<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 25, 1997
REGISTRATION NO. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
THE TIMES MIRROR COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 95-4481525
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
TIMES MIRROR SQUARE
LOS ANGELES, CALIFORNIA 90053
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES OF REGISTRANT) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER INCLUDING AREA CODE: (213) 237-3700
---------------
E. THOMAS UNTERMAN
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
THE TIMES MIRROR COMPANY
TIMES MIRROR SQUARE
LOS ANGELES, CALIFORNIA 90053
(213) 237-3700
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE OF PROCESS)
COPY TO:
KATHLEEN G. MCGUINNESS, ESQ.
VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
THE TIMES MIRROR COMPANY
TIMES MIRROR SQUARE
LOS ANGELES, CALIFORNIA 90053
(213) 237-3700
---------------
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement from the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
(The Facing Page is continued on the following page)
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, AS AMENDED, OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION,
ACTING PURSUANT TO SUCH SECTION 8(a), MAY DETERMINE.
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- -------------------------------------------------------------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================
TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities......... (2), (3) 100% (2) (2) see below
- ---------------------------------------------------------------------------------------------------
Preferred Stock......... (2), (4) (2) (2) see below
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Common Stock............ (2), (5) (2) (2) see below
- ---------------------------------------------------------------------------------------------------
Warrants................ (2), (6) (2) (2) see below
- ---------------------------------------------------------------------------------------------------
Stock Purchase
Contracts............... (2), (7) (2) (2) see below
- ---------------------------------------------------------------------------------------------------
Stock Purchase Units.... (2), (8) (2) (2) see below
- ---------------------------------------------------------------------------------------------------
Total................. $250,000,000(2) (2) $250,000,000(2) $75,758
===================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(2) In no event will the aggregate maximum offering price of all securities
issued, from time to time, pursuant to this Registration Statement exceed
$250,000,000. The proposed maximum offering price per unit will be
determined, from time to time, by the Registrant in connection with the
issuance by the Registrant of the securities registered hereunder. Any
securities registered hereunder may be sold separately or as units with
other securities registered hereunder.
(3) Subject to footnote (2), there are being registered hereunder an
indeterminate principal amount of Debt Securities (as defined below) as
may be sold, from time to time, by the Registrant, including sales upon
the exercise of Warrants (as defined below). If any Debt Securities are
being issued at an original issue discount, then the offering price shall
be in such greater principal amount as shall result in an aggregate
initial offering price not to exceed $250,000,000, less the dollar amount
of any Securities previously issued hereunder.
(4) Subject to footnote (2), there are being registered hereunder an
indeterminate number of shares of Preferred Stock (as defined below) as
may be sold, from time to time, by the Registrant, including sales upon
exercise of Warrants. There are also being registered hereunder an
indeterminate number of shares of Preferred Stock under the Stock Purchase
Contracts (as defined below) or as shall be issuable upon conversion of
Debt Securities registered hereby.
(5) Subject to footnote (2), there are being registered hereunder an
indeterminate number of shares of Common Stock (as defined below) as may
be sold, from time to time, by the Registrant, including sales upon
exercise of Warrants. There are also being registered hereunder an
indeterminate number of shares of Common Stock under the Stock Purchase
Contracts or as shall be issuable upon conversion of the Preferred Stock
or Debt Securities registered hereby.
(6) Subject to footnote (2), there are being registered hereunder an
indeterminate amount and number of Warrants as may be sold, from time to
time, by the Registrant, representing rights to purchase Debt Securities,
Preferred Stock or Common Stock.
(7) Subject to footnote (2), there are being registered hereunder an
indeterminate amount and number of Stock Purchase Contracts, representing
rights to purchase Preferred Stock or Common Stock.
(8) Subject to footnote (2), there are being registered hereunder an
indeterminate amount and number of Stock Purchase Units, representing
ownership of Stock Purchase Contracts and Debt Securities or debt
obligations of third parties, including United States Treasury securities.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED MARCH 25, 1997
P R O S P E C T U S
THE TIMES MIRROR COMPANY
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
STOCK PURCHASE CONTRACTS
STOCK PURCHASE UNITS
-----------
The Times Mirror Company, a Delaware corporation (the "Company" or "Times
Mirror"), may offer and sell, from time to time, up to an initial aggregate
offering price of $250 million, its: (i) unsecured debt securities, which may
be either senior ("Senior Debt Securities") or subordinated ("Subordinated Debt
Securities") (the Senior Debt Securities and Subordinated Debt Securities being
referred to collectively as the "Debt Securities") in one or more series,
consisting of debentures, notes or other evidences of indebtedness and having
such prices and terms as are determined at the time of sale; (ii) shares of
Preferred Stock, par value $1.00 per share ("Preferred Stock"), which may be
issued in one or more series; (iii) shares of Series A Common Stock, par value
$1.00 per share ("Series A Common Stock"), and shares of Series B Common Stock,
par value $1.00 per share ("Series B Common Stock, " and collectively with
Series A Common Stock, the "Common Stock"), which may be issued in either or
both series; (iv) warrants ("Warrants") to purchase Debt Securities, Preferred
Stock or Common Stock, (v) stock purchase contracts ("Stock Purchase
Contracts") to purchase Preferred Stock or Common Stock; and (vi) stock
purchase units ("Stock Purchase Units"), which consist of a Stock Purchase
Contract and Debt Securities or debt obligations of third parties, including
United States Treasury securities, securing the holder's obligation to purchase
the Preferred Stock or Common Stock under the Stock Purchase Contract. The Debt
Securities, Preferred Stock, Common Stock, Warrants, Stock Purchase Contracts
and Stock Purchase Units are collectively referred to herein as "Securities."
The Securities may be issued as units and in any combination.
Specific terms of the Securities ("Offered Securities") in respect of which
this Prospectus is being delivered will be set forth in an applicable
Prospectus Supplement ("Prospectus Supplement"), together with the terms of the
offering of the Offered Securities and the initial price and net proceeds to
the Company from the sale thereof. The Prospectus Supplement will set forth
with regard to the particular Offered Securities, without limitation, the
following: (i) in the case of Debt Securities, the specific designation,
aggregate principal amount, purchase price, ranking as senior or subordinated
debt, authorized denomination, maturity, rate or rates of interest (or method
of calculation thereof) and dates for payment thereof, dates from which
interest shall accrue, any exchangeability, conversion, redemption, prepayment
or sinking fund provisions, the currency or currencies or currency unit or
currency units in which principal, premium, if any, or interest, if any, is
payable, and any listing on a national securities exchange; (ii) in the case of
Preferred Stock, the designation, number of shares, liquidation preference per
share, initial public offering price, dividend rate (or method of calculation
thereof), dates on which dividends shall be payable and dates from which
dividends shall accrue, any redemption or sinking fund provisions, any voting
rights, any conversion or exchange rights and any listing on a national
securities exchange; (iii) in the case of Common Stock, the series, the voting
rights, the number of votes per share, the number of shares of Common Stock and
the terms of the offering and sale thereof and any listing on a national
securities exchange; (iv) in the case of Warrants, the number and terms
thereof, the designation and number of Debt Securities, Preferred Stock or
Common Stock issuable upon their exercise, the exercise price, the terms of the
offering and sale thereof, where applicable, the duration and detachability
thereof, and any listing of the Warrants or the underlying Debt Securities,
Preferred Stock or Common Stock on a national securities exchange; (v) in the
case of Stock Purchase Contracts, the designation and number of shares of
Preferred Stock or Common Stock issuable thereunder, the purchase price of the
Preferred Stock or Common Stock, the date or dates on which the Preferred Stock
or Common Stock is required to be purchased by the holders of the Stock
Purchase Contracts, any periodic payments required to be made by the Company to
the holders of the Stock Purchase Contracts or vice-versa, and the terms of the
offering and sale thereof; and (vi) in the case of Stock Purchase Units, the
specific terms of the Stock Purchase Contracts and any Debt Securities or debt
obligations of third parties, including United States Treasury securities,
securing the holder's obligation to purchase the Preferred Stock or Common
Stock under the Stock Purchase Contracts, the terms of the offering and sale
thereof and any listing on a national securities exchange. The Prospectus
Supplement will also contain information, where applicable, about certain
federal income tax considerations relating to the Securities covered by the
Prospectus Supplement.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
-----------
Prior to issuance there will have been no market for the Debt Securities,
Preferred Stock, Series B Common Stock, Warrants, Stock Purchase Contracts or
Stock Purchase Units and there can be no assurance that a secondary market for
the Debt Securities, Preferred Stock, Series B Common Stock, Warrants, Stock
Purchase Contracts or Stock Purchase Units will develop. This Prospectus may
not be used to consummate sales of Securities unless accompanied by a
Prospectus Supplement. The Securities may be offered through one or more
different plans of distribution, including offerings through underwriters. See
"Plan of Distribution."
THE DATE OF THIS PROSPECTUS IS , 1997
<PAGE>
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (together with all amendments and
exhibits thereto, the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the Debt Securities,
Preferred Stock, Common Stock, Warrants, Stock Purchase Contracts and Stock
Purchase Units. This Prospectus, which constitutes part of the Registration
Statement, does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the Rules and Regulations of the Commission. For further information with
respect to the Company, reference is made to the Registration Statement.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports, proxy statements and other information with the
Commission. Such Registration Statement and the other reports and information
filed by Times Mirror with the Commission can be inspected and copied at the
public reference facilities maintained by the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549; and at its
regional offices located at Northwestern Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511, and 7 World Trade Center,
13th Floor, New York, New York 10048. Copies of such material can be obtained
from the public reference section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. Electronic filings made by the
Company through the Commission's Electronic Data Gathering, Analysis and
Retrieval System are publicly available through the Commission's world wide
web site (http://www.sec.gov). Series A Common Stock and Conversion Preferred
Stock, Series B, par value $1.00 per share ("Series B Preferred Stock"), of
Times Mirror are listed on the New York Stock Exchange (the "NYSE"), and
Series A Common Stock is also listed on the Pacific Stock Exchange and
reports, proxy and information statements and other information concerning
Times Mirror can be inspected at such exchanges. On February 28, 1997, the
Company announced that it will redeem all of its currently issued and
outstanding Series B Preferred Stock on April 2, 1997, whereupon the Company
will request that the Series B Preferred Stock be delisted from the NYSE.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the Commission
(File No. 1-13492) pursuant to the Exchange Act are incorporated by reference
and shall be deemed a part hereof:
(a) Times Mirror's Annual Report on Form 10-K for the year ended December
31, 1996; and
(b) The descriptions of the Company's Series A Common Stock set forth
under the caption "Description of Registrant's Securities to be Registered"
in Times Mirror's Registration Statements on Form 8-A dated November 21,
1994 and December 22, 1994, respectively, together with any amendment or
report filed with the Commission for the purpose of updating such
descriptions.
All other reports filed by Times Mirror pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the offering of the Securities hereby are incorporated
herein by reference and shall be deemed a part hereof when filed.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained
herein, or in any other subsequently filed document that also is incorporated
or deemed to be incorporated by reference herein, modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
Subject to the foregoing, all information appearing in this Prospectus is
qualified in its entirety by the information appearing in the documents
incorporated by reference.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement. The delivery of this Prospectus
together with a Prospectus Supplement relating to particular Offered
Securities in any jurisdiction shall not constitute an offer in the
jurisdiction of any other securities covered by this Prospectus.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WITH RESPECT TO THE
COMPANY THAT ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS
ARE AVAILABLE WITHOUT CHARGE TO ANY PERSON, INCLUDING ANY BENEFICIAL OWNER, TO
WHOM THIS PROSPECTUS IS DELIVERED, UPON WRITTEN OR ORAL REQUEST TO CORPORATE
SECRETARY, THE TIMES MIRROR COMPANY, TIMES MIRROR SQUARE, LOS ANGELES,
CALIFORNIA 90053, TELEPHONE (213) 237-3700.
2
<PAGE>
THE COMPANY
Times Mirror is engaged principally in the newspaper publishing,
professional information and consumer media publishing businesses. Times
Mirror publishes the Los Angeles Times, Newsday, The Baltimore Sun, The
Hartford Courant, The Morning Call, The (Stamford) Advocate, Greenwich Time,
and several smaller newspapers. Through its subsidiaries, the Company also
provides professional information to the legal, aviation and health science
and consumer health markets, publishes books, journals, and magazines and also
provides training information and services. Times Mirror was incorporated in
the State of Delaware in June 1994 for the purpose of owning and operating
these businesses after a reorganization of Times Mirror's predecessor was
completed in February 1995. Times Mirror's predecessor was incorporated in
1884 in the State of California and was reincorporated in the State of
Delaware in 1986. All references herein to the Company and Times Mirror shall
include Times Mirror's predecessor, Times Mirror's subsidiaries and Times
Mirror, collectively, unless the context suggests otherwise.
Times Mirror's principal executive offices are located at Times Mirror
Square, Los Angeles, California 90053 and its telephone number is (213) 237-
3700.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the net
proceeds from the sale of all Securities will be used for general corporate
purposes.
RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS
TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratio of earnings to fixed charges and
the ratio of earnings to fixed charges and preferred stock dividends for the
Company for the periods indicated.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31
-------------------------
1992 1993 1994 1995 1996
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges............... (a) 2.0x 3.8x (b) 9.6x
Ratio of earnings to fixed charges and preferred
stock dividends................................. N/A N/A N/A (c) 3.4x
</TABLE>
- --------
(a) Earnings were approximately $7 million lower than the amount needed to
cover fixed charges in this year, as earnings in 1992 were impacted by
over $200 million in restructuring charges.
(b) Earnings were approximately $451 million lower than the amount needed to
cover fixed charges in this year, as earnings in 1995 were impacted by
approximately $768 million in restructuring charges.
(c) Earnings were approximately $526 million lower than the amount needed to
cover fixed charges and preferred stock dividends in this year, as
earnings in 1995 were impacted by approximately $768 million in
restructuring charges.
The ratio of earnings to fixed charges was computed by dividing earnings
(income from continuing operations before income taxes, adjusted for fixed
charges (net of capitalized interest), equity income or loss from
unconsolidated affiliates and amortization of capitalized interest) by fixed
charges for the years indicated. Fixed charges include interest incurred on
long-term and other debt, capitalized interest, the interest factor deemed to
be included in rental expense, and certain amortization of debt issuance
costs.
The ratio of earnings to fixed charges and preferred stock dividends was
computed as described above, except that fixed charges were combined with the
preferred stock dividends for the year indicated. The Company's Series A
Preferred Stock and Series B Preferred Stock were issued in 1995 and began
accruing dividends on March 1, 1995.
3
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The following description of the Debt Securities sets forth certain general
terms and provisions of the Debt Securities, whether Senior Debt Securities or
Subordinated Debt Securities unless a distinction is otherwise made below, to
which any Prospectus Supplement may relate ("Offered Debt Securities").
Offered Debt Securities may be issued from time to time in one or more series.
The particular terms of each series of Offered Debt Securities will be
described in the Prospectus Supplement or Prospectus Supplements relating to
such series.
The Offered Debt Securities will be issued under an Indenture (the
"Indenture") between Times Mirror and a trustee chosen by Times Mirror and
qualified to act as such under the Trust Indenture Act of 1939, as amended
(the "Trustee"), the form of which has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part. The following
summaries of certain provisions of the Indenture do not purport to be complete
and are subject to, and are qualified in their entirety by reference to, all
of the provisions of the Indenture, including the definitions therein of
certain terms capitalized in this Prospectus. Wherever particular sections,
articles or defined terms of the Indenture are referred to herein or in a
Prospectus Supplement, such sections, articles or defined terms are
incorporated herein or therein by reference.
GENERAL
The Indenture does not limit the aggregate amount of Offered Debt Securities
that may be issued thereunder, and Offered Debt Securities may be issued
thereunder from time to time in one or more separate series up to the
aggregate principal amount from time to time authorized by Times Mirror for
each series. The Senior Debt Securities, if any, will be unsecured and
unsubordinated obligations of Times Mirror and will rank equally and ratably
with other unsecured and unsubordinated indebtedness of Times Mirror. The
Subordinated Debt Securities, if any, will be unsecured obligations of Times
Mirror and will be subject to such subordination provisions as are established
in accordance with the terms of the Indenture.
The applicable Prospectus Supplement or Prospectus Supplements will
describe, to the extent applicable, each of the following terms of the series
of Offered Debt Securities in respect of which this Prospectus is being
delivered: (i) the title of the Offered Debt Securities; (ii) any limit on the
aggregate principal amount of the Offered Debt Securities; (iii) whether any
of the Offered Debt Securities are to be issuable in certificated, book-entry
or permanent global form and, if issuable in global form, the terms and
conditions, if any, upon which interests in such Offered Debt Securities in
global form may be exchanged, in whole or in part, for the individual Offered
Debt Securities represented thereby; (iv) the person to whom any interest on
any Offered Debt Security of the series will be payable if other than the
person in whose name the Offered Debt Security is registered on the Regular
Record Date; (v) the date or dates on which the Offered Debt Securities will
mature; (vi) the rate or rates per annum at which the Offered Debt Securities
will bear interest (or the method by which such rate or rates will be
determined), if any; (vii) the date or dates from which any such interest will
accrue, the Interest Payment Dates on which any such interest on the Offered
Debt Securities will be payable and the Regular Record Date for any interest
payable on any Interest Payment Date; (viii) each office or agency where the
principal of, premium, if any, and interest, if any, on the Offered Debt
Securities will be payable; (ix) the period or periods within which, the
events upon the occurrence of which, and the price or prices at which, the
Offered Debt Securities may, pursuant to any optional or mandatory provisions,
be redeemed or purchased, in whole or in part, by Times Mirror and any terms
and conditions relevant thereto; (x) the denominations in which any Offered
Debt Securities will be issuable, if other than denominations of $1,000 and
any integral multiple thereof; (xi) the currency or currencies, including
composite currencies, of payment of principal of, and any premium and interest
on, the Offered Debt Securities if other than United States dollars; (xii) any
index or formula used to determine the amount of payments of principal of and
any premium and any interest on the Offered Debt Securities; (xiii) if other
than the principal amount thereof, the portion of the principal amount of the
Offered Debt Securities of the series that will be payable upon declaration of
the acceleration of the maturity thereof; (xiv) the applicability of the
provisions described under "Restrictive Covenants"; (xv) any Events of Default
with respect to the Securities of such series, if not otherwise set forth
under "Events of Default"; (xvi) the applicability of the provisions described
under "Defeasance and Discharge"; (xvii) whether the Offered Debt Securities
are
4
<PAGE>
convertible or exchangeable into shares of Common Stock or any other security
of the Company or other entities and the terms of any such conversion or
exchange; (xviii) the specific terms and conditions, if any, upon which the
Offered Debt Securities may be subordinated to other indebtedness of the
Company; and (xix) any other terms of the Offered Debt Securities not
inconsistent with the provisions of the Indenture.
Offered Debt Securities may be issued at a discount from their principal
amount. Certain federal income tax considerations and other special
considerations applicable to any such original issue discount securities will
be described in the applicable Prospectus Supplement.
EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal, premium, if any, and interest, if any, on the Offered Debt
Securities will be payable, and the exchange of and the transfer of Offered
Debt Securities will be registrable, at the office or agency of Times Mirror
maintained for such purpose and at any other office or agency maintained for
such purpose. Unless otherwise indicated in the applicable Prospectus
Supplement, the Offered Debt Securities will be issued in denominations of
$1,000 or integral multiples thereof. No service charge will be made for any
registration of transfer or exchange of the Offered Debt Securities, but Times
Mirror may require payment of a sum sufficient to cover any tax or other
governmental charge imposed in connection therewith.
GLOBAL SECURITIES
If the Offered Debt Securities are represented by one or more global
securities ("Global Securities"), the applicable Prospectus Supplement will
describe the terms of the depositary arrangement with respect to such Global
Securities.
RESTRICTIVE COVENANTS
Affirmative Covenants. In addition to such other covenants, if any, as may
be described in the applicable Prospectus Supplement and except as may
otherwise be set forth therein, the Indenture for the Offered Debt Securities
will require the Company, subject to certain limitations described therein,
to, among other things, do the following: (i) deliver to the Trustee copies of
all reports filed with the Commission; (ii) deliver to the Trustee annual
officers' certificates with respect to the Company's compliance with its
obligations under the Indenture; (iii) maintain its corporate existence
subject to the provisions described below relating to mergers and
consolidations; and (iv) pay all taxes when due except where such taxes are
being contested in good faith. Except as may be set forth in the applicable
Prospectus Supplement, the Indenture will not restrict the business or
operations of the Company or its subsidiaries, limit their indebtedness or
prohibit any liens, charges or other encumbrances on any properties or other
assets they may have from time to time.
REDEMPTION
If and to the extent set forth in the applicable Prospectus Supplement, the
Company will have the right to redeem the Offered Debt Securities, from time
to time, in whole or in part, after the date and at the redemption prices set
forth in the applicable Prospectus Supplement.
CONSOLIDATION, MERGER AND SALE OR LEASE OF ASSETS
Except as may otherwise be set forth in the applicable Prospectus
Supplement, Times Mirror, without consent of any holders of outstanding
Offered Debt Securities, may consolidate with or merge into, or transfer or
lease its assets substantially as an entirety to any Person, and any Person
may consolidate with or merge into, or transfer or lease its assets
substantially as an entirety to Times Mirror, provided that (i) the Person (if
other than Times Mirror) formed by such consolidation or into which Times
Mirror is merged or the Person which acquires or leases the assets of Times
Mirror substantially as an entirety is a corporation, partnership or trust
organized and existing under the laws of any United States jurisdiction and
expressly assumes Times Mirror's obligations on the Offered Debt Securities
and under the Indenture, (ii) immediately after giving effect to such
transaction no Event of Default (as defined below), and no event which, after
notice or lapse of time or both, would become an Event of Default, happened
and is continuing, and (iii) certain other conditions are met, which shall be
described in the applicable Prospectus Supplement.
5
<PAGE>
EVENTS OF DEFAULT
Except as may be described in the applicable Prospectus Supplement, an
"Event of Default" will be defined under the Indenture for the Offered Debt
Securities as being any one of the following events: (i) default for 30 days
in payment of any interest on the Offered Debt Securities; (ii) default in
payment of any principal of (or premium, if any, on) the Offered Debt
Securities, either at maturity, upon redemption or otherwise; (iii) default
for 90 days after written notice in the performance of, or breach of, any
covenant or warranty of Times Mirror in the Indenture; and (iv) certain events
of bankruptcy, insolvency or reorganization.
The Indenture for the Offered Debt Securities will provide that if an Event
of Default (other than an Event of Default due to certain events of
bankruptcy, insolvency or reorganization) has occurred and is continuing,
either the Trustee or the holders of not less than 50% in principal amount of
the Offered Debt Securities outstanding under the Indenture for the Offered
Debt Securities, or such other amount as may be specified in the Prospectus
Supplement, may declare the principal amount of all Offered Debt Securities
under that Indenture to be due and payable immediately.
The Indenture will provide that the Trustee shall, within 90 days after the
occurrence of a default under the Indenture with respect to Offered Debt
Securities of any series, mail to all holders of Offered Debt Securities of
such series notice of such default known to the Trustee, unless such default
shall have been cured or waived; provided that, except in the case of default
in the payment of principal of or interest on any of such series, the Trustee
may withhold such notice if it in good faith determines that the withholding
of such notice is in the interest of the holders.
The Indenture will provide that Times Mirror is required to furnish to the
Trustee annually a statement of certain officers of Times Mirror to the effect
that, to the best of their knowledge, Times Mirror is not in default in the
performance and observance of any of the terms of the Indenture or, if they
have knowledge that Times Mirror is in default, specifying such default.
The Indenture will provide that the holders of not less than a majority in
aggregate principal amount of all outstanding Offered Debt Securities of any
series will have the right, on behalf of the holders of all outstanding
Offered Debt Securities of such series, to rescind a declaration of
acceleration of the principal amount if the underlying default is cured and/or
to waive certain defaults and, subject to certain limitations, 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 Offered Debt Securities of that series. The Indenture will also
provide that in case an Event of Default with respect to Offered Debt
Securities of any series has occurred and is continuing, the Trustee shall
exercise, with respect to such series, such of the rights and powers vested in
it under the Indenture, and use the same degree of care and skill in its
exercise as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs. Subject to such provisions, the Trustee
will be under no obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the holders unless such
holders shall have offered to the Trustee reasonable security or indemnity.
DEFEASANCE AND DISCHARGE
Except as may otherwise be provided in the applicable Prospectus Supplement,
the Company can discharge or defease its obligations under the Indenture for
the Offered Debt Securities as set forth below.
Under terms satisfactory to the Trustee, the Company may discharge certain
obligations to holders of the Offered Debt Securities that have not already
been delivered to the Trustee for cancellation and that have either become due
and payable or are by their terms due and payable within one year (or
scheduled for redemption within one year) by irrevocably depositing with the
Trustee funds as trust funds in an amount certified to be sufficient to pay at
maturity (or upon redemption) the principal of and premium, if any, and
interest on such Offered Debt Securities.
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The Company may also discharge any and all of its obligations to holders of
the Offered Debt Securities at any time ("defeasance"), but may not thereby
avoid its duty to register the transfer or exchange of the Offered Debt
Securities, to replace any temporary, mutilated, destroyed, lost or stolen
Offered Debt Securities or to maintain an office or agency in respect of such
Offered Debt Securities and certain other obligations. Alternatively, the
Company may be released with respect to the Offered Debt Securities from the
obligations imposed by specific sections of the Indenture for the Offered Debt
Securities (including the covenant described above limiting consolidations,
mergers, asset sales and leases) and cease to comply with such provisions
without creating an Event of Default ("covenant defeasance"). Defeasance or
covenant defeasance may be effected only if, among other things: (i) the
Company irrevocably deposits with the Trustee cash or U.S. Government
Obligations, or a combination thereof, as trust funds in an amount certified
to be sufficient to pay at maturity the principal of and premium, if any, and
interest on all such outstanding Offered Debt Securities; (ii) no Event of
Default under the Indenture for such Offered Debt Securities has occurred and
is then continuing; (iii) the defeasance or covenant defeasance will not
result in a breach or violation of, or constitute a default under, any
agreement to which the Company is a party or by which it is bound; and (iv)
the Company delivers to the Trustee an opinion of counsel to the effect that
the holders of such Offered Debt Securities will not recognize income, gain or
loss for federal income tax purposes as a result of such defeasance or
covenant defeasance and that such defeasance or covenant defeasance will not
otherwise alter such holders' federal income tax treatment of principal and
interest payments on the Offered Debt Securities.
MODIFICATIONS TO THE INDENTURE
Except as may otherwise be set forth in the applicable Prospectus
Supplement, the Indenture for the Offered Debt Securities will provide that
the Company and the Trustee may enter into supplemental indentures without the
consent of the holders of Offered Debt Securities to, among other things: (i)
add covenants, conditions and restrictions for the protection of the holders
of Offered Debt Securities; (ii) surrender any right of or power conferred
upon the Company; (iii) cure any ambiguity or correct any inconsistency in the
Indenture for the Offered Debt Securities; (iv) make any change that does not
adversely affect the legal rights of holders of Offered Debt Securities; (v)
modify, eliminate or add to the provisions of the Indenture for the Offered
Debt Securities to the extent necessary to qualify that Indenture under
applicable federal statutes; or (vi) make any other changes in the Indenture
before Offered Debt Securities are issued thereunder, provided that such
changes are not prohibited by the Trust Indenture Act.
Except as may otherwise be set forth in the applicable Prospectus
Supplement, the Indenture for the Offered Debt Securities also will contain
provisions permitting the Company and the Trustee, with the consent of the
holders of not less than a majority in principal amount of Offered Debt
Securities outstanding affected by such supplemental indenture, to enter into
supplemental indentures in order to add any provision to, change in any manner
or eliminate any of the provisions of the Indenture for the Offered Debt
Securities or modify in any manner the rights of the holders of the Offered
Debt Securities so affected; provided that no such supplemental indenture
shall, among other things, without the consent of the holder of each
outstanding Offered Debt Security affected thereby: (i) reduce the percentage
in principal amount of Offered Debt Securities whose holders must consent to
an amendment to the Indenture for the Offered Debt Securities or supplemental
indenture or waiver with respect to such Indenture; (ii) reduce the rate of or
change the time for payment of interest on any Offered Debt Security; (iii)
reduce the principal of or change the fixed maturity of any Offered Debt
Security; or (iv) waive a default in the payment of the principal of, or
interest on, any Offered Debt Security. The holders of at least a majority in
principal amount of Offered Debt Securities outstanding of any series may, on
behalf of the holders of all Offered Debt Securities of that series, waive any
past default under the Indenture with respect to that series, except a default
in the payment of the principal of, or premium, if any, or interest on, any
Offered Debt Security of that series or in respect of a covenant or provision
that under the Indenture for the Offered Debt Securities cannot be modified or
amended without the consent of the holder of each Offered Debt Security
outstanding of the series affected.
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SENIOR DEBT SECURITIES
The particular terms of the Senior Debt Securities, if any, offered by any
Prospectus Supplement or Prospectus Supplements and the extent, if any, to
which the general provisions described above may apply to the Senior Debt
Securities so offered, will be described in the applicable Prospectus
Supplement relating to such Senior Debt Securities.
SUBORDINATED DEBT SECURITIES
The particular terms of the Subordinated Debt Securities, if any, offered by
any Prospectus Supplement or Prospectus Supplements and the extent, if any, to
which the general provisions described above may apply to the Subordinated
Debt Securities so offered, will be established in accordance with the terms
of the Indenture and will be described in the applicable Prospectus Supplement
relating to such Subordinated Debt Securities.
REGARDING THE TRUSTEE
The Indenture contains certain limitations on the right of the Trustee,
should it become a creditor of Times Mirror, to obtain payment of claims in
certain cases, or to realize for its own account on certain property received
in respect of any such claim as security or otherwise. The Trustee will be
permitted to engage in certain other transactions; provided, however, that if
it acquires any conflicting interest, it must eliminate such conflict or
resign.
GOVERNING LAW
Unless otherwise specified in the applicable Prospectus Supplement, the
Indenture for the Offered Debt Securities and the Offered Debt Securities will
be governed by New York law.
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DESCRIPTION OF CAPITAL STOCK
The Company is authorized to issue: (i) 500,000,000 shares of Series A
Common Stock ("Series A Common Stock"), of which 66,801,511 shares were issued
and outstanding at March 13, 1997; (ii) 100,000,000 shares of Series B Common
Stock, par value $1.00 per share ("Series B Common Stock"), none of which is
outstanding; (iii) 300,000,000 shares of Series C Common Stock, par value
$1.00 per share ("Series C Common Stock"), of which 26,679,236 shares were
issued and outstanding at March 13, 1997; and (iv) 33,000,000 shares of
Preferred Stock, of which (a) 900,000 shares are designated Preferred Stock,
Series A, par value $1.00 per share ("Series A Preferred Stock"), of which
823,568 were issued and outstanding at March 13, 1997 and (b) 25,000,000
shares are designated Conversion Preferred Stock, Series B ("Series B
Preferred Stock"), of which 7,789,276 were issued and outstanding at March 13,
1997. On February 28, 1997, the Company announced that it will redeem all of
its issued and outstanding Series B Preferred Stock on April 2, 1997.
COMMON STOCK
General
The following description of the Series A Common Stock and the Series B
Common Stock sets forth general terms and provisions of the Common Stock to
which any Prospectus Supplement may relate, including a Prospectus Supplement
providing that Common Stock will be issuable upon conversion of Debt
Securities or Preferred Stock by the Company, upon exercise of Warrants or
under the terms of the Stock Purchase Contracts, as the case may be. No shares
of the Series C Common Stock described below are covered by this Prospectus.
This Prospectus covers, and a Prospectus Supplement may be delivered with
respect to, the exercise by a permitted transferee of stock options to acquire
Series A Common Stock initially granted by the Company to eligible employees
and the subsequent resale of such shares of Series A Common Stock by a
charitable transferee, if required.
The following description of the Series A Common Stock, Series B Common Stock
and Series C Common Stock is summarized from, and qualified in its entirety by
reference to, the Amended and Restated Certificate of Incorporation of the
Company (the "Restated Certificate"), filed as an exhibit to the Registration
Statement of which this Prospectus constitutes a part. The Series A Common
Stock is listed on the NYSE and the Pacific Stock Exchange.
Rights to Designate Series B Common Stock
Pursuant to the Restated Certificate, the Board of Directors of the Company
is entitled to designate certain rights, powers and preferences of a class of
Series B Common Stock in addition to the outstanding Series A Common Stock and
the Series C Common Stock, as discussed below. First, the Board may determine
the exact number of votes per share of Series B Common Stock at not less than
one-tenth (1/10) nor more than one (1). Second, the Board may also make other
changes in the rights, powers and preferences of the Series B Common Stock,
provided that in no such case may the rights, powers and preferences of any
such series be greater than those described herein. Subject to the foregoing,
it is anticipated that Series B Common Stock, if authorized by the Board of
Directors, will be identical in all respects to the Series A Common Stock
currently outstanding, except with respect to voting. Specifically, it is
anticipated that each share of Series B Common Stock will be entitled to one-
tenth (1/10) of a vote rather than one vote per share.
The description herein of the rights, powers and preferences of the Series B
Common Stock is subject to the discretionary authority of the Board as
described above. The Board presently has no intention of issuing any shares of
Series B Common Stock or of utilizing such authority to vary the terms of the
Series B Common Stock from those described herein unless it determines that
such change is necessary in light of legal developments or in order to comply
with, or establish an exemption from, any applicable law, regulation or rule
of any governmental authority, national securities exchange or national market
system.
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Voting
Except as set forth below, all actions submitted to a vote of the Company's
stockholders will be voted on by holders of Series A Common Stock, Series B
Common Stock, Series C Common Stock and Series B Preferred Stock voting
together as a single class. The affirmative vote of the holders of a majority
of the outstanding shares of Series A Common Stock, Series B Common Stock
and/or Series C Common Stock, voting separately as a class, is required (i) to
approve any amendment to the Restated Certificate that would alter or change
the powers, preferences or special rights of such series so as to affect it
adversely and (ii) to approve such other matters as may require class votes
under the General Corporation Law of the State of Delaware. The Series A
Common Stock is entitled to 1 vote per share, and the Series C Common Stock is
entitled to 10 votes per share.
Dividends and Other Distributions (including Distributions upon Liquidation
or Sale of the Company)
Unless otherwise determined by the Board in the resolutions providing for
the issuance of Series B Common Stock, each share of Series A Common Stock,
Series B Common Stock and Series C Common Stock is equal in respect of
dividends and other distributions in cash, stock or property (including
distributions upon liquidation of the Company and consideration to be received
upon a merger or consolidation of the Company or a sale of all or
substantially all of the Company's assets), except that in the case of
dividends or other distributions payable on the Series A Common Stock, Series
B Common Stock or Series C Common Stock in shares of such stock, including
distributions pursuant to stock splits or dividends, only Series A Common
Stock is to be distributed with respect to Series A Common Stock; only Series
B Common Stock is to be distributed with respect to Series B Common Stock; and
only Series C Common Stock is to be distributed with respect to Series C
Common Stock. In no event will either Series A Common Stock, Series B Common
Stock or Series C Common Stock be split, divided or combined unless each other
class is proportionately split, divided or combined.
Termination and Conversion of Series B and/or Series C Common Stock
Either or both the Series B Common Stock and Series C Common Stock will
automatically be converted into Series A Common Stock on a share-for-share
basis (i) at any time the Board and the holders of a majority of the
outstanding shares of the series approve the conversion of all of such series
into Series A Common Stock, (ii) if, as a result of the existence of the
series, the Series A Common Stock becomes excluded from trading on the NYSE,
the American Stock Exchange and all other national securities exchanges and is
also excluded from quotation on NASDAQ or any other national quotation system
then in use, (iii) if the Board, in its sole discretion, elects to effect a
conversion of such series in connection with its approval of any sale or lease
of all or any substantial part of the Company's assets or any merger,
consolidation, liquidation or dissolution of the Company, or (iv) if the
Board, in its sole discretion, elects to effect a conversion of such series
after a determination that there has been a material adverse change in the
liquidity, marketability or market value of the outstanding Series A Common
Stock, considered in the aggregate (a) due to the exclusion of the Series A
Common Stock from trading on a national securities exchange or the exclusion
of the Series A Common Stock from quotation on NASDAQ, or such other national
quotation system then in use, or (b) due to requirements of federal or state
law, in any such case, as a result of the existence of such series. To the
extent that the Board has discretion, the decision whether or not to exercise
its authority to effect a conversion of Series B Common Stock or Series C
Common Stock would be made in light of all the existing facts and
circumstances affecting the interests of the Company and its stockholders,
including the effect such conversion could have on the Company's vulnerability
to an unsolicited hostile takeover attempt and any of the other factors
referred to herein.
In the event of any such termination of Series B Common Stock or Series C
Common Stock, certificates formerly representing outstanding shares of that
series shall thereafter be deemed to represent a like number of shares of
Series A Common Stock. If both Series B Common Stock and Series C Common Stock
are terminated, all outstanding shares of Series A Common Stock shall again be
denominated Common Stock and all certificates representing outstanding shares
of Series A Common Stock shall thereafter be deemed to represent a like number
of shares of Common Stock.
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Preemptive Rights
None of the Series A Common Stock, the Series B Common Stock or the Series C
Common Stock carries any preemptive right enabling a holder to subscribe for
or receive shares of stock of the Company of any class or any other securities
convertible into shares of stock of the Company. The Board will continue to
possess the power to issue shares of authorized but unissued Series A Common
Stock, Series B Common Stock, Series C Common Stock and Preferred Stock
without further stockholder action.
PREFERRED STOCK
The following summary contains a description of certain general terms of the
Company's Preferred Stock to which any Prospectus Supplement may relate.
Certain terms of any series of Preferred Stock offered by any Prospectus
Supplement will be described in the applicable Prospectus Supplement relating
thereto. Preferred Stock may be convertible and, if so convertible, may be
converted into one or both of Common Stock and Debt Securities. The Preferred
Stock may also be exchangeable, at the option of the Company, for Debt
Securities (see "Description of Debt Securities"). If Preferred Stock or
Warrants exercisable for Preferred Stock are being offered, if Preferred Stock
is to be issued under Stock Purchase Contracts, or if Preferred Stock is
exchangeable for Debt Securities, the applicable Prospectus Supplement will
describe the rights, privileges, preferences and restrictions of such
Preferred Stock, including, without limitation, (i) the designation, (ii) the
number of authorized shares of the series in question, (iii) the dividend rate
(or method of calculation), (iv) any voting rights, conversion rights, anti-
dilution protections, exchangeability provisions and terms of any Debt
Securities that are exchangeable for the Preferred Stock, (v) any redemption
provisions, liquidation preferences and (vi) any sinking fund provisions. If
fractional interests in shares of Preferred Stock may be issued, there will be
a depositary for the shares of Preferred Stock involved and the applicable
Prospectus Supplement will describe the terms of the depositary arrangement
and related matters.
Upon issuance, against full payment of the purchase price therefor, shares
of Preferred Stock will be fully paid and nonassessable. Preferred Stock
issuable upon exercise of any Warrants exercisable for Preferred Stock (upon
payment in full of the Warrant exercise price) or conversion of any Debt
Securities convertible into Preferred Stock or under the Stock Purchase
Contracts will be fully paid and nonassessable when issued in accordance with
the terms of such Debt Securities or Stock Purchase Contracts. No shares of
the Series A Preferred Stock or the Series B Preferred Stock are covered by
this Prospectus.
CERTAIN PROVISIONS IN THE RESTATED CERTIFICATE AND BYLAWS
The Restated Certificate and Bylaws provide for indemnification of directors
and officers to the fullest extent permitted by applicable law and contain
various antitakeover provisions intended to (i) promote stability of the
Company's stockholder base and (ii) render more difficult certain unsolicited
or hostile attempts to take over the Company which could disrupt the Company,
divert the attention of the Company's directors, officers and employees and
adversely affect the independence and integrity of the Company's media
operations. A summary of the principal antitakeover provisions is set forth
below.
Classified Board of Directors, Removal of Directors and Related Matters
Pursuant to the Restated Certificate, the Company's Board of Directors is
divided into three classes, each class to consist as nearly as possible of
one-third of the Directors. The term of office of each class of Directors
expires three years from the year of election. The Restated Certificate also
provides that Directors may be removed only for cause and only by a majority
of the votes entitled to be cast by the holders of all shares of capital stock
entitled to vote generally in the election of Directors (the "Voting
Interests"). Additionally, if the proposal to remove a Director is made by or
on behalf of a Related Person (as defined below), removal will also require
the affirmative vote of a majority of the Voting Interests held by persons
other than such Related Person. Thus, a third party seeking to gain control of
the Board of Directors may be forced to wait until the expiration of the
respective terms of incumbent Directors, unless there were cause and
sufficient voting strength to remove a particular Director or Directors.
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Increased Stockholder Vote Required in Certain Business Combinations
The Restated Certificate requires, subject to certain exceptions summarized
below, that any Business Combination (as defined below), be approved by (i) an
affirmative vote of the holders of not less than 80% of the Voting Interests
(the "80% Voting Requirement") and (ii) the affirmative vote of the holders of
a majority of the Disinterested Shares (as defined below). Business
Combinations include generally the following: (i) mergers or reorganizations
of the Company or its subsidiaries with or into a Related Person or of a
Related Person with or into the Company or a subsidiary; (ii) reorganizations
that would have the effect of increasing the voting power of a Related Person;
(iii) certain acquisitions by the Company or any subsidiary of the Company of
securities issued by or assets of a Related Person; and (iv) liquidations,
sales or transfers to a Related Person of assets of the Company or one or more
of its subsidiaries constituting a substantial part of the Company.
A Business Combination does not need to satisfy the foregoing approval
requirements if the Business Combination has been approved by a majority of
the Directors who are unaffiliated with the Related Person and who were
members of the Board of Directors before the Company was incorporated in the
State of Delaware, or who became a member of the Board before the Related
Person became a Related Person (the "Continuing Directors"). Business
Combinations in which the stockholders of the Company are to receive cash,
securities or other property in exchange for their shares of capital stock do
not need to satisfy the 80% Voting Requirement if (i) the value of the
consideration meets certain thresholds of fairness, as specified in the
Restated Certificate, and (ii) the Business Combination is approved by the
affirmative vote of the holders of a majority of the Disinterested Shares.
As used in the Restated Certificate, a "Related Person" is a person or
entity, or an affiliate or associate (as defined in Rule 12b-2 under the
Exchange Act) of such person or entity, that beneficially owns, in the
aggregate, five percent or more of the outstanding voting interests of the
Company; provided, however, the term Related Person does not include (i) any
person or entity that beneficially owned five percent or more of the common
stock of the Company on the date upon which the Company was incorporated in
the State of Delaware, or (ii) any employee benefit plan established to
provide benefits for employees of the Company or its subsidiaries, any trust
plan thereto, or any trustee or fiduciary when acting in such capacity with
respect to any such plan or trust. The term "Disinterested Shares" means, as
to any Related Person, shares of the Company's voting stock held by
stockholders other than such Related Person.
Restriction on a Stockholder's Power to Call Stockholders' Meetings and
Elimination of Right to Act Without a Meeting
The Restated Certificate provides that a special meeting of stockholders may
be called only by the Board of Directors. Furthermore, if a proposal requiring
stockholder approval is made by or on behalf of a Related Person or a Director
affiliated with a Related Person, the affirmative vote of a majority of the
Continuing Directors is also required to call a special meeting of
stockholders. The principal effect of this provision is to prevent
stockholders from forcing a special meeting to consider a proposal opposed by
the Board of Directors.
The Restated Certificate provides that any action taken by the stockholders
of the Company must be effected at an annual or special meeting of
stockholders and may not be taken by written consent.
Procedures for Stockholder Nominations and Proposals
The Restated Certificate provides that a stockholder must furnish written
notice to the Secretary of the Company of any nomination or business proposal
to be brought before a stockholders meeting not less than 30 nor more than 60
days prior to the meeting as originally scheduled. In the event that less than
40 days public notice of a meeting date is given by the Company, a stockholder
must furnish notice of a nomination or business proposal not later than the
close of business on the tenth day following the mailing or the public
disclosure of notice of the meeting date. These procedures prohibit last-
minute attempts by any stockholder to nominate a Director or present a
business proposal at an annual stockholders meeting, even if such a nomination
or proposal might be desired by a majority of the stockholders.
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Relevant Factors to be Considered by the Board of Directors
The Restated Certificate provides that, in evaluating certain proposed
business transactions and the best interests of the Company and its
stockholders, the Board of Directors shall consider all relevant factors,
including but not limited to freedom of the press, the independence and
integrity of the Company's media operations, the social and economic effects
of the transactions on stockholders, employees, customers, suppliers and other
constituents of the Company and its subsidiaries, as well as the effects on
the communities in which they operate.
In providing the Board of Directors with a broader basis for determining the
advisability of a proposed transaction, the Restated Certificate gives the
Board authority to reject, among other transactions, a proposed acquisition of
the Company notwithstanding the fact that the proposal may include favorable
economic benefits for the Company's stockholders.
Amendment of Certain Charter and Bylaw Provisions
The Restated Certificate provides that any alteration, amendment, repeal or
recission (any "Change") of the provisions contained in the Restated
Certificate must be approved by a majority of the Directors then in office and
by the affirmative vote of the holders of a majority of the Voting Interests,
provided however that if the proposed Change relates to certain provisions
specified in the Certificate, then any such Change must also be approved
either (a) by a majority of the authorized number of Directors and, if one or
more Related Persons exist, by a majority of the Directors who are Continuing
Directors with respect to all Related Persons, or (b) by the affirmative vote
of the holders of not less than 80% of the Voting Interests and, if the Change
is proposed by or on behalf of a Related Person or a Director affiliated with
a Related Person, by affirmative vote of a majority of the Voting Interests
represented by Disinterested Shares.
DESCRIPTION OF WARRANTS
The Company may issue Warrants, including Warrants to purchase Debt
Securities ("Debt Warrants") and Warrants to purchase Common Stock or
Preferred Stock ("Stock Warrants"). Warrants may be issued independently of or
together with any other Securities and may be attached to or separate from
such Securities. Each series of Warrants will be issued under a separate
Warrant Agreement (each a "Warrant Agreement") to be entered into between the
Company and a Warrant Agent ("Warrant Agent") the form of which will be filed
as an exhibit to the Registration Statement of which this Prospectus is a
part. The Warrant Agent will act solely as an agent of the Company in
connection with the Warrants of such series and will not assume any obligation
or relationship of agency for or with holders or beneficial owners of
Warrants. The following sets forth certain general terms and provisions of the
Warrants offered hereby. Further terms of the Warrants and the applicable
Warrant Agreement will be set forth in the applicable Prospectus Supplement.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of any Debt
Warrants, including the following: (i) the title of such Debt Warrants; (ii)
the offering price for such Debt Warrants, if any; (iii) the aggregate number
of such Debt Warrants; (iv) the designation and terms of the Debt Securities
purchasable upon exercise of such Debt Warrants; (v) if applicable, the
designation and terms of the Securities with which such Debt Warrants are
issued and the number of such Debt Warrants issued with each such Security;
(vi) if applicable, the date from and after which such Debt Warrants and any
Securities issued therewith will be separately transferable; (vii) the
principal amount of Debt Securities purchasable upon exercise of a Debt
Warrant and the price at which such principal amount of Debt Securities may be
purchased upon exercise; (viii) the date on which the right to exercise such
Debt Warrants shall commence and the date on which such right shall expire;
(ix) if applicable, the minimum or maximum amount of such Debt Warrants that
may be exercised at any one time; (x) whether the Debt Warrants represented by
the Debt Warrant certificates or Debt Securities that may be issued upon
exercise of the Debt Warrants will be issued in registered or bearer form;
(xi) information with
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respect to book-entry procedures, if any; (xii) the currency, currencies or
currency units in which the offering price, if any, and the exercise price are
payable; (xiii) if applicable, a discussion of certain United States federal
income tax considerations; (xiv) the antidilution provisions of such Debt
Warrants, if any; (xv) the redemption or call provisions, if any, applicable
to such Debt Warrants; and (xvi) any additional terms of the Debt Warrants,
including terms, procedures and limitations relating to the exchange and
exercise of such Debt Warrants.
STOCK WARRANTS
The applicable Prospectus Supplement will describe the terms of any Stock
Warrants, including the following: (i) the title of such Stock Warrants; (ii)
the offering price of such Stock Warrants, if any; (iii) the aggregate number
of such Stock Warrants; (iv) the designation and terms of the Common Stock or
Preferred Stock purchasable upon exercise of such Stock Warrants; (v) if
applicable, the designation and terms of the Securities with which such Stock
Warrants are issued and the number of such Stock Warrants issued with each
such Security; (vi) if applicable, the date from and after which such Stock
Warrants and any Securities issued therewith will be separately transferable;
(vii) the number of shares of Common Stock or Preferred Stock purchasable upon
exercise of a Stock Warrant and the price at which such shares may be
purchased upon exercise; (viii) the date on which the right to exercise such
Stock Warrants shall commence and the date on which such right shall expire;
(ix) if applicable, the minimum or maximum amount of such Stock Warrants that
may be exercised at any one time; (x) the currency, currencies or currency
units in which the offering price, if any, and the exercise price are payable;
(xi) if applicable, a discussion of certain United States federal income tax
considerations; (xii) the antidilution provisions of such Stock warrants, if
any; (xiii) the redemption or call provisions, if any, applicable to such
Stock Warrants; and (xiv) any additional terms of such Stock Warrants,
including terms, procedures and limitations relating to the exchange and
exercise of such Stock Warrants.
DESCRIPTION OF STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
The Company may issue Stock Purchase Contracts, including contracts
obligating holders to purchase from the Company, and the Company to sell to
the holders, a specified number of shares of Common Stock or Preferred Stock
at a future date or dates. The price per share of Preferred Stock or Common
Stock may be fixed at the time the Stock Purchase Contracts are issued or may
be determined by reference to a specific formula set forth in the Stock
Purchase Contracts. The Stock Purchase Contracts may be issued separately or
as a part of the Stock Purchase Units consisting of a Stock Purchase Contract
and Debt Securities or debt obligations of third parties, including United
States Treasury securities, securing the holders' obligations to purchase the
Preferred Stock or the Common Stock under the Stock Purchase Contracts. The
Stock Purchase Contracts may require the Company to make periodic payments to
the holders of the Stock Purchase Contracts or vice-versa, and such payments
may be unsecured or prefunded on some basis. The Stock Purchase Contracts may
require holders to secure their obligations thereunder in a specified manner.
The Stock Purchase Contracts may provide the Company the option to deliver
cash in lieu of Preferred Stock or Common Stock.
The applicable Prospectus Supplement will describe the terms of any Stock
Purchase Contracts or Stock Purchase Units, including, without limitation, the
following: (i) the title of the Stock Purchase Contracts or Stock Purchase
Units; (ii) the stated amount of the Stock Purchase Units and the principal
amount of any Debt Securities, or debt obligations of third parties, including
United States Treasury securities, constituting a component of a Stock
Purchase Unit; (iii) the number of shares of Common Stock or Preferred Stock
that shall be purchased upon settlement of the Stock Purchase Contracts; (iv)
the right, if any, of the Company to deliver cash in lieu of Preferred Stock
or Common Stock and the manner of calculating such cash amount; (v) the amount
of any fees payable, whether to Times Mirror or to holders with respect to the
Stock Purchase Contracts; (vi) the interest rate applicable to any Debt
Securities or debt securities of third parties, including United States
Treasury securities, constituting a component of, a Stock Purchase Unit; (vii)
the rights, if any, of the holders to settle Stock Purchase Contracts early
and the terms upon which such early settlement may be effected; (viii) the
date on which, subject to the rights of the holders to settle Stock Purchase
Contracts early and termination of the
14
<PAGE>
Stock Purchase Contracts, the Stock Purchase Contracts will be settled; (ix)
the events that may cause a termination of the Stock Purchase Contracts prior
to the date of settlement; and (x) any other terms of the Stock Purchase
Contracts or Stock Purchase Units not inconsistent with the provisions of the
instrument or instruments pursuant to which such Stock Purchase Contracts or
Stock Purchase Units are issued. The description in the Prospectus Supplement
will not purport to be complete and will be qualified in its entirety by
reference to the Stock Purchase Contracts, and, if applicable, collateral
arrangements and depositary arrangements, relating to such Stock Purchase
Contracts or Stock Purchase Units.
PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters for public
offering and sale by them or may sell the Securities to investors directly or
through agents. Any such underwriter or agent involved in the offer and sale
of the Securities will be named in the applicable Prospectus Supplement. The
Company may sell Securities directly to investors on its own behalf in those
jurisdictions where it is authorized to do so.
Underwriters may offer and sell the Securities at a fixed 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. The
Company also may offer and sell the Securities in exchange for one or more of
its outstanding debt securities or other securities. The Company also may,
from time to time, authorize dealers, acting as Company agents, to offer and
sell the Securities upon such terms and conditions as may be set forth in the
applicable Prospectus Supplement. In connection with the sale of the
Securities, underwriters may receive compensation from the Company in the form
of underwriting discounts, concessions or commissions and may also receive
commissions from purchasers of the Securities for whom they may act as agent.
Underwriters may sell the Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters or commissions from the purchasers for whom they may act
as agents.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of the Securities, and any discounts or
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the applicable Prospectus Supplement. Dealers and agents
participating in the distribution of the Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any
profit realized by them on resale of the Securities may be deemed to be
underwriting discounts and commissions. Underwriters, dealers and agents may
be entitled, under agreements entered into with the Company, to
indemnification against and contribution toward certain civil liabilities.
Certain of the underwriters, dealers and agents and their associates may
engage in transactions with, and perform services for, the Company in the
ordinary course of business.
The Debt Securities, Preferred Stock, Series B Common Stock, Warrants, Stock
Purchase Contracts and Stock Purchase Units will be new issues of securities
with no established trading market. Any underwriters or agents to or through
which Securities are sold by the Company for public offering and sale may make
a market in such Securities, but such underwriters or agents will not be
obligated to do so and any of them may discontinue any market making at any
time without notice. No assurance can be given as to the liquidity of or
trading market for any Debt Securities, Preferred Stock, Series B Common
Stock, Warrants, Stock Purchase Contracts or Stock Purchase Units.
CERTAIN LEGAL MATTERS
Gibson, Dunn & Crutcher LLP has rendered an opinion (filed as an exhibit to
the Registration Statement of which this Prospectus is a part) with respect to
the validity of the Securities covered by this Prospectus. Certain legal
matters in connection with offerings made by this Prospectus may be passed on
for any underwriters, agents or dealers by counsel named in the Prospectus
Supplement.
15
<PAGE>
EXPERTS
The consolidated financial statements of The Times Mirror Company appearing
in The Times Mirror Company's Annual Report (Form 10-K) for the year ended
December 31, 1996, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
16
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR IN ANY PROSPECTUS SUPPLEMENT
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER. NEITHER THE
DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE
HEREUNDER OR THEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION
THAT THE INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AS OF ANY DATE
SUBSEQUENT TO THE DATE HEREOF OR THEREOF. THIS PROSPECTUS AND ANY PROSPECTUS
SUPPLEMENT DO NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH
THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO
ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
-----------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information..................................................... 2
Incorporation of Certain Documents by Reference........................... 2
The Company............................................................... 3
Use of Proceeds........................................................... 3
Ratio of Earnings to Fixed Charges and Ratio of Earnings to Fixed Charges
and Preferred Stock Dividends............................................ 3
Description of Debt Securities............................................ 4
Description of Capital Stock.............................................. 9
Description of Warrants................................................... 13
Description of Stock Purchase Contracts and Stock Purchase Units.......... 14
Plan of Distribution...................................................... 15
Certain Legal Matters..................................................... 15
Experts................................................................... 16
</TABLE>
-----------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
THE TIMES MIRROR COMPANY
$250,000,000
-----------------
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
STOCK PURCHASE CONTRACTS
STOCK PURCHASE UNITS
-----------------
-----------------
PROSPECTUS
-----------------
, 1997
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION*
The following are the estimated expenses of the issuance and distribution of
the securities being registered, all of which will be paid by the Registrant.
<TABLE>
<S> <C>
Registration fee................................................ $ 75,758
Blue Sky fees and expenses...................................... 1,000
Exchange listing fees........................................... 0
Printing expenses............................................... 25,000
Legal fees and expenses......................................... 20,000
Accounting fees and expenses.................................... 40,000
Trustee's fees and expenses (including counsel fees)............ 15,000
Miscellaneous................................................... 0
--------
Total....................................................... $176,758
========
</TABLE>
- --------
* All amounts are estimated except the Commission's registration fee.
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Pursuant to Section 102(b)(7) of the General Corporation Law of the State of
Delaware (the "GCL"), the Amended and Restated Certificate of Incorporation of
Times Mirror eliminates the liability of directors of Times Mirror to Times
Mirror or its stockholders for breach of fiduciary duties as a director,
except for liabilities related to breach of the duty of loyalty, acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, and certain other liabilities.
As permitted by Section 145 of the GCL, Article VII, Section 1 of the Bylaws
of Times Mirror provides for the indemnification of its directors, officers,
and employees against expenses actually and reasonably incurred in connection
with certain stated proceedings and under certain stated conditions.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
1.1 Form of Underwriting Agreement (for equity securities).*
1.2 Form of Underwriting Agreement (for debt securities).*
4.1 Restated Certificate of Incorporation of The Times Mirror
Company.**
4.2 Certificate of Amendment of Restated Certificate of Incorporation
of The Times Mirror Company (formerly New TMC Inc.).**
4.3 Certificate of Designation of Series C Common Stock, par value
$1.00 per share, of The Times Mirror Company (formerly New TMC
Inc.).**
4.4 Bylaws of The Times Mirror Company.***
4.5 Form of the Indenture.
4.6 Form of Certificate of Designation with respect to Preferred
Stock.***
4.7 Form of specimen certificate representing shares of Preferred
Stock.****
4.8 Form of specimen certificate representing shares of Common
Stock.*****
4.9 Form of Warrant Agreement (for equity securities).***
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
4.10 Form of Warrant Agreement (for debt securities).***
4.11 Form of Purchase Contract Agreement with respect to the Stock
Purchase Contracts (including as Exhibit A thereto the form of
Security Certificate).*
4.12 Form of Pledge Agreement with respect to the Stock Purchase
Contracts.*
5 Opinion of Gibson, Dunn & Crutcher LLP regarding the legality of
securities being registered.
12 Computation of Ratio of Earnings to Fixed Charges and Ratio of
Earnings to Fixed Charges and Preferred Stock Dividends.*
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5 to
this Registration Statement).
24 Powers of Attorney (included on pages II-4 and II-5 of this
Registration Statement).
25 Statement of Eligibility of Trustee on Form T-1.*
</TABLE>
- --------
* To be filed by amendment, by incorporation by reference or by Current
Reports on Form 8-K in connection with the offering of the Securities.
** Filed as an exhibit to the Registration Statement on Form S-4 of the
Registrant (File No. 33-87482) and incorporated herein by reference.
*** Filed as an exhibit to the Registration Statement on Form S-3 (File No.
33-62165) and incorporated herein by reference.
**** Filed as an exhibit to the Registration Statement on Form 8-A dated
December 22, 1994 and incorporated herein by reference.
***** Filed as an exhibit to the Registration Statement on form 8-A dated
November 21, 1994 and incorporated herein by reference.
ITEM 17. UNDERTAKINGS. 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;
(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 and 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 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 (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 and Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
II-2
<PAGE>
(2) That, for purposes of determining any liability under the Securities
Act, 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.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to section 13(a)
or section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Exchange Act) 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.
(5) That, insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities 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
Securities Act and will be governed by the final adjudication of such issue.
(6) That, for purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as a part of a
registration statement in reliance upon Rule 430A and contained in the form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of the registration
statement as of the time it was declared effective.
(7) That, for the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(8) To file an application for the purpose of determining the eligibility of
the trustee to act under subsection (a) of Section 310 of the Trust Indenture
Act in accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Trust Indenture Act.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Los Angeles, State of California, on March 25, 1997.
THE TIMES MIRROR COMPANY
/s/ Thomas Unterman
By: _________________________________
Thomas Unterman
Senior Vice President and Chief
Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Mark H. Willes, Thomas Unterman and Kathleen G.
McGuinness, and each of them, as his or her true and lawful attorney-in-fact
and agent with full powers of substitution and resubstitution, for him or her
and in his or her name, place and stead, in any and all capacities to sign any
or all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about
the foregoing, as fully to all intents and purposes as he or she might or could
do in person, lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in their capacities and on
the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Mark H. Willes Chairman of the Board, President and March 25, 1997
_____________________________ Chief Executive Officer (Principal
Mark H. Willes Executive Officer)
/s/ Thomas Unterman Senior Vice President and Chief March 25, 1997
_____________________________ Financial Officer (Principal Financial
Thomas Unterman and Accounting Officer)
/s/ C. Michael Armstrong Director March 25, 1997
_____________________________
C. Michael Armstrong
/s/ Gwendolyn Garland Babcock Director March 25, 1997
_____________________________
Gwendolyn Garland Babcock
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <S>
/s/ Donald R. Beall Director March 25, 1997
____________________________________
Donald R. Beall
/s/ John E. Bryson Director March 25, 1997
____________________________________
John E. Bryson
/s/ Bruce Chandler Director March 25, 1997
____________________________________
Bruce Chandler
/s/ Otis Chandler Director March 25, 1997
____________________________________
Otis Chandler
/s/ Robert F. Erburu Director March 25, 1997
____________________________________
Robert F. Erburu
/s/ Clayton W. Frye, Jr. Director March 25, 1997
____________________________________
Clayton W. Frye, Jr.
/s/ David Laventhol Director March 25, 1997
____________________________________
David Laventhol
/s/ Dr. Alfred E. Osborne, Jr. Director March 25, 1997
____________________________________
Dr. Alfred E. Osborne, Jr.
/s/ Joan A. Payden Director March 25, 1997
____________________________________
Joan A. Payden
/s/ Richard T. Schlosberg III Director March 25, 1997
____________________________________
Richard T. Schlosberg III
/s/ William Stinehart, Jr. Director March 25, 1997
____________________________________
William Stinehart, Jr.
/s/ Harold M. Williams Director March 25, 1997
____________________________________
Harold M. Williams
/s/ Warren B. Williamson Director March 25, 1997
____________________________________
Warren B. Williamson
/s/ Dr. Edward Zapanta Director March 25, 1997
____________________________________
Dr. Edward Zapanta
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
EXHIBIT NO. DESCRIPTION PAGE
----------- ----------- ------------
<C> <S> <C>
1.1 Form of Underwriting Agreement (for equity securities)*............
1.2 Form of Underwriting Agreement (for debt securities)*..............
4.1 Restated Certificate of Incorporation of The Times Mirror
Company**.........................................................
4.2 Certificate of Amendment of Restated Certificate of Incorporation
of The Times Mirror Company (formerly New TMC Inc.)**.............
4.3 Certificate of Designation of Series C Common Stock, par value
$1.00 per share, of The Times Mirror Company (formerly New TMC
Inc.)**...........................................................
4.4 Bylaws of The Times Mirror Company***..............................
4.5 Form of the Indenture..............................................
4.6 Form of Certificate of Designation with respect to Preferred
Stock***..........................................................
4.7 Form of specimen certificate representing shares of Preferred
Stock****.........................................................
4.8 Form of specimen certificate representing shares of Common
Stock*****........................................................
4.9 Form of Warrant Agreement (for equity securities)***...............
4.10 Form of Warrant Agreement (for debt securities)***.................
4.11 Form of Purchase Contract Agreement with respect to the Stock
Purchase Contracts (including as Exhibit A thereto the form of
Security Contracts)*..............................................
4.12 Form of Pledge Agreement with respect to the Stock Purchase
Contracts*........................................................
5 Opinion of Gibson, Dunn & Crutcher LLP regarding the legality of
securities being registered.......................................
12 Computation of Ratio of Earnings to Fixed Charges and Ratio of
Earnings to Fixed Charges and Preferred Stock Dividends*..........
23.1 Consent of Ernst & Young LLP.......................................
23.2 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5 to
this Registration Statement)......................................
24 Powers of Attorney (included on pages II-4 and II-5 of this
Registration Statement)...........................................
25 Statement of Eligibility of Trustee on Form T-1*...................
</TABLE>
- --------
* To be filed by amendment, by incorporation by reference or by Current
Reports on Form 8-K in connection with the offering of the Securities.
** Filed as an exhibit to the Registration Statement on Form S-4 of the
Registrant (File No. 33-87482) and incorporated herein by reference.
*** Filed as an exhibit to the Registration Statement Form S-3 of the
Registrant (File No. 33-62165) and incorporated herein by reference.
**** Filed as an exhibit to Registration Statement Form 8-A dated December
22, 1994 and incorporated herein by reference.
***** Filed as an exhibit to Registration Statement Form 8-A dated November
21, 1994 and incorporated herein by reference.
<PAGE>
Exhibit 4.5
- --------------------------------------------------------------------------------
THE TIMES MIRROR COMPANY
TO
___________, TRUSTEE
_________________
INDENTURE
DATED AS OF _______ __, 19__
- --------------------------------------------------------------------------------
Language in brackets indicates alternative language or provisions to
be supplied. As appropriate, disclosure will be made in the relevant Prospectus
Supplement as to which alternative has been chose or provisions added and a copy
of the final indenture will be filed as an Exhibit to a Form 8-K, or other
appropriate periodic report.
<PAGE>
[This Cross Reference Sheet, showing the location in the Indenture of the
provisions inserted pursuant to Sections 310 to 318(a), inclusive, of the Trust
Indenture Act of 1939, is not to be considered a part of the Indenture.]
TRUST INDENTURE ACT CROSS REFERENCE SHEET
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
- ---------------------------- -----------------
<S> <C>
Section 310(a)(1) ........................................ 609
(a)(2) ........................................ 609
(a)(3) ........................................ 609
(a)(4) ........................................ N/A
(b) ........................................ 608,610
(b)(1) ........................................ 608,610
Section 311(a) ........................................ 613
(b) ........................................ 613
(c) ........................................ 613
Section 312(a) ........................................ 701
(b) ........................................ 702
(c) ........................................ 702
Section 313(a) ........................................ 703
(b)(1) ........................................ 703
(b)(2) ........................................ 703
(c) ........................................ 703
(d) ........................................ 703
Section 314(a) ........................................ 704
(b) ........................................ N/A
(c)(1) ........................................ 704
(c)(2) ........................................ 704
(c)(3) ........................................ 704
(d) ........................................ N/A
(e) ........................................ 102
Section 315(a) ........................................ 601
(b) ........................................ 602
(c) ........................................ 601
(d) ........................................ 601
(e) ........................................ 503
Section 316(a) (last sentence).................................. 101
(a)(1)(A) ........................................ 512
(a)(1)(B) ........................................ 513
(a)(2) ........................................ N/A
(b) ........................................ 508
Section 317(a)(1) ........................................ 503
(a)(2) ........................................ 504
(b) ........................................ 506
Section 318(a) ........................................ 107
</TABLE>
- -------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE ONE Definitions and Other Provisions of General Application 1
Section 101. Definitions............................................ 1
Section 102. Compliance Certificates and Opinions................... 7
Section 103. Form of Documents Delivered to Trustee................. 8
Section 104. Acts of Holders; Record Dates.......................... 8
Section 105. Notices, Etc., to Trustee and Company.................. 10
Section 106. Notice to Holders; Waiver.............................. 10
Section 107. Conflict with Trust Indenture Act...................... 11
Section 108. Effect of Headings and Table of Contents............... 11
Section 109. Successors and Assigns................................. 11
Section 110. Separability Clause.................................... 11
Section 111. Benefits of Indenture.................................. 11
Section 112. Governing Law.......................................... 11
Section 113. Legal Holiday.......................................... 11
ARTICLE TWO Security Forms......................................... 12
Section 201. Forms Generally........................................ 12
Section 202. Form of Face of Security............................... 12
Section 203. Form of Reverse of Security............................ 15
Section 204. Form of Legend for Global Securities................... 18
Section 205. Form of Coupon......................................... 19
Section 206. Form of Trustee's Certificate of Authentication........ 20
[Section 207. Securities in Global Form.............................. 20]
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE THREE The Securities....................................... 21
Section 301. Amount Unlimited; Issuable in Series................. 21
Section 302. Denominations........................................ 23
Section 303. Execution, Authentication, Delivery and Dating....... 23
Section 304. Temporary Securities................................. 25
Section 305. Registration, Registration of Transfer and Exchange . 26
Section 306. Mutilated, Destroyed, Lost and Stolen Securities
or Coupons........................................... 29
Section 307. Payment of Interest; Interest Rights Preserved....... 29
Section 308. Persons Deemed Owners................................ 31
Section 309. Cancellation......................................... 31
Section 310. Computation of Interest.............................. 32
Section 311. Certificate by a Person Entitled to Delivery of a
Bearer Security...................................... 32
ARTICLE FOUR Satisfaction And Discharge........................... 32
Section 401. Satisfaction and Discharge of Indenture.............. 32
Section 402. Application of Trust Money........................... 33
ARTICLE FIVE Remedies............................................. 33
Section 501. Events of Default.................................... 33
Section 502. Acceleration of Maturity; Rescission and Annulment... 34
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee........................................... 35
Section 504. Trustee May File Proofs of Claim..................... 36
Section 505. Trustee May Enforce Claims Without Possession of
Securities........................................... 36
Section 506. Application of Money Collected....................... 36
Section 507. Limitation on Suits.................................. 37
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Convert.................. 37
Section 509. Restoration of Rights and Remedies................... 37
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 510. Rights and Remedies Cumulative......................... 38
Section 511. Delay or Omission Not Waiver........................... 38
Section 512. Control by Holders..................................... 38
Section 513. Waiver of Past Defaults................................ 39
Section 514. Undertaking for Costs.................................. 39
Section 515. Waiver of Usury, Stay or Extension Laws................ 39
ARTICLE SIX The Trustee............................................ 39
Section 601. Certain Duties and Responsibilities.................... 39
Section 602. Notice of Defaults..................................... 40
Section 603. Certain Rights of Trustee.............................. 40
Section 604. Not Responsible for Recitals or Issuance of Securities. 41
Section 605. May Hold Securities or Coupons......................... 41
Section 606. Money Held in Trust.................................... 41
Section 607. Compensation and Reimbursement......................... 41
Section 608. Disqualification; Conflicting Interests................ 42
Section 609. Corporate Trustee Required; Eligibility................ 42
Section 610. Resignation and Removal; Appointment of Successor...... 42
Section 611. Acceptance of Appointment by Successor................. 44
Section 612. Merger, Conversion, Consolidation or Succession to
Business............................................... 44
Section 613. Preferential Collection of Claims Against Company...... 45
Section 614. Appointment of Authenticating Agent.................... 45
ARTICLE SEVEN Holders' Lists and Reports by Trustee and Company...... 46
Section 701. Company to Furnish Trustee Names and Addresses
of Holders............................................. 46
Section 702. Preservation of Information; Communications to
Registered Holders..................................... 47
Section 703. Reports by Trustee..................................... 47
Section 704. Reports by Company..................................... 47
</TABLE>
iii
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ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or
Lease............................................... 48
Section 801. Company May Consolidate, Etc., Only on Certain Terms 48
Section 802. Successor Substituted............................... 49
ARTICLE NINE Supplemental Indentures............................. 49
Section 901. Supplemental Indentures Without Consent of Holders.. 49
Section 902. Supplemental Indentures with Consent of Holders..... 50
Section 903. Execution of Supplemental Indentures................ 51
Section 904. Effect of Supplemental Indentures................... 51
Section 905. Conformity with Trust Indenture Act................. 51
Section 906. Reference in Securities to Supplemental Indentures.. 51
ARTICLE TEN Covenants........................................... 51
Section 1001. Payment of Principal Premium and Interest........... 51
Section 1002. Maintenance of Office or Agency..................... 51
Section 1003. Money for Securities Payments to Be Held in Trust... 52
Section 1004. Statement by Officers as to Default................. 53
Section 1005. Commission Reports.................................. 53
Section 1006. Continued Existence................................. 54
Section 1007. Taxes............................................... 54
Section 1008. Waiver of Certain Covenants......................... 54
ARTICLE ELEVEN Redemption of Securities............................ 54
Section 1101. Applicability of Article............................ 54
Section 1102. Election to Redeem; Notice to Trustee............... 55
Section 1103. Selection by Trustee of Securities to Be Redeemed... 55
Section 1104. Notice of Redemption................................ 55
Section 1105. Deposit of Redemption Price......................... 56
Section 1106. Securities Payable on Redemption Date............... 56
Section 1107. Securities Redeemed in Part......................... 57
</TABLE>
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ARTICLE TWELVE Sinking Funds...................................... 57
Section 1201. Applicability of Article................. 57
Section 1202. Satisfaction of Sinking Fund Payments with
Securities.......................................... 57
Section 1203. Redemption of Securities for Sinking Fund........... 58
ARTICLE THIRTEEN Conversion of Securities........................... 58
Section 1301. Conversion Privilege and Conversion Price.......... 58
Section 1302. Exercise of Conversion Privilege................... 59
Section 1303. Fractions of Shares................................ 60
Section 1304. Adjustment of Conversion Price..................... 60
Section 1305. Notice of Adjustments of Conversion Price.......... 65
Section 1306. Notice of Certain Corporate Action................. 65
Section 1307. Company to Reserve Series A Common Stock........... 66
Section 1308. Taxes on Conversions............................... 66
Section 1309. Covenant as to Series A Common Stock............... 66
Section 1310. Cancellation of Converted Securities............... 66
Section 1311. Provisions in the Case of Consolidation, Merger or
Sales of Assets.................................... 66
Section 1312. Responsibility of Trustee.......................... 67
ARTICLE FOURTEEN Defeasance and Covenant Defeasance................. 67
Section 1401. Company's Option to Effect Defeasance or
Covenant Defeasance................................. 67
Section 1402. Defeasance and Discharge............................ 68
Section 1403. Covenant Defeasance................................. 68
Section 1404. Conditions to Defeasance or Covenant Defeasance 69
Section 1405. Deposited Money and U.S Government Obligations
to be Held in Trust; Other Miscellaneous Provisions. 69
Section 1406. Reinstatement....................................... 70
ARTICLE FIFTEEN Meetings of Holders of Securities.................. 70
Section 1501. Purposes for Which Meetings May Be Called.......... 70
</TABLE>
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Section 1502. Call, Notice and Place of Meetings............ 70
Section 1503. Persons Entitled to Vote at Meetings.......... 71
Section 1504. Quorum; Action................................ 71
Section 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings....................... 72
</TABLE>
vi
<PAGE>
THIS INDENTURE, dated as of _______, 1997, is between THE TIMES MIRROR
COMPANY, a Delaware corporation (the "Company"), having its principal office at
Times Mirror Square, Los Angeles, California 90053, and
________________________, a national banking association duly incorporated and
existing under the laws of the United States of America, as Trustee (the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Securities"), to be
issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of the applicable
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation;
(4) the words "Article" and "Section" refer to an Article
and Section, respectively, of this Indenture; and
(5) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
<PAGE>
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper in the English language or,
at the option of the Company, in an official language of the country of
publication, customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays, and of general circulation in the
place in connection with which the term is used or in the financial community at
such place. Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in different
Authorized Newspapers meeting the foregoing requirements and in each case on any
Business Day.
"Bearer Security" means any Security, in the form (to the extent
applicable thereto) established pursuant to Section 201, which is payable to the
bearer.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in that Place of Payment, or the city in which the
Corporate Trust Office of the Trustee is located, are authorized or obligated by
law or executive order to close.
"Cedel S.A." means Centrale de Livraison de Valeurs Mobilieres S.A.
"Closing Price" for any day means the last reported sale price of the
Series A Common Stock regular way on such day or, in case no such reported sale
takes place on such day, the average of the reported closing bid and asked
prices regular way on such day, in either case on the New York Stock Exchange
or, if the Series A Common Stock is not listed or admitted to trading on such
exchange, on the principal national securities exchange on which the Series A
Common Stock is listed or admitted to trading or, if not listed or admitted to
trading on any national securities exchange, on the Nasdaq National Market or,
if the Series A Common Stock is not listed or admitted to trading on any
national securities exchange or quoted on such National Market, the average of
the closing bid and asked prices in the over-the-counter market as furnished by
any New York Stock Exchange member firm selected from time to time by the
Company for that purpose. If the Series A Common Stock is not listed or
admitted to trading on any national securities exchange, quoted on such National
Market or listed in any list of bid and asked prices in the over-the-counter
market, "Closing Price" shall mean the fair market value of the Series A Common
Stock as determined in good faith by the Board of Directors.
2
<PAGE>
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered; which office is, at the date as of which this
Indenture is dated, located at 120 Wall Street, New York, New York 10043, except
that for purposes of the presentation of Securities for payment or registration
of transfer or exchange, such term means the office or agency of the Trustee in
said city at which at any particular time the corporate agency business of the
Trustee shall be conducted, which office at the date of execution of this
Indenture is located at 111 Wall Street, 5th Floor, New York, New York 10043.
"Corporation" means a corporation, association, company, joint stock
company or business trust.
"Coupon" means any interest coupon of a Bearer Security.
"Covenant Defeasance" has the meaning specified in Section 1403.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1402.
"Defeasible Series" has the meaning specified in Section 1401.
"Depositary" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, the Person
designated to act as Depositary for such Securities as contemplated by Section
301 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall mean
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any series shall mean each Depositary with respect to Securities
of that series.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Euro-clear" means the operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any statute successor thereto.
"Exchange Rate" shall have the meaning specified as contemplated in
Section 301.
3
<PAGE>
"Exchange Rate Agent" shall have the meaning specified as contemplated
in Section 301.
"Exchange Rate Officer's Certificate," with respect to any date for
the payment of principal of (and premium, if any) and interest on any series of
Securities, means a certificate setting forth the applicable Exchange Rate and
the amounts payable in Dollars and Foreign Currencies in respect of the
principal of (and premium, if any) and interest on Securities denominated in
ECU, any other composite currency or Foreign Currency, and signed by the
Chairman of the Board, the President, the Treasurer or any Assistant Treasurer
of the Company or the Exchange Rate Agent appointed pursuant to Section 301 and
delivered to the Trustee.
"Foreign Currency" means a currency issued by the government of any
country other than the United States.
"Global Security" means a Security that evidences all or part of the
Securities of any series and is authenticated and delivered to, and registered
in the name of, the Depositary for such Securities or a nominee thereof.
"Holder" means, in the case of any Registered Security, a Person in
whose name a Security is registered in the Security Register and, in the case of
any Bearer Security, the bearer thereof and, when used with respect to any
coupon, the bearer thereof.
"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 pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of a particular
series of Securities established as contemplated by Section 301.
"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel reasonably
acceptable to the Trustee, who may be counsel for the Company.
4
<PAGE>
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided, however,
that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant
to Section 1402; and
(4) Securities that have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (A) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof to such date pursuant to Section 502, (B) the principal amount of a
Security denominated in one or more foreign currencies or currency units shall
be the U.S. dollar equivalent, determined in the manner provided as contemplated
by Section 301 on the date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in Clause (A) above) of such Security, and (C)
Securities owned by the Company or any other obligor upon the Securities or any
Subsidiary of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities that the Trustee knows to
be so owned shall be so disregarded. Securities so owned that have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Subsidiary of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
5
<PAGE>
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security in the form (to the extent
applicable thereto) established pursuant to Section 201, which is registered on
the books of the Security Registrar.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means
the chairman of the board of directors, the chairman or any vice-chairman of the
executive committee of the board of directors, the president, any vice
president, any trust officer, any senior trust officer, the treasurer, any
assistant treasurer, the controller or any assistant controller or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Series A Common Stock" means Series A Common Stock, par value $1.00
per share, of the Company.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
that ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
6
<PAGE>
"Trading Day" means, with respect to the Series A Common Stock,
each Monday, Tuesday, Wednesday, Thursday and Friday, other than any day on
which securities are not traded on the exchange or market on which the Series A
Common Stock is traded.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean each Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990 and as in force at the date as
of which this instrument was executed; provided, however, that in the event the
Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act"
means, to the extent required by any such amendment, the Trust Indenture Act of
1939 as so amended.
"United States" means the United States of America, its
territories, its possessions (including the Commonwealth of Puerto Rico), and
other areas subject to its jurisdiction.
"United States Alien" means any person who, for United States
Federal income tax purposes, is a foreign corporation, a nonresident alien
individual, a nonresident fiduciary of a foreign estate or trust, or a foreign
partnership one or more members of which is, for United States Federal income
tax purposes, a foreign corporation, a nonresident alien individual or a
nonresident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" has the meaning specified in Section
1304.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such or opinion are based;
7
<PAGE>
(3) a statement that, in the opinion of each such individual, he
or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate or opinion of counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If Securities of a series are issuable in whole or in part
as Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may, alternatively, be embodied in and evidenced by the record
Holders of Securities voting in favor thereof, either in person or by proxies
duly appointed in writing, at any meeting of Holders of Securities duly called
and held in accordance with the provisions of Article Fifteen, or a combination
of such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
8
<PAGE>
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him or her the execution thereof.
Where such execution is by a signer acting in a capacity other than his or her
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his or her authority. The fact and date of the execution of
any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner that the Trustee deems sufficient.
The ownership of Registered Securities shall be proved by the
Security Register.
The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as Depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that as
of the date therein mentioned such Person had on deposit with such Depositary,
or exhibited to it, the Bearer Securities in the amount and with the serial
numbers therein described, or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee of the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, (2) such Bearer Security is produced to
the Trustee by some other Person, (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding.
The fact and date of execution of any such instrument or writing,
the authority of the Person executing the same and the principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner that the Trustee deems sufficient, and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section 104.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
The Company may, in the circumstances permitted by the Trust
Indenture Act, set any day as the record date for the purpose of determining the
Holders of Outstanding Securities of any series entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action or permitted by this Indenture to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Outstanding Securities of such series made by any
Person in respect of any such action, or, in the case of any such vote, prior to
such vote, the record date for any such action or vote shall be the 30th day
(or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 701) prior to such first solicitation or vote, as
the case may be. With regard to any record date set pursuant to this paragraph,
the Holders of Outstanding Securities of the relevant series on such record date
(or their duly appointed agents), and only such Persons, shall be entitled to
give or take the relevant action, whether or not such Holders remain Holders
after such record date.
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Without limiting the foregoing, a Holder entitled hereunder to
give or take any action hereunder with regard to any particular Security may do
so with regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents each of whom may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to it to the attention of its Treasurer at the address
of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his or her address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Notice
shall be sufficiently given to Holders of Bearer Securities if published in an
Authorized Newspaper in the City of [New York] and in such other city or cities
as may be specified in the Securities on at least two Business Days, the first
such publication to be not earlier than the earliest date, and not later than
the latest date, prescribed for the giving of such notice. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impractical to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as shall
be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided, nor any defect in any
notice so published, shall affect the sufficiency of any notice to Holders of
Registered Securities given as provided herein.
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Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the law of the State of New York, but without
regard to principles of conflicts of laws.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Repurchase Date or Stated Maturity of any Security shall not be a Business Day
at any Place of Payment (or the City in which the Corporate Trust Office of the
Trustee is located), then unless otherwise provided in the Securities of any
series, payment of interest or principal (and premium, if any) need not be made
at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment (provided such Business Day is a Business
Day in the City in which the Corporate Trust Office of the Trustee is located)
with the same force and effect as if made on the Interest Payment Date,
Redemption Date, Repurchase Date, or at the Stated Maturity; provided, however,
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date, Repurchase Date or Stated Maturity, as the case
may be.
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ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
The Securities of each series (including, with respect to Bearer
Securities, the coupons related thereto) and the Trustee's certificate of
authentication thereon shall be in substantially the form set forth in this
Article, or in such other form as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. If the form of
Securities of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
303 for the authentication and delivery of such Securities.
Unless otherwise specified in accordance with Section 301, Bearer
Securities shall have coupons attached.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Global Securities may be issued in either registered or bearer
form and in either temporary or permanent form.
Section 202. Form of Face of Security.
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE
REGULATIONS THEREUNDER]
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THE TIMES MIRROR COMPANY
[Title of Security]
No. _______ [$]________________
THE TIMES MIRROR COMPANY, a Delaware corporation (herein called the
"Company," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
[____________________________, or registered assigns,] [bearer upon presentation
and surrender of this Security] the principal sum of ___________________________
Dollars ($_________) on _______________ [if the Security is to bear interest
prior to Maturity, insert -- , and to pay interest thereon from __________ or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, [annually] [semi-annually] [quarterly] on ____________ [and]
[,__________, _____________ and ] in each year, commencing _______________, at
[if the Security is to bear interest at a fixed rate, insert --the rate of ____%
per annum] [if the Security is to bear interest at a variable rate, insert --
the rate or rates as determined herein], until the principal hereof is paid or
made available for payment [if applicable, insert -- , and (to the extent that
the payment of such interest shall be legally enforceable) at the rate of ___%
per annum on any overdue principal and premium and on any overdue installment
of interest]. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to [the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the __________ or __________ (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date]
[bearer upon presentation and surrender of the interest coupons attached hereto
as they severally mature]. [Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture].
[If the Security is to bear interest at a variable rate, insert --
[appropriate provisions with regard to the determination of the applicable
interest rate or rates based upon the prime rate, the LIBOR rate, the secondary
market rate for T-Bills or United States dollar domestic certificates of
deposit, the auction rate for T-Bills or such other rate as selected].]
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<PAGE>
[If the Security is not to bear interest prior to Maturity,
insert --The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security shall
bear interest at the rate of ___% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be paid on demand.
Any such interest on any overdue principal that is not so paid on demand shall
bear interest at the rate of ___% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) [if applicable,
insert -- any such] and interest on this Security will be made at the office or
agency of the Company maintained for that purpose in ______________, in such
coin or currency of the United States of America [if applicable, specify other
currency] as at the time of payment is legal tender for payment of public and
private debts [if applicable, insert -- ; provided, however, that at the option
of the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register].
[No payment of principal (and premium, if any) or interest with
respect to any Bearer Securities shall be made at the Corporate Trust Office of
the Trustee under the Indenture or at any other office or agency of the Company
in the United States or by transfer to an account in, or by check mailed to an
address in, the United States. Notwithstanding the foregoing, payment of
principal of (and premium, if any) and interest in Dollars on any Bearer
Securities and payments of any such additional amounts may be made at the
Corporate Trust Office of the Trustee, if (but only if) payment of the full
amount of such principal, premium, interest or additional amounts, as the case
may be, at all offices located outside the United States through which payment
is to be made in accordance with the Indenture is illegal or effectively
precluded because of the imposition of exchange controls or other similar
restrictions.]
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, [neither]
this Security [nor any coupon attached hereto] shall [not] be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
THE TIMES MIRROR COMPANY
By: __________________________________
Attest:
__________________________________
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Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of _______________ and all indentures
supplemental thereto (herein called the "Indenture"), between the Company and
__________________, as Trustee (herein called the "Trustee", which term includes
any successor trustee under the Indenture), to which Indenture reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert --, limited in aggregate principal amount
to $___________]. [If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 nor more than 60 days notice by
mail, (1) on _____________ in any year commencing with the year ____ and ending
with the year _____ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [if applicable, insert -- on or after ___________], as a
whole or in part, at the election of the Company, at the Redemption Prices for
redemption otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If redeemed
during the 12-month period beginning ____________ of the years indicated,
REDEMPTION PRICE REDEMPTION PRICE FOR
FOR REDEMPTION REDEMPTION OTHERWISE
THROUGH OPERATION THAN THROUGH OPERATION
YEAR OF THE SINKING FUND OF THE SINKING FUND
____ ___________________ ______________________
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable [upon presentation and surrender of coupons for such
interest] [to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Regular Record
Dates referred to on the face hereof,] all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the
Company may not, prior to __________ redeem any Securities of this series as
contemplated by [if applicable, -- Clause (2) of] the preceding paragraph as a
part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than _____% per annum.]
[The sinking fund for this series provides for the redemption on
__________ in each year beginning with the year ____ and ending with the year
____ of [if applicable, -- not less than $___________ ("mandatory sinking fund")
and not more than] $_________ aggregate principal amount of Securities of this
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series. Securities of this series acquired or redeemed by the Company otherwise
than through [if applicable, -- mandatory] sinking fund payments may be credited
against subsequent [if applicable, -- mandatory] sinking fund payments otherwise
required to be made [if applicable, -- in the inverse order in which they become
due].]
[If the Security is subject to [redemption] [or] [conversion] in
part of any kind, insert -- In the event of [redemption] or [conversion] of this
Security in part only, a new Security or Securities of this series and of like
tenor for the [unredeemed[ [or] [unconverted] portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.]
[If the Security is subject to conversion, insert -- Subject to
and upon compliance with the provisions of the Indenture, the Holder of this
Security is entitled, at his or her option, at any time on or before the close
of business on _________, or in case this Security or a portion hereof is called
for redemption, then in respect of this Security or such portion hereof until
and including, but (unless the Company defaults in making the payment due upon
redemption or repurchase) not after, the close of business on the Redemption
Date or the repurchase date, to convert this Security (or any portion of the
principal amount hereof which is $________ or an integral multiple thereof), at
the principal amount hereof, or of such portion, into fully paid and non-
assessable shares (calculated as to each conversion to the nearest 1/100 of a
share) of Series A Common Stock of the Company at a conversion price equal to
$________ aggregate principal amount of Securities for each share of Series A
Common Stock (or at the current adjusted conversion price if an adjustment has
been made as provided in the Indenture) by surrender of this Security, duly
endorsed or assigned to the Company or in blank, to the Company at its office or
agency in [Los Angeles, California] [New York, New York,] [or to such office or
agency outside the United States as the Company may designate] accompanied by
[all unmatured coupons and any matured coupons in default attached hereto and]
written notice to the Company that (i) the Holder hereof elects to convert this
Security, or if less than the entire principal amount hereof is to be converted,
the portion hereof to be converted, and (ii) the name or names (with addresses)
in which the certificate or certificates for shares of Series A Common Stock
issuable on such conversion shall be issued. [In case such surrender shall be
made during the period from the close of business on any Regular Record Date
next preceding any Interest Payment Date to the opening of business on such
Interest Payment Date (unless this Security or the portion thereof being
converted has been called for redemption, or is to be repurchased, on such
Interest Payment Date or on a Redemption Date or a repurchase date within such
period), this Security shall also accompanied by payment of an amount equal to
the interest payable on such Interest Payment Date on the principal amount of
this Security then being converted (or, if this Security was issued in exchange
for a Bearer Security after the close of business on such Regular Record Date,
by surrender of one or more coupons relating to such Interest Payment Date or by
both payment in such funds and surrender of such coupon or coupons, in either
case, in an amount equal to the interest payable on such Interest Payment Date
on the principal amount of this Security then being converted).] [Subject to the
aforesaid requirement for payment and, in the case of a conversion after the
Regular Record Date next preceding any Interest Payment Date and on or before
such Interest Payment Date, to the right of the Holder of this Security (or any
Predecessor Security) of record at such Regular Record Date to receive an
installment of interest (with certain exceptions provided in the Indenture),] no
payment or adjustment is to be made on conversion for interest accrued hereon or
for dividends on the Series A Common Stock issued on conversion. No fractions of
shares or scrip representing fractions of shares will be issued on conversion,
but instead of any fractional interest the Company shall pay a cash adjustment
as provided in the Indenture. The conversion price is subject to adjustment as
provided in the Indenture. In addition, the Indenture provides that in case of
certain consolidations or mergers to which the Company is a party or the
transfer of substantially all of the assets of the Company, the Indenture shall
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<PAGE>
be amended, without the consent of any Holders of Securities,so that this
Security, if then outstanding, will be convertible thereafter during the period
this Security shall be convertible as specified above, only into the kind and
amount of securities, cash and other property receivable upon the consolidation,
merger or transfer by a Holder of the number of shares of Series A Common Stock
into which this Security might have been converted immediately prior to such
consolidation, merger or transfer (assuming such holder of Series A Common Stock
failed to exercise any rights of election and received per share the kind and
amount received per share by a plurality of non-electing shares).]
[If the Security is not an Original Issue Discount Security,
insert --If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture. Such amount shall be equal to -- insert formula for determining
the amount. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal and overdue interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and interest, if any, on the Securities of this series shall
terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
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<PAGE>
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, places and rates, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the [Company][Trustee] in any place where the principal of
and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his or
her attorney duly authorized in writing, and thereupon one or more new
Securities of this series and of like tenor, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated transferee
or transferees.
[Title to Bearer Securities and coupons shall pass by delivery.]
[The Securities of this series are issuable only in registered
form without coupons in denominations of $_______ and any integral multiple
thereof.] As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
[Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered] [The Company,
the Trustee and any agent of the Company or the Trustee may treat the Bearer of
any Bearer Securities and any coupon attached thereto] as the owner hereof for
all purposes, whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Global Securities.
Every Global Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY
NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR
SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN
THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY
BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
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<PAGE>
IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED
UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF,
THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT
IN SUCH LIMITED CIRCUMSTANCES.
Section 205. Form of Coupon.
[Face of coupon]
[Insert any legend required by the Internal Revenue Code and the Regulations
thereunder.]
No. ______
On the [____] Interest Payment Date
[_____________]
THE TIMES MIRROR COMPANY (the "Company") will pay to the bearer, upon surrender
hereof, the interest payable with respect to the above-referenced Interest
Payment Date on its [name of the Securities] with the certificate number set
forth below, together with any additional amounts which may be payable under the
terms of the Security, unless the Security shall have been previously called for
redemption or submitted for repayment and sums for such redemption or repayment
duly provided. Payment of this coupon will be made in the currency set forth on
the face of such Security upon surrender hereof, subject to applicable laws and
regulations, only (subject to certain limited exceptions set forth in such
Security) at such paying agencies outside the United States and its possessions
as the Company may appoint from time to time. Such payments will be made, at
the option of the bearer, by check mailed or delivered to an address outside the
United States and its possessions furnished by such bearer or by payment to an
account maintained by the payee with a bank located outside the United States.
[This coupon will become void unless presented for payment within [___] years
from the due date hereof.] Reference is made to the Security for definitions of
terms used herein.
The Times Mirror Company
By: ____________________________
Certificate Number: ____________
[Reverse of Coupon]
Paying Agencies (subject to change)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
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Section 206. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
As Trustee
By ________________________________________
Authorized Signatory
[Section 207. Securities in Global Form.
If Securities of a series are issuable in whole or in part in
global form, as specified as contemplated by Section 301, then, notwithstanding
clause (9) of Section 301 and the provisions of Section 302, any such Securities
shall represent such of the Outstanding Securities or such series as shall be
specified therein and may provide that it shall represent the aggregate
principal amount of Outstanding Securities from time to time endorsed thereon
and that the aggregate principal amount of Outstanding Securities represented
thereby may from time to time be reduced to reflect exchanges. The global form
may be permanent or temporary. Any endorsement of a Securities in global form to
reflect the amount, or any increase or decrease in the principal amount, of
Outstanding Securities represented thereby shall be made by the Trustee in such
manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or Section 304. Subject to the provisions of Section 303
and, if applicable, Section 304, the Trustee shall deliver and redeliver any
Securities in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Company Order. If a
Company Order pursuant to Section 303 or 304 has been or simultaneously is
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Securities in global form shall be in writing but
need to comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium and interest on any Securities in permanent global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat a Person as the Holder of such principal
amount of Outstanding Securities represented by a permanent global Securities as
shall be specified in a written statement of the Depositary with respect to such
permanent global Securities.]
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ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall
be established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities that, pursuant to Section 303, are deemed
never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, and the
manner in which, and the person to whom, any interest on any Bearer
Securities of the series shall be payable, if otherwise then upon
presentation and surrender of the coupons appertaining thereto as they
severally mature;
(4) the date or dates on which the principal of the Securities of
the series is payable;
(5) the rate or rates, or the method or methods by which such
rate or rates shall be determined, at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which any such interest shall
be payable and the Regular Record Date for any interest payable on any
Interest Payment Date;
(6) the place or places where the principal of and any premium
and interest on Securities of the series shall be payable;
(7) the period or periods within which, the date or dates on
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 other provisions
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) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
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(10) the currency, currencies or currency units in which payment
of the principal of and any premium and interest on any Securities of the
series shall be payable, if other than Dollars, and the Exchange Rate and
Exchange Rate Agent;
(11) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with reference
to an index or any security or other measure, the manner in which such
amounts shall be determined and any special voting or defeasance
provisions in connection thereto;
(12) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company
or a Holder thereof, in one or more currencies or currency units other
than that or those in which the Securities are stated to be payable, the
currency, currencies or currency units in which payment of the principal
of and any premium and interest on Securities of such series as to which
such election is made shall be payable, and the periods within which and
the terms and conditions upon which such election is to be made;
(13) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(14) if applicable, that the Securities of the series shall be
convertible as provided in Article Thirteen;
(15) if applicable, that the Securities of the series shall be
defeasible as provided in Article Fourteen;
(16) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities, and whether the Securities of
the series shall be issuable in whole or in part in the form of one or
more Global Securities and, in such case, the Depositary or Depositaries
and exchange agent for such Global Security or Global Securities and any
circumstances other than those set forth in Section 305 in which any such
Global Security may be transferred to, and registered and exchanged for
Securities registered in the name of, a Person other than the Depositary
for such Global Security or a nominee thereof and in which any such
transfer may be registered;
(17) if the Company will pay any additional amounts on any of the
Securities and coupons, if any, of the series to any Holder who is a
United States Alien (including any modification in the definition of such
term), in respect of any tax, assessment or governmental charge withheld
or deducted, under what circumstances and with what procedures and
documentation the Company will pay such additional amounts, whether such
additional amounts will be treated as interest or principal pursuant to
this Indenture, and whether the Company will have the option to redeem
such Securities rather than pay additional amounts (and the terms of any
such option);
(18) the inclusion of any additional Events of Default or
variations from the Events of Default set forth in Section 501 for the
Securities of the series;
(19) the applicability or non-applicability of Section 1008, or
any variations in Section 1008, or the applicability of any additional
restrictive covenants;
(20) if payments of principal of (and premium, if any) or
interest on the Securities of the series are to be made in a Foreign
Currency other than the currency in which such Securities are
denominated, the manner in which the Exchange Rate with respect to such
payments shall be determined or if the Exchange Rate is to be determined
otherwise than as provided in Section 101;
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(21) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary Security
of such series or otherwise), or any installment of principal or interest
is payable, only upon receipt of certain certificates or other documents
or satisfaction of other conditions in addition to those specified in
this Indenture, the form and terms of such certificates, documents or
conditions;
(22) the subordination provisions, if any, relating to the
Securities of the series; and
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 901(5)).
All Securities of any one series and the coupons appertaining to
any Bearer Securities of such series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
Any such Board Resolution may provide, without limitation, that
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, or with different redemption or repayment dates and may be
denominated in different currencies or payable in different currencies. Unless
otherwise provided in such Board Resolution, a series of Securities may be
reopened for issuances of additional Securities of that series.
At the option of the Company, interest on the Securities of any
series that bears interest may be paid by mailing a check to the address of the
Person entitled thereto as such address shall appear in the Security Register.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 302. Denominations.
The Securities of each series shall be issuable in such
denominations as may be approved by the Company, such approval to be evidenced
by the execution thereof by the Company. The Securities may bear such letters
and numbers distinguishing the several denominations and the several Securities
of each denomination as may be determined by the Company with the approval of
the Trustee. At the office or agency of the Company to be maintained by the
Company as provided in Section 1002, unless otherwise provided in the Securities
of any series, and in the manner, subject to the limitations and upon payment of
the charges provided herein, Securities of each series may be exchanged for a
like aggregate principal amount of Securities of such series of other authorized
denominations.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, its President or one of its
Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
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Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any Series
together with any coupons relating thereto executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
in connection with its original issuance, no Bearer Security or coupon shall be
mailed or otherwise delivered (i) to any person who is not a United States Alien
or to any location in the United States, (ii) unless the Company shall have
received such certificates required by Section 311 or Section 301 hereof, and
(iii) unless the Company has no reason to know that such certificates are false.
If the form or terms of the Securities of the series and any
related coupons have been established in or pursuant to one or more Board
Resolutions as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(1) if the forms of such Securities and any coupons has been
established by or pursuant to Board Resolution as permitted by Section
201, that such form has been established in conformity with the
provisions of this Indenture;
(2) if the terms of such Securities and any coupons have been
established by or pursuant to Board Resolution as permitted by Section
301, that such terms have been established in conformity with the
provisions of this Indenture; and
(3) that such Securities, together with any coupons appertaining
thereto, when authenticated and delivered by the Trustee and issued by
the Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations
of the Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issuance 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.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued. After any such first delivery, any
separate request by the Company that the Trustee authenticate Securities of such
series for original issue will be deemed to be a certification by the Company
that all conditions precedent provided for in this Indenture relating to the
authentication and delivery of such Securities continue to be complied with.
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Each Registered Security shall be dated the date of its
authentication. Unless otherwise specified in Section 301, each Bearer Security
(including a Bearer Security represented by a temporary Global Security) shall
be dated as of the date of original issuance of the first Security of such
series to be issued.
No Security or coupon attached thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security a certificate of authentication substantially in
the form provided for herein executed by the Trustee by manual signature, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Except as otherwise permitted by this Indenture, the Trustee shall
not authenticate and deliver any Bearer Security unless all pertinent coupons
for interest then matured have been detached and canceled. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed,
typewritten,mimeographed or otherwise produced, in any authorized
denomination,substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
Every temporary Security shall be executed by the Company and
authenticated by the Trustee and registered by the Security Registrar, upon the
same conditions, and with like effect, as a definitive Security.
Except in the case of Securities represented by a temporary Global
Security (which shall be exchanged in accordance with the provisions of the
three succeeding paragraphs), if temporary Securities of any series are issued,
the Company will cause definitive Securities of that series to be prepared
without unreasonable delay. After the preparation of definitive Securities of
such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series (accompanied by any unmatured coupons appertaining thereto) at
the office or agency of the Company in a Place of Payment for that series,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, except that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered Security.
Until so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series and tenor.
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Unless otherwise specified as contemplated by Section 301, if
Bearer Securities of any series are represented by a temporary Global Security,
any such temporary Global Security shall be delivered to the Depositary for the
benefit of Euro-clear and Cedel S.A., for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the date
specified in or determined pursuant to the terms of any such temporary Global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
permanent Securities of the same series, in aggregate principal amount equal to
the principal amount of such temporary Global Security, executed by the Company.
On or after the Exchange Date, such temporary Global Security shall be
surrendered by the Depositary to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for permanent
Securities of the same series and of like tenor without charge and the Trustee
shall authenticate and deliver, in exchange for each portion of such temporary
Global Security, an equal aggregate principal amount of definitive Securities of
the same series of authorized denominations and of like tenor as the portion of
such temporary Global Security to be exchanged. The permanent Securities to be
delivered in exchange for any such temporary Global Security shall be in
definitive bearer form or registered from, or shall be represented by a
permanent Global Security, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is so specified, as
requested by the beneficial owner thereof.
Unless otherwise specified in any such temporary Global Security,
the interest of a beneficial owner of Securities of a series represented by such
temporary Global Security shall be exchanged for permanent Securities of the
same series and of like tenor following the Exchange Date when the account
holder instructs Euro-clear or Cedel S.A., as the case may be, to request such
exchange on his behalf and delivers to Euro-clear or Cedel S.A., as the case may
be, any certificates specified as contemplated by Sections 301 and 311. Unless
otherwise specified in such temporary Global Security, any such exchange shall
be made free of charge to the beneficial owners of such temporary Global
Security, except that a person receiving permanent Securities must bear the cost
of insurance, postage, transportation and the like in the event that such person
does not take delivery of such permanent Securities in person at the offices of
Euro-clear or Cedel S.A.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as permanent Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary Global
Security representing a series of Bearer Securities on an Interest Payment Date
for Securities of such series occurring prior to the applicable Exchange Date
shall be payable to Euro-clear and Cedel S.A. on such Interest Payment Date,
upon delivery by Euro-clear and Cedel S.A. to the Trustee of any certificate
specified as contemplated by Section 301, for credit without further interest on
or after such Interest Payment Date to the respective accounts of the persons
who are the beneficial owners of such temporary Global Security on such Interest
Payment Date and who have each delivered to Euro-clear or Cedel S.A., as the
case may be, any certificate specified as contemplated by Sections 301 and 311.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
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for the registration of Securities and of transfers of Securities. The Trustee
is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Registered Securities of any series
may be exchanged for other Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
that the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his or her attorney duly authorized in
writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (1) to issue, register the
transfer of Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing or publishing, as applicable, of
a notice of redemption of Securities of that series selected for redemption
under Section 1103 and ending at the close of business on the day of such
mailing, (2) to register the transfer of any Security so selected for redemption
in whole or in part, except the unredeemed portion of any Security being
redeemed in part, or (3) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security may be exchanged for a Registered
Security of like tenor and terms of that series, provided that such Bearer
Security shall be simultaneously surrendered for redemption.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denomination or denominations and of a like aggregate principal amount and
tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
such exchange may be effected if the Bearer Securities are accompanied by a
payment in funds acceptable to the Company and the Trustee in an amount equal to
the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and Trustee if there is
furnished to them such security or indemnity as they may require to save each of
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them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to any Paying Agent any such missing coupon in respect
of which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that except as otherwise
provided in this Indenture, interest represented by coupons shall be payable
only upon presentation and surrender of such coupons at an office or agency
located outside the United States. Notwithstanding the foregoing, in case a
Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series and like tenor after the
close of business at such office or agency on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon relating
to such Interest Payment Date or proposed date for payment, as the case may be,
and interest or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
Notwithstanding any other provision in this Indenture, no Global
Security may be transferred to, or registered or exchanged for Securities
registered in the name of, any Person other than the Depositary for such Global
Security or any nominee thereof, and no such transfer may be registered, unless
(1) such Depositary (A) notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Security or (B) ceases to be a clearing
agency registered under the Exchange Act if required to be so registered, (2)
the Company executes and delivers to the Trustee a Company Order that such
Global Security shall be so transferable, registrable and exchangeable, and such
transfers shall be registrable, (3) there shall have occurred and be continuing
an Event of Default with respect to the Securities evidenced by such Global
Security, or (4) there shall exist such other circumstances, if any, as have
been specified for this purpose as contemplated by Section 301. Notwithstanding
any other provision in this Indenture, a Global Security to which the
restriction set forth in the preceding sentence shall have ceased to apply may
be transferred only to, and may be registered and exchanged for Securities
registered only in the name or names of, such Person or Persons as the
Depositary for such Global Security shall have directed, and no transfer thereof
other than such a transfer may be registered.
Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security to which the
restriction set forth in the first sentence of the preceding paragraph shall
apply, whether pursuant to this Section, Section 304, 306, 906 or 1107 or
otherwise, shall be authenticated, registered and delivered in the form of, and
shall be, a Global Security.
Notwithstanding anything herein to the contrary, the exchange of
Bearer Securities into Registered Securities shall be subject to applicable laws
and regulations in effect at the time of exchange. Neither the Company, the
Trustee nor the Security Registrar shall exchange any Bearer Securities into
Registered Securities if the Company has received an Opinion of Counsel that as
a result of such exchanges the Company would suffer adverse consequences under
the United States Federal income tax laws and regulations then in effect and the
Company has delivered to the Trustee a Company Order directing the Trustee not
to make such exchanges thereafter, unless and until the Trustee receives a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Order to the Security Registrar.
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Section 306. Mutilated, Destroyed, Lost and Stolen Securities or Coupons.
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to the Trustee's and the Company's satisfaction of the destruction,
loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and the
Trustee shall upon the Company's request authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security (and mutilated coupon, if
applicable), a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security or coupon;
provided, however, that the interest on any Bearer Security shall be payable
only at an office or agency located outside the United States and only upon
presentation and surrender of the coupons appertaining thereto (unless otherwise
specified as contemplated by Section 301).
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of counsel and the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section
in lieu of any mutilated, destroyed, lost or stolen Security, or in exchange for
a Security to which a mutilated, destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the mutilated, destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Registered Security that is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business on the next succeeding Interest
Payment Date, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date and interest will not be payable on such
Interest Payment Date in respect of the Registered Security issued in exchange
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for such Bearer Security, but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture.
Any interest on any Registered Security of any series that is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest that shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-
class postage prepaid, to each Holder of Securities of such series at
his or her address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice is given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
In the case of any security that is converted after any regular record
date and on or prior to the next succeeding interest payment date (other than
any security whose maturity is prior to such interest payment date), interest
shall be payable on such interest payment date notwithstanding such conversion,
and such interest (whether or not punctually paid or duly provided for) shall be
paid to the person in whose name that security (or one or more predecessor
securities) is registered at the close of business on such regular record date.
except as otherwise expressly provided in the immediately preceding sentence, in
the case of any security that is converted, interest after the date of
conversion of such security shall not be payable.
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Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of and any premium and (except as contemplated by Section
301(3) and subject to Section 307) any interest on such Registered Security and
for all other purposes whatsoever, whether or not such Registered Security is
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Bearer Security or coupon for the purpose
of receiving payment thereof or on account thereof and for all purposes
whatsoever, whether or not such Bearer Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be effected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Section 309. Cancellation.
All Securities or coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and all Registered Securities and matured coupons so delivered
shall be promptly canceled by it. All Bearer Securities and unmatured coupons
so delivered shall be canceled. All Bearer Securities and unmatured coupons
held by the Trustee pending such cancellation shall be deemed to be delivered
for cancellation for all purposes of this Indenture and the Securities. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder that the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder that the Company has not issued and sold, and
all Securities so delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Securities held by the Trustee shall be destroyed and a
certificate of destruction provided to the Company.
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Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 311. Certificate by a Person Entitled to Delivery of a Bearer
Security.
Whenever any provision of this Indenture contemplates that a
Person shall be entitled to delivery of a Bearer Security, no delivery of such
Bearer Security shall be made unless and until the Company shall have received
certification substantially in the form of Exhibit A-1 and, if applicable,
Exhibit A-2 and Exhibit B hereto, with only such changes as shall be approved by
the Company and any additional certification as may be required pursuant to
United States Department of Treasury regulations.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of conversion, registration of
transfer or exchange of Securities herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered and
all coupons, if any, appertaining thereto (other than (i) Securities
that have been destroyed, lost or stolen and that have been replaced
or paid as provided in Section 306, (ii) Securities and coupons, if
any, for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as provided in Section
1003, (iii) coupons appertaining to Bearer Securities surrendered in
exchange for Registered Securities and maturing after such exchange,
whose surrender is not required or has been waived as provided in this
Indenture, and (iv) coupons, if any, appertaining to the Securities
called for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in this Indenture) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
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and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trustee
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such
deposit (in the case of Securities that have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607, if
money shall have been deposited with the Trustee pursuant to subclause (B) of
Clause (1) of this Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee. All
moneys deposited with the Trustee pursuant to Section 401 (and held by it or any
Paying Agent) for the payment of Securities subsequently converted shall be
returned to the Company upon Company Request.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity, upon redemption
or otherwise; or
(3) default in the payment of any sinking fund payment, when and
as due by the terms of a Security of that series; or
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(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of a series of
Securities other than that series), and continuance of such default or
breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect
of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of
its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action; or
(7) any other Event of Default or variations in the foregoing
Events of Default provided with respect to Securities of that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default due to
certain events of bankruptcy, insolvency, or reorganization) with respect to
Securities of any series at the time Outstanding occurs and is continuing, then
in every such case the Trustee or the Holders of not less than 50% in principal
amount of the Outstanding Securities of that series, or such other amount as may
be specified with respect to Securities of that series, may declare the
principal amount (or, if any of the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount of such Securities as
may be specified in the terms thereof) of all of the Securities of that series
to be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable.
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At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which has become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or
rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series that has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder of
a Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder of a Security
or coupon thereof or to authorize the Trustee to vote in respect of the claim of
any Holder of a Security or coupon in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and any coupons in
respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or any
premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities and interest
evidenced by coupons 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 and
coupons first for any premium and interest, and second, for any principal,
respectively; and
THIRD: The balance, if any, to the Company.
With respect to Securities denominated in ECU, any other composite
currency or a Foreign Currency and any matured coupons relating thereto, the
amount payable on such Securities and coupons under this Section shall be
determined by the Exchange Rate Agent by converting the currency in which the
principal amount Outstanding of such series of Securities and matured but unpaid
interest on such series of Securities is denominated into Dollars at the
Exchange Rate as of the date of declaration of acceleration of Maturity of the
Securities of such series.
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Section 507. Limitation on Suits.
No Holder of any Security of any series or related coupons
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request in such amount as shall be reasonably
acceptable to the Trustee;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest and to Convert.
Notwithstanding any other provision in this Indenture, the
Holder of any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(except as contemplated by Section 301(3) and subject to Section 307) interest
on such Security or payment of such coupon on the respective Stated Maturities
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment
and the right to convert such Security in accordance with Article Thirteen and
to institute suit for its enforcement, and such rights shall not be impaired
without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
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determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities or coupons to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series may, on behalf of the Holders
of all the Securities of such series and any related coupons, waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof that under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
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or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, however, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Trustee
or the Company.
Section 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; 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 requirements
of this Indenture.
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) 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
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(1) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(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 Outstanding Securities of any series, determined as
provided in Section 512, 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 such series.
No provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any personal financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
Section 602. Notice of Defaults.
If a default occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to each Holder a notice of the default within 90
days after it occurs. Except in the case of a default in payment of principal
or interest on any Security, the Trustee may withhold the notice if and so long
as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
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(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney upon reasonable advance written notice and during regular
business hours; and
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities or Coupons.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and coupons and,
subject to Sections 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee, or by any Paying Agent (other than the
Company if the Company shall act as Paying Agent), in trust hereunder need not
be segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time compensation agreed
to with the Trustee for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
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(2) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder or
performance of its duties hereunder, including the costs and expenses
of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a claim prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of (and premium, if any) or interest
on particular Securities or any coupons.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture and
the Company shall take prompt action to have a successor Trustee appointed in
the manner provided herein. Nothing herein shall prevent the Trustee from filing
with the Commission the application referred to in the second to the last
paragraph of Section 310(b) of the Trust Indenture Act or any equivalent
successor provision.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be one or more Trustees hereunder with
respect to the Securities of each series, at least one of which shall be a
Person that (i) is eligible pursuant to the Trust Indenture Act to act as such,
(ii) has a combined capital and surplus of at least $50,000,000, (iii) is
subject to supervision or examination by federal, state or District of Columbia
authority, and (iv) has its Corporate Trust Office in the City of New York, New
York. If such Person publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. Neither the Company nor any
person directly or indirectly controlling, controlled by or under common control
with the Company may serve as Trustee. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
Section 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
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notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself or herself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any Series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any Series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to all Holders of Securities of such series in the manner provided in Section
106. Each notice shall include the name of the successor Trustee with respect to
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the Securities of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and that (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to herein.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
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merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities. In
the event any Securities shall not have been authenticated by such predecessor
Trustee, any such successor Trustee may authenticate and deliver such
Securities, in either its own name or that of its predecessor Trustee, with the
full force and effect which this Indenture provides for the certificate of
authentication of the Trustee.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities or coupons that shall be authorized
to act on behalf of the Trustee to authenticate Securities of such series or any
related coupons issued upon original issue and upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities or coupons so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities or coupons by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent that shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
___________________________________________
As Trustee
By: ______________________________________
As Authenticating Agent
By: ______________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than April 1 and October 1 in each
year, a list for each series of Registered Securities, in such form as
the Trustee may reasonably require, of the names and addresses of the
Holders of Registered Securities of such series as of the preceding
March 15 or September 15, as the case may be, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
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excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Registered
Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Registered Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Registered Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
The rights of the Registered Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall be
as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more than 12
months shall be transmitted no later than March 1 in each calendar year,
commencing in 1997.
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
Section 704. Reports by Company.
The Company shall:
(1) 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 Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with 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 Securities Exchange Act of
1934 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;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
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compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in 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
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person that
acquires by conveyance or transfer, or that leases, the properties and
assets of the Company substantially as an entirety shall be a
corporation, partnership or trust organized and validly existing under
the laws of the United States of America, any state thereof or the
District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, the due and punctual payment
of the principal of and any premium and interest on all the Securities
and the performance or observance of every covenant of this Indenture
on the part of the Company to be performed or observed and shall have
provided for conversion rights in accordance with Section 1311;
(2) immediately after giving effect to such transaction and
treating any indebtedness that becomes an obligation of the Company or
any Subsidiary as a result of such transaction as having been incurred
by the Company or such Subsidiary at the time of such transaction, no
Event of Default, and no event that, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company
would become subject to a mortgage, pledge, lien, security interest or
other encumbrance that would not be permitted by this Indenture, the
Company or such successor Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities
equally and ratably with (or prior to) all indebtedness secured
thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
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Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except in
the case of a lease, the predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form reasonably
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to cure any ambiguity or defect or correct any
inconsistency; or
(3) to provide for uncertificated Securities in addition to
certificated Securities; or
(4) to make any change that does not adversely affect the legal
rights hereunder of any Holder; or
(5) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions as the Company and
the Trustee shall consider to be for the protection of the Holders,
and to make the occurrence, or the occurrence and continuance, of a
default in any such additional covenants, restrictions, conditions or
provisions an Event of Default permitting the enforcement of all or
any of the several remedies provided in this Indenture as herein set
forth; provided that in respect of any such additional covenant,
restriction, condition or provision, such supplemental indenture may
provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such an
Event of Default or may limit the remedies available to the Trustee
upon such a Event of Default or may limit the right of the
Securityholders to waive such an Event of Default; or
(6) to surrender any right or power herein conferred upon the
Company; or
(7) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of the Indenture under the Trust Indenture Act, or under
any similar federal statute hereafter enacted; or
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(8) before any Securities are issued, to make any other change
in this Indenture not prohibited by the Trust Indenture Act.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce
the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount of
the principal of an Original Issue Discount Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change the coin or currency in which any
Security or any premium or interest thereon is payable or impair the
right to institute suit for the enforcement of any such payment or
delivery on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to the "Trustee" and concomitant changes in this
Section and Section 1008, or the deletion of this proviso, in
accordance with the requirements of Sections 611 and 901(1), or
(4) adversely affect any applicable conversion right.
A supplemental indenture that changes or eliminates any covenant
or other provision of this Indenture that has expressly been included solely for
the benefit of one or more particular series of Securities, or that modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
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Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture. Unless otherwise specified as contemplated
by Section 301 with respect to any series of Securities, any interest due on
Bearer Securities on or before Maturity shall be payable only upon presentation
and surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. At the Company's option, payments
of principal or interest may be made by check or by transfer to an account
maintained by the payee subject, in the case of Bearer Securities, to the
provisions of Section 1002.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer, exchange or conversion and where
notices and demands to or upon the Company in respect of the Securities of
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that series and this Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company will maintain, subject to any laws
and regulations applicable thereto, an office or agency in a Place of Payment
for such series which is located outside the United States where Securities of
such series and the related coupons may be presented and surrendered for
payment; provided, however, that if the Securities of such series are listed on
The International (London) Stock Exchange or any other stock exchange located
outside the United States and said stock exchange shall so require, the Company
may maintain a Paying Agent in London or any other required city located outside
the United States, as the case may be, so long as the Securities of such series
are listed on such exchange. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of any such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency in respect of any series of Securities or shall fail to furnish
the Trustee with the address thereof, such presentations and surrenders of
Securities of that series may be made and notices and demands may be made or
served at the address of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment at
the place specified for that purpose as contemplated by Section 301 or, if no
such place is specified, at the [corporate trust office of the Trustee in
London] and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands.
No payment of principal or interest on Bearer Securities shall be
made at any office or agency of the Company in the United States, by check
mailed to any address in the United States, by transfer to an account located in
the United States or upon presentation or surrender in the United States of a
Bearer Security or coupon for payment, even if the payment would be credited to
an account located outside of the United States; provided, however, that if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any interest on any such Bearer Security shall be made at the
Office of the Company's paying agent in the Borough of Manhattan, the City of
New York, if (but only if) payment in Dollars of the full amount of such
principal, interest or additional amounts, as the case may be, at all offices or
agencies outside the United States maintains for such purpose by the Company in
accordance with its Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities and any coupons appertaining thereto, it
will, on or before each due date of the principal of or any premium or interest
on any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
and any premium and interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any coupons appertaining thereto, it will, prior to
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each due date of the principal of or any premium or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture Act, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will (1) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2)
during the continuance of any default by the Company (or any other obligor upon
the Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or any premium
or interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be paid to the Company upon Company Request and be discharged from such trust;
and the Holder of such Security or coupon shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, the City of New York, New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
Section 1005. Commission Reports.
The Company shall deliver to the Trustee, within 15 days after it
files them with the Commission copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may by rules and regulations prescribe) which
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the Company is required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act. The Company also shall comply with the other
provisions of Trust Indenture Act Section 314(a). The Company shall timely
comply with its reporting and filing obligations under the applicable federal
securities law.
If the Company is at any time not required to file annual or
quarterly reports pursuant to Section 13 or 15(d) of the Exchange Act, the
Company will file with the Trustee, within 15 days after the last date on which
it would have been required to make such a filing with the Commission, and will
upon request of a Holder mail to that Holder (as soon as practical after receipt
of such request) at his or her address as it appears on the register of
Securities kept by the Registrar, audited annual financial statements prepared
in accordance with generally accepted accounting principles and unaudited
quarterly financial statements. Such financial statements shall be accompanied
by a Management's Discussion and Analysis of Financial Condition and Results of
Operations of the Company for the period reported upon in substantially the form
required under the rules and regulations of the Commission, or any successor
form of similar disclosure then required under the rules and regulations of the
Commission.
Section 1006. Continued Existence.
Subject to Article 8, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence as
a corporation and will refrain from taking any action that would cause its
existence as a corporation to cease, including without limitation any action
that would result in its liquidation, winding up or dissolution.
Section 1007. Taxes.
The Company shall pay prior to delinquency all taxes, assessments
and governmental levies, except as contested in good faith and by appropriate
proceedings or where the failure to do so would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
Section 1008. Waiver of Certain Covenants.
Unless otherwise specified as contemplated by Section 301, the
Company may omit in any particular instance to comply with any term, provision
or condition set forth in Sections 1001 to 1003 and 1005 to 10007, inclusive,
with respect to the Securities of any series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series that are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
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Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. The Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and that may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If less than
all of the Securities of such series and of a specified tenor are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities that has been or is to be
redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his or her address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
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(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) if the Security is convertible, the conversion price, the
date on which the right to convert the principal of the Securities to
be redeemed will terminate and the place or places where such
Securities may be surrendered for conversion,
(6) the place or places where such Securities, together in the
case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price,
(7) that the redemption is from a sinking fund, if such is the
case, and
(8) the CUSIP numbers of the Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company and shall be
irrevocable.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
that are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest and the coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except as otherwise provided herein, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto, maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that installments of
interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of coupons for such interest; and provided, further, that, unless
otherwise specified as contemplated by Section 301, installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
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according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all pertinent coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there may be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. Securities Redeemed in Part.
Any Registered Security that is to be redeemed only in part shall
be surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his or her attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Registered Security without service charge, a new Registered Security or
Securities of the same series and of like tenor, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 301 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 1202. 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 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption), together in the case of
Bearer Securities with all unmatured coupons appertaining thereto, and (2)
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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 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company shall 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 that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also 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 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
CONVERSION OF SECURITIES
Section 1301. Conversion Privilege and Conversion Price.
If pursuant to Section 301 any series of Securities is to be
convertible, then, subject to and upon compliance with the provisions of this
Article, at the option of the Holder thereof, any Security of such series or any
portion of the principal amount thereof may be converted at the principal amount
thereof, or of such portion thereof, into fully paid and nonassessable shares
(calculated as to each conversion to the nearest 1/100 of a share) of Series A
Common Stock of the Company, at the conversion price, determined as hereinafter
provided, in effect at the time of conversion. In case a Security or portion
thereof is called for redemption or is repurchased, such conversion right in
respect of the Security or portion so called shall expire at the close of
business on the Redemption Date or the repurchase date, unless the Company
defaults in making the payment due upon redemption or repurchase.
The price at which shares of Series A Common Stock shall be
delivered upon conversion (herein called the "conversion price") shall be
specified pursuant to Section 301. The conversion price shall be reduced in
certain instances as provided in paragraphs (1), (2), (3), (4), (5), (6), (7)
and (9) of Section 1304 and shall be increased in certain instances as provided
in paragraph (3) of Section 1304.
In case the Company shall, by dividend or otherwise, declare or
make a distribution on its Series A Common Stock referred to in paragraph (4) or
(5) of Section 1304, the Holder of each Security, upon the conversion thereof
pursuant to this Article subsequent to the close of business on the date fixed
for the determination of stockholders entitled to receive such distribution and
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prior to the effectiveness of the conversion price adjustment in respect of such
distribution pursuant to paragraph (4) or (5) of Section 1304, shall also be
entitled to receive for each share of Series A Common Stock into which such
Security is converted, the portion of the evidences of indebtedness, shares of
capital stock, cash and assets so distributed applicable to one share of Series
A Common Stock, provided that, at the election of the Company (whose election
shall be evidenced by a Board Resolution) with respect to all Holders so
converting, the Company may, in lieu of distributing to such Holder any portion
of such distribution not consisting of cash or securities of the Company, pay
such Holder an amount in cash equal to the fair market value thereof (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution). If any conversion of a Security described
in the immediately preceding sentence occurs prior to the payment date for a
distribution to holders of Series A Common Stock that the Holder of the Security
so converted is entitled to receive in accordance with the immediately preceding
sentence, the Company may elect (such election to be evidenced by a Board
Resolution) to distribute to such Holder a due bill for the evidences of
indebtedness, shares of capital stock, cash or assets to which such Holder is so
entitled, provided that such due bill (i) meets any applicable requirements of
the principal national securities exchange or other market on which the Series A
Common Stock is then traded and (ii) requires payment or delivery of such
evidences of indebtedness, shares of capital stock, cash or assets no later than
the date of payment or delivery thereof to holders of Series A Common Stock
receiving such distribution.
Section 1302. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security, duly endorsed or
assigned to the Company or in blank in the case of Registered Securities,
together in the case of Bearer Securities with all unmatured coupons and any
unmatured coupons in default appertaining thereto, at any office or agency of
the Company maintained for that purpose pursuant to Section 1002, accompanied by
written notice to the Company at such office or agency that the Holder elects to
convert such Security or, if less than the entire principal amount thereof is to
be converted, the portion thereof to be converted. Registered Securities
surrendered for conversion during the period from the close of business on any
Regular Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date shall (except in the case of Registered
Securities or portions thereof that have been called for redemption, or are to
be repurchased, on such Interest Payment Date or on a Redemption Date or a
repurchase date within the period beginning on such Regular Record Date and
ending on such Interest Payment Date) be accompanied by payment of an amount
equal to the interest payable on such Interest Payment Date on the principal
amount of Securities being surrendered for conversion (or, if such Registered
Security was issued in exchange for a Bearer Security after the close on such
Regular Record Date, by surrender of one or more coupons relating to such
Interest Payment Date or by both payment in such funds and surrender of such
coupon or coupons, in either case, in an amount equal to the interest payable on
such Interest Payment Date on the principal amount of the Registered Security
then being converted). Except as provided in the preceding sentence and subject
to the fifth paragraph of Section 307, no payment or adjustment shall be made
upon any conversion on account of any interest accrued on the Securities
surrendered for conversion or on account of any dividends on the Series A Common
Stock issued upon conversion.
Securities shall be deemed to have been converted immediately
prior to the close of business on the day of surrender of such Securities for
conversion in accordance with the foregoing provisions, and at such time the
rights of the Holders of such Securities as Holders shall cease, and the person
or persons entitled to receive the Series A Common Stock issuable upon
conversion shall be treated for all purposes as the record holder or holders of
such Series A Common Stock at such time. As promptly as practicable on or after
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the conversion date, the Company shall issue and shall deliver at such office or
agency a certificate or certificates for the number of full shares of Series A
Common Stock issuable upon conversion, together with payment in lieu of any
fraction of a share, as provided in Section 1303.
In the case of any Security that is converted in part only, upon
such conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of such Security, along with the
coupons appertaining thereto.
Section 1303. Fractions of Shares.
No fractional shares of Series A Common Stock shall be issued upon
conversion of Securities. If more than one Security shall be surrendered for
conversion at one time by the same Holder, the number of full shares that shall
be issuable upon conversion thereof shall be computed on the basis of the
aggregate principal amount of the Securities (or, in the case of Registered
Securities, specified portions thereof) so surrendered. Instead of any
fractional share of Series A Common Stock that would otherwise be issuable upon
conversion of any Security or securities (or, in the case of Registered
Securities, specified portions thereof), the Company shall pay a cash adjustment
in respect of such fraction in an amount equal to the same fraction of the
Closing Price at the close of business on the date of conversion.
Section 1304. Adjustment of Conversion Price.
(1) In case the Company shall pay or make a dividend or other
distribution on its Series A Common Stock exclusively in Series A Common Stock
or shall pay or make a dividend or other distribution on any other class of
capital stock of the Company which dividend or distribution includes Series A
Common Stock, the conversion price in effect at the opening of business on the
day following the day fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be reduced by multiplying such
conversion price by a fraction of which the numerator shall be the number of
shares of Series A Common Stock outstanding at the close of business on the date
fixed for such determination and the denominator shall be the sum of such number
of shares and the total number of shares constituting such dividend or other
distribution, such reduction to become effective immediately after the opening
of business on the day following the date fixed for such determination. For the
purposes of this paragraph (1), the number of shares of Series A Common Stock at
any time outstanding shall not include shares held in the treasury of the
Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Series A Common Stock. The Company
shall not pay any dividend or make any distribution on shares of Series A Common
Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this
Section, in case the Company shall pay or make a dividend or other distribution
on its Series A Common Stock consisting exclusively of, or shall otherwise issue
to all holders of its Series A Common Stock, rights or warrants entitling the
holders thereof to subscribe for or purchase shares of Series A Common Stock at
a price per share less than the current market price per share (determined as
provided in paragraph (8) of this Section) of the Series A Common Stock on the
date fixed for the determination of stockholders entitled to receive such rights
or warrants, the conversion price in effect at the opening of business on the
day following the date fixed for such determination shall be reduced by
multiplying such conversion price by a fraction of which the numerator shall be
the number of shares of Series A Common Stock outstanding at the close of
business
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on the date fixed for such determination plus the number of shares of Series A
Common Stock which the aggregate of the offering price of the total number of
shares of Series A Common Stock so offered for subscription or purchase would
purchase at such current market price and the denominator shall be the number of
shares of Series A Common Stock outstanding at the close of business on the date
fixed for such determination plus the number of shares of Series A Common Stock
so offered for subscription or purchase, such reduction to become effective
immediately after the opening of business on the day following the date fixed
for such determination. For the purposes of this paragraph (2), the number of
shares of Series A Common Stock at any time outstanding shall not include shares
held in the treasury of the Company but shall include shares issuable in respect
of scrip certificates issued in lieu of fractions of shares of Series A Common
Stock. The Company shall not issue any rights or warrants in respect of shares
of Series A Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Series A Common Stock shall be
subdivided into a greater number of shares of Series A Common Stock, the
conversion price in effect at the opening of business on the day following the
day upon which such subdivision becomes effective shall be proportionately
reduced, and, conversely, in case outstanding shares of Series A Common Stock
shall each be combined into a smaller number of shares of Series A Common Stock,
the conversion price in effect at the opening of business on the day following
the day upon which such combination becomes effective shall be proportionately
increased, such reduction or increase, as the case may be, to become effective
immediately after the opening of business on the day following the day upon
which such subdivision or combination becomes effective.
(4) Subject to the last sentence of this paragraph (4), in case
the Company shall, by dividend or otherwise, distribute to all holders of its
Series A Common Stock evidences of its indebtedness, shares of any class of
capital stock, cash or assets (including securities, but excluding any rights or
warrants referred to in paragraph (2) of this Section, excluding any dividend or
distribution paid exclusively in cash and excluding any dividend or distribution
referred to in paragraph (1) of this Section), the conversion price shall be
reduced so that the same shall equal the price determined by multiplying the
conversion price in effect immediately prior to the effectiveness of the
conversion price reduction contemplated by this paragraph (4) by a fraction of
which the numerator shall be the current market price per share (determined as
provided in paragraph (8) of this Section) of the Series A Common Stock on the
date of such effectiveness less the fair market value (as determined in good
faith by the Board of Directors, whose determination shall be conclusive and
described in a Board Resolution), on the date of such effectiveness, of the
portion of the evidences of indebtedness, shares of capital stock, cash and
assets so distributed applicable to one share of Series A Common Stock and the
denominator shall be such current market price per share of the Series A Common
Stock, such reduction to become effective immediately prior to the opening of
business on the day following the later of (a) the date fixed for the payment of
such distribution and (b) the date 20 days after the notice relating to such
distribution is given pursuant to Section 1306(a) (such later date of (a) and
(b) being referred to as the "Reference Date"). If the Board of Directors
determines the fair market value of any distribution for purposes of this
paragraph (4) by reference to the actual or when issued trading market for any
securities comprising such distribution, it must in doing so consider the prices
in such market over the same period used in computing the current market price
per share pursuant to paragraph (8) of this Section. For purposes of this
paragraph (4), any dividend or distribution that includes shares of Series A
Common Stock, rights or warrants to subscribe for or purchase shares of Series A
Common Stock or other securities convertible into or exchangeable for shares of
Series A Common Stock shall be deemed instead to be (a) a dividend or
distribution of the evidences of indebtedness, cash, assets or shares of capital
stock other than such shares of Series A Common Stock, such rights or warrants
or such other convertible or exchangeable securities (making any conversion
price reduction required by this paragraph (4)), immediately followed by (b) in
the case of such shares of Series A Common Stock or such rights or warrants, a
dividend or distribution thereof (making any further conversion price reduction
required by paragraph (1) or (2) of this Section, except (i) the Reference Date
of such dividend or distribution as defined in this paragraph (4) shall be
substituted for "the date fixed for the determination of stockholders entitled
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to receive such distribution" and "the date fixed for such determination" within
the meaning of paragraphs (1) and (2) of this Section and (ii) any shares of
Series A Common Stock included in such dividend or distribution shall not be
deemed "outstanding at the close of business on the date fixed for such
determination" within the meaning of paragraph (1) of this Section) or (c) in
the case of such other convertible or exchangeable securities, a dividend or
distribution of such number of shares of Series A Common Stock as would then be
issuable upon the conversion or exchange thereof, whether or not the conversion
or exchange of such securities is subject to any conditions (making any further
conversion price reduction required by paragraph (1) of this Section, except (i)
the Reference Date of such dividend or distribution as defined in this paragraph
(4) shall be substituted as "the date fixed for the determination of
stockholders entitled to receive such distribution" and "the date fixed for such
determination" and (ii) the shares deemed to constitute such dividend or
distribution shall not be deemed "outstanding at the close of business on the
date fixed for such determination", each within the meaning of paragraph (1) of
this Section).
(5) In case the Company shall, by dividend or otherwise, at any
time distribute to all holders of its Series A Common Stock cash (excluding any
cash that is distributed as part of a distribution referred to in paragraph (4)
of this Section) in an aggregate amount that, together with (i) the aggregate
amount of any other distributions to all holders of its Series A Common Stock
made exclusively in cash within the 12 months preceding the date of payment of
such distribution and in respect of which no conversion price adjustment
pursuant to this paragraph (5) has been made and (ii) the aggregate of any cash
plus the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution) of
consideration payable in respect of any tender offer by the Company or a
Subsidiary for all or any portion of the Company's Series A Common Stock
concluded within the 12 months preceding the date of payment of such
distribution and in respect of which no conversion price adjustment pursuant to
paragraph (6) of this Section has been made, exceeds 10% of the product of the
current market price per share (determined as provided in paragraph (8) of this
Section) of the Series A Common Stock on the date fixed for stockholders
entitled to receive such distribution, times the number of shares of Series A
Common Stock outstanding on such date, the conversion price shall be reduced so
that the same shall equal the price determined by multiplying the conversion
price in effect immediately prior to the effectiveness of the conversion price
reduction contemplated by this paragraph (5) by a fraction of which the
numerator shall be the current market price per share (determined as provided in
paragraph (8) of this Section) of the Series A Common Stock on the date of such
effectiveness less the amount of cash so distributed applicable to one share of
Series A Common Stock and the denominator shall be such current market price per
share of the Series A Common Stock, such reduction to become effective
immediately prior to the opening of business on the later of (a) the day
following the date fixed for the payment of such distribution and (b) the date
20 days after the notice relating to such distribution is given pursuant to
Section 1306(a).
(6) In case a tender offer made by the Company or any Subsidiary
for all or any portion of the Company's Series A Common Stock shall expire and
such tender offer shall involve an aggregate consideration having a fair market
value (as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) on the last time (the
"Expiration Time") tenders may be made pursuant to such tender offer (as it may
be amended) that, together with (i) the aggregate of the cash plus the fair
market value (as determined by the Board of Directors, whose determination shall
be conclusive and described in a Board Resolution), as of the expiration of such
tender offer, of consideration payable in respect of any tender offer by the
Company, or a Subsidiary for all or any portion of the Company's Series A Common
Stock expiring within the 12 months preceding the expiration of such tender
offer and in respect of which no conversion price adjustment pursuant to this
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paragraph (6) has been made and (ii) the aggregate amount of any distributions
to all holders of the Company's Series A Common Stock made exclusively in cash
within the 12 months preceding the expiration of such tender offer and in
respect of which no conversion price adjustment pursuant to paragraph (5) of
this Section has been made, exceeds 5% of the product of the current market
price per share determined as provided in paragraph (8) of this Section) of the
Series A Common Stock on the Expiration Time times the number of shares of
Series A Common Stock outstanding (including any tendered shares) on the
Expiration Time, the conversion price shall be reduced so that the same shall
equal the price determined by multiplying the conversion price in effect
immediately prior to the Expiration Time by a fraction of which the numerator
shall be (i) the product of the current market price per share (determined as
provided in paragraph (8) of this Section) of the Series A Common Stock on the
Expiration Time times the number of shares of Series A Common Stock outstanding
(including any tendered shares) on the Expiration Time key minus (ii) the fair
market value (determined as aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in the terms
of the tender offer) of all shares validly tendered and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum, being
referred to as the "Purchased Shares") and the denominator shall be the product
of (i) such current market price per share on the Expiration Time times (ii)
such number of outstanding shares on the Expiration Time less the number of
Purchased Shares, such reduction to become effective immediately prior to the
opening of business on the day following the Expiration Time. No such adjustment
shall be made in the event of any purchase pursuant to Rule 10b-18 under the
Exchange Act.
(7) The reclassification of Series A Common Stock into securities
including securities other than Series A Common Stock (other than any
reclassification upon a consolidation or merger to which Section 1310 applies)
shall be deemed to involve (a) a distribution of such securities other than
Series A Common Stock to all holders of Series A Common Stock (and the effective
date of such reclassification shall be deemed to be "the Reference Date" within
the meaning of paragraph (4) of this Section), and (b) a subdivision or
combination, as the case may be, of the number of shares of Series A Common
Stock outstanding immediately prior to such reclassification into the number of
shares of Series A Common Stock outstanding immediately thereafter (and the
effective date of such reclassification shall be deemed to be "the day upon
which such subdivision becomes effective", or "the day upon which such
combination becomes effective", as the case may be, and "the day upon which such
subdivision or combination becomes effective" within the meaning of paragraph
(3) of this Section). Rights or warrants issued by the Company to all holders
of its Series A Common Stock entitling the holders thereof to subscribe for or
purchase shares of Series A Common Stock, which rights or warrants (i) are
deemed to be transferred with such shares of Series A Common Stock, (ii) are
exercisable and (iii) are also issued in respect of future issuances of Series A
Common Stock, in each case in clauses (i) through (iii) until the occurrence of
a specified event or events ("Trigger Event"), shall for purposes of this
Section 1304 not be deemed issued and the distribution thereof not be deemed
made or paid until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under this paragraph and
paragraphs (2), (4) and (5) of this Section, the current market price per share
of Series A Common Stock on any date shall be deemed to be the average of the
Closing Prices for the five consecutive Trading Days selected by the Company
commencing not more than 20 Trading Days before, and ending not later than, the
date in question; provided, however, that (i) if the "ex" date for any event
(other than the issuance or distribution requiring such computation) that
requires an adjustment to the conversion price occurs on or after the 20th
Trading Day prior to the day in question and prior to the "ex" date for the
issuance or distribution requiring such computation, the Closing Price for each
Trading Day prior to the "ex" date for such other event
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shall be adjusted by multiplying such Closing Price by the same fraction by
which the conversion price is so required to be adjusted as a result of such
other event, (ii) if the "ex" date for any event (other than the issuance or
distribution requiring such computation) that requires an adjustment to the
conversion price occurs on or after the "ex" date for the issuance or
distribution requiring such computation and on or prior to the day in question,
the Closing Price for each Trading Day on and after the ex" date for such other
event shall be adjusted by multiplying such Closing Price by the reciprocal of
the fraction by which the conversion price is so required to be adjusted as a
result of such other event and (iii) if the "ex" date for the issuance or
distribution requiring such computation is on or prior to the day in question,
after taking into account any adjustment required pursuant to clause (ii) of
this proviso, the Closing Price for each Trading Day on or after such "ex" date
shall be adjusted by adding thereto the amount of any cash and the fair market
value on the day in question (as determined by the Board of Directors in a
manner consistent with any determination of such value for purposes of paragraph
(4) or (5) of this Section, whose determination shall be conclusive and
described in a Board Resolution) of the evidences of indebtedness, shares of
capital stock or assets being distributed applicable to one share of Series A
Common Stock as of the close of business on the day before such "ex" date. For
the purpose of any computation under Paragraph (6) of this Section, the current
market price per share of Series A Common Stock on any date shall be deemed to
be the average of the daily Closing Prices for the five consecutive Trading Days
selected by the Company commencing on or after the latest (the "Commencement
Date") of (i) the date 20 Trading Days before the date in question, (ii) the
date of commencement of the tender offer requiring such computation and (iii)
the date of the last amendment, if any, of such tender offer involving a change
in the maximum number of shares for which tenders are sought or a change in the
consideration offered, and ending not later than the Expiration Time of such
tender offer; provided, however, that if the "ex" date for any such event (other
than the tender offer requiring such computation) that requires an adjustment to
the conversion price occurs on or after the Commencement Date and prior to the
Expiration Time for the tender offer requiring such computation, the Closing
Price for each Trading Day prior to the "ex" date for such other event shall be
adjusted by multiplying such Closing Price by the same fraction by which the
conversion price is so required to be adjusted as a result of such other event.
For purposes of this paragraph the term "'ex' date", (i) when used with respect
to any issuance or distribution, means the first date on which the Series A
Common Stock trades regular way on the relevant exchange or in the relevant
market from which the Closing price was obtained without the right to receive
such issuance or distribution, (ii) when used with respect to any subdivision or
combination of shares of Series A Common Stock, means the first date on which
the Series A Common Stock trades regular way on such exchange or in such market
after the time at which such subdivision or combination becomes effective and
(iii) when used with respect to any tender offer means the first date on which
the Series A Common Stock trades regular way on such exchange or in such market
after the Expiration Time of such tender offer.
(9) The Company may make such reductions in the conversion
price, in addition to those required by this Section, as it considers to be
advisable in order that any event treated for Federal income tax purposes as a
dividend of stock or stock rights shall not be taxable to the recipients.
(10) No adjustment in the conversion price shall be required
unless such adjustment would required an increase or decrease of at least 1% in
the conversion price; provided, however, that any adjustments which by reason of
this paragraph (10) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment.
(11) Notwithstanding any other provision of this Section 1304, no
adjustment to the conversion price shall reduce the conversion price below the
then par value per share of the Series A Common Stock, and any such purported
adjustment shall instead reduce the conversion price to such par value. The
Company hereby covenants not to take any action that would or does result in any
adjustment in the conversion price that, if made without giving effect to the
previous sentence, would cause the conversion price to be less than the then par
value per share of the Series A Common Stock.
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Section 1305. Notice of Adjustments of Conversion Price.
Whenever the conversion price is adjusted as herein provided and
at such other times as the Trustee shall request:
(a) the Company shall compute the adjusted conversion price
in accordance with Section 1304 and shall prepare a certificate signed
by the Treasurer of the Company setting forth the adjusted conversion
price and showing in reasonable detail the facts upon which such
adjustment is based, and such certificate shall forthwith be delivered
to the Trustee and filed at each office or agency maintained for the
purpose of conversion of Securities pursuant to Section 1002; and
(b) the Company shall prepare a notice stating that the
conversion price has been adjusted and setting forth the adjusted
conversion price and shall cause such notice to be mailed to all
Holders of Registered Securities at their last addresses as they shall
appear in the Security Register.
Section 1306. Notice of Certain Corporate Action.
In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Series A Common Stock payable otherwise than in
cash out of its retained earnings; or
(b) the Company shall authorize the granting to the holders
of its Series A Common Stock generally of rights or warrants to
subscribe for or purchase any shares of capital stock of any class or
of any other rights; or
(c) of any reclassification of the Series A Common Stock of
the Company (other than a subdivision or combination of its
outstanding shares of Series A Common Stock), or of any consolidation
or merger to which the Company is a party and for which approval of
any stockholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
(e) the Company or any Subsidiary shall commence a tender
offer for all or a portion of the Company's outstanding shares of
Series A Common Stock (or shall amend any such tender offer);
then the Company shall notify the Trustee and cause to be filed at each office
or agency maintained for the purpose of conversion of securities pursuant to
Section 1002, and shall cause to be mailed to all Holders of Registered
Securities at their last addresses as they shall appear in the Security
Register, at least 20 days (or 10 days in any case specified in clause (a) or
(b) above) prior to the applicable record date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution, rights or warrants, or, if a record is not to be taken,
the date as of which the holders of Series A Common Stock of record to be
entitled to such dividend, distribution, rights or warrants are to be determined
or (y) the date on which such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up is expected to become
effective,
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and the date as of which it is expected that holders of Series A Common Stock of
record shall be entitled to exchange their shares of Series A Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up,
or (z) the date on which such tender offer commenced, the date on which such
tender offer is scheduled to expire unless extended, the consideration offered
and the other material terms thereof (or the material terms of any amendment
thereto).
Section 1307. Company to Reserve Series A Common Stock.
The Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized but unissued Series A Common
Stock, for the purpose of effecting the conversion of Securities, the full
number of shares of Common Stock then issuable upon the conversion of all
outstanding Securities.
Section 1308. Taxes on Conversions.
The Company will pay any and all taxes, other than any franchise
or income taxes, that may be payable in respect of the issue or delivery of
shares of Common stock on conversion of Securities pursuant hereto. The Company
shall not, however, be required to pay any tax that may be payable in respect of
any transfer involved in the issue and delivery of shares of Series A Common
Stock in a name other than that of the Holder of the Security or Securities to
be converted, and no such issue or delivery shall be made unless and until the
person requesting such issue has paid to the Company the amount of any such tax,
or has established to the satisfaction of the Company that such tax has been
paid.
Section 1309. Covenant as to Series A Common Stock.
The Company covenants that all shares of Series A Common Stock
that may be issued upon conversion of Securities will upon issue be fully paid
and nonassessable and, except as provided in Section 1308, the Company will pay
all taxes, liens and charges with respect to the issue thereof.
Section 1310. Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to the
Trustee to be canceled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 309.
Section 1311. Provisions in the Case of Consolidation, Merger or Sales of
Assets.
In case of any consolidation of the Company with, or merger of the
Company into, any other corporation, or in case of any merger of another
corporation into the Company (other than a merger which does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
Series A Common Stock of the Company), or in case of any sale or transfer of all
or substantially all of the assets of the Company, the corporation formed by
such consolidation or resulting from such merger or which acquires such assets,
as the case may be, shall execute and deliver to the trustee a supplemental
indenture providing that the Holder of each Security then outstanding shall have
the right thereafter, during the period such Security shall be convertible as
specified in Section 1301, to convert such Security only into the kind and
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by a holder of the number of shares of
Series A Common Stock of the Company into which such Security might have been
converted immediately prior to such consolidation, merger, sale or transfer,
assuming such holder of Series A Common Stock of the Company failed to exercise
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his or her rights of election, if any, as to the kind or amount of securities,
cash and other property receivable upon such consolidation, merger, sale or
transfer (provided that if the kind or amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer is not the
same for each share of Series A Common Stock of the company in respect of which
such rights of election shall not have been exercised ("non-electing share"),
then for the purpose of this Section the kind and amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer by
each non-electing share shall be deemed to be the kind and amount so receivable
per share by a plurality of the non-electing shares).
Such supplemental indenture shall provide for adjustments which,
for events subsequent to the effective date of such supplemental indenture,
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article. The above provisions of this Section shall similarly apply
to successive consolidations, mergers, sales or transfers.
Section 1312. Responsibility of Trustee.
The Trustee shall not at any time be under any duty or
responsibility to any Holder of a Security to make or cause to be made any
adjustment of the conversion price, or to determine whether any facts exist
which may require any such adjustment, or with respect to the nature or extent
of any such adjustment when made, or with respect to any method employed, or
herein or in any supplemental indenture provided to be employed, in making the
same. The Trustee shall not be accountable with respect to the validity or value
(or the kind or amount) of any shares of Series A Common Stock or of any
securities or property which may at any time be issued or delivered upon
conversion of any Security, and the Trustee makes no representation with respect
thereto. The Trustee shall not be responsible for any failure of the Company to
issue, transfer or deliver any shares of Series A Common Stock or stock
certificates or other securities or property upon surrender of any Security for
the purpose of conversion or to comply with any of the covenants of the Company
contained in this Article Thirteen.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option by Board Resolution at any
time, to have either Section 1402 or Section 1403 applied to the Outstanding
Securities of any series designated pursuant to Section 301 as being defeasible
pursuant to this Article Fourteen (hereinafter called a "Defeasible Series"),
upon compliance with the conditions set forth below in this Article Fourteen.
Section 1402. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section
1401 to have this Section 1402 applied to the Outstanding Securities of any
Defeasible Series, the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of such series as
provided in this Section on and after the date the conditions set forth in
Section 1404 are satisfied (hereinafter called "Defeasance"). For this purpose,
such Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities of
such series and any related coupons and to have satisfied all its other
obligations under the Securities of such series, and this Indenture insofar as
the Securities of such series are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), subject
to the following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of Securities of such series to receive,
solely from the trust fund described in Section 1404 and as more fully set forth
in such Section, payments in respect of the principal of and any premium and
interest on such Securities of such series when payments are due, (2) the
Company's obligations with respect to the Company may exercise its option
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provided in Section 1401 to have this Section 1402 applied to the Outstanding
Securities of any Defeasible Series notwithstanding the prior exercise of its
option provided in Section 1401 to have Section 1403 applied to the Outstanding
Securities of such series.
Section 1403. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section
1401 to have this Section 1403 applied to the Outstanding Securities of any
Defeasible Series, (1) the Company shall be released from its obligations under
Sections 1005 through 1008, inclusive, and (2) the occurrence of any event
specified in Sections 501(4) (with respect to any of Sections 1005 through 1008,
inclusive) and 501(7) shall be deemed not to be or result in an Event of
Default, in each case with respect to the Outstanding Securities of such series
as provided in this Section on and after the date the conditions set forth in
Section 1404 are satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such specified Section (to the extent so specified in the case of
Section 501(4)), whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the
remainder of this Indenture and the Securities of such series shall be
unaffected thereby.
Section 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 1402 or Section 1403 to the Outstanding Securities of any Defeasible
Series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article Fourteen applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of Outstanding Securities of such series, (A)
money in an amount, or (B) U.S. Government Obligations that through
the scheduled payment of principal and interest in respect thereof
(without consideration of any reinvestment thereof) in accordance with
their terms will provide, not later than one day before the due date
of any payment, money in an amount, or (C) a combination thereof, in
each case sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and that shall
be applied by the Trustee (or any such other qualifying trustee) to
pay and discharge, the principal of and any premium and interest on
the Securities of such series on the respective Stated Maturities, in
accordance with the terms of this Indenture and the Securities of such
series. As used herein, "U.S. Government Obligation" means (x) any
security that is (i) a direct obligation of the United States of
America for the payment of which the full faith and credit of the
United States of America is pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an agency or instrumentality
of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by
the United States of America, which, in either case (i) or (ii), is
not callable or redeemable at the option of the issuer thereof, and
(y) any depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act of 1933, as amended) as custodian with
respect to any U.S. Government Obligation specified in Clause (x) and
held by such custodian for the account of the holder of such
depositary receipt, or with respect to any specific payment of
principal of or interest on any such U.S. Government Obligation;
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 U.S. Government Obligation or the specific
payment of principal or interest evidenced by such depositary receipt.
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(2) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date first set
forth hereinabove, there has been a change in the applicable Federal
income tax law, in either case (A) or (B) to the effect that, and
based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities of such series will not recognize income, gain
or loss for Federal income tax purposes as a result of the deposit,
Defeasance and discharge to be effected with respect to the Securities
of such series and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would be the case
if such deposit, Defeasance and discharge were not to occur.
(3) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Outstanding Securities of such series
will not recognize income, gain or loss for Federal income tax
purposes as a result of the deposit and Covenant Defeasance to be
effected with respect to the Securities of such series and will be
subject to Federal income tax on the same amount, in the same manner
and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that the Securities of such series, if then
listed on any securities exchange, will not be delisted as a result of
such deposit.
(5) No Event of Default or event that (after notice or lapse of
time or both) would become an Event of Default shall have occurred and
be continuing at the time of such deposit or, with regard to any Event
of Default or any such event specified in Sections 501(6) and (7), at
any time on or prior to the 90th day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied
until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the
meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(8) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
(9) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act of 1940, as amended,
unless such trust shall be qualified under such Act or exempt from
regulation thereunder.
Section 1405. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
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Section and Section 1406, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1404 in respect of the
Securities of any Defeasible Series shall be held in trust and applied by the
Trustee, in accordance with the provisions of the Securities of such series and
this Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of Securities of such series, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge that by
law is for the account of the Holders of Outstanding Securities.
Anything in this Article Fourteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it as
provided in Section 1404 with respect to Securities of any Defeasible Series
that, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Defeasance or Covenant Defeasance with respect
to the Securities of such series.
Section 1406. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Fourteen with respect to the Securities of any
series by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Fourteen with respect to Securities of such series until such time
as the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to Section 1405 with respect to Securities of such series in accordance
with this Article Fourteen; provided, however, that if the Company makes any
payment of principal of or any premium or interest on any Security of such
series following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of Securities of such series to receive
such payment from the money so held in trust.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable in whole or in part as
Bearer Securities, a meeting of Holders of Securities of such series may be
called at any time and from time to time pursuant to this Article to make, give
or take any request, demand, authorization, direction, notice, consent, waiver
or other Act provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series issuable as Bearer Securities for any purpose specified
in Section 1501, to be held at such time and at such place in the City of Los
Angeles or the Borough of Manhattan, The City of New York, as the Trustee
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shall determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and place
in the City of Los Angeles or the Borough of Manhattan, The City of New York,
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section.
Section 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of
any series, a Person shall be (1) a Holder of one or more Outstanding Securities
of such series, or (2) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
Section 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In the absence of a quorum in any other case the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in Section 1502(a), except
that such notice need be given only once not less than five days prior to the
date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum.
Except as limited by the provisos to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the provisos to Section 902, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other Act which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid by the affirmative vote or the Holders of such
specified percentage in principal amount of the Outstanding Securities of that
series.
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Any resolution passed or decision taken at any meeting of Holders
of Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Section 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104 or, in the case of Bearer Securities, by having the signature of the
person executing the proxy witnessed or guaranteed by any trust company, bank or
banker authorized by Section 104 to certify to the holding of Bearer Securities.
Such regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 1502(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairperson. A permanent chairperson and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount (or the
equivalent in ECU, any other composite currency or a Foreign Currency) of
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairperson of the meeting not to
be Outstanding. The chairperson of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
________________________
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
THE TIMES MIRROR COMPANY
By: _________________________
Attest:
________________________________
[TRUSTEE]
By: _________________________
Attest:
________________________________
73
<PAGE>
EXHIBIT A-1
[FORM OF CERTIFICATE OF BENEFICIAL OWNERSHIP BY A
NON-UNITED STATES PERSON OR BY CERTAIN OTHER PERSONS]
Certificate
THE TIMES MIRROR COMPANY
[INSERT TITLE OR SUFFICIENT DESCRIPTION OF
SECURITIES TO BE DELIVERED]
Reference is hereby made to the Indenture dated as of
______________ (the "Indenture") between The Times Mirror Company, a Delaware
corporation, and _____________________, as trustee (the "Trustee") covering the
above-captioned Securities. This is to certify that as of the date hereof,
_______________ principal amount of Securities credited to you for our account
(i) is owned by persons that are not United States Persons, as defined below;
(ii) is owned by United States Persons that are (a) foreign branches of United
States financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(i)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) United States Persons who acquired the Notes through
foreign branches of United States financial institutions on the date hereof (and
in either case (a) or (b), each such United States financial institution
encloses herewith a certificate in the form of Exhibit A-2 to the Indenture); or
(iii) is owned by United States or foreign financial institutions for purposes
of resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.153-5(c)(2)(i)(D)(7)), which United States or foreign financial
institutions described in clause (iii) above (whether or not also described in
clause (i) or (ii)) certify that they have not acquired the Notes for purposes
of resale directly or indirectly to a United States Person or to a person within
the United States or its possessions.
[INSERT IF CERTIFICATE DOES NOT RELATE TO AN INTEREST
PAYMENT - WE UNDERTAKE TO ADVISE YOU BY TESTED TELEX FOLLOWED BY WRITTEN
CONFIRMATION IF THE ABOVE STATEMENT AS TO BENEFICIAL OWNERSHIP IS NOT CORRECT ON
THE DATE OF DELIVERY OF THE ABOVE-CAPTIONED SECURITIES IN BEARER FORM AS TO ALL
OF SUCH SECURITIES WITH RESPECT TO SUCH OF SAID SECURITIES AS THEN APPEAR IN
YOUR BOOKS AS BEING HELD FOR ACCOUNT.]
We understand that this certificate is required in
connection with United States tax laws. We irrevocably authorize you to produce
this certificate or a copy hereof to any interested party in any administrative
or legal proceedings with respect to the matters covered by this certificate.
"United States Person" shall mean a citizen or resident of the United States of
America (including the District of Columbia), a corporation, partnership or
other entity created or organized in or under the laws of the United States or
any political subdivision thereof or an estate or trust that is subject to
United States Federal income taxation regardless of the source of its income.
[THIS CERTIFICATE EXCEPTS AND DOES NOT RELATE TO
________________________ PRINCIPAL AMOUNT OF SECURITIES CREDITED TO YOU FOR OUR
ACCOUNT AND TO WHICH WE ARE NOT NOW ABLE TO MAKE THE CERTIFICATION SET FORTH
ABOVE. WE UNDERSTAND THAT DEFINITIVE SECURITIES CANNOT BE DELIVERED AND
<PAGE>
INTEREST CANNOT BE PAID UNTIL WE ARE ABLE TO SO CERTIFY WITH RESPECT TO SUCH
PRINCIPAL AMOUNT OF SECURITIES.]*
Dated:___________________
[TO BE DATED ON OR AFTER
_______________________ (THE
DATE DETERMINED AS PROVIDED
IN THE INDENTURE)]
[NAME OF PERSON ENTITLED TO RECEIVE
BEARER SECURITY]
___________________________________
(Authorized Signatory)
Name: _____________________________
Title: ____________________________
__________________________
* Delete if inappropriate.
<PAGE>
EXHIBIT A-2
[FORM OF CERTIFICATE OF STATUS AS A FOREIGN BRANCH OF A
UNITED STATES FINANCIAL INSTITUTION]
CERTIFICATE
THE TIMES MIRROR COMPANY
[INSERT TITLE OF SUFFICIENT DESCRIPTION OF
SECURITIES TO BE DELIVERED]
Reference is hereby made to the Indenture dated as of
_______________, the ("Indenture"), between The Times Mirror Company and
______________________, as Trustee, relating to the offering of the above-
captioned Securities (the "Securities"). Unless herein defined, terms used
herein have the same meaning as given to them in the Indenture.
The undersigned represents that it is a branch located
outside the United States of a United States securities clearing organization,
bank or other financial institution (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v)) that holds customers' securities in the ordinary
course of its trade or business and agrees, and authorizes you to advise the
issuer or the issuer's agent, that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder and is not purchasing for resale directly or indirectly
to a United States Person or to a person within the United States or its
possessions. We undertake to advise you by tested telex followed by written
confirmation if the statement in the immediately preceding sentence is not
correct on the date of delivery of the above-captioned Securities in bearer
form.
We understand that this certificate is required in
connection with the United States tax laws. We irrevocably authorize you to
produce this certificate or a copy hereof to any interested party in any
administrative or legal proceedings with respect to the matters covered by this
certificate.
Dated:__________________
[TO BE DATED ON OR AFTER
_______________________ (THE DATE DETERMINED
AS PROVIDED IN THE INDENTURE)]
[NAME OF PERSON ENTITLED TO RECEIVE
BEARER SECURITY]
___________________________________
(Authorized Signatory)
Name:______________________________
Title:_____________________________
<PAGE>
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
ALL OR A PORTION OF A TEMPORARY GLOBAL SECURITY OF TO OBTAIN
INTEREST PRIOR TO EXCHANGE]
CERTIFICATE
THE TIMES MIRROR COMPANY
[Insert title of Securities to be delivered]
We refer to that portion, _____________, of the Global
Security representing the above-captioned issue [which is herewith submitted to
be exchanged for definitive Securities] [for which we are seeking to obtain
payment of interest] (the "Submitted Portion"). This is to certify, pursuant to
the Indenture dated ____________ (the "Indenture") between The Times Mirror
Company and ______________________, as Trustee (the "Trustee), that we have
received in writing, by tested telex or by electronic transmission from member
organizations with respect to each of the persons appearing in our records as
being entitled to a beneficial interest in the Submitted Portion a Certificate
of Beneficial Ownership by a Non-United States Person or by Certain Other
Person, [and, in some cases, a Certificate of Status as a Foreign Branch of a
United States Financial Institution, authorizing us to inform the issuer or
issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder] substantially in the form of Exhibit A-1 [and A-2] to
the Indenture.
We hereby request that you deliver to the office of
____________________ in _________________ definitive Bearer Securities in the
denominations on the attached Schedule A.
We further certify that as of the date hereof we have not
received any notification from any of the persons giving such certificates to
the effect that the statements made by them with respect to any part of the
Submitted Portion are no longer true and cannot be relied on as of the date
hereof.
Dated:_______________________
[Morgan Guaranty Trust Company of New
York, Brussels Office, as operator of
the Euro-clear System]
[Cedel S.A.]
By:_________________________________
<PAGE>
EXHIBIT 5
March 25, 1997
(213) 229-7000 C 91007-03980
The Times Mirror Company
Times Mirror Square
Los Angeles, California 90053
Re: Public Offering of $250 million of Debt Securities,
Preferred Shares, Common Shares, Warrants,
Stock Purchase Contracts and Stock Purchase Units
---------------------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to The Times Mirror Company, a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), pursuant to the Registration
Statement to which this opinion is an Exhibit (the "Registration Statement"), of
$250 million of the Company's (i) debt securities (the "Debt Securities"), (ii)
shares of Preferred Stock (the "Preferred Shares"), (iii) shares of Series A
Common Stock, par value $1.00 per share (the "Series A Common Stock") and Series
B Common Stock, par value $1.00 per share (the "Series B Common Stock" and
together with the Series A Common Stock, the "Common Shares"), (iv) Warrants
(the "Warrants") to purchase Debt Securities, Common Shares or Preferred Shares
of the Company, (v) stock purchase contracts (the "Stock Purchase Contracts") to
purchase Preferred Shares or Common Shares and (vi) stock purchase units (the
"Stock Purchase Units"), which consist of a Stock Purchase Contract and Debt
Securities or debt obligations of third parties, including United States
Treasury securities, securing the holder's obligation to purchase Preferred
Shares or Common Shares under the Stock Purchase Contract. The Debt Securities,
Preferred Shares, Common Shares, Warrants, Stock Purchase Contracts and Stock
Purchase Units may be issued as part of units consisting of any combination of
such securities.
<PAGE>
The Times Mirror Company
March 25, 1997
Page 2
We are familiar with the corporate action taken and proposed to be
taken by the Company in connection with the authorization, issuance and sale of
the Debt Securities, the Preferred Shares, the Common Shares, the Warrants, the
Stock Purchase Contracts and the Stock Purchase Units and have made such other
legal and factual inquiries as we deem necessary for purposes of rendering this
opinion.
Based on the foregoing and in reliance thereon, and subject to
completion of the corporate action proposed to be taken by the Company referred
to above (including without limitation the due reservation of the Common Shares
and Preferred Shares for issuance, with respect to the Preferred Shares, the due
authorization, approval and filing of the Certificate of Designations referred
to below, with respect to the Debt Securities, the due authorization of the
Indenture (as defined below) and the due establishment of the specific terms of
the Debt Securities to be issued thereunder in accordance with the terms of the
Indenture, with respect to the Warrants, the due authorization of the Warrant
Agreement (as defined below), with respect to the Stock Purchase Contracts, the
due authorization of the Purchase Contract Agreement (as defined below) and
Pledge Agreement (as defined below), and with respect to the Stock Purchase
Units, the due establishment of the terms of such Stock Purchase Units by or in
accordance with resolutions of the Board of Directors of the Company authorizing
the issuance and sale of the Stock Purchase Units and the due authorization of
all documentation relating to such Stock Purchase Units), the effectiveness of
the Registration Statement, the due execution and delivery of the Indenture(s)
pursuant to which the Debt Securities will be issued (together, the
"Indenture"), the Warrant Agreement relating to the Warrants (the "Warrant
Agreement") and the Purchase Contract Agreement (the "Purchase Contract
Agreement") and the Pledge Agreement (the "Pledge Agreement") relating to the
Stock Purchase Contracts, each in materially the form filed as an Exhibit to the
Registration Statement, and the qualifications and limitations set forth below,
we are of the opinion that:
(a) the Debt Securities (including any Debt Securities included in
any Stock Purchase Units), Warrants, Stock Purchase Contracts
(including any Stock Purchase Contracts included in any Stock
Purchase Units) and Stock Purchase Units, upon the issuance
thereof and timely payment in full therefor in the manner
described in the Registration Statement and the Prospectus
Supplement describing the terms of the Debt Securities,
Warrants, Stock Purchase Contracts and Stock Purchase Units as
issued, will be validly issued, fully paid and nonassessable;
(b) the Debt Securities (including any Debt Securities included in
any Stock Purchase Units) so issued will be legally binding
obligations of
<PAGE>
The Times Mirror Company
March 25, 1997
Page 3
the Company, entitled to the benefits provided under the
Indenture pursuant to which they are issued;
(c) any Warrants so issued will be legally binding obligations of
the Company, entitled to the benefits provided under the
applicable Warrant Agreement;
(d) any Stock Purchase Contracts (including any Stock Purchase
Contracts included in any Stock Purchase Units) so issued will
be legally binding obligations of the Company; entitled to the
benefits provided under the applicable Purchase Contract
Agreement and Pledge Agreement;
(e) any Stock Purchase Units so issued will be legally binding
obligations of the Company; and
(f) the Preferred Shares and Common Shares issued separately or
upon the conversion of any Debt Securities so issued that are
convertible and upon the exercise of any Warrants and Stock
Purchase Contracts so issued (as to the Preferred Shares, when
issued pursuant to the Certificate of Designations pursuant to
Section 151 of the Delaware General Corporation Law in
materially the form filed as an Exhibit to the Registration
Statement (the "Certificate of Designations")), and the Common
Shares issued upon conversion of any such Preferred Shares so
issued that are convertible into Common Shares (i) will have
been duly authorized and reserved for issuance separately,
upon conversion of such Debt Securities, exercise of any such
Warrants and Stock Purchase Contracts and conversion of any
such convertible Preferred Shares, upon the respective
issuance of each, as the case may be, and (ii) upon the
issuance of such Preferred Shares and Common Shares separately
against payment in full therefor or pursuant to (x) the
Indenture upon valid conversion of such Debt Securities, (y)
exercise of such Warrants and Stock Purchase Contracts and
payment in full of the exercise price provided for therein or
(z) valid conversion of any such Preferred Shares so issued
that are convertible into Common Shares in accordance with the
Certificate of Designations, as the case may be, will be
validly issued, fully paid and nonassessable.
Our opinions set forth above are subject to the effect of (a)
applicable bankruptcy, reorganization, insolvency, moratorium and other similar
laws and court decisions of general application (including without limitation
statutory or other laws regarding fraudulent or
<PAGE>
The Times Mirror Company
March 25, 1997
Page 4
preferential transfers) relating to, limiting or affecting the enforcement of
creditors' rights generally, (b) general principles of equity that may limit the
enforceability of any of the remedies, covenants or other provisions of the Debt
Securities, the Indenture, the Warrants, the Warrant Agreement, the Stock
Purchase Contracts, the Stock Purchase Units, the Purchase Contract Agreement,
the Pledge Agreement and the Certificate of Designations and the availability of
injunctive relief or other equitable remedies and (c) the application of
principles of equity (regardless of whether enforcement is considered in
proceedings at law or in equity) as such principles relate to, limit or affect
the enforcement of creditors' rights generally.
In addition, we express no opinion as to: (a) any provisions of the
Debt Securities, the Indenture, the Warrant Agreement, the Warrants, the Stock
Purchase Contracts, the Stock Purchase Units, the Purchase Contract Agreement,
the Pledge Agreement or the Certificate of Designations regarding the remedies
available to any person (1) to take action that is arbitrary, unreasonable or
capricious or is not taken in good faith or in a commercially reasonable manner,
whether or not such action is permitted under the Debt Securities, the
Indenture, the Warrant Agreement, the Warrants, the Stock Purchase Contracts,
the Stock Purchase Units, the Purchase Contract Agreement, the Pledge Agreement
or the Certificate of Designations or (2) for violations or breaches that are
determined by a court to be non-material or without substantially adverse effect
upon the ability of the Company to perform its material obligations under the
Debt Securities, the Indenture, the Warrant Agreement, the Warrants, the Stock
Purchase Contracts, the Stock Purchase Units, the Purchase Contract Agreement,
the Pledge Agreement or the Certificate of Designations; or (b) the provisions
of the Debt Securities or the Indenture that may provide for interest on
interest or penalty interest.
The Company is a Delaware corporation. We are not admitted to
practice in Delaware. However, we are generally familiar with the Delaware
General Corporation Law and have made such review thereof as we consider
necessary for the purpose of this opinion. Subject to the foregoing, this
opinion is limited to Delaware, New York and federal law.
This opinion may not be quoted in whole or in part without the prior
written consent of this Firm.
You have informed us that you intend to issue one or more of the
Common Shares, Preferred Shares, Debt Securities, Warrants, Stock Purchase
Contracts or Stock Purchase Units from time to time on a delayed or continuous
basis, and this opinion is limited to the laws referred to above as in effect on
the date hereof. We understand that prior to issuing any Common Shares,
Preferred Shares, Debt Securities, Warrants, Stock Purchase Contracts or Stock
Purchase Units (i) you will advise us in writing of the terms thereof and (ii)
you will afford us an opportunity to (x) review the operative documents pursuant
to which such Common Shares, Preferred Shares, Debt Securities, Warrants, Stock
Purchase Contracts and Stock Purchase Units
<PAGE>
The Times Mirror Company
March 25, 1997
Page 5
are to be issued (including the applicable Prospectus Supplement) and (y) file
such supplement or amendment to this opinion (if any) as we may reasonably
consider necessary or appropriate by reason of the terms of such Common Shares,
Preferred Shares, Debt Securities, Warrants, Stock Purchase Contracts or Stock
Purchase Units.
We hereby consent to the use of our name under the caption "Certain
Legal Matters" in the Prospectus forming a part of the Registration Statement
and to the filing of this opinion as Exhibit 5 to the Registration Statement.
In giving this consent, we do not admit that we are within the category of
persons whose consent is required under Section 7 of the Act or the General
Rules and Regulations of the Securities and Exchange Commission.
Very truly yours,
/s/Gibson, Dunn & Crutcher LLP
GIBSON, DUNN & CRUTCHER LLP
PFZ/SNG
LC970830.141
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 333- ) and related Prospectus of The
Times Mirror Company for the registration of Debt Securities, Preferred Stock,
Common Stock, Warrants, Stock Purchase Contracts, and Stock Purchase Units,
with an aggregate offering price of not more than $250 million and to the
incorporation by reference therein of our report dated February 5, 1997, with
respect to the consolidated financial statements and schedule of The Times
Mirror Company included in its Annual Report (Form 10-K) for the year ended
December 31, 1996, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Los Angeles, California
March 24, 1997
