for such purpose, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in the name of the
transferee or transferees a new Security or Securities of the same series as the
Security presented for a like aggregate principal amount.
All Securities presented or surrendered for exchange or registration of
transfer, as provided in this Section, shall be accompanied (if so required by
the Company or the Security Registrar) by a written instrument or instruments of
transfer, in form satisfactory to the Company or the Security Registrar, duly
executed by the registered holder or by such holder's duly authorized attorney
in writing.
(3) No service charge shall be made for any exchange or registration of
transfer of Securities, or issue of new Securities in case of partial redemption
of any series, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge in relation thereto, other than exchanges
pursuant to Section 2.06, the second paragraph of Section 3.03 and Section 9.04
not involving any transfer.
The Company shall not be required (i) to issue, exchange or register the
transfer of any Securities during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of less than all
the Outstanding Securities of the same series and ending at the close of
business on the day of such mailing, nor (ii) to register the transfer of or
exchange any Securities of any series or portions thereof called for redemption.
The provisions of this Section 2.05 are, with respect to any Global Security,
subject to Section 2.11 hereof.
SECTION 2.06 Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and the Trustee shall authenticate and deliver, temporary
Securities (printed, lithographed or typewritten) of any authorized
denomination. Such temporary Securities shall be substantially in the form of
the definitive Securities in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every temporary Security
of any series shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities of such series. Without unnecessary
delay the Company will execute and will furnish definitive Securities of such
series and thereupon any or all temporary Securities of such series may be
surrendered in exchange therefor (without charge to the holders), at the office
or agency of the Company designated for the purpose in the Borough of Manhattan,
the City and State of New York, and the Trustee shall authenticate and such
office or agency shall deliver in exchange for such temporary Securities an
equal aggregate principal amount of definitive Securities of such series, unless
the Company advises the Trustee to the effect that definitive Securities need
not be executed and furnished until further notice from the Company. Until so
exchanged, the temporary Securities of such series shall be entitled to the same
benefits under this Indenture as definitive Securities of such series
authenticated and delivered hereunder.
Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated or be
destroyed, lost or stolen, the Company (subject to the next succeeding sentence)
shall execute, and upon the Company's request the Trustee (subject as aforesaid)
shall authenticate and deliver, a new Security of the same series, bearing a
number not contemporaneously outstanding, in exchange and substitution for the
mutilated Security, or in lieu of and in substitution for the Security so
destroyed, lost or stolen. In every case the applicant for a substituted
Security shall furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them
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harmless, and, in every case of destruction, loss or theft, the applicant shall
also furnish to the Company and the Trustee evidence to their satisfaction of
the destruction, loss or theft of the applicant's Security and of the ownership
thereof. The Trustee may authenticate any such substituted Security and deliver
the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Security, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith. In case any Security that
has matured or is about to mature shall become mutilated or be destroyed, lost
or stolen, the Company may, instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated Security) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as they may require to save
them harmless, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft of
such Security and of the ownership thereof.
Every replacement Security issued pursuant to the provisions of this
Section shall constitute an additional contractual obligation of the Company
whether or not the mutilated, destroyed, lost or stolen Security shall be found
at any time, or be enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of the same series duly issued hereunder. All Securities shall be
held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities, and shall preclude (to the extent lawful) any and all
other rights or remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.08 Cancellation.
All Securities surrendered for the purpose of payment, redemption, exchange
or registration of transfer shall, if surrendered to the Company or any paying
agent, be delivered to the Trustee for cancellation, or, if surrendered to the
Trustee, shall be cancelled by it, and no Securities shall be issued in lieu
thereof except as expressly required or permitted by any of the provisions of
this Indenture. On request of the Company at the time of such surrender, the
Trustee shall deliver to the Company canceled Securities held by the Trustee.
In the absence of such request the Trustee may dispose of canceled Securities in
accordance with its standard procedures and deliver a certificate of disposition
to the Company. If the Company shall otherwise acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give or be construed to give to any Person, other than the parties hereto and
the holders of the Securities (and, with respect to the provisions of Article
Fourteen, the holders of Senior Indebtedness) any legal or equitable right,
remedy or claim under or in respect of this Indenture, or under any covenant,
condition or provision herein contained; all such covenants, conditions and
provisions being for the sole benefit of the parties hereto and of the holders
of the Securities (and, with respect to the provisions of Article Fourteen, the
holders of Senior Indebtedness).
SECTION 2.10 Authenticating Agent.
So long as any of the Securities of any series remain Outstanding there may
be an Authenticating Agent for any or all such series of Securities which the
Trustee shall have the right to appoint. Said Authenticating Agent shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, transfer or partial redemption thereof, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. All references in this Indenture to the authentication of
Securities by the Trustee shall be deemed to include authentication by an
Authenticating Agent for such series. Each Authenticating Agent shall be
acceptable to the
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Company and shall be a corporation that has a combined capital and surplus, as
most recently reported or determined by it, sufficient under the laws of any
jurisdiction under which it is organized or in which it is doing business to
conduct a trust business, and that is otherwise authorized under such laws to
conduct such business and is subject to supervision or examination by Federal or
State authorities. If at any time any Authenticating Agent shall cease to be
eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time (and
upon request by the Company shall) terminate the agency of any Authenticating
Agent by giving written notice of termination to such Authenticating Agent and
to the Company. Upon resignation, termination or cessation of eligibility of
any Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor Authenticating
Agent, upon acceptance of its appointment hereunder, shall become vested with
all the rights, powers and duties of its predecessor hereunder as if originally
named as an Authenticating Agent pursuant hereto.
SECTION 2.11 Global Securities.
(a) If the Company shall establish pursuant to Section 2.01 that the
Securities of a particular series are to be issued as a Global Security, then
the Company shall execute and the Trustee shall, in accordance with Section
2.04, authenticate and deliver, a Global Security that (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
all of the Outstanding Securities of such series, (ii) shall be registered in
the name of the Depositary or its nominee, (iii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary's instruction and (iv)
shall bear a legend substantially to the following effect: "Except as otherwise
provided in Section 2.11 of the Indenture, this Security may be transferred, in
whole but not in part, only to another nominee of the Depositary or to a
successor Depositary or to a nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section 2.05, the Global Security of
a series may be transferred, in whole but not in part and in the manner provided
in Section 2.05, only to another nominee of the Depositary for such series, or
to a successor Depositary for such series selected or approved by the Company or
to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of the Securities notifies
the Company that it is unwilling or unable to continue as Depositary for such
series or if at any time the Depositary for such series shall no longer be
registered or in good standing under the Exchange Act, or other applicable
statute or regulation, and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, this Section 2.11 shall
no longer be applicable to the Securities of such series and the Company will
execute, and subject to Section 2.05, the Trustee will authenticate and deliver
the Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such
Global Security. In addition, the Company may at any time determine that the
Securities of any series shall no longer be represented by a Global Security and
that the provisions of this Section 2.11 shall no longer apply to the Securities
of such series. In such event the Company will execute and subject to Section
2.05, the Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and deliver the Securities of
such series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global
Security. Upon the exchange of the Global Security for such Securities in
definitive registered form without coupons, in authorized denominations, the
Global Security shall be canceled by the Trustee. Such Securities in definitive
registered form issued in exchange for the Global Security pursuant to this
Section 2.11(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Depositary for delivery to the Persons in
whose names such Securities are so registered.
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ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption.
The Company may redeem the Securities of any series issued hereunder on and
after the dates and in accordance with the terms established for such series
pursuant to Section 2.01 hereof.
SECTION 3.02 Notice of Redemption.
(a) In case the Company shall desire to exercise such right to redeem all
or, as the case may be, a portion of the Securities of any series in accordance
with the right reserved so to do, the Company shall, or shall cause the Trustee
to, give notice of such redemption to holders of the Securities of such series
to be redeemed by mailing, first class postage prepaid, a notice of such
redemption not less than 30 days and not more than 90 days before the date fixed
for redemption of that series to such holders at their last addresses as they
shall appear upon the Security Register unless a shorter period is specified in
the Securities to be redeemed. Any notice that is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the registered holder receives the notice. In any case, failure duly to give
such notice to the holder of any Security of any series designated for
redemption in whole or in part, or any defect in the notice, shall not affect
the validity of the proceedings for the redemption of any other Securities of
such series or any other series. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing compliance with any
such restriction.
Each such notice of redemption shall specify the date fixed for redemption
and the redemption price at which Securities of that series are to be redeemed,
and shall state that payment of the redemption price of such Securities to be
redeemed will be made at the office or agency of the Company in the Borough of
Manhattan, the City and State of New York, upon presentation and surrender of
such Securities, that interest accrued to the date fixed for redemption will be
paid as specified in said notice, that from and after said date interest will
cease to accrue and that the redemption is for a sinking fund, if such is the
case. If less than all the Securities of a series are to be redeemed, the
notice to the holders of Securities of that series to be redeemed in whole or in
part shall specify the particular Securities to be so redeemed. In case any
Security is to be redeemed in part only, the notice that relates to such
Security shall state the portion of the principal amount thereof to be redeemed,
and shall state that on and after the redemption date, upon surrender of such
Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.
(b) If less than all the Securities of a series are to be redeemed, the
Company shall give the Trustee at least 45 days' notice in advance of the date
fixed for redemption as to the aggregate principal amount of Securities of the
series to be redeemed, and thereupon the Trustee shall select, by lot or in such
other manner as it shall deem appropriate and fair in its discretion and that
may provide for the selection of a portion or portions (equal to one thousand
U.S. dollars ($1,000) or any integral multiple thereof) of the principal amount
of such Securities of a denomination larger than $1,000, the Securities to be
redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Securities to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its President or any Vice President,
instruct the Trustee or any paying agent to call all or any part of the
Securities of a particular series for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to be in the
name of the Company or its own name as the Trustee or such paying agent may deem
advisable. In any case in which notice of redemption is to be given by the
Trustee or any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying agent, as the
case may be, such Security Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable the Trustee or such
paying agent to give any notice by mail that may be required under the
provisions of this Section.
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SECTION 3.03 Payment Upon Redemption.
(a) If the giving of notice of redemption shall have been completed as
above provided, the Securities or portions of Securities of the series to be
redeemed specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption and interest on such
Securities or portions of Securities shall cease to accrue on and after the date
fixed for redemption, unless the Company shall default in the payment of such
redemption price and accrued interest with respect to any such Security or
portion thereof. On presentation and surrender of such Securities on or after
the date fixed for redemption at the place of payment specified in the notice,
said Securities shall be paid and redeemed at the applicable redemption price
for such series, together with interest accrued thereon to the date fixed for
redemption (but if the date fixed for redemption is an interest payment date,
the interest installment payable on such date shall be payable to the registered
holder at the close of business on the applicable record date pursuant to
Section 2.03).
(b) Upon presentation of any Security of such series that is to be redeemed
in part only, the Company shall execute and the Trustee shall authenticate and
the office or agency where the Security is presented shall deliver to the holder
thereof, at the expense of the Company, a new Security of the same series of
authorized denominations in principal amount equal to the unredeemed portion of
the Security so presented.
SECTION 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to any
sinking fund for the retirement of Securities of a series, except as otherwise
specified as contemplated by Section 2.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 3.05. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series.
SECTION 3.05 Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series (other than
any Securities previously called for redemption) and (ii) may apply as a credit
Securities of a series that have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series, provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the redemption price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 3.06 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of the series, the portion thereof, if any,
that is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 3.05 and the basis for such credit and will, together with
such
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Officers' Certificate, deliver to the Trustee any Securities to be so delivered.
Not less than 30 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.02 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 3.02. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Section 3.03.
ARTICLE IV
COVENANTS
SECTION 4.01 Payment of Principal, Premium and Interest.
The Company will duly and punctually pay or cause to be paid the principal
of (and premium, if any) and interest on the Securities of that series at the
time and place and in the manner provided herein and established with respect to
such Securities.
SECTION 4.02 Maintenance of Office or Agency.
So long as any series of the Securities remain Outstanding, the Company
agrees to maintain an office or agency in the Borough of Manhattan, the City and
State of New York, with respect to each such series and at such other location
or locations as may be designated as provided in this Section 4.02, where (i)
Securities of that series may be presented for payment, (ii) Securities of that
series may be presented as herein above authorized for registration of transfer
and exchange, and (iii) notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be given or served, such
designation to continue with respect to such office or agency until the Company
shall, by written notice signed by its President or a Vice President and
delivered to the trustee, designate some other office or agency for such
purposes or any of them. 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, notices and demands may be made or served
at the Corporate Trust Office of the Trustee, and the Company hereby appoints
the Trustee as its agent to receive all such presentations, notices and demands.
SECTION 4.03 Paying Agents.
(a) If the Company shall appoint one or more paying agents for all or any
series of the Securities, other than the Trustee, the Company will cause each
such paying agent to execute and deliver to the Trustee an instrument in which
such agent shall agree with the Trustee, subject to the provisions of this
Section:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of (and premium, if any) or interest on the Securities
of that series (whether such sums have been paid to it by the Company or by any
other obligor of such Securities) in trust for the benefit of the Persons
entitled thereto;
(2) that it will give the Trustee notice of any failure by the Company
(or by any other obligor of such Securities) to make any payment of the
principal of (and premium, if any) or interest on the Securities of that series
when the same shall be due and payable;
(3) that it will, at any time during the continuance of any failure
referred to in the preceding paragraph (a)(2) above, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such
paying agent; and
(4) that it will perform all other duties of paying agent as set forth
in this Indenture.
(b) If the Company shall act as its own paying agent with respect to any
series of the Securities, it will on or before each due date of the principal of
(and premium, if any) or interest on Securities of that series, set aside,
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segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay such principal (and premium, if any) or interest so
becoming due on Securities of that series until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of such action, or any failure (by it or any other obligor on such
Securities) to take such action. Whenever the Company shall have one or more
paying agents for any series of Securities, it will, prior to each due date of
the principal of (and premium, if any) or interest on any Securities of that
series, deposit with the paying agent a sum sufficient to pay the principal (an
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such paying agent is the Trustee) the Company will promptly notify the
Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section to the contrary, (i) the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.05, and (ii) the Company may at any time, for the
purpose of obtaining the satisfaction and discharge of this Indenture or for any
other purpose, pay, or direct any paying agent to pay, to the Trustee all sums
held in trust by the Company or such paying agent, such sums to be held by the
Trustee upon the same terms and conditions as those upon which such sums were
held by the Company or such paying agent; and, upon such payment by any paying
agent to the Trustee, such paying agent shall be released from all further
liability with respect to such money.
SECTION 4.04 Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 4.05 Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain Outstanding,
consolidate with or merge into any other Person, in either case where the
Company is not the survivor of such transaction, or sell or convey all or
substantially all of its property to any other company unless the provisions of
Article Ten hereof are complied with.
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Names and Addresses of
Securityholders.
The Company will furnish or cause to be furnished to the Trustee (a) on a
monthly basis on each regular record date (as defined in Section 2.03) a list,
in such form as the Trustee may reasonably require, of the names and addresses
of the holders of each series of Securities as of such regular record date,
provided that the Company shall not be obligated to furnish or cause to furnish
such list at any time that the list shall not differ in any respect from the
most recent list furnished to the Trustee by the Company and (b) at such other
times as the Trustee may request in writing within 30 days after the receipt by
the Company of any such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished; provided,
however, that, in either case, no such list need be furnished for any series for
which the Trustee shall be the Security Registrar.
SECTION 5.02 Preservation Of Information; Communications With Securityholders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders of
Securities contained in the most recent list furnished to it as provided in
Section 5.01 and as to the names and addresses of holders of Securities received
by the Trustee in its capacity as Security Registrar (if acting in such
capacity).
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(b) The Trustee may destroy any list furnished to it as provided in Section
5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section 312(b) of the
Trust Indenture Act with other Securityholders with respect to their rights
under this Indenture or under the Securities.
SECTION 5.03 Reports by the Company.
(a) The Company covenants and agrees to file with the Trustee, within 15
days after the Company is required to file the same with the Commission, copies
of the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) that the Company may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or
reports pursuant to either of such sections, then to file with the Trustee and
the Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports that may be required pursuant to Section 13
of the Exchange Act, in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such
rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from to time
by the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit by mail, first class
postage prepaid, or reputable over-night delivery service that provides for
evidence of receipt, to the Securityholders, as their names and addresses appear
upon the Security Register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (b) of this Section as may
be required by rules and regulations prescribed from time to time by the
Commission.
SECTION 5.04 Reports by the Trustee.
(a) On or before [ ] in each year in which any of the Securities are
Outstanding, the Trustee shall transmit by mail, first class postage prepaid, to
the Securityholders, as their names and addresses appear upon the Security
Register, a brief report dated as of the preceding [ ], if and to the
extent required under Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) and 313(c) of the Trust
Indenture Act.
(c) A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with the Company, with each stock
exchange upon which any Securities are listed (if so listed) and also with the
Commission. The Company agrees to notify the Trustee when any Securities become
listed on any stock exchange.
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ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01 Events of Default.
(a) Whenever used herein with respect to Securities of a particular series,
"Event of Default" means any one or more of the following events that has
occurred and is continuing:
(1) the Company defaults in the payment of any installment of interest
upon any of the Securities of that series, as and when the same shall become due
and payable, and continuance of such default for a period of 90 days; provided,
however, that a valid extension of an interest payment period by the Company in
accordance with the terms of any indenture supplemental hereto, shall not
constitute a default in the payment of interest for this purpose;
(2) the Company defaults in the payment of the principal of (or
premium, if any, on) any of the Securities of that series as and when the same
shall become due and payable whether at maturity, upon redemption, by
declaration or otherwise, or in any payment required by any sinking or analogous
fund established with respect to that series; provided, however, that a valid
extension of the maturity of such Securities in accordance with the terms of any
indenture supplemental hereto shall not constitute a default in the payment of
principal or premium, if any;
(3) the Company fails to observe or perform any other of its covenants
or agreements with respect to that series contained in this Indenture or
otherwise established with respect to that series of Securities pursuant to
Section 2.01 hereof (other than a covenant or agreement that has been expressly
included in this Indenture solely for the benefit of one or more series of
Securities other than such series) for a period of 90 days after the date on
which written notice of such failure, requiring the same to be remedied and
stating that such notice is a "Notice of Default" hereunder, shall have been
given to the Company by the Trustee, by registered or certified mail, or to the
Company and the Trustee by the holders of at least 25% in principal amount of
the Securities of that series at the time Outstanding;
(4) the Company pursuant to or within the meaning of any Bankruptcy
Law (i) commences a voluntary case, (ii) consents to the entry of an order for
relief against it in an involuntary case, (iii) consents to the appointment of a
Custodian of it or for all or substantially all of its property or (iv) makes a
general assignment for the benefit of its creditors; or
(5) a court of competent jurisdiction enters an order under any
Bankruptcy Law that (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company for all or substantially all of
their respective property, or (iii) orders the liquidation of the Company, and
the order or decree remains unstayed and in effect for 90 days.
(b) In each and every such case, unless the principal of all the Securities
of that series shall have already become due and payable, either the Trustee or
the holders of not less than 25% in aggregate principal amount of the Securities
of that series then Outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by such Securityholders), may declare the principal
of all the Securities of that series to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable, notwithstanding anything contained in this Indenture or in the
Securities of that series or established with respect to that series pursuant to
Section 2.01 to the contrary.
(c) At any time after the principal of the Securities of that series shall
have been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the holders of a majority in aggregate principal amount of the
Securities of that series then Outstanding hereunder, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if: (i) the Company has paid or deposited with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Securities
of that series and the principal of (and premium, if any, on) any and all
Securities of that series that shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any, and, to the
extent that such payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in the Securities of
that series to the date of such payment or deposit) and the amount payable to
the Trustee under Section 7.06, and (ii) any and all Events of Default under the
Indenture with respect to such series, other than the nonpayment of principal on
Securities of that series that shall not have become due by their terms, shall
have been remedied or waived as provided in Section 6.06.
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No such rescission and annulment shall extend to or shall affect any
subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right with
respect to Securities of that series under this Indenture and such proceedings
shall have been discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been determined adversely to the
Trustee, then and in every such case, subject to any determination in such
proceedings, the Company, and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and powers
of the Company and the Trustee shall continue as though no such proceedings had
been taken.
SECTION 6.02 Collection of Indebtedness and Suits for Enforcement by Trustee.
(a) The Company covenants that (1) in case it shall default in the payment
of any installment of interest on any of the Securities of a series, or any
payment required by any sinking or analogous fund established with respect to
that series as and when the same shall have become due and payable, and such
default shall have continued for a period of 90 Business Days, or (2) in case it
shall default in the payment of the principal of (or premium, if any, on) any of
the Securities of a series when the same shall have become due and payable,
whether upon maturity of the Securities of a series or upon redemption or upon
declaration or otherwise, then, upon demand of the Trustee, the Company will pay
to the Trustee, for the benefit of the holders of the Securities of that series,
the whole amount that then shall have been become due and payable on all such
Securities for principal (and premium, if any) or interest, or both, as the case
may be, with interest upon the overdue principal (and premium, if any) and (to
the extent that payment of such interest is enforceable under applicable law)
upon overdue installments of interest at the rate per annum expressed in the
Securities of that series; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, and the
amount payable to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the
Securities of that series and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company or
other obligor upon the Securities of that series, wherever situated.
(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or judicial proceedings
affected the Company, or its creditors or property, the Trustee shall have power
to intervene in such proceedings and take any action therein that may be
permitted by the court and shall (except as may be otherwise provided by law) be
entitled to file such proofs of claim and other papers and documents as may be
necessary or advisable in order to have the claims of the Trustee and of the
holders of Securities of such series allowed for the entire amount due and
payable by the Company under the Indenture at the date of institution of such
proceedings and for any additional amount that may become due and payable by the
Company after such date, and to collect and receive any moneys or other property
payable or deliverable on any such claim, and to distribute the same after the
deduction of the amount payable to the Trustee under Section 7.06; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Securities of such series to make such
payments to the Trustee, and, in the event that the Trustee shall consent to the
making of such payments directly to such Securityholders, to pay to the Trustee
any amount due it under Section 7.06.
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(d) All rights of action and of asserting claims under this Indenture, or
under any of the terms established with respect to Securities of that series,
may be enforced by the Trustee without the possession of any of such Securities,
or the production thereof at any trial or other proceeding relative thereto, and
any such suit or proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall,
after provision for payment to the Trustee of any amounts due under Section
7.06, be for the ratable benefit of the holders of the Securities of such
series.
In case of an Event of Default hereunder, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in the Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
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 of that series or the rights of any holder thereof or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
SECTION 6.03 Application of Moneys Collected.
Any moneys collected by the Trustee pursuant to this Article with respect
to a particular series of Securities shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
moneys on account of principal (or premium, if any) or interest, upon
presentation of the Securities of that series, and notation thereon the payment,
if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of
all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of all Senior Indebtedness of the Company if and
to the extent required by Article Fourteen; and
THIRD: To the payment of the amounts then due and unpaid upon
Securities of such series for principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal (and premium, if any) and
interest, respectively.
SECTION 6.04 Limitation on Suits.
No holder of any Security of any series shall have any right by virtue or
by availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless (i) such holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof with
respect to the Securities of such series specifying such Event of Default, as
hereinbefore provided; (ii) the holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as trustee hereunder; (iii) such holder or holders
shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby;
and (iv) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity, shall have failed to institute any such action, suit or
proceeding and (v) during such 60 day period, the holders of a majority in
principal amount of the Securities of that series do not give the Trustee a
direction inconsistent with the request.
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Notwithstanding anything contained herein to the contrary, any other
provisions of this Indenture, the right of any holder of any Security to receive
payment of the principal of (and premium, if any) and interest on such Security,
as therein provided, on or after the respective due dates expressed in such
Security (or in the case of redemption, on the redemption date), or to institute
suit for the enforcement of any such payment on or after such respective dates
or redemption date, shall not be impaired or affected without the consent of
such holder and by accepting a Security hereunder it is expressly understood,
intended and covenanted by the taker and holder of every Security of such series
with every other such taker and holder and the Trustee, that no one or more
holders of Securities of such series shall have any right in any manner
whatsoever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of the holders of any other of such
Securities, or to obtain or seek to obtain priority over or preference to any
other such holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
holders of Securities of such series. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
SECTION 6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver.
(a) Except as otherwise provided in Section 2.07, all powers and remedies
given by this Article to the Trustee or to the Securityholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive of any other
powers and remedies available to the Trustee or the holders of the Securities,
by judicial proceedings or otherwise, to enforce the performance or observance
of the covenants and agreements contained in this Indenture or otherwise
established with respect to such Securities.
(b) No delay or omission of the Trustee or of any holder of any of the
Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or
shall be construed to be a waiver of any such default or on acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article or by law to the Trustee or the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders.
SECTION 6.06 Control by Securityholders.
The holders of a majority in aggregate principal amount of the Securities
of any series at the time Outstanding, determined in accordance with Section
8.01, shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee with respect to such series; provided,
however, that such direction shall not be in conflict with any rule of law or
with this Indenture or be unduly prejudicial to the rights of holders of
Securities of any other series at the time Outstanding determined in accordance
with Section 8.01. Subject to the provisions of Section 7.01, the Trustee shall
have the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee, determine that
the proceeding so directed would involve the Trustee in personal liability. The
holders of a majority in aggregate principal amount of the Securities of any
series at the time Outstanding affected thereby, determined in accordance with
Section 8.01, may on behalf of the holders of all of the Securities of such
series waive any past default in the performance of any of the covenants
contained herein or established pursuant to Section 2.01 with respect to such
series and its consequences, except a default in the payment of the principal
of, or premium, if any, or interest on, any of the Securities of that series as
and when the same shall become due by the terms of such Securities otherwise
than by acceleration (unless such default has been cured and a sum sufficient to
pay all matured installments of interest and principal and any premium has been
deposited with the Trustee (in accordance with Section 6.01(c)). Upon any such
waiver, the default covered thereby shall be deemed to be cured for all purposes
of this Indenture and the Company, the Trustee and the holders of the Securities
of such series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
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SECTION 6.07 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Securities by
such holder's acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the
Outstanding Securities of any series, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established pursuant to this
Indenture.
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a series and after the curing of all Events of
Default with respect to the Securities of that series that may have occurred,
shall undertake to perform with respect to the Securities of such series such
duties and only such duties as are specifically set forth in this Indenture, and
no implied covenants shall be read into this Indenture against the Trustee. In
case an Event of Default with respect to the Securities of a series has occurred
(that has not been cured or waived), the Trustee shall exercise with respect to
Securities of that series 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) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with respect to the
Securities of a series and after the curing or waiving of all such Events of
Default with respect to that series that may have occurred:
the duties and obligations of the Trustee shall with respect to the Securities
of such series be determined solely by the express provisions of this Indenture,
and the Trustee shall not be liable with respect to the Securities of such
series except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
in the absence of bad faith on the part of the Trustee, the Trustee may with
respect to the Securities of such series conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirement of this Indenture;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee, was negligent in ascertaining the
pertinent facts;
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(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the holders of not less than a majority in principal amount of the Securities of
any series at the time Outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee under this Indenture with respect
to the Securities of that series; and
(4) None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there is reasonable ground for believing that
the repayment of such funds or liability is not reasonably assured to it under
the terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
SECTION 7.02 Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond, security or other paper
or document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) Any request, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by a Board Resolution or an instrument signed in
the name of the Company, by the President or any Vice President and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer
thereof (unless other evidence in respect thereof is specifically prescribed
herein);
(c) The Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted hereunder in
good faith and in reliance thereon;
(d) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders, pursuant to the provisions of this Indenture, unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby; nothing contained herein shall, however, relieve the Trustee
of the obligation, upon the occurrence of an Event of Default with respect to a
series of the Securities (that has not been cured or waived) to exercise with
respect to Securities of that series such of the rights and powers vested in it
by this Indenture, and to 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;
(e) The Trustee shall not be liable for any action taken or omitted to be
taken by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, security, or
other papers or documents, unless requested in writing so to do by the holders
of not less than a majority in principal amount of the Outstanding Securities of
the particular series affected thereby (determined as provided in Section 8.04);
provided, however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such costs, expenses or
liabilities as a condition to so proceeding. The reasonable expense of every
such examination shall be paid by the Company or, if paid by the Trustee, shall
be repaid by the Company upon demand; and
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(g) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 7.03 Trustee Not Responsible for Recitals or Issuance or Securities.
(a) The recitals contained herein and in the Securities shall be taken as
the statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same.
(b) The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use or application by the
Company of any of the Securities or of the proceeds of such Securities, or for
the use or application of any moneys paid over by the Trustee in accordance with
any provision of this Indenture or established pursuant to Section 2.01, or for
the use or application of any moneys received by any paying agent other than the
Trustee.
SECTION 7.04 May Hold Securities.
The Trustee or any paying agent or Security Registrar, in its individual or
any other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not Trustee, paying agent or Security Registrar.
SECTION 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder except such as it
may agree with the Company to pay thereon.
SECTION 7.06 Compensation and Reimbursement.
(a) The Company covenants and agrees to pay to the Trustee, and the Trustee
shall be entitled to, such reasonable compensation (which shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust), as the Company, and the Trustee may from time to time agree in writing,
for all services rendered by it in the execution of the trusts hereby created
and in the exercise and performance of any of the powers and duties hereunder of
the Trustee, and, except as otherwise expressly provided herein, the Company
will pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advance as may
arise from its negligence or bad faith. The Company also covenants to indemnify
the Trustee (and its officers, agents, directors and employees) for, and to hold
it harmless against, any loss, liability or expense incurred without negligence
or bad faith on the part of the Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the costs and expenses
of defending itself against any claim of liability in the premises.
(b) The obligations of the Company under this Section to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular
Securities.
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SECTION 7.07 Reliance on Officers' Certificate.
Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Trustee and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted to be taken by it under the provisions of this Indenture
upon the faith thereof.
SECTION 7.08 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
SECTION 7.09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the Securities issued
hereunder which shall at all times be a corporation organized and doing business
under the laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or other Person permitted to
act as trustee by the Commission, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least 50
million U.S. dollars ($50,000,000), and subject to supervision or examination by
Federal, State, Territorial, or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. The Company may not, nor
may any Person directly or indirectly controlling, controlled by, or under
common control with the Company, serve as Trustee. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 7.10.
SECTION 7.10 Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter appointed, may at any time
resign with respect to the Securities of one or more series by giving written
notice thereof to the Company and by transmitting notice of resignation by mail,
first class postage prepaid, to the Securityholders of such series, as their
names and addresses appear upon the Security Register. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee
with respect to Securities of such series by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee with respect to Securities of such series, or any
Securityholder of that series who has been a bona fide holder of a Security or
Securities for at least six months may on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b) In case at any time any one of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of Section
7.08 after written request therefor by the Company or by any Securityholder who
has been a bona fide holder of a Security or Securities for at least six months;
or
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(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(3) the Trustee shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a
receiver of the Trustee or of its property shall be appointed or consented to,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, the Company may remove the Trustee with
respect to all Securities and appoint a successor trustee by written instrument,
in duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, unless the Trustee's duty to resign is stayed as provided
herein, any Securityholder who has been a bona fide holder of a Security or
Securities for at least six months may, on behalf of that holder and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee. Such court may
thereupon after such notice, if any, as it may deem proper and prescribe, remove
the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to such series by so notifying the Trustee and the Company
and may appoint a successor Trustee for such series with the consent of the
Company.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Securities of a series pursuant to any of
the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section may be
appointed with respect to the Securities of one or more series or all of such
series, and at any time there shall be only one Trustee with respect to the
Securities of any particular series.
SECTION 7.11 Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of a successor trustee with
respect to all Securities, every such successor trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor trustee all the rights, powers, and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor trustee relates, (2)
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust, that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee and that no
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Trustee shall be responsible for any act or failure to act on the part of any
other Trustee hereunder; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein, such retiring Trustee shall
with respect to the Securities of that or those series to which the appointment
of such successor trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture, and each such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor trustee relates; but, on request of the Company or any successor
trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor trustee, to the extent contemplated by such supplemental indenture,
the property and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such
successor trustee relates.
(c) Upon request of any such successor trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at the time of
such acceptance such successor trustee shall be qualified and eligible under
this Article.
(e) Upon acceptance of appointment by a successor trustee as provided in
this Section, the Company shall transmit notice of the succession of such
trustee hereunder by mail, first class postage prepaid, to the Securityholders,
as their names and addresses appear upon the Security Register. If the Company
fails to transmit such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.
SECTION 7.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 7.08 and eligible under the provisions
of Section 7.09, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 7.13 Preferential Collection of Claims Against the Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent included therein.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a majority or
specified percentage in aggregate principal amount of the Securities of a
particular series may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of
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taking any such action the holders of such majority or specified percentage of
that series have joined therein may be evidenced by any instrument or any number
of instruments of similar tenor executed by such holders of Securities of that
series in Person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders of any series any
request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of record at the
close of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite proportion
of Outstanding Securities of that series have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the Outstanding Securities of that series
shall be computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
SECTION 8.02 Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01, proof of the execution of any
instrument by a Securityholder (such proof will not require notarization) or his
agent or proxy and proof of the holding by any Person of any of the Securities
shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any instrument
may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Securities shall be proved by the Security Register of
such Securities or by a certificate of the Security Registrar thereof.
(c) The Trustee may require such additional proof of any matter referred to
in this Section as it shall deem necessary.
SECTION 8.03 Who May be Deemed Owners.
Prior to the due presentment for registration of transfer of any Security,
the Company, the Trustee, any paying agent and any Security Registrar may deem
and treat the Person in whose name such Security shall be registered upon the
books of the Company as the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notice of ownership or writing
thereon made by anyone other than the Security Registrar) for the purpose of
receiving payment of or on account of the principal of, premium, if any, and
(subject to Section 2.03) interest on such Security and for all other purposes;
and neither the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
SECTION 8.04 Certain Securities Owned by Company Disregarded.
In determining whether the holders of the requisite aggregate principal
amount of Securities of a particular series have concurred in any direction,
consent of waiver under this Indenture, the Securities of that series that are
owned by the Company or any other obligor on the Securities of that series or by
any Person directly or indirectly controlling or controlled by or under common
control with the Company or any other obligor on the Securities of that series
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Securities of such series that the Trustee actually knows are so owned
shall be so disregarded. The Securities so owned that have been pledged in good
faith may be regarded as Outstanding for the purposes of this
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Section, if the pledgee shall establish to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not a Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any such other obligor. In
case of a dispute as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee.
SECTION 8.05 Actions Binding on Future Securityholders.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any action by the holders of the
majority or percentage in aggregate principal amount of the Securities of a
particular series specified in this Indenture in connection with such action,
any holder of a Security of that series that is shown by the evidence to be
included in the Securities the holders of which have consented to such action
may, by filing written notice with the Trustee, and upon proof of holding as
provided in Section 8.02, revoke such action so far as concerns such Security.
Except as aforesaid any such action taken by the holder of any Security shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Security, and of any Security issued in exchange therefor, on
registration of transfer thereof or in place thereof, irrespective of whether or
not any notation in regard thereto is made upon such Security. Any action taken
by the holders of the majority or percentage in aggregate principal amount of
the Securities of a particular series specified in this Indenture in connection
with such action shall be conclusively binding upon the Company, the Trustee and
the holders of all the Securities of that series.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without the Consent of Securityholders.
In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect), without the
consent of the Securityholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency herein, in the
Securities of any series;
(b) to comply with Article Ten;
(c) to provide for uncertificated Securities in addition to or in place of
certificated Securities;
(d) to add to the covenants of the Company for the benefit of the holders
of all or any Series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company;
(e) to add to, delete from, or revise the conditions, limitations, and
restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Securities, as herein set forth;
(f) to make any change that does not adversely affect the rights of any
Securityholder in any material respect; or
(g) to provide for the issuance of and establish the form and terms and
conditions of the Securities of any series as provided in Section 2.01, to
establish the form of any certifications required to be furnished pursuant to
the terms of this Indenture or any series of Securities, or to add to the rights
of the holders of any series of Securities.
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The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may
be executed by the Company and the Trustee without the consent of the holders of
any of the Securities at the time Outstanding, notwithstanding any of the
provisions of Section 9.02.
SECTION 9.02 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Section 8.01) of the holders of
not less than a majority in aggregate principal amount of the Securities of each
series affected by such supplemental indenture or indentures at the time
Outstanding, the Company, when authorized by Board Resolutions, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as then in effect) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner not covered by
Section 9.01 the rights of the holders of the Securities of such series under
this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the holders of each Security then Outstanding and
affected thereby, (i) extend the fixed maturity of any Securities of any series,
or reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any premium payable upon the redemption
thereof or (ii) reduce the aforesaid percentage of Securities, the holders of
which are required to consent to any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders of any
series affected thereby under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
SECTION 9.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, this Indenture shall, with respect to such
series, be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the holders of Securities
of the series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 9.04 Securities Affected by Supplemental Indentures.
Securities of any series, affected by a supplemental indenture,
authenticated and delivered after the execution of such supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, may bear a
notation in form approved by the Company, provided such form meets the
requirements of any exchange upon which such series may be listed, as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of that series so modified as to conform, in the
opinion of the Board of Directors of the Company, to any modification of this
Indenture contained in any such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for the
Securities of that series then Outstanding.
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SECTION 9.05 Execution of Supplemental Indentures.
Upon the request of the Company, accompanied by its Board Resolutions
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders required
to consent thereto as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture. The Trustee, subject to
the provisions of Section 7.01, may receive an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to this Article is
authorized or permitted by, and conforms to, the terms of this Article and that
it is proper for the Trustee under the provisions of this Article to join in the
execution thereof; provided, however, that such Opinion of Counsel need not be
provided in connection with the execution of a supplemental indenture that
establishes the terms of a series of Securities pursuant to Section 2.01 hereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in
general terms the substance of such supplemental indenture, to the
Securityholders of all series affected thereby as their names and addresses
appear upon the Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
ARTICLE X
SUCCESSOR ENTITY
SECTION 10.01 Company May Consolidate, Etc.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other Person
(whether or not affiliated with the Company) or successive consolidations or
mergers in which the Company or its successor or successors shall be a party or
parties, or shall prevent any sale, conveyance, transfer or other disposition of
the property of the Company or its successor or successors as an entirety, or
substantially as an entirety, to any other corporation (whether or not
affiliated with the Company or its successor or successors) authorized to
acquire and operate the same; provided, however, the Company hereby covenants
and agrees that, upon any such consolidation or merger (in each case, if the
Company is not the survivor of such transaction), sale, conveyance, transfer or
other disposition, the due and punctual payment of the principal of (premium, if
any) and interest on all of the Securities of all series in accordance with the
terms of each series, according to their tenor and the due and punctual
performance and observance of all the covenants and conditions of this Indenture
with respect to each series or established with respect to such series pursuant
to Section 2.01 to be kept or performed by the Company shall be expressly
assumed, by supplemental indenture (which shall conform to the provisions of the
Trust Indenture Act, as then in effect) satisfactory in form to the Trustee
executed and delivered to the Trustee by the entity formed by such
consolidation, or into which the Company shall have been merged, or by the
entity which shall have acquired such property.
SECTION 10.02 Successor Entity Substituted.
(a) In case of any such consolidation, merger, sale, conveyance, transfer
or other disposition and upon the assumption by the successor entity by
supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the due and punctual payment of the principal of,
premium, if any, and interest on all of the Securities of all series Outstanding
and the due and punctual performance of all of the covenants and conditions of
this Indenture or established with respect to each series of the Securities
pursuant to Section 2.01 to be performed by the Company with respect to each
series, such successor entity shall succeed to and be substituted for the
Company with the same effect as if it had been named as the Company herein, and
thereupon the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Securities.
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(b) In case of any such consolidation, merger, sale, conveyance, transfer
or other disposition such changes in phraseology and form (but not in substance)
may be made in the Securities thereafter to be issued as may be appropriate.
(c) Nothing contained in this Article shall require any action by the
Company in the case of a consolidation or merger of any Person into the Company
where the Company is the survivor of such transaction, or the acquisition by the
Company, by purchase or otherwise, of all or any part of the property of any
other Person (whether or not affiliated with the Company).
SECTION 10.03 Evidence of Consolidation, Etc. to Trustee.
The Trustee, subject to the provisions of Section 7.01, may receive an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, conveyance, transfer or other disposition, and any such assumption, comply
with the provisions of this Article.
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have delivered to the Trustee for
cancellation all Securities of a series theretofore authenticated (other than
any Securities that shall have ben destroyed, lost or stolen and that shall have
been replaced or paid as provided in Section 2.07) and Securities for whose
payment money or Governmental Obligations have theretofore been deposited in
trust or segregated and held in trust by the Company (and thereupon repaid to
the Company or discharged from such trust, as provided in Section 11.05); or (b)
all such Securities of a particular series not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall deposit or cause to be
deposited with the Trustee as trust funds the entire amount in moneys or
Governmental Obligations sufficient or a combination thereof, 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 at
maturity or upon redemption all Securities of that series not theretofore
delivered to the Trustee for cancellation, including principal (and premium, if
any) and interest due or to become due to such date of maturity or date fixed
for redemption, as the case may be, and if the Company shall also pay or cause
to be paid all other sums payable hereunder with respect to such series by the
Company then this Indenture shall thereupon cease to be of further effect with
respect to such series except for the provisions of Sections 2.03, 2.05, 2.07,
4.01, 4.02, 4.03 and 7.10, that shall survive until the date of maturity or
redemption date, as the case may be, and Sections 7.06 and 11.05, that shall
survive to such date and thereafter, and the Trustee, on demand of the Company
and at the cost and expense of the Company shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to
such series.
SECTION 11.02 Discharge of Obligations.
If at any time all such Securities of a particular series not heretofore
delivered to the Trustee for cancellation or that have not become due and
payable as described in Section 11.01 shall have been paid by the Company by
depositing irrevocably with the Trustee as trust funds moneys or an amount of
Governmental Obligations sufficient to pay at maturity or upon redemption all
such Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or to
become due to such date of maturity or date fixed for redemption, as the case
may be, and if the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company with respect to such series, then after the
date such moneys or Governmental Obligations, as the case may be, are deposited
with the Trustee the obligations of the Company under this Indenture with
respect to such series shall cease to be of further effect except for the
30
<PAGE>
provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06, 7.10 and 11.05
hereof that shall survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06 and 11.05 shall survive.
SECTION 11.03 Deposited Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited with the Trustee pursuant
to Sections 11.01 or 11.02 shall be held in trust and shall be available for
payment as due, either directly or through any paying agent (including the
Company acting as its own paying agent), to the holders of the particular series
of Securities for the payment or redemption of which such moneys or Governmental
Obligations have been deposited with the Trustee.
SECTION 11.04 Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge of this Indenture all
moneys or Governmental Obligations then held by any paying agent under the
provisions of this Indenture shall, upon demand of the Company, be paid to the
Trustee and thereupon such paying agent shall be released from all further
liability with respect to such moneys or Governmental Obligations.
SECTION 11.05 Repayment to Company.
Any moneys or Governmental Obligations deposited with any paying agent or
the Trustee, or then held by the Company, in trust for payment of principal of
or premium or interest on the Securities of a particular series that are not
applied but remain unclaimed by the holders of such Securities for at least two
years after the date upon which the principal of (and premium, if any) or
interest on such Securities shall have respectively become due and payable,
shall be repaid to the Company on May 31 of each year or (if then held by the
Company) shall be discharged from such trust; and thereupon the paying agent and
the Trustee shall be released from all further liability with respect to such
moneys or Governmental Obligations, and the holder of any of the Securities
entitled to receive such payment shall thereafter, as an unsecured general
creditor, look only to the Company for the payment thereof.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01 No Recourse.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or
director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such
predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the Company or of
any predecessor or successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom, are hereby expressly waived and released as
a condition of, and as a consideration for, the execution of this Indenture and
the issuance of such Securities.
31
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 13.02 Actions by Successor.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
corresponding board, committee or officer of any corporation that shall at the
time be the lawful sole successor of the Company.
SECTION 13.03 Surrender of Company Powers.
The Company by instrument in writing executed by authority of its Board of
Directors and delivered to the Trustee may surrender any of the powers reserved
to the Company, and thereupon such power so surrendered shall terminate both as
to the Company and as to any successor corporation.
SECTION 13.04 Notices.
Except as otherwise expressly provided herein any notice or demand that by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the holders of Securities to or on the Company may be given
or served by being deposited first class postage prepaid in a post-office
letterbox addressed (until another address is filed in writing by the Company
with the Trustee), as follows: [______________]. Any notice, election, request
or demand by the Company or any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at the Corporate Trust Office of the Trustee.
SECTION 13.05 Governing Law.
This Indenture and each Security shall be deemed to be a contract made
under the internal laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of said State.
SECTION 13.06 Treatment of Securities as Debt.
It is intended that the Securities will be treated as indebtedness and not
as equity for federal income tax purposes. The provisions of this Indenture
shall be interpreted to further this intention.
SECTION 13.07 Compliance Certificates and Opinions.
(a) Upon any application or demand by the Company to the Trustee to take
any action under any of the provisions of this Indenture, the Company, shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
32
<PAGE>
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
in this Indenture 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 has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 13.08 Payments on Business Days.
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution,
and as set forth in an Officers' Certificate, or established in one or more
indentures supplemental to this Indenture, in any case where the date of
maturity of interest or principal of any Security or the date of redemption of
any Security shall not be a Business Day, then payment of interest or principal
(and premium, if any) may be made on the next succeeding Business Day with the
same force and effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal date.
SECTION 13.09 Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
SECTION 13.10 Counterparts.
This Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
and the same instrument.
SECTION 13.11 Separability.
In case any one or more of the provisions contained in this Indenture or in
the Securities of any series shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of such Securities,
but this Indenture and such Securities shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
SECTION 13.12 Assignment.
The Company will have the right at all times to assign any of its rights or
obligations under this Indenture to a direct or indirect wholly- owned
Subsidiary of the Company, provided that, in the event of any such assignment,
the Company, will remain liable for all such obligations. Subject to the
foregoing, the Indenture is binding upon and inures to the benefit of the
parties thereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties thereto.
33
<PAGE>
ARTICLE XIV
SUBORDINATION OF SECURITIES
SECTION 14.01 Subordination Terms.
The payment by the Company of the principal of, premium, if any, and
interest on any series of Securities issued hereunder shall be subordinated to
the extent set forth in an indenture supplemental hereto relating to such
Securities.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
CMGI, INC.
By:_____________________________________
Name:
Title:
[ ],
as Trustee
By:_____________________________________
Name:
Title:
34
<PAGE>
Exhibit 5.1
-----------
December 17, 1999
CMGI, Inc.
100 Brickstone Square
Andover, MA 01810
Re: CMGI, Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to CMGI, Inc. (the "Company"), a corporation
organized under the laws of the State of Delaware, in connection with the
preparation of a Registration Statement on Form S-3 (the "Registration
Statement"), to be filed by the Company with the Securities and Exchange
Commission (the "Commission") on December 17, 1999 under the Securities Act of
1933, as amended (the "Act"). The Registration Statement relates to the issuance
and sale from time to time pursuant to Rule 415 of the General Rules and
Regulations promulgated under the Act, of the following securities with an
aggregate public offering price of up to $1,000,000,000: (i) senior or
subordinated debt securities, in one or more series (the "Debt Securities"),
which may be issued under the senior Indenture (the "Senior Indenture"),
proposed to be entered into between the Company and a trustee to be selected,
and the subordinated Indenture (the "Subordinated Indenture") proposed to be
entered into between the Company and a trustee to be selected, respectively,
each filed as an exhibit to the Registration Statement (collectively, the
"Indentures" and each trustee, a "Trustee"); (ii) shares of preferred stock,
$0.01 par value per share (the "Preferred Stock"), in one or more series and
(iii) shares of common stock, $0.01 par value per share (the "Common Stock").
The shares of Preferred Stock and Common Stock referred to above also include
such indeterminate number of shares of Preferred Stock or Common Stock, as may
be issued upon conversion or exchange of any convertible or exchangeable Debt
Securities or Preferred Stock, including such shares of Preferred Stock or
Common Stock as may be issued pursuant to anti-dilution adjustments, in amounts,
at prices and on terms to be determined at the time of offering (the
"Indeterminate Stock"). The Debt Securities, the Preferred Stock, the Common
Stock and the Indeterminate Stock are collectively referred to herein as the
"Offered Securities."
This opinion is being delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Registration
Statement relating to the Offered Securities; (ii) the forms of the Indentures;
(iii) the Certificate of Incorporation of the Company, as currently in effect
(the "Certificate of Incorporation"); (iv) the By-laws of the Company, as
<PAGE>
CMGI, Inc.
December 17, 1999
Page 2
currently in effect (the "By-laws"); (v) a specimen certificate evidencing the
Common Stock and (vi) certain resolutions adopted to date by the Board of
Directors of the Company (the "Board of Directors") relating to the registration
of the Offered Securities. We have also examined originals or copies, certified
or otherwise identified to our satisfaction, of such other documents,
certificates and records as we have deemed necessary or appropriate as a basis
for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies. In making our examination of
executed documents or documents to be executed, we have assumed that the parties
thereto, other than the Company, had or will have the power, corporate or other,
to enter into and perform all obligations thereunder and have also assumed the
due authorization by all requisite action, corporate or other, and execution and
delivery by such parties of such documents and that such documents constitute or
will constitute valid and binding obligations of such parties. We have assumed
that the Indentures will be duly authorized, executed and delivered by the
applicable Trustees and that any Debt Securities that may be issued will be
manually signed by duly authorized officers of the Trustees. In addition, we
have assumed that the terms of the Offered Debt Securities (defined below) and
the Offered Preferred Stock (defined below) will have been established so as not
to violate any applicable law, the Certificate of Incorporation or By-Laws or
result in a default under or breach of any agreement or instrument binding upon
the Company and so as to comply with any requirement or restriction imposed by
any court or governmental body having jurisdiction over the Company. We have
also assumed that (i) the stock certificates evidencing the Preferred Stock to
be issued will be in a form that complies with, and the terms of such Preferred
Stock will be duly established in accordance with, the Delaware General
Corporation Law (the "DGCL"), and (ii) the stock certificate evidencing any
Offered Common Stock (defined below) issued will conform to the specimen
certificate examined by us and will be duly executed and delivered. We have also
assumed that the number of shares of Common Stock offered pursuant to the
Registration Statement does not exceed, at the time of issuance, the authorized
but unissued shares of Common Stock. As to any facts material to the opinions
expressed herein which were not independently established or verified, we have
relied upon oral or written statements and representations of officers and other
representatives of the Company and others.
We have assumed that the execution and delivery by the Company of the
Offered Debt Securities and the performance by the Company of its obligations
thereunder will not violate, conflict with or constitute a default under (i) any
agreement or instrument to which the Company or its properties is subject
(except that we do not make the assumption set forth in this clause (i) with
respect to the Certificate of Incorporation or By-laws), (ii) any law, rule or
regulation to which the Company is subject (except that we do not make the
assumption set forth in this clause (ii) with respect to those laws, rules and
regulations of the State of Delaware, the Commonwealth of Massachusetts and of
the United States of America, in each case, that, in our experience, are
<PAGE>
CMGI, Inc.
December 17, 1999
Page 3
normally applicable to transactions of the type provided for by the Registration
Statement, but without our having made any special investigation with respect to
any other laws, rules or regulations), (iii) any judicial or regulatory order or
decree of any governmental authority or (iv) any consent, approval, license,
authorization or validation of, or filing, recording or registration with any
governmental authority.
We are opining herein solely with respect to the state laws of the
Commonwealth of Massachusetts and the Delaware General Corporation Law statute.
To the extent that the laws of any other jurisdiction govern any of the matters
as which we are opining herein, we have assumed that such laws are identical to
the state laws of the Commonwealth of Massachusetts.
Based on and subject to the foregoing and to the other qualifications and
limitations set forth herein, we are of the opinion that:
1. With respect to any series of Debt Securities (the "Offered Debt
Securities"), when (i) the Registration Statement, as finally amended (including
all necessary post-effective amendments), has become effective under the Act and
the applicable Indenture has been qualified under the Trust Indenture Act of
1939, as amended; (ii) an appropriate prospectus supplement or term sheet with
respect to the Offered Debt Securities has been prepared, delivered and filed in
compliance with the Act and the applicable rules and regulations thereunder;
(iii) if the Offered Debt Securities are to be sold pursuant to a firm
commitment underwritten offering, an underwriting agreement with respect to the
Offered Debt Securities has been duly authorized, executed and delivered by the
Company and the other parties thereto; (iv) the Board of Directors, including
any appropriate committee appointed thereby, and appropriate officers of the
Company have taken all necessary corporate action to approve the issuance and
terms of the Offered Debt Securities and related matters; and (v) the Offered
Debt Securities have been duly executed and authenticated in accordance with the
provisions of the applicable Indenture and duly delivered to the purchasers
thereof upon payment of the agreed-upon consideration therefor, (1) the Offered
Debt Securities, when issued and sold in accordance with the applicable
Indenture and the applicable underwriting agreement, if any, or any other duly
authorized, executed and delivered valid and binding purchase or agency
agreement, will be valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, except to the
extent that enforcement thereof may be limited by (a) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (b) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity); and (2) if the Offered Debt Securities are
convertible into Offered Common Stock, the Offered Common Stock issuable upon
conversion of the Offered Debt Securities will be duly authorized, validly
issued, fully paid and nonassessable, assuming the issuance of the Offered
Common Stock upon conversion of the Offered Debt Securities has been authorized
by all necessary corporate action, that the Offered Debt Securities have been
converted in accordance with their terms and the terms of the applicable
Indenture and that the certificates evidencing such shares of
<PAGE>
CMGI, Inc.
December 17, 1999
Page 4
Offered Common Stock are duly executed and delivered. In rendering the opinion
set forth in clause (2) of this paragraph 1, we have assumed that, at the time
of issuance of any Offered Common Stock upon conversion of the Offered Debt
Securities, the Certificate of Incorporation, the By-Laws and the DGCL shall not
have been amended so as to affect the validity of such issuance.
2. With respect to the shares of any series of Preferred Stock (the
"Offered Preferred Stock"), when (i) the Registration Statement, as finally
amended (including all necessary post-effective amendments), has become
effective under the Act; (ii) an appropriate prospectus supplement or term sheet
with respect to the shares of the Offered Preferred Stock has been prepared,
delivered and filed in compliance with the Act and the applicable rules and
regulations thereunder; (iii) the terms of the Offered Preferred Stock and of
their issuance and sale have been duly established by all necessary corporate
action in conformity with the Certificate of Incorporation, including a
Certificate of Designation relating to the Offered Preferred Stock, and the By-
Laws; (iv) the filing of a Certificate of Designation with the Secretary of
State of the State of Delaware has duly occurred; (v) if the Offered Preferred
Stock is to be sold pursuant to a firm commitment underwritten offering, an
underwriting agreement with respect to the shares of the Offered Preferred Stock
has been duly authorized, executed and delivered by the Company and the other
parties thereto; and (vi) certificates representing the shares of the Offered
Preferred Stock have been duly executed and delivered by the proper officers of
the Company to the purchasers thereof against payment of the agreed-upon
consideration therefor in the manner contemplated in the Registration Statement
or any prospectus supplement or term sheet relating thereto, (1) the shares of
the Offered Preferred Stock, when issued and sold in accordance with the
applicable underwriting agreement or any other duly authorized, executed and
delivered applicable purchase agreement, will be duly authorized, validly
issued, fully paid and nonassessable, provided that the consideration therefor
is not less than the par value thereof; and (2) if the Offered Preferred Stock
is convertible into Offered Common Stock, the Offered Common Stock issuable upon
conversion of the Offered Preferred Stock will be duly authorized, validly
issued, fully paid and nonassessable, assuming the issuance of the Offered
Common Stock upon conversion of the Offered Preferred Stock has been authorized
by all necessary corporate action, that the Offered Preferred Stock has been
converted in accordance with the terms of a duly authorized, executed and filed
Certificate of Designation and that the certificates evidencing such shares of
Offered Common Stock are duly executed and delivered. In rendering the opinion
set forth in clause (2) of this paragraph 2, we have assumed that, at the time
of issuance of any Offered Common Stock upon conversion of the Offered Preferred
Stock, the Certificate of Incorporation, the By-Laws and the DGCL shall not have
been amended so as to affect the validity of such issuance.
3. With respect to the shares of Common Stock (the "Offered Common Stock"),
when (i) the Registration Statement, as finally amended (including all necessary
<PAGE>
CMGI, Inc.
December 17, 1999
Page 5
post-effective amendments), has become effective under the Act; (ii) an
appropriate prospectus supplement or term sheet with respect to the shares of
the Offered Common Stock has been prepared, delivered and filed in compliance
with the Act and the applicable rules and regulations thereunder; (iii) the
terms of the issuance and sale of the Offered Common Stock have been duly
established by all necessary corporate action in conformity with the Certificate
of Incorporation and the By-Laws; (iv) if the Offered Common Stock is to be sold
pursuant to a firm commitment underwritten offering, an underwriting agreement
with respect to the shares of the Offered Common Stock has been duly authorized,
executed and delivered by the Company and the other parties thereto; and (v)
certificates representing the shares of the Offered Common Stock have been duly
executed and delivered by the proper officers of the Company to the purchasers
thereof against payment of the agreed-upon consideration therefor in the manner
contemplated in the Registration Statement or any prospectus supplement or term
sheet relating thereto, the shares of the Offered Common Stock, when issued and
sold in accordance with the applicable underwriting agreement or any other duly
authorized, executed and delivered applicable purchase agreement, will be duly
authorized, validly issued, fully paid and nonassessable, provided that the
consideration therefor is not less than the par value thereof.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement. We also hereby consent to the use of our
name under the heading "Legal Matters" in the prospectus which forms a part of
the Registration Statement. In giving this consent, we do not thereby admit
that we are within the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Commission promulgated
thereunder. This opinion is expressed as of the date hereof unless otherwise
expressly stated, and we disclaim any undertaking to advise you of any
subsequent changes in the facts stated or assumed herein or of any subsequent
changes in applicable law.
Very truly yours,
/s/ Hale and Dorr LLP
<PAGE>
Exhibit 12.1
RATIO OF EARNINGS TO FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
<TABLE>
<CAPTION>
Three Months
Year-Ended July 31, Ended
-------------------------------------------------------- October 31,
1995 1996 1997 1998 1999 1999
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Consolidated ratio of :
Earnings (loss) Add: pre-tax income (loss) from
continuing operations 5,824 33,174 (12,800) 58,819 749,245 (158,147)
before adjustment for minority
interest in consolidated
subsidiaries (14) (2,169) (4,787) 28 (2,331) (23,288)
or income or loss from equity
investees 306 2,915 5,556 12,871 15,737 1,796
+ fixed charges (interest
expensed or capitalized, 23 59 1,619 3,296 4,371 5,700
amortized premiums, discounts
and capitalized expenses
related to indebtedness, - - 15 20 20 5
an estimate of the interest
within rental expenses 348 561 1,843 3,485 5,428 2,359
preference security dividend
requirements of consolidated
subsidiaries) - - - - 304 -
+ amortization of capitalized
interest - - - - - -
+ distributed income of equity
investees - - - - - -
+ share of pre-tax losses of
equity investees for which
charges arising from - - - - - -
guarantees are included in
fixed charges
Subtract: interest capitalized - - - - - -
- preference security dividend
requirements of consolidated
subsidiaries - - - - 304 -
- minority interest in pre-tax
income of subsidiaries that
have not incurred fixed
charges - - - - - -
------ ------- -------- ------- -------- ---------
Total earnings (loss): 6,487 34,540 (8,554) 78,519 773,078 (171,575)
to
Fixed Charges interest expensed or
capitalized, 23 59 1,619 3,296 4,371 5,700
amortized premiums, discounts
and capitalized expenses
related to indebtedness, - - 106 - - -
an estimate of the interest
within rental expenses 348 561 1,843 3,485 5,428 2,359
preference security dividend
requirements of consolidated
subsidiaries - - - - 304 -
------ ------- -------- ------- -------- ---------
Fixed Charges: 371 620 3,568 6,781 10,103 8,059
Fixed Charges plus 371 620 3,568 6,781 10,103 8,059
Preferred Stock dividends - - - - 1,662 2,235
------ ------- -------- ------- -------- ---------
Combined fixed charges and preferred stock
dividends: 371 620 3,568 6,781 11,765 10,294
------ ------- -------- ------- -------- ---------
1) Consolidated ratio of earnings to fixed charges 17.50 55.71 N/A 11.58 76.52 N/A
------ ------- -------- ------- -------- ---------
2) Deficiency of consolidated earnings to cover
fixed charges N/A N/A (12,122) N/A N/A (179,634)
------ ------- -------- ------- -------- ---------
3) Consolidated ratio of earnings to combined fixed
charges and preferred stock dividends 17.50 55.71 N/A 11.58 65.71 N/A
------ ------- -------- ------- -------- ---------
4) Deficiency of consolidated earnings to cover
combined fixed charges and preferred stock
dividends N/A N/A (12,122) N/A N/A (181,869)
------ ------- -------- ------- -------- ---------
</TABLE>
* Excludes beneficial conversion feature of Series C Preferred Stock of $2.7
million for the quarter ended October 31, 1999, as this amount does not
represent a claim on cash of the company.
<PAGE>
Exhibit 23.1
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
CMGI, Inc.
We consent to the use of our reports incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the Prospectus.
/s/ KPMG LLP
KPMG LLP
Boston, Massachusetts
December 16, 1999
<PAGE>
Exhibit 23.2
------------
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement of CMGI, Inc. on Form S-3 of our report, dated June 17, 1997, except
for Note 6, for which the date is June 9, 1999, relating to the financial
statements of Shopping.com which appear in the Form 8-K of CMGI, Inc. dated June
29, 1999. We also consent to the reference to our Firm under the caption
"Experts" in the prospectus, which is part of this Registration Statement.
/s/ Singer Lewak Greenbaum & Goldstein LLP
Singer Lewak Greenbaum & Goldstein LLP
Los Angeles, California
December 16, 1999
<PAGE>
Exhibit 23.3
------------
Consent of Independent Accountants
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our reports dated as follows:
. June 29, 1999 relating to the financial statements of AltaVista,
. April 2, 1999 relating to the financial statements of Zip2 Corporation, and
. June 9, 1999, except as to Note 12, which is as of July 3, 1999, relating to
the financial statements of Shopping.com
which appear in the CMGI, Inc. Current Report on Form 8-K dated June 29, 1999.
We also consent to the reference to us under the heading "Experts" in such
Registration Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
San Jose, California
December 16, 1999
<PAGE>
Exhibit 23.4
------------
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-3 of CMGI, Inc. of our report dated October 18, 1999 relating to the
consolidated financial statements of Flycast Communications Corporation as of
December 31, 1997 and 1998, and for each of the three years in the period ended
December 31, 1998, appearing in the Current Report on Form 8-K of CMGI, Inc.
dated December 17, 1999.
We also consent to the reference to us under the heading "Experts" in such
Prospectus.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
San Jose, California
December 16, 1999
