<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 2, 1994
REGISTRATION NO. 33-83952
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 4
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
ICN MERGER CORP.
(TO BE RENAMED ICN PHARMACEUTICALS, INC.)
(EXACT NAME OF ISSUER AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 2834 33-0628076
(STATE OR OTHER JURISDICTION OF PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER IDENTIFICATION NUMBER)
</TABLE>
------------------------
3300 HYLAND AVENUE, COSTA MESA, CALIFORNIA 92626 (714) 545-0100
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
MILAN PANIC
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER, ICN MERGER CORP.
3300 HYLAND AVENUE, COSTA MESA, CALIFORNIA 92626 (714) 545-0100
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
PLEASE SEND COPIES OF ALL CORRESPONDENCE TO:
<TABLE>
<S> <C>
JEFFREY BAGNER, ESQ. LEONARD M. LEIMAN, ESQ.
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON FULBRIGHT & JAWORSKI L.L.P.
ONE NEW YORK PLAZA 666 FIFTH AVENUE
NEW YORK, NEW YORK 10004 NEW YORK, NEW YORK 10103
(212) 820-8000 (212) 318-3000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
ICN MERGER CORP.
CROSS-REFERENCE SHEET
PURSUANT TO ITEM 501(B) OF REGULATION S-K
<TABLE>
<CAPTION>
FORM S-1 ITEM AND CAPTION LOCATION IN PROSPECTUS
- --------------------------------------------- ---------------------------------------------
<S> <C>
1. Forepart of Registration Statement and
Outside Front Cover Page of Prospectus... Facing Page; Outside Front Cover Page;
Available Information
2. Inside Front and Outside Back Cover Pages
of Prospectus............................ Inside Front Cover Page
3. Summary Information, Risk Factors and
Ratio of Earnings to Fixed Charges....... Summary; Investment Considerations; Selected
Historical Consolidated Financial
Information
4. Use of Proceeds.......................... Use of Proceeds
5. Determination of Offering Price.......... Underwriting
6. Dilution................................. Not Applicable
7. Selling Security Holders................. Not Applicable
8. Plan of Distribution..................... Underwriting
9. Description of Securities to be
Registered................................ Investment Considerations; Description of
Debentures; Description of Capital Stock
10. Interests of Named Experts and Counsel... Experts; Legal Opinions
11. Information With Respect to the
Registrant............................... Summary; Investment Considerations; The
Company; Use of Proceeds; Capitalization;
Selected Pro Forma Combined Condensed
Financial Data; Selected Consolidated
Financial Data for the Predecessor
Companies; Management's Discussion and
Analysis of Financial Condition and Results
of Operations for the Predecessor
Companies; Business; Management; Executive
Compensation and Related Matters; Principal
Stockholders; Certain Transactions;
Description of Debentures; Shares Eligible
for Future Sale; Consolidated Financial
Statements
12. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities.............................. Not Applicable
</TABLE>
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
a. Exhibits
<TABLE>
<S> <C>
1 Form of Underwriting Agreement.*
2 Agreement and Plan of Merger, dated as of August 1, 1994, as amended, by
and among the Predecessor Companies and the Company previously filed as
Exhibit 2 to the Company's Registration Statement No. 33-84534 on Form S-4
dated September 28, 1994.
3.1 Form of Restated Certificate of Incorporation of the Company previously
filed as Exhibit 3.1 to the Company's Registration Statement No. 33-84534
on Form S-4 dated September 28, 1994.
3.2 Form of By-laws of the Company previously filed as Exhibit 3.2 to the
Company's Registration Statement No. 33-84534 on Form S-4 dated September
28, 1994.
4.1 Form of Indenture between the Company and the Trustee (including form of
Debenture).**
4.2 Form of Rights Agreement between the Company and the Rights Agent
previously filed as Exhibit 4.2 to the Company's Registration Statement
No. 33-84534 on Form S-4 dated September 28, 1994.
5 Opinion of Fried, Frank, Harris, Shriver & Jacobson*.
10.1 Foundation Agreement between SPI Pharmaceuticals, Inc. and ICN Galenika
dated November 22, 1990 previously filed as Exhibit 10.35 to SPI's Annual
Report on Form 10-K for the year ended November 30, 1990.
10.2 Amendment to Foundation Agreement between SPI Pharmaceuticals, Inc. and
ICN Galenika dated December 31, 1991, previously filed as Exhibit 10.39 to
SPI's Annual Report on Form 10-K for the year ended December 31, 1991.
10.3 Additional Amendment to Foundation Agreement between SPI Pharmaceuticals,
Inc. and ICN Galenika dated February 27, 1992, previously filed as Exhibit
10.40 to SPI's Annual Report on Form 10-K for the year ended December 31,
1991.
10.4 Indenture between ICN Pharmaceuticals, Inc. and J. Henry Schroeder Bank &
Trust Company, previously filed as Exhibit 4.1 to Registration Statement
No. 33-5919 on Form S-3, which is incorporated herein by reference. First
Supplemental Indenture dated as of October 1, 1986, between ICN
Pharmaceuticals, Inc. and J. Henry Schroeder Bank & Trust Company.
10.5 Public Bond Issue Agreement dated as of June 13, 1985 between ICN
Pharmaceuticals, Inc. and Banque Gutzwiller, Kurz, Bungener S.A.,
previously filed as Exhibit 10 to ICN's Form 8 Amendment of Quarterly
Report on Form 10-Q for the quarter ended August 31, 1985.
</TABLE>
II-1
<PAGE> 4
<TABLE>
<S> <C>
10.6 Purchase Agreement dated as of September 5, 1986, for an issue by ICN
Pharmaceuticals, Inc., of Dfl. 75,000,000 Subordinated Convertible Bonds
due 1990/ 1994 convertible into Shares of Common Stock, between ICN
Pharmaceuticals, Inc. and Van Haften & Co. N.V. and the other Managers
named therein; Trust Deed dated as of September 15, 1986, between ICN
Pharmaceuticals, Inc. and B.V. Algemeen Administratieen Trustkantoor; and
Paying Agency Agreement dated as of September 15, 1986, for an issue by
ICN Pharmaceuticals, Inc. of Dfl. 75,000,000 Subordinated Convertible
Bonds due 1990/1994 Convertible into Shares of Common Stock among ICN
Pharmaceuticals, Inc., Nederlands Credietbank N.V., Kerdietbank S.A.
Luxembourgeoise, and Banque Gutzwiller, Kurz, Bungener S.A., previously
filed as Exhibit 10 to ICN's Registration Statement No. 33-10706 on Form
S-3.
10.7 Xr Capital Holding Trust Instrument between ICN Pharmaceuticals, Inc. and
Ansbacher (C.I.) Limited dated as of September 17, 1986; Subscription
Agreement between Ansbacher (C.I.) Limited, ICN Pharmaceuticals, Inc., SPI
Pharmaceuticals, Inc., and Banque Gutzwiller, Kurz, Bungener S.A. and the
other financial institutions named therein dated as of September 17, 1986;
Bond Issue Agreement between ICN Pharmaceuticals, Inc. and Ansbacher
(C.I.) Limited dated as of September 17, 1986; and Exchange Agency
Agreement between ICN Pharmaceuticals, Inc., SPI Pharmaceuticals, Inc.,
Banque Gutzwiller, Kurz, Bungener S.A., and the other financial
institutions named therein dated as of September 17, 1986 previously filed
as Exhibit 10.36 to ICN Pharmaceuticals Inc.'s Annual Report on Form 10-K
for the fiscal year ended November 30, 1987.
10.8 Indenture dated as of October 30, 1986 between ICN Pharmaceuticals, Inc.
and Citibank, N.A.; and Subscription Agreement dated as of October 8, 1986
between ICN Pharmaceuticals, Inc., J. Henry Schroder Wagg and Co. Ltd. and
the other financial institutions named therein previously filed as Exhibit
10.37 to ICN's Pharmaceuticals Inc.'s Annual Report on Form 10-K for the
fiscal year ended November 30, 1987.
10.9 Pharma Capital Holdings Trust Instrument between ICN Pharmaceuticals, Inc.
and Ansbacher (C.I.) Limited, dated as of October 16, 1986; Subscription
Agreement between Ansbacher (C.I.) Limited, ICN Pharmaceuticals, Inc. and
the Managers named therein, dated as of October 16, 1986; Paying Agency
Agreement between ICN Pharmaceuticals, Inc., Ansbacher (C.I.) Limited,
Banque Paribas (Luxembourg) S.A. and the other financial institutions
named therein dated as of October 22, 1986; and the Exchange Agency
Agreement between ICN Pharmaceuticals, Inc., Banque Paribas (Luxembourg)
S.A. and the other Exchange Agents named therein dated as of October 22,
1986 previously filed as Exhibit 10.38 to ICN Pharmaceuticals, Inc.'s
Annual Report on Form 10-K for the fiscal year ended November 30, 1987.
10.10 Bio Capital Holding Trust Instrument between ICN Biomedicals, Inc.,
Ansbacher (C.I.) Limited and ICN Pharmaceuticals, Inc. dated as of January
26, 1987; Subscription Agreement between ICN Biomedicals, Inc., Ansbacher
(C.I.) Limited, ICN Pharmaceuticals, Inc., Banque Gutzwiller, Kurz,
Bungener S.A. and the other financial institutions named therein dated as
of January 26, 1987; Bond Issue Agreement between ICN Biomedicals, Inc.,
ICN Pharmaceuticals, Inc. and Ansbacher (C.I.) Limited dated as of January
26, 1987; Exchange Agency Agreement between ICN Biomedicals, Inc., Banque
Gutzwiller, Kurz, Bungener, S.A., and the other financial institutions
named therein dated as of January 26, 1987; and Guaranty between ICN
Pharmaceuticals, Inc. and ICN Biomedicals, Inc. dated as of February 17,
1987, previously filed as Exhibit 10.1 to ICN Biomedicals, Inc.'s
Quarterly Report on Form 10-Q for the quarter ended February 28, 1987.
</TABLE>
II-2
<PAGE> 5
<TABLE>
<S> <C>
10.11 Public Bond Issue Agreement dated as of February 20, 1987, between ICN
Pharmaceuticals, Inc. and Fintrelex, S.A. and the other banks named
therein; Conversion Agency Agreement dated as of February 20, 1987 between
ICN Pharmaceuticals, Inc., E. Gutzwiller & Cie, and the other financial
institutions named therein; and Escrow Agreement dated as of February 20,
1987 between ICN Pharmaceuticals, Inc., Fintrelex, S.A. and E. Gutzwiller
& Cie, previously filed as Exhibit 10.2 to ICN Pharmaceuticals Inc.'s
Quarterly Report on Form 10-Q for the quarter ended February 28, 1987.
10.12 Agreement between ICN Pharmaceuticals, Inc. and Milan Panic, dated October
1, 1988 previously filed as Exhibit 10.51 to ICN's Annual Report on Form
10-K for the year ended November 30, 1989.
10.13 Agreement among ICN Pharmaceuticals, Inc., SPI Pharmaceuticals, Inc. and
Adam Jerney, dated March 18, 1993 previously filed as Exhibit 10.49 to
SPI's Amendment No. 2 to the Annual Report on Form 10-K filed on March 31,
1993.
10.14 Agreement among ICN Pharmaceuticals, Inc., Viratek, Inc. and John
Giordani, dated March 18, 1993 previously filed as Exhibit 10.3 to the
Company's Registration Statement No. 33-84534 on Form S-4 dated September
28, 1994.
10.15 Agreement among ICN Pharmaceuticals, Inc., ICN Biomedicals, Inc., SPI
Pharmaceuticals and Bill MacDonald, dated March 18, 1993 previously filed
as Exhibit 10.4 to the Company's Registration Statement No. 33-84534 on
Form S-4 dated September 28, 1994.
10.16 Agreement among ICN Pharmaceuticals, Inc., SPI Pharmaceuticals, Inc. and
John Phillips, dated March 18, 1993 previously filed as Exhibit 10.49 to
Amendment No. 2 to SPI's Annual Report on Form 10-K filed on March 31,
1993.
10.17 Agreement among ICN Pharmaceuticals, Inc., SPI Pharmaceuticals, Inc. and
Jack Sholl, dated March 18, 1993 previously filed as Exhibit 10.49 to
Amendment No. 2 to SPI's Annual Report on Form 10-K filed on March 31,
1993.
10.18 Agreement among ICN Pharmaceuticals, Inc., SPI Pharmaceuticals, Inc. and
David Watt, dated March 18, 1993 previously filed as Exhibit 10.49 to
Amendment No. 2 to SPI's Annual Report on Form 10-K filed on March 31,
1993.
10.19 ICN Pharmaceuticals, Inc. 1992 Employee Incentive Stock Option Plan
previously filed as Exhibit 10.56 to ICN's Form 10-K for the year ended
December 31, 1992.
10.20 ICN Pharmaceuticals, Inc. 1992 Non-Qualified Stock Option Plan previously
filed as Exhibit 10.57 to ICN's Form 10-K for the year ended December 31,
1992.
10.21 SPI Pharmaceuticals, Inc. 1992 Employee Incentive Stock Option Plan
previously filed as Exhibit 10.42 to SPI's Form 10-K for the year ended
December 31, 1992.
10.22 SPI Pharmaceuticals, Inc. 1992 Non-Qualified Stock Option Plan previously
filed as Exhibit 10.43 to SPI's Form 10-K for the year ended December 31,
1992.
10.23 Viratek, Inc. 1992 Employee Incentive Stock Option Plan previously filed
as Exhibit 10.22 to Viratek's Registration Statement No. 33-54678 on Form
S-2.
10.24 Viratek, Inc. 1992 Non-Qualified Stock Option Plan previously filed as
Exhibit 10.23 to Viratek's Registration Statement No. 33-54678 on Form
S-2.
10.25 ICN Biomedicals, Inc. 1992 Employee Incentive Stock Option Plan previously
filed as Exhibit 10.22 to Biomedicals' Form 10-K for the year ended
December 31, 1992.
10.26 ICN Biomedicals, Inc. 1992 Non-Qualified Stock Option Plan previously
filed as Exhibit 10.23 to Biomedicals' Form 10-K for the year ended
December 31, 1992.
10.27 ICN Pharmaceuticals, Inc. 1981 Employee Incentive Stock Option Plan, as
amended, previously filed as Exhibit 4.1 to Registration Statement No.
33-60866 on Form S-3 dated April 9, 1993.
</TABLE>
II-3
<PAGE> 6
<TABLE>
<S> <C>
10.28 SPI Pharmaceuticals, Inc. 1982 Employee Incentive Stock Option Plan, as
amended and restated as of January 21, 1992, previously filed as Exhibit
4.1 to SPI's Registration Statement No. 33-60872 on Form S-8 dated April
9, 1993.
10.29 SPI Pharmaceuticals, Inc. 1982 Non-Qualified Stock Option Plan, as amended
and restated as of January 21, 1992, previously filed as Exhibit 4.2 to
SPI's Registration Statement No. 33-60872 on Form S-8 dated April 9, 1993.
10.30 Viratek, Inc. 1982 FDA Employee Special Stock Option Plan previously filed
as Exhibit 10.14 to Viratek's Form 10-K for the year ended November 30,
1982.
10.31 Viratek, Inc. 1981 Employee Incentive Stock Option Plan, as amended on
January 21, 1992, previously filed as Exhibit 4.1 to Viratek's
Registration Statement No. 33-60876 on Form S-8 dated April 9, 1993.
10.32 Viratek, Inc. 1980 Employee Stock Option Plan, as amended, previously
filed as Exhibit 4.2 to Viratek's Registration Statement No. 33-60876 on
Form S-8 dated April 9, 1993.
10.33 ICN Biomedicals, Inc. 1992 Employee Incentive Stock Option Plan previously
filed as Exhibit 4.1 to Biomedicals' Registration Statement No. 33-60862
on Form S-8 dated April 9, 1993.
10.34 ICN Biomedicals, Inc. 1983 Non-Qualified Stock Option Plan and 1983
Incentive Stock Option Plan, as amended and restated as of January 21,
1992, previously filed as Exhibits 4.1 and 4.2 to Biomedicals'
Registration Statement No. 33-34943 on Form S-8 dated April 9, 1993.
11.1 Statement Re Computation of Per Share Earnings ICN Merger Corp.***
11.2 Statement Re Computation of Per Share Earnings SPI Pharmaceuticals,
Inc.***
11.3 Statement Re Computation of Per Share Earnings ICN Pharmaceuticals,
Inc.***
11.4 Statement Re Computation of Per Share Earnings Viratek, Inc.***
11.5 Statement Re Computation of Per Share Earnings ICN Biomedicals, Inc.***
12 Calculation of Ratio of Earnings to Fixed Charges.***
15 Letter from Coopers & Lybrand, L.L.P. concerning unaudited interim
financial information.***
21 Subsidiaries of the Registrant previously filed as Exhibit 21 to the
Company's Registration Statement No. 33-84534 on Form S-4 dated September
28, 1994.
23.1 Consent of Coopers & Lybrand, L.L.P.***
23.2 Consent of Fried, Frank, Harris, Shriver & Jacobson (contained in its
opinion filed as Exhibit 5 to this Registration Statement).*
23.3.1 Consent of Persons who will become directors of the Registrant (as
required by Rule 438)
Michael Smith*
23.3.2 Consent of Persons who will become directors of the Registrant (as
required by Rule 438)
Stephen Moses*
23.3.3 Consent of Persons who will become directors of the Registrant (as
required by Rule 438)
Norman Barker*
23.3.4 Consent of Persons who will become directors of the Registrant (as
required by Rule 438)
Roger Guillermin*
</TABLE>
II-4
<PAGE> 7
<TABLE>
<S> <C>
23.3.5 Consent of Persons who will become directors of the Registrant (as
required by Rule 438)
Birch Bayh*
23.3.6 Consent of Persons who will become directors of the Registrant (as
required by Rule 438)
Vernon Knight*
23.3.7 Consent of Persons who will become directors of the Registrant (as
required by Rule 438)
Weldon Jolley*
23.3.8 Consent of Persons who will become directors of the Registrant (as
required by Rule 438)
Jean-Francois Kurz*
23.3.9 Consent of Persons who will become directors of the Registrant (as
required by Rule 438)
Thomas Lenagh*
23.3.10 Consent of Persons who will become directors of the Registrant (as
required by Rule 438)
Charles Manatt*
23.3.11 Consent of Persons who will become directors of the Registrant (as
required by Rule 438)
Milan Panic*
23.3.12 Consent of Persons who will become directors of the Registrant (as
required by Rule 438)
Roberts A. Smith*
23.3.13 Consent of Persons who will become directors of the Registrant (as
required by Rule 438)
Robert Finch*
23.3.14 Consent of Persons who will become directors of the Registrant (as
required by Rule 438)
Adam Jerney*
23.3.15 Consent of Persons who will become directors of the Registrant (as
required by Rule 438)
James Miscoll*
23.3.16 Consent of Persons who will become directors of the Registrant (as
required by Rule 438)
Alan Charles*
23.3.17 Consent of Persons who will become directors of the Registrant (as
required by Rule 438)
Richard Starr*
24.1 Power of Attorney (included elsewhere in this Registration Statement).
25.1 Statement of Eligibility of Trustee (Form T-1).**
27. Financial Data Schedule for ICN Pharmaceuticals, Inc. for year ended
December 31, 1993 and for the six month period June 30, 1994, previously
filed as Exhibit 27 to the Company's Registration Statement No. 33-84534
on Form S-4 dated September 28, 1994.
27.1 Financial Data Schedule for SPI Pharmaceuticals, Inc. for year ended
December 31, 1993 and for the six month period ended June 30, 1994,
previously filed as Exhibit 27.1 to the Company's Registration Statement
No. 33-84534 on Form S-4 dated September 28, 1994.
</TABLE>
II-5
<PAGE> 8
<TABLE>
<S> <C>
27.2 Financial Data Schedule for Viratek, Inc. for year ended December 31, 1993
and for the six month period ended June 30, 1994, previously filed as
Exhibit 27.2 to the Company's Registration Statement No. 33-84534 on Form
S-4 dated September 28, 1994.
27.3 Financial Data Schedule for ICN Biomedicals, Inc. for year ended December
31, 1993 and for the six month period ended June 30, 1994, previously
filed as Exhibit 27.3 to the Company's Registration Statement No. 33-84534
on Form S-4 dated September 28, 1994.
99.1 Form of Escrow Deposit Agreement between the Registrant and , as
escrow agent.*
</TABLE>
- ---------------
* To be filed by amendment.
** Filed herewith.
*** Previously filed as an Exhibit to this Registration Statement.
II-6
<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, ICN Merger
Corp. has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized in the City of Costa Mesa, State of
California, on November 2, 1994.
ICN MERGER CORP.
By: /s/ MILAN PANIC
Milan Panic
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned constitutes
and appoints Milan Panic and David C. Watt, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement
(including post-effective amendments), and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission granting unto such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully and to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that such attorneys-in-fact and agents, or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ --------------------------------- -------------------
<S> <C> <C>
/s/ MILAN PANIC Chairman of the Board, President, November 2, 1994
Milan Panic and Chief Executive Officer
(Principal Executive Officer)
/s/ JOHN E. GIORDANI Executive Vice President, Chief November 2, 1994
John E. Giordani Financial Officer and Corporate
Controller (Principal Financial
and Accounting Officer) and
Director
/s/ BILL A. MACDONALD Director November 2, 1994
Bill A. MacDonald
</TABLE>
II-7
<PAGE> 10
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
NUMBER DESCRIPTION PAGE
-------- -------------------------------------------------------------- --------------
<S> <C> <C>
1 Form of Underwriting Agreement*...............................
2 Agreement and Plan of Merger, dated as of August 1, 1994, as
amended, by and among the Predecessor Companies and the
Company previously filed as Exhibit 2 to the Company's
Registration Statement No. 33-84534 on Form S-4 dated
September 28, 1994............................................
3.1 Form of Restated Certificate of Incorporation of the Company
previously filed as Exhibit 3.1 to the Company's Registration
Statement No. 33-84534 on Form S-4 dated September 28, 1994...
3.2 Form of By-laws of the Company previously filed as Exhibit 3.2
to the Company's Registration Statement No. 33-84534 on Form
S-4 dated September 28, 1994..................................
4.1 Form of Indenture between the Company and the Trustee
(including form of Debenture)**...............................
4.2 Form of Rights Agreement between the Company and the Rights
Agent previously filed as Exhibit 4.2 to the Company's
Registration Statement No. 33-84534 on Form S-4 dated
September 28, 1994............................................
5 Opinion of Fried, Frank, Harris, Shriver & Jacobson*..........
10.1 Foundation Agreement between SPI Pharmaceuticals, Inc. and ICN
Galenika dated November 22, 1990 previously filed as Exhibit
10.35 to SPI's Annual Report on Form 10-K for the year ended
November 30, 1990.............................................
10.2 Amendment to Foundation Agreement between SPI Pharmaceuticals,
Inc. and ICN Galenika dated December 31, 1991, previously
filed as Exhibit 10.39 to SPI's Annual Report on Form 10-K for
the year ended December 31, 1991..............................
10.3 Additional Amendment to Foundation Agreement between SPI
Pharmaceuticals, Inc. and ICN Galenika dated February 27,
1992, previously filed as Exhibit 10.40 to SPI's Annual Report
on Form 10-K for the year ended December 31, 1991.............
10.4 Indenture between ICN Pharmaceuticals, Inc. and J. Henry
Schroeder Bank & Trust Company, previously filed as Exhibit
4.1 to Registration Statement No. 33-5919 on Form S-3, which
is incorporated herein by reference. First Supplemental
Indenture dated as of October 1, 1986, between ICN
Pharmaceuticals, Inc. and J. Henry Schroeder Bank & Trust
Company.......................................................
10.5 Public Bond Issue Agreement dated as of June 13, 1985 between
ICN Pharmaceuticals, Inc. and Banque Gutzwiller, Kurz,
Bungener S.A., previously filed as Exhibit 10 to ICN's Form 8
Amendment of Quarterly Report on Form 10-Q for the quarter
ended August 31, 1985.........................................
</TABLE>
<PAGE> 11
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
NUMBER DESCRIPTION PAGE
-------- -------------------------------------------------------------- --------------
<S> <C> <C>
10.6 Purchase Agreement dated as of September 5, 1986, for an issue
by ICN Pharmaceuticals, Inc., of Dfl. 75,000,000 Subordinated
Convertible Bonds due 1990/1994 convertible into Shares of
Common Stock, between ICN Pharmaceuticals, Inc. and Van Haften
& Co. N.V. and the other Managers named therein; Trust Deed
dated as of September 15, 1986, between ICN Pharmaceuticals,
Inc. and B.V. Algemeen Administratieen Trustkantoor; and
Paying Agency Agreement dated as of September 15, 1986, for an
issue by ICN Pharmaceuticals, Inc. of Dfl. 75,000,000
Subordinated Convertible Bonds due 1990/1994 Convertible into
Shares of Common Stock among ICN Pharmaceuticals, Inc.,
Nederlands Credietbank N.V., Kerdietbank S.A. Luxembourgeoise,
and Banque Gutzwiller, Kurz, Bungener S.A., previously filed
as Exhibit 10 to ICN's Registration Statement No. 33-10706 on
Form S-3......................................................
10.7 Xr Capital Holding Trust Instrument between ICN
Pharmaceuticals, Inc. and Ansbacher (C.I.) Limited dated as of
September 17, 1986; Subscription Agreement between Ansbacher
(C.I.) Limited, ICN Pharmaceuticals, Inc., SPI
Pharmaceuticals, Inc., and Banque Gutzwiller, Kurz, Bungener
S.A. and the other financial institutions named therein dated
as of September 17, 1986; Bond Issue Agreement between ICN
Pharmaceuticals, Inc. and Ansbacher (C.I.) Limited dated as of
September 17, 1986; and Exchange Agency Agreement between ICN
Pharmaceuticals, Inc., SPI Pharmaceuticals, Inc., Banque
Gutzwiller, Kurz, Bungener S.A., and the other financial
institutions named therein dated as of September 17, 1986
previously filed as Exhibit 10.36 to ICN Pharmaceuticals
Inc.'s Annual Report on Form 10-K for the fiscal year ended
November 30, 1987.............................................
10.8 Indenture dated as of October 30, 1986 between ICN
Pharmaceuticals, Inc. and Citibank, N.A.; and Subscription
Agreement dated as of October 8, 1986 between ICN
Pharmaceuticals, Inc., J. Henry Schroder Wagg and Co. Ltd. and
the other financial institutions named therein previously
filed as Exhibit 10.37 to ICN's Pharmaceuticals Inc.'s Annual
Report on Form 10-K for the fiscal year ended November 30,
1987..........................................................
10.9 Pharma Capital Holdings Trust Instrument between ICN
Pharmaceuticals, Inc. and Ansbacher (C.I.) Limited, dated as
of October 16, 1986; Subscription Agreement between Ansbacher
(C.I.) Limited, ICN Pharmaceuticals, Inc. and the Managers
named therein, dated as of October 16, 1986; Paying Agency
Agreement between ICN Pharmaceuticals, Inc., Ansbacher (C.I.)
Limited, Banque Paribas (Luxembourg) S.A. and the other
financial institutions named therein dated as of October 22,
1986; and the Exchange Agency Agreement between ICN
Pharmaceuticals, Inc., Banque Paribas (Luxembourg) S.A. and
the other Exchange Agents named therein dated as of October
22, 1986 previously filed as Exhibit 10.38 to ICN
Pharmaceuticals, Inc.'s Annual Report on Form 10-K for the
fiscal year ended November 30, 1987...........................
</TABLE>
<PAGE> 12
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
NUMBER DESCRIPTION PAGE
-------- -------------------------------------------------------------- --------------
<S> <C> <C>
10.10 Bio Capital Holding Trust Instrument between ICN Biomedicals,
Inc., Ansbacher (C.I.) Limited and ICN Pharmaceuticals, Inc.
dated as of January 26, 1987; Subscription Agreement between
ICN Biomedicals, Inc., Ansbacher (C.I.) Limited, ICN
Pharmaceuticals, Inc., Banque Gutzwiller, Kurz, Bungener S.A.
and the other financial institutions named therein dated as of
January 26, 1987; Bond Issue Agreement between ICN
Biomedicals, Inc., ICN Pharmaceuticals, Inc. and Ansbacher
(C.I.) Limited dated as of January 26, 1987; Exchange Agency
Agreement between ICN Biomedicals, Inc., Banque Gutzwiller,
Kurz, Bungener, S.A., and the other financial institutions
named therein dated as of January 26, 1987; and Guaranty
between ICN Pharmaceuticals, Inc. and ICN Biomedicals, Inc.
dated as of February 17, 1987, previously filed as Exhibit
10.1 to ICN Biomedicals, Inc.'s Quarterly Report on Form 10-Q
for the quarter ended February 28, 1987.......................
10.11 Public Bond Issue Agreement dated as of February 20, 1987,
between ICN Pharmaceuticals, Inc. and Fintrelex, S.A. and the
other banks named therein; Conversion Agency Agreement dated
as of February 20, 1987 between ICN Pharmaceuticals, Inc., E.
Gutzwiller & Cie, and the other financial institutions named
therein; and Escrow Agreement dated as of February 20, 1987
between ICN Pharmaceuticals, Inc., Fintrelex, S.A. and E.
Gutzwiller & Cie, previously filed as Exhibit 10.2 to ICN
Pharmaceuticals Inc.'s Quarterly Report on Form 10-Q for the
quarter ended February 28, 1987...............................
10.12 Agreement between ICN Pharmaceuticals, Inc. and Milan Panic,
dated October 1, 1988 previously filed as Exhibit 10.51 to
ICN's Annual Report on Form 10-K for the year ended November
30, 1989......................................................
10.13 Agreement among ICN Pharmaceuticals, Inc., SPI
Pharmaceuticals, Inc. and Adam Jerney, dated March 18, 1993
previously filed as Exhibit 10.49 to SPI's Amendment No. 2 to
the Annual Report on Form 10-K filed on March 31, 1993........
10.14 Agreement among ICN Pharmaceuticals, Inc., Viratek, Inc. and
John Giordani, dated March 18, 1993 previously filed as
Exhibit 10.3 to the Company's Registration Statement No.
33-84534 on Form S-4 dated September 28, 1994.................
10.15 Agreement among ICN Pharmaceuticals, Inc., ICN Biomedicals,
Inc., SPI Pharmaceuticals and Bill MacDonald, dated March 18,
1993 previously filed as Exhibit 10.4 to the Company's
Registration Statement No. 33-84534 on Form S-4 dated
September 28, 1994............................................
10.16 Agreement among ICN Pharmaceuticals, Inc., SPI
Pharmaceuticals, Inc. and John Phillips, dated March 18, 1993
previously filed as Exhibit 10.49 to Amendment No. 2 to SPI's
Annual Report on Form 10-K filed on March 31, 1993............
10.17 Agreement among ICN Pharmaceuticals, Inc., SPI
Pharmaceuticals, Inc. and Jack Sholl, dated March 18, 1993
previously filed as Exhibit 10.49 to Amendment No. 2 to SPI's
Annual Report on Form 10-K filed on March 31, 1993............
</TABLE>
<PAGE> 13
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
NUMBER DESCRIPTION PAGE
-------- -------------------------------------------------------------- --------------
<S> <C> <C>
10.18 Agreement among ICN Pharmaceuticals, Inc., SPI
Pharmaceuticals, Inc. and David Watt, dated March 18, 1993
previously filed as Exhibit 10.49 to Amendment No. 2 to SPI's
Annual Report on Form 10-K filed on March 31, 1993............
10.19 ICN Pharmaceuticals, Inc. 1992 Employee Incentive Stock Option
Plan previously filed as Exhibit 10.56 to ICN's Form 10-K for
the year ended December 31, 1992..............................
10.20 ICN Pharmaceuticals, Inc. 1992 Non-Qualified Stock Option Plan
previously filed as Exhibit 10.57 to ICN's Form 10-K for the
year ended December 31, 1992..................................
10.21 SPI Pharmaceuticals, Inc. 1992 Employee Incentive Stock Option
Plan previously filed as Exhibit 10.42 to SPI's Form 10-K for
the year ended December 31, 1992..............................
10.22 SPI Pharmaceuticals, Inc. 1992 Non-Qualified Stock Option Plan
previously filed as Exhibit 10.43 to SPI's Form 10-K for the
year ended December 31, 1992..................................
10.23 Viratek, Inc. 1992 Employee Incentive Stock Option Plan
previously filed as Exhibit 10.22 to Viratek's Registration
Statement No. 33-54678 on Form S-2............................
10.24 Viratek, Inc. 1992 Non-Qualified Stock Option Plan previously
filed as Exhibit 10.23 to Viratek's Registration Statement No.
33-54678 on Form S-2..........................................
10.25 ICN Biomedicals, Inc. 1992 Employee Incentive Stock Option
Plan previously filed as Exhibit 10.22 to Biomedicals' Form
10-K for the year ended December 31, 1992.....................
10.26 ICN Biomedicals, Inc. 1992 Non-Qualified Stock Option Plan
previously filed as Exhibit 10.23 to Biomedicals' Form 10-K
for the year ended December 31, 1992..........................
10.27 ICN Pharmaceuticals, Inc. 1981 Employee Incentive Stock Option
Plan, as amended, previously filed as Exhibit 4.1 to
Registration Statement No. 33-60866 on Form S-3 dated April 9,
1993..........................................................
10.28 SPI Pharmaceuticals, Inc. 1982 Employee Incentive Stock Option
Plan, as amended and restated as of January 21, 1992,
previously filed as Exhibit 4.1 to SPI's Registration
Statement No. 33-60872 on Form S-8 dated April 9, 1993........
10.29 SPI Pharmaceuticals, Inc. 1982 Non-Qualified Stock Option
Plan, as amended and restated as of January 21, 1992,
previously filed as Exhibit 4.2 to SPI's Registration
Statement No. 33-60872 on Form S-8 dated April 9, 1993........
10.30 Viratek, Inc. 1982 FDA Employee Special Stock Option Plan
previously filed as Exhibit 10.14 to Viratek's Form 10-K for
the year ended November 30, 1982..............................
10.31 Viratek, Inc. 1981 Employee Incentive Stock Option Plan, as
amended on January 21, 1992, previously filed as Exhibit 4.1
to Viratek's Registration Statement No. 33-60876 on Form S-8
dated April 9, 1993...........................................
</TABLE>
<PAGE> 14
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
NUMBER DESCRIPTION PAGE
-------- -------------------------------------------------------------- --------------
<S> <C> <C>
10.32 Viratek, Inc. 1980 Employee Stock Option Plan, as amended,
previously filed as Exhibit 4.2 to Viratek's Registration
Statement No. 33-60876 on Form S-8 dated April 9, 1993........
10.33 ICN Biomedicals, Inc. 1992 Employee Incentive Stock Option
Plan previously filed as Exhibit 4.1 to Biomedicals'
Registration Statement No. 33-60862 on Form S-8 dated April 9,
1993..........................................................
10.34 ICN Biomedicals, Inc. 1983 Non-Qualified Stock Option Plan and
1983 Incentive Stock Option Plan, as amended and restated as
of January 21, 1992, previously filed as Exhibits 4.1 and 4.2
to Biomedicals' Registration Statement No. 33-34943 on Form
S-8 dated April 9, 1993.......................................
11.1 Statement Re Computation of Per Share Earnings ICN Merger
Corp.***......................................................
11.2 Statement Re Computation of Per Share Earnings SPI
Pharmaceuticals, Inc.***......................................
11.3 Statement Re Computation of Per Share Earnings ICN
Pharmaceuticals, Inc.***......................................
11.4 Statement Re Computation of Per Share Earnings Viratek,
Inc.***.......................................................
11.5 Statement Re Computation of Per Share Earnings ICN
Biomedicals, Inc.***..........................................
12 Calculation of Ratio of Earnings to Fixed Charges***..........
15 Letter from Coopers & Lybrand, L.L.P. concerning unaudited
interim financial information***..............................
21 Subsidiaries of the Registrant previously filed as Exhibit 21
to the Company's Registration Statement No. 33-84534 on Form
S-4 dated September 28, 1994..................................
23.1 Consent of Coopers & Lybrand, L.L.P.***.......................
23.2 Consent of Fried, Frank, Harris, Shriver & Jacobson (contained
in its opinion filed as Exhibit 5 to this Registration
Statement)*...................................................
23.3.1 Consent of Persons who will become directors of the Registrant
(as required by Rule 438)
Michael Smith*................................................
23.3.2 Consent of Persons who will become directors of the Registrant
(as required by Rule 438)
Stephen Moses*................................................
23.3.3 Consent of Persons who will become directors of the Registrant
(as required by Rule 438)
Norman Barker*................................................
23.3.4 Consent of Persons who will become directors of the Registrant
(as required by Rule 438)
Roger Guillermin*.............................................
23.3.5 Consent of Persons who will become directors of the Registrant
(as required by Rule 438)
Birch Bayh*...................................................
23.3.6 Consent of Persons who will become directors of the Registrant
(as required by Rule 438)
Vernon Knight*................................................
</TABLE>
<PAGE> 15
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
NUMBER DESCRIPTION PAGE
-------- -------------------------------------------------------------- --------------
<S> <C> <C>
23.3.7 Consent of Persons who will become directors of the Registrant
(as required by Rule 438)
Weldon Jolley*................................................
23.3.8 Consent of Persons who will become directors of the Registrant
(as required by Rule 438)
Jean-Francois Kurz*...........................................
23.3.9 Consent of Persons who will become directors of the Registrant
(as required by Rule 438)
Thomas Lenagh*................................................
23.3.10 Consent of Persons who will become directors of the Registrant
(as required by Rule 438)
Charles Manatt*...............................................
23.3.11 Consent of Persons who will become directors of the Registrant
(as required by Rule 438)
Milan Panic*..................................................
23.3.12 Consent of Persons who will become directors of the Registrant
(as required by Rule 438)
Roberts A. Smith*.............................................
23.3.13 Consent of Persons who will become directors of the Registrant
(as required by Rule 438)
Robert Finch*.................................................
23.3.14 Consent of Persons who will become directors of the Registrant
(as required by Rule 438)
Adam Jerney*..................................................
23.3.15 Consent of Persons who will become directors of the Registrant
(as required by Rule 438)
James Miscoll*................................................
23.3.16 Consent of Persons who will become directors of the Registrant
(as required by Rule 438)
Alan Charles*.................................................
23.3.17 Consent of Persons who will become directors of the Registrant
(as required by Rule 438)
Richard Starr*................................................
24.1 Power of Attorney (included elsewhere in this Registration
Statement)....................................................
25.1 Statement of Eligibility of Trustee (Form T-1)**..............
27. Financial Data Schedule for ICN Pharmaceuticals, Inc. for year
ended December 31, 1993 and for the six month period June 30,
1994, previously filed as Exhibit 27 to the Company's
Registration Statement No. 33-84534 on Form S-4 dated
September 28, 1994............................................
27.1 Financial Data Schedule for SPI Pharmaceuticals, Inc. for year
ended December 31, 1993 and for the six month period ended
June 30, 1994, previously filed as Exhibit 27.1 to the
Company's Registration Statement No. 33-84534 on Form S-4
dated September 28, 1994......................................
</TABLE>
<PAGE> 16
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
NUMBER DESCRIPTION PAGE
-------- -------------------------------------------------------------- --------------
<S> <C> <C>
27.2 Financial Data Schedule for Viratek, Inc. for year ended
December 31, 1993 and for the six month period ended June 30,
1994, previously filed as Exhibit 27.2 to the Company's
Registration Statement No. 33-84534 on Form S-4 dated
September 28, 1994............................................
27.3 Financial Data Schedule for ICN Biomedicals, Inc. for year
ended December 31, 1993 and for the six month period ended
June 30, 1994, previously filed as Exhibit 27.3 to the
Company's Registration Statement No. 33-84534 on Form S-4
dated September 28, 1994......................................
99.1 Form of Escrow Deposit Agreement between the Registrant and
, as escrow agent*..................................
</TABLE>
- ---------------
* To be filed by amendment.
** Filed herewith.
*** Previously filed as an Exhibit to this Registration Statement.
<PAGE> 1
================================================================================
EXHIBIT 4.1
ICN PHARMACEUTICALS, INC.
(formerly ICN Merger Corp.)
and
AMERICAN STOCK TRANSFER & TRUST COMPANY,
AS TRUSTEE
_____________
INDENTURE
DATED AS OF ______, 1994
_____________
$150,000,000
% CONVERTIBLE SUBORDINATED DEBENTURES DUE 2004
================================================================================
* Subject to increase up to $172,500,000.
<PAGE> 2
CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION SECTION OF INDENTURE
--------------------------- --------------------
<S> <C>
310(a)(1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . 9.10
310(a)(3) and (4) . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.08 and 9.10, 16.03
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
311(a) and (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.11
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
312(b) and (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.07
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.06
313(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
313(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.06
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.06 and 16.03
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.06
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.12 and 16.03
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
314(c)(1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . 16.04
314(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.04
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
315(a), (c) and (d) . . . . . . . . . . . . . . . . . . . . . . . . . 9.01
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.05; 16.03
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.11
316(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.04 and 8.05
316(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
316(a) last sentence . . . . . . . . . . . . . . . . . . . . . . . . . 10.03
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.07
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.04
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.08 and 8.09
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.06
</TABLE>
This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of this Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
</TABLE>
ARTICLE ONE.
DEFINITIONS.
<TABLE>
<S> <C> <C>
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 1.03. Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 1.04 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
</TABLE>
ARTICLE TWO.
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES.
<TABLE>
<S> <C> <C>
SECTION 2.01. Dating; Incorporation of Form in Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.02. Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.03. Registrar and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.04. Holders to be Treated as Owners; Payment of Interest . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.05. Paying Agent to Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.06. Securityholder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.07. Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Securities . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.09. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.10. Cancellation of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.11. Benefits of Indenture Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.12. Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.13. CUSIP Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
</TABLE>
ARTICLE THREE.
REDEMPTION OF SECURITIES
<TABLE>
<S> <C> <C>
SECTION 3.01. Redemption Prices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.02. Notice of Redemption; Selection of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.03. Payment of Securities on Redemptions; Deposit of Redemption Price . . . . . . . . . . . . . . . . 16
</TABLE>
<PAGE> 4
ARTICLE FOUR.
SUBORDINATION OF SECURITIES.
<TABLE>
<S> <C> <C>
SECTION 4.01. Agreement that Securities to Be Subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 4.02. Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 4.03. Company Not to Make Payments with Respect
to Securities in Certain Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.04. Payment Over of Proceeds in Certain Events . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.05. No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.06. Notice to Trustee of Specified Events; Reliance on Certificate or Liquidating Agent . . . . . . . 20
SECTION 4.07. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.08. Obligation to Pay Not Impaired . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.09. Reliance by Senior Indebtedness on Subordination Provisions . . . . . . . . . . . . . . . . . . . 21
SECTION 4.10. Subordination Not to Be Prejudiced by Certain Acts . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.11. Trustee Authorized to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.12. Trustee's Relationship to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.13. Trustee and Paying Agents Not Chargeable with Knowledge Until Notice . . . . . . . . . . . . . . 22
SECTION 4.14. Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.15. Trustee's Compensation Not Prejudiced . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
</TABLE>
ARTICLE FIVE.
CONVERSION OF SECURITIES.
<TABLE>
<S> <C> <C>
SECTION 5.01. Conversion Privilege; Conversion Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 5.02. Manner of Exercising Conversion Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 5.03. Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 5.04. Adjustment of Conversion Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 5.05. Certificate Concerning Adjusted Conversion Price . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.06. Notice of Certain Corporate Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.07. Company to Provide Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.08. Taxes on Conversions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.09. Covenant as to Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.10. Provision in Case of Consolidation or Merger . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.11. Trustee's Disclaimer of Responsibility for Certain Matters . . . . . . . . . . . . . . . . . . . 30
</TABLE>
<PAGE> 5
ARTICLE SIX.
PARTICULAR COVENANTS OF THE COMPANY.
<TABLE>
<S> <C> <C>
SECTION 6.01. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.02. Offices for Notices, Payments and Conversions . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.03. Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.04. Annual Review Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.05. Appointment to Fill a Vacancy in Office of Trustee . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.06. Further Instruments and Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.07. Payment of Taxes and Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.08. Maintenance of Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.09. Change of Control. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.10. Waiver of Stay or Extension Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.11. SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
</TABLE>
ARTICLE SEVEN.
[Intentionally Omitted]
ARTICLE EIGHT.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT.
<TABLE>
<S> <C> <C>
SECTION 8.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 8.02. Acceleration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 8.03. Other Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 8.04. Waiver of Defaults and Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 8.05. Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 8.06. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 8.07. Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 8.08. Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 8.09. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 8.10. Application of Money Collected by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 8.11. Undertaking to Pay Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 8.12. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 8.13. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 8.14. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
</TABLE>
ARTICLE NINE.
CONCERNING THE TRUSTEE.
<TABLE>
<S> <C> <C>
SECTION 9.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 9.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 9.03. Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
</TABLE>
<PAGE> 6
<TABLE>
<S> <C> <C>
SECTION 9.04. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 9.05. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 9.06. Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 9.07. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 9.08. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 9.09. Successor Trustee by Merger, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 9.10. Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 9.11. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . . . 46
</TABLE>
ARTICLE TEN.
CONCERNING THE SECURITYHOLDERS.
<TABLE>
<S> <C> <C>
SECTION 10.01. Action by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 10.02. Proof of Execution by Securityholders, Evidence of Holdings . . . . . . . . . . . . . . . . . . . 47
SECTION 10.03. Company-owned Securities Disregarded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 10.04. Revocation of Consents, Future Holders Bound . . . . . . . . . . . . . . . . . . . . . . . . . . 47
</TABLE>
ARTICLE ELEVEN.
SECURITYHOLDERS' MEETINGS.
<TABLE>
<S> <C> <C>
SECTION 11.01. Purposes of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 11.02. Call of Meetings by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 11.03. Call of Meetings by Company or Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 11.04. Qualifications for Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 11.05. Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 11.06. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 11.07. No Delay of Rights by Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
</TABLE>
ARTICLE TWELVE.
SUPPLEMENTAL INDENTURES.
<TABLE>
<S> <C> <C>
SECTION 12.01. Supplemental Indenture Without Consent of Securityholders . . . . . . . . . . . . . . . . . . . . 50
SECTION 12.02. Supplemental Indentures with Consent of Securityholders . . . . . . . . . . . . . . . . . . . . . 51
SECTION 12.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures. . . . . . . . . . . . . . 52
SECTION 12.04. Notation on Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 12.05. Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee . . . . . . . . . . . . 52
</TABLE>
<PAGE> 7
ARTICLE THIRTEEN.
CONSOLIDATION, MERGER AND SALE BY THE COMPANY.
<TABLE>
<S> <C> <C>
SECTION 13.01. When Company May Merge, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 13.02. Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
</TABLE>
ARTICLE FOURTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS.
<TABLE>
<S> <C> <C>
SECTION 14.01. Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 14.02. Deposited Moneys to Be Held in Trust by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 14.03. Paying Agent to Repay Moneys Held . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 14.04. Unclaimed Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 14.05. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
</TABLE>
ARTICLE FIFTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.
<TABLE>
<S> <C> <C>
SECTION 15.01. Indenture and Securities Solely Corporate Obligations . . . . . . . . . . . . . . . . . . . . . . 55
</TABLE>
ARTICLE SIXTEEN.
MISCELLANEOUS PROVISIONS.
<TABLE>
<S> <C> <C>
SECTION 16.01. Provisions Binding on Company's Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 16.02. Official Acts by Successor Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 16.03. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 16.04. Evidence of Compliance with Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 16.05. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 16.06. Trust Indenture Act to Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 16.07. Communications by Holders with Other Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 16.08. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 16.09. Table of Contents and Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 16.10. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
EXHIBIT A -- FORM OF SECURITY
</TABLE>
<PAGE> 8
THIS INDENTURE, dated as of ______, 1994 between ICN Pharmaceuticals,
Inc., a corporation duly organized and existing under the laws of the State of
Delaware (formerly known as ICN Merger Corp. and hereinafter sometimes referred
to as the "Company"), and American Stock Transfer & Trust Company, as trustee
(the "Trustee").
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issue of its __% Convertible Subordinated Debentures Due 2004
(hereinafter sometimes referred to as the "Securities"), in the aggregate
principal amount of up to $172,500,000 and, to provide the terms and conditions
upon which the Securities are to be authenticated, issued and delivered, the
Company has duly authorized the execution of this Indenture; and
AND WHEREAS, all acts and things necessary to make the Securities,
when executed by the Company and authenticated and delivered by the Trustee or
its authorized signatory as in this Indenture provided, and issued, the valid,
binding and legal obligations of the Company, and to constitute these presents
a valid agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Securities have in
all respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Securities are, and are to be, authenticated, issued and delivered, and in
consideration of the premises, of the purchases and acceptance of the
Securities by the holders thereof and for other good and valuable
consideration, the receipt whereof is hereby acknowledged, the Company
covenants and agrees with the Trustee for the equal and proportionate benefit
of the respective holders from time to time of the Securities, as follows:
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. Definitions. The terms in this Section 1.01 (except
as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section 1.01. All
other terms used in this Indenture which are defined in the TIA, as amended, or
which are by reference therein defined in the Securities Act of 1933, as
amended (except as herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in the TIA
and in said Securities Act as in force as of the date of this Indenture.
<PAGE> 9
"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, the
term "control" when used with respect to any person means the power, directly
or indirectly, alone or together with others, to direct or cause the direction
of 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.
"Agent" means any registrar, paying agent, conversion agent,
co-registrar or agent for service of notices and demands.
"Board of Directors" means the Board of Directors of the Company, the
executive committee, if any, of such Board of Directors or any committee of
such Board of Directors authorized to act on behalf of such Board of Directors
with respect to the Indenture.
"Business Day" means any day on which the banks in New York, New York
or Los Angeles, California are not authorized or required to be closed and on
which the New York Stock Exchange is open for trading and which is not a
Saturday or Sunday.
"Capital Stock" means, with respect to any person, any and all shares,
interests, participations, warrants, options or other equivalents (however
designated) of corporate stock or any other equity interest of such person.
A "Change of Control" shall occur when (i) the stockholders of the
Company adopt a plan of liquidation with respect to the Company or the Company
sells, transfers, leases or otherwise disposes of, in one transaction or series
of related transactions, all or substantially all of its assets; (ii) there
shall be consummated any consolidation or merger of the Company (1) in which
the Company is not the continuing or surviving corporation or (2) pursuant to
which the Common Stock would be converted into cash, securities or other
property, in each case, other than a consolidation or merger of the Company in
which the holders of the Common Stock immediately prior to the consolidation or
merger have, directly or indirectly, at least a majority of the total voting
power of all classes of Capital Stock of the continuing or surviving
corporation immediately after such consolidation or merger; (iii) a majority of
the Board of Directors are not Continuing Directors; or (iv) any person, or any
persons acting together which would constitute a "group" for purposes of
Section 13(d) of the Exchange Act, together with any Affiliate thereof shall
beneficially own (as defined in Rule 13d-3 of the Exchange Act), at least 50%
of the total voting power of all classes of Capital Stock of the Company
entitled to vote generally in the election of directors of the Company.
"Common Stock" includes any stock of any class of the Company which
has no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding up of the
Company, and which is not
2
<PAGE> 10
subject to redemption by the Company. However, subject to the provisions of
Section 5.10, shares issuable on conversion of Securities shall include only
shares of the class designated as Common Stock, par value $.01 per share, of
the Company at the date of this Indenture or shares of any class or classes
resulting from any reclassification or reclassifications thereof and which have
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which are not subject to redemption by the Company.
"Company" means ICN Pharmaceuticals, Inc., a Delaware corporation
(formerly known as ICN Merger Corp.), and, subject to the terms of the
Indenture, shall include its successors and assigns.
"Continuing Director" means as at any date a member of the Board of
Directors of the Company who (i) was a member of the Board of Directors of the
Company on the Issuance Date (after giving effect to the Merger) or (ii) was
nominated for election or elected to the Board of Directors of the Company with
the affirmative vote of at least a majority of the directors who were
Continuing Directors at the time of such nomination or election (which may be
done by approval of the proxy statement in which such member was named as a
nominee for director of the Company).
"corporation" means any corporation, voluntary association, joint
stock association, business trust, or similar organization.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is
located at_______________________, attention: Corporate Trust Administration.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Disqualified Capital Stock" means, with respect to any person, any
Capital Stock of such Person that, by its terms (or by the terms of any
security into which it is convertible or for which it is exercisable,
redeemable or exchangeable), matures, or is mandatorily redeemable, pursuant to
a sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to the maturity of the
Securities.
"Event of Default" means any event specified in Section 8.01,
continued for the period of time, if any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Indebtedness" means with respect to any person, any of the following
(without duplication): (i) the principal of, premium, if any, and interest on
and all other
3
<PAGE> 11
amounts owing with respect to any indebtedness (including any such indebtedness
representing any deferred payment obligation for the payment of the purchase
price of property or assets) of such person for money borrowed or evidenced by
bonds, notes, securities or similar obligations, including any guaranty by such
person of any indebtedness for money borrowed of any other person, whether any
such indebtedness or guaranty is outstanding on the date of the Indenture or is
thereafter created, assumed or incurred, (ii) the principal of, premium, if
any, and interest on and all other amounts owing with respect to any
indebtedness for money borrowed, incurred, assumed or guaranteed by such person
in connection with the acquisition by it or any of its subsidiaries of any
other businesses, properties or other assets, (iii) lease obligations which
such person capitalizes in accordance with generally accepted accounting
principles, (iv) any amounts payable by such person under or in respect of
letters of credit or bankers' acceptances issued for the account of such
person, any interest exchange agreement, interest rate swap agreement or
currency exchange or purchase agreements or other similar agreement entered
into in respect of all or any portion of the above and (v) guarantees or
assumptions by such person of indebtedness of others of any of the kinds
referred to in clauses (i) through (iv) above.
"Indenture" means this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented.
"Independent Public Accountants" means any firm of certified public
accountants of recognized national standing which is selected by the Board of
Directors and is in fact independent.
"Issuance Date" means the date of original issuance of the Securities.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer, the Secretary or the Controller of the Company.
"Officers' Certificate" when used with respect to the Company, shall
mean a certificate signed by any two Officers or by an Officer and by any
Assistant Treasurer or any Assistant Secretary of the Company. Each such
certificate shall include the statements provided for in Section 16.04 if and
to the extent required by the provisions of such Section.
"Opinion of Counsel" means an opinion in writing, signed by legal
counsel who may be an employee of, or of counsel to, the Company or may be
other counsel, any such counsel to be satisfactory to the Trustee. Each such
opinion shall include the statements provided for in Section 16.04 if and to
the extent required by the provisions of such Section.
"Outstanding," when used with reference to Securities, shall, subject
to the provisions of Section 10.03, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
4
<PAGE> 12
(a) Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities or the payment or redemption of
which moneys in the necessary amounts shall have been
deposited in trust with the Trustee or with any Paying Agent
(other than the Company), provided that if such Securities are
to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in Article Three provided
or provision satisfactory to the Trustee shall have been made
for giving such notice; and
(c) Securities in lieu of or in substitution for
which other Securities shall have been authenticated and
delivered or Securities which have been paid pursuant to the
terms of Section 2.08;
provided that holders of Securities which cease to be outstanding by reason of
clause (b) alone shall nevertheless be entitled to convert the same or any
portion thereof until and including but not after the close of business on the
fifth Business Day prior to the date fixed for redemption.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Permitted Junior Securities" means any securities provided for by a
plan of reorganization or readjustment authorized by a court of competent
jurisdiction in a reorganization proceeding in which the rights of holders of
Senior Indebtedness are not altered without the consent of such holders, which
consent is deemed to have been given if such holders, individually or as a
class, approve such plan.
"Predecessor Companies" means, collectively, ICN Pharmaceuticals,
Inc., SPI Pharmaceuticals, Inc., Viratek, Inc. and ICN Biomedicals, Inc.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price", when used with respect to any Securities to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
as set forth in the form of Security annexed hereto as Exhibit A.
"Responsible Officer," when used with respect to the Trustee, means an
officer of the Trustee within the corporate trust department, including any
vice president or trust officer of the Trustee and also means, with respect to
a particular corporate trust matter, any other officer to whom such corporate
trust matter is referred because of his knowledge of and familiarity with the
particular subject.
5
<PAGE> 13
"Securities" means the securities that are authenticated and delivered
under this Indenture.
"Securityholder" or "Holder" or other similar terms, means any person
in whose name a particular Security shall be registered on the books of the
Company kept for that purpose in accordance with the terms hereof.
"SEC" means the Securities and Exchange Commission.
"Senior Indebtedness" means Indebtedness of the Company whether
outstanding on the Issuance Date or thereafter created, incurred, assumed or
guaranteed (including, without limitation, interest that accrues on or after
the filing of a petition in bankruptcy or for reorganization, if a claim for
post-petition interest is allowed in such proceeding) except (i) any
Indebtedness outstanding after the date of the Indenture as to which, by the
express terms of the instrument creating or evidencing the same, it is provided
that such Indebtedness is not senior or superior in right of payment to the
Securities, (ii) the Securities, (iii) any repurchase, redemption or other
obligation in respect of Disqualified Capital Stock, (iv) any Indebtedness of
the Company to any Subsidiary or to any Affiliate of the Company or any of the
Subsidiaries, (v) Indebtedness incurred in connection with the purchase of
goods, assets, materials or services in the ordinary course of business or
representing amounts recorded as accounts payable, trade payable or other
current liabilities of the Company on the books of the Company (other than the
current portion of any long-term Indebtedness of the Company that but for this
clause (v) would constitute Senior Indebtedness), (vi) any Indebtedness of or
amount owned by the Company to employees for services rendered to the Company,
and (vii) any liability for federal, state, local or other taxes owing or owed
by the Company.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the Commission as in effect on the Issuance Date.
"Subsidiary" means a corporation of which 50% or more of the issued
and outstanding stock entitled to vote for the election of directors (otherwise
than by reason of default in dividends) is at the time owned or controlled,
directly or indirectly, by the Company.
"Trustee" means American Stock Transfer & Trust Company and, subject
to the provisions of Article Nine hereof, shall also include its successors and
assigns as Trustee hereunder.
"TIA" means the Trust Indenture Act of 1939, as amended, as it was in
force as of the date of this Indenture, and with respect to each supplemental
indenture hereto, as it was in force as of the date of such supplemental
indenture.
6
<PAGE> 14
SECTION 1.02. Other Definitions.
<TABLE>
<CAPTION>
Term Defined in Section
---- ------------------
<S> <C>
"Bankruptcy Law" 8.01
"Change of Control Repurchase Date" 6.09
"Change of Control Repurchase Price" 6.09
"Conversion Agent" 2.03
"Current Market Price" 5.04
"Custodian" 8.01
"Event of Default" 8.01
"Merger" 13.01
"Non-payment Default" 4.03
"Paying Agent" 2.03
"Payment Blockage Period" 4.03
"Payment Default" 4.03
"Registrar" 2.03
"Senior Representative" 4.03
</TABLE>
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
The following terms used in the TIA to the extent applicable to this
Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the indenture securities.
7
<PAGE> 15
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted
accounting principles in effect on the date hereof;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article,
Section or other subdivision.
8
<PAGE> 16
ARTICLE TWO.
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES.
SECTION 2.01. Dating; Incorporation of Form in Indenture.
The Securities and the Trustee's certificate of authentication, with
respect thereto, shall be substantially in the form of Exhibit A, which is
annexed hereto and which is incorporated in and expressly made a part of this
Indenture. The Securities may have notations, legends or endorsements required
by law, stock exchange rules, agreements to which the Company is subject, or
usage. The Company shall approve the form of the Securities and any notation,
legend or endorsement on them. Each Security shall be dated the date of its
authentication. The terms and provisions contained in the Securities shall
constitute, and are expressly made, a part of this Indenture.
SECTION 2.02. Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall
nevertheless be valid.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security. Such signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate Securities for original issue in the
aggregate principal amount of $150,000,000, and such additional principal
amount, if any, as shall be determined pursuant to the next sentence of this
Section 2.02, upon the execution of the Indenture and a written order or orders
of the Company signed by two Officers or by an Officer and an Assistant
Treasurer of the Company. Upon receipt by the Trustee of an Officer's
Certificate stating that Wertheim Schroder & Co. Incorporated, Jefferies &
Company, Inc. and Kemper Securities, Inc. have elected to purchase from the
Company a specified aggregate principal amount of additional Securities, not to
exceed $22,500,000 pursuant to Section 2 of the Underwriting Agreement, dated
______, 1994, among the Company, the Predecessor Companies and Wertheim
Schroder & Co. Incorporated, Jefferies & Company, Inc. and Kemper Securities,
Inc., the Trustee shall authenticate and deliver such specified aggregate
principal amount of additional Securities to or upon the written order of the
Company signed as provided in the immediately preceding sentence. Such
Officer's Certificate may be received by the Trustee no later than __________,
1994, and in any event at least two full Business Days prior to the proposed
date for delivery of such additional Securities. The aggregate principal
amount of Securities outstanding at any time may not exceed that amount except
as provided in Section 2.07.
9
<PAGE> 17
The Trustee may appoint an authenticating agent to authenticate
Securities. An authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 principal amount and any integral
multiple thereof.
SECTION 2.03. Registrar and Agents.
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be presented for
registration of transfer or for exchange ("Registrar"), an office or agency
where Securities may be presented for payment ("Paying Agent"), an office or
agency where Securities may be presented for conversion ("Conversion Agent"),
and an office or agency where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Registrar
shall keep a register of the Securities and of their transfer and exchange.
The Company may have one or more co-registrars, one or more additional Paying
Agents and one or more additional Conversion Agents. The Company or any
Subsidiary may act as Registrar, co-Registrar, Paying Agent and/or Conversion
Agent. The term "Paying Agent" includes any additional Paying Agent and the
term "Conversion Agent" includes any additional Conversion Agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent or co-registrar not a party to this
Indenture. The agreement shall implement the provisions of this Indenture that
relate to such Agent. The Company shall notify the Trustee of the name and
address of any such Agent. If the Company fails to maintain a Registrar or
Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 9.07.
The Company initially appoints the Trustee as a Registrar, a Paying
Agent, a Conversion Agent and agent for service of notices and demands.
SECTION 2.04. Holders to be Treated as Owners; Payment of Interest.
(a) The Company, the Paying Agent, the Registrar, the Trustee and
any agent of the Company, the Paying Agent, the Registrar or the Trustee may
deem and treat the person in whose name any Security is registered as the
absolute owner of such Security for the purpose of receiving payment of or on
account of the principal of and, subject to the provisions of this Indenture,
interest on such Security and for all other purposes; and neither the Company,
the Paying Agent, the Registrar nor the Trustee nor any agent of the Company,
the Paying Agent, the Registrar or the Trustee shall be affected by any notice
to the contrary. All such payments so made to any such Person,
10
<PAGE> 18
or upon his order, shall be valid, satisfy and discharge the liability for
moneys payable upon any Security.
(b) The Person in whose name any Security is registered at the
close of business on any record date with respect to any Interest Payment Date
shall be entitled to receive the interest, if any, payable on such Interest
Payment Date notwithstanding any transfer or exchange of such Security
subsequent to the record date and prior to such Interest Payment Date, except
if and to the extent the Company shall default in the payment of the interest
due on such Interest Payment Date, in which case such defaulted interest shall
be paid in accordance with Section 2.12. The term "record date" as used with
respect to any interest payment date for the Securities shall mean the date
specified as such in the terms of the Securities.
SECTION 2.05. Paying Agent to Hold Money in Trust.
On or prior to each interest payment date or date on which payment of
principal of the Securities is required, the Company shall provide immediately
available funds to the Trustee acting as Paying Agent or with other Paying
Agents upon notice to the Trustee a sum sufficient to pay such principal and
interest so becoming due. The Company shall require each Paying Agent other
than the Trustee to agree in writing that it will hold in trust for the benefit
of Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Securities and to notify the Trustee
of any default by the Company (or any other obligor on the Securities) in
making any such payment. If the Company or a Subsidiary acts as Paying Agent,
it shall on or before each due date of the principal of or interest on any
Securities segregate the money and hold it as a separate trust fund. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee and the Trustee may at any time during the continuance of any
payment default, upon written request to a Paying Agent, require such Paying
Agent to forthwith pay to the Trustee all sums so held in trust by such Paying
Agent. Upon doing so, the Paying Agent (other than the Company) shall have no
further liability for the money.
SECTION 2.06. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the holders of Securities. If the Trustee is not the Registrar, the Company or
other obligor, if any, shall furnish to the Trustee at least two Business Days
prior to each semiannual record date and at such other times as the Trustee may
request in writing a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of the holders of Securities.
SECTION 2.07. Transfer and Exchange.
When Securities are presented to the Registrar or a co-registrar with
a request from the Holder of such Securities to register a transfer, the
Registrar shall register the
11
<PAGE> 19
transfer as requested. Every Security presented or surrendered for
registration of transfer or exchange shall be duly endorsed or be accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Registrar, duly executed by the Holder thereof or his attorneys duly authorized
in writing.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at the
office or agency maintained for such purpose pursuant to Section 2.03.
To permit registrations of transfers and exchanges, the Company shall
issue and execute and the Trustee shall authenticate new Securities evidencing
such transfer or exchange at the Registrar's request. No service charge shall
be made to the Securityholder for any registration of transfer or exchange.
The Company may require from the Securityholder payment of a sum sufficient to
cover any transfer taxes or other governmental charge that may be imposed in
relation to a transfer or exchange, but this provision shall not apply to any
exchange pursuant to Section 2.09, 3.03, 5.02, 6.09 or 12.04 (in which events
the Company will be responsible for the payment of such taxes). The Registrar
shall not be required to exchange or register a transfer of any Security for a
period of 15 days immediately preceding the first mailing of notice of
redemption of Securities to be redeemed or of any Security selected, called or
being called for redemption except, in the case of any Security where public
notice has been given that such Security is to be redeemed in part, the portion
thereof not to be redeemed.
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Securities. In
case any temporary or definitive Security shall become mutilated or be
destroyed, lost or stolen, the Company in its discretion may execute, and upon
its request the Trustee shall authenticate and deliver, a new Security, bearing
a serial number not contemporaneously outstanding, in exchange and substitution
for the mutilated Security or in lieu of and in substitution for the Security
so destroyed, lost or stolen. In every case, the applicant for a substituted
Security shall furnish to the Company and to the Trustee such security or
indemnity as may be required by them to save each of them harmless, and in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and to the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof.
The Trustee shall authenticate any such substituted Security and
deliver the same upon the written request or authorization of any Officer of
the Company. Upon the issuance of any substituted Security, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses connected
therewith. In case any Security which has matured or is about to mature shall
have become mutilated or be destroyed, lost or stolen, the Company may, instead
of issuing a substitute Security, pay or authorize the payment of same (without
surrender thereof except in the case of a mutilated Security) if the applicant
for such payment shall furnish the Company, the
12
<PAGE> 20
Trustee and any Paying Agent with such security or indemnity as they may
require to save each of them harmless and, in case of destruction, loss or
theft, evidence to the satisfaction of the Company and the Trustee of the
destruction, loss or theft of such Security and of the ownership thereof.
Every substituted Security issued pursuant to the provisions of this
Section 2.08 by virtue of the fact that any Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be found at any
time, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder. All
Securities shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.09. Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute and the Trustee shall
authenticate and deliver temporary Securities (printed or lithographed).
Temporary Securities shall be issuable in any authorized denomination, and
substantially in the form of the definitive Securities but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all
as may be determined by the Company. Every such temporary Security shall be
authenticated upon the same conditions and in substantially the same manner,
and with the same effect, as the definitive Securities. Without unreasonable
delay the Company will execute and deliver to the Trustee definitive Securities
and thereupon any or all temporary Securities may be surrendered in exchange
therefor, at the office or agency to be maintained by the Company pursuant to
Section 2.03, and the Trustee shall authenticate and deliver in exchange for
such temporary Securities an equal aggregate principal amount of definitive
Securities. Such exchange shall be made by the Company at its own expense and
without any charge therefor. Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities authenticated and delivered hereunder.
SECTION 2.10. Cancellation of Securities. All Securities
surrendered for the purpose of payment, redemption, conversion, exchange or
transfer shall, if surrendered to the Company or any Paying or Conversion
Agent, be delivered to the Trustee for cancellation, or if surrendered to the
Trustee, shall be canceled by it, and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall destroy canceled Securities and deliver its
certificate of destruction to the Company. If the Company shall acquire any of
the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and
until the same are delivered to the Trustee for cancellation.
13
<PAGE> 21
SECTION 2.11. Benefits of Indenture Provisions. Nothing in this
Indenture or in the Securities expressed or implied, shall give or be construed
to give any person, firm or corporation, other than the parties hereto, any
Paying Agent, any Conversion Agent and the holders of Securities and, to the
extent provided in Article Four, the holders of Senior Indebtedness, any legal
or equitable right, remedy or claim under or in respect of this Indenture, or
under any covenant, condition or provision herein contained; all the covenants,
conditions or provisions contained in this Indenture or in the Securities being
for the sole benefit of the parties hereto, any Paying Agent, any Conversion
Agent and the holders of the Securities and, to the extent provided in Article
Four, the holders of Senior Indebtedness.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest (to the extent lawful) to the Persons who are
Securityholders on a subsequent special record date. After the deposit by the
Company with the Trustee of money sufficient to pay such defaulted interest,
the Trustee shall fix the record date and payment date. Each such special
record date shall be not less than 10 days prior to such payment date. At
least 15 days before the special record date, the Company shall mail to each
Securityholder a notice that states the special record date, the payment date
and the amount of defaulted interest, and interest payable on such defaulted
interest, if any, to be paid. The Company may pay defaulted interest in any
other lawful manner if, after prior notice to the Trustee, such payment shall
be deemed practicable by the Trustee.
SECTION 2.13. CUSIP Number.
The Company may use a "CUSIP" number when issuing the Securities and,
if so, the Trustee may use the CUSIP number in notices of redemption or
exchange as a convenience to Securityholders; provided that any such notice may
state that no representation is made as to the correctness or accuracy of the
CUSIP number printed in the notice or on the Securities, and that reliance may
be placed only on the other identification numbers printed on the Securities.
ARTICLE THREE.
REDEMPTION OF SECURITIES
SECTION 3.01. Redemption Prices. The Company may, at its option,
redeem all or from time to time any part of the Securities, on any date on or
after _______, 1997 and prior to maturity, upon notice as set forth in Section
3.02 and at the redemption prices (expressed in percentages of the principal
amount) set forth in the form of Security herein, together with accrued
interest to the date fixed for redemption (but installments of interest whose
stated maturity is on or prior to the date fixed for redemption shall continue
to be payable to the holders of record on the regular record
14
<PAGE> 22
date). Portions of such redemption prices in excess of 100% of the principal
amount are sometimes herein referred to as the "premium" payable upon such
redemption.
SECTION 3.02. Notice of Redemption; Selection of Securities.
Whenever the Company redeems Securities pursuant to this Article Three, it
shall notify the Trustee of the date fixed for redemption and the principal
amount of Securities to be redeemed. The notice shall be accompanied by an
Officers' Certificate stating that the redemption complies with the provisions
of this Indenture. The Company shall give each such notice at least 45 but not
more than 90 days before the date fixed for redemption or such other period as
the Company and the Trustee may agree.
In case the Company shall desire to exercise its right to redeem all
or, as the case may be, any part of the Securities in accordance with the right
reserved so to do, notice of such redemption shall be given to the holders of
the Securities to be redeemed as hereinafter provided in this Section 3.02,
such notice to be given by the Company or, at the Company's direction, by the
Trustee in the name and at the expense of the Company. If the notice is to be
given by the Trustee, the Company shall provide the Trustee with the
information required in this Section 3.02.
Notice of redemption shall be given by mailing to holders of
Securities to be redeemed in whole or in part a notice of such redemption by
first class mail, postage prepaid, not less than 30 nor more than 60 days prior
to the date fixed for redemption, to their last addresses as they shall appear
upon the registry book. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the holder receives the notice. In any case, failure to duly give notice by
mail, or any defect in the notice, to the holder of any Security designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of such Security or any other Security.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the then current conversion price;
(4) the name and address of the Paying Agent and the Conversion
Agent;
(5) that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in paying the Redemption
Price, interest on Securities called for redemption ceases to
accrue on and after the Redemption Date;
15
<PAGE> 23
(7) that the right to convert the Securities as provided in
Article Five shall terminate at the close of business on a
date to be determined by the Company which date (i) shall not
be earlier than the fifth Business Day prior to the Redemption
Date, or, if the fifth Business Day before the Redemption Date
is a Legal Holiday, the close of business on the next
preceding day which is not a Legal Holiday and (ii) shall not
be later than the Redemption Date (except that a Security
which the Company has offered to purchase pursuant to Section
6.09 hereof shall be convertible until the close of business
on the Change of Control Repurchase Date);
(8) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and the bond
number of such Security and that, after the Redemption Date,
upon surrender of such Security, a new Security or Securities
in principal amount equal to the unredeemed portion thereof
will be issued;
(9) that Holders who want to convert Securities must satisfy the
requirements in paragraph 8 of the Securities;
(10) the CUSIP number, if any, of the Securities; and
(11) the consequences to a Holder, if any, of converting a Security
(or portion of a Security) prior to the next interest payment
date if the Redemption Date with respect to such Security
occurs on or after such interest payment date.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. If a CUSIP
number is listed in such notice or printed on the Security, the notice may
state that no representation is made as to the correctness or accuracy of such
CUSIP number.
If less than all of the Securities are to be redeemed, the Company
shall give the Trustee written notice, at least 45 days (or such shorter period
as may be acceptable to the Trustee) prior to the date fixed for redemption, as
to the aggregate principal amount of the Securities to be redeemed, and
thereupon the Trustee shall select, in such manner as it shall deem appropriate
and fair (so long as such method is not prohibited the rules of any securities
exchange or market in which the Securities are then listed or quoted) from
outstanding Securities, a principal amount of Securities equal to such
aggregate principal amount of Securities to be redeemed and shall thereafter
promptly notify the Company in writing of the Securities so to be redeemed and,
if any such Securities are to be redeemed in part, the portions thereof to be
redeemed.
SECTION 3.03. Payment of Securities on Redemptions; Deposit of
Redemption Price. If notice of redemption shall have been given as provided in
Section 3.02, such Securities or portions of Securities shall, unless
theretofore converted into Common
16
<PAGE> 24
Stock pursuant to the terms hereof, become due and payable on the date fixed
for redemption and at the place stated in such notice at the applicable
redemption price and premium, if any, together with accrued and unpaid interest
to the date fixed for redemption, and on and after such date fixed for
redemption, unless the Company shall default in the payment of the redemption
price, interest on the Securities so called for redemption shall cease to
accrue. Moneys in the amount necessary for each redemption referred to in
Section 3.01 shall be deposited with the Paying Agent by the Company on or
prior to the date fixed for redemption. On presentation and surrender of such
Securities at the place of payment specified in such notice, such Securities or
the specified portions thereof shall (subject to the provisions of Article
Four) be paid and redeemed at the applicable redemption price, together with
accrued and unpaid interest thereon to the date fixed for redemption.
Installments of interest whose stated maturity is on or prior to the date fixed
for redemption shall continue to be payable to the holders of such Securities
on the relevant regular or special record dates according to their terms and
the provisions of Section 2.03 of this Indenture.
Upon presentation of any Security redeemed in part only, the Company
shall execute and the Trustee shall authenticate and deliver, at the expense of
the Company, a new Security or Securities of authorized denominations in
aggregate principal amount equal to the unredeemed portion of the Security so
presented.
The Company's obligation to deposit with the Paying Agent moneys in
the amount necessary for the redemption of particular Securities or portions
thereof called for redemption shall be reduced automatically by the amount of
such moneys attributable to any of such called Securities or portions thereof
which shall have been converted prior to the date such moneys are required to
be deposited with the Paying Agent. Any moneys which shall have been deposited
with the Paying Agent for redemption of Securities and which are not required
for that purpose by reason of conversion of such Securities shall be repaid to
the Company. The Paying Agent may in each case require evidence reasonably
satisfactory to it of such conversion.
ARTICLE FOUR.
SUBORDINATION OF SECURITIES.
SECTION 4.01. Agreement that Securities to Be Subordinate. The
Trustee acknowledges, the Company covenants and agrees, and each holder of
Securities issued hereunder by his acceptance thereof likewise covenants and
agrees, that all payments of principal of, premium, if any, and interest on the
Securities and all other monetary claims, including such monetary claims as may
result from rights of repurchase or rescission, under or in respect of the
Securities shall be subordinated in accordance with the provisions of this
Article Four to the prior payment in full in cash of all amounts payable under
all Senior Indebtedness of the Company.
SECTION 4.02. Liquidation; Dissolution; Bankruptcy.
17
<PAGE> 25
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property:
(a) holders of all Senior Indebtedness then outstanding
shall be entitled to receive payment in full in cash
of all amounts owing with respect to all Senior
Indebtedness before Securityholders shall be entitled
to receive any payment on or with respect to the
Securities; and
(b) until all Senior Indebtedness is paid in full in
cash, any distribution to which Securityholders would
be entitled but for this Article Four shall be made
to holders of Senior Indebtedness as their interests
may appear, except that the Securityholders may
receive Permitted Junior Securities.
The consolidation of the Company with, or the merger of the Company
into, another person or the liquidation or dissolution of the Company following
the conveyance or transfer of the properties and assets of the Company
substantially as an entirety to another person upon the terms and conditions
set forth in Article Thirteen shall not be deemed a liquidation, dissolution,
reorganization, insolvency, receivership or similar proceeding of the Company
for the purposes of this Section.
SECTION 4.03. Company Not to Make Payments with Respect
to Securities in Certain Circumstances.
(1) Unless Section 4.02 shall be applicable, upon the
occurrence of any default in the payment of any obligation on or with respect
to any Senior Indebtedness, whether with respect to scheduled payments or
amounts due upon acceleration (a "Payment Default"), then no payment or
distribution of any assets of the Company of any kind or character shall be
made by the Company on account of principal of or interest on the Securities or
on account of the purchase, redemption or other acquisition of Securities or
any of the obligations of the Company under the Securities unless and until
such Payment Default shall have been cured or waived or shall have ceased to
exist or such Senior Indebtedness shall have been discharged or paid in full,
immediately after which the Company shall resume making any and all required
payments, including missed payments, in respect of its obligations under the
Securities.
(2) Unless Section 4.02 shall be applicable, upon (1) the
occurrence of any default (other than a Payment Default) relating to Senior
Indebtedness which default, pursuant to the instrument governing such Senior
Indebtedness, entitles the holders (or a specified portion of holders) of such
Senior Indebtedness to accelerate the maturity of such Senior Indebtedness (a
"Non-payment Default") and (2) receipt by the Trustee and the Company from a
holder of such Senior Indebtedness or from the trustee, agent or other
representative designated in writing to the Trustee of any class or issue of
Senior Indebtedness (the "Senior Representative") of written notice of such
18
<PAGE> 26
occurrence, no payment or distribution of any assets of the Company of any kind
or character shall be made by the Company on account of principal of or
interest on the Securities or on account of the purchase, redemption or other
acquisition of Securities or on account of any of the other obligations of the
Company under the Securities for a period (a "Payment Blockage Period")
commencing on the date of receipt by the Trustee of such notice unless and
until the earlier to occur of the following events (subject to any blockage of
payments that may then be in effect under subsection (1) of this Section 4.03)
(w) 179 days shall have elapsed since receipt of such written notice by the
Trustee (provided such Senior Indebtedness shall theretofore not have been
accelerated), (x) such Non-payment Default shall have been cured or waived in
the manner required by the instrument relating to such Senior Indebtedness or
shall have ceased to exist, (y) such Senior Indebtedness shall have been
discharged or paid in full or (z) such Payment Blockage Period shall have been
terminated by written notice to the Company or the Trustee from either the
Senior Representative initiating such Payment Blockage Period or the holders of
at least a majority in principal amount of such issue of such Senior
Indebtedness, immediately after which, in the case of clause (w), (x), (y) or
(z), the Company shall resume making any and all required payments, including
missed payments, in respect of its obligations under the Securities. Only one
Payment Blockage Period pursuant to such notice may be commenced with respect
to the Securities during any period of 360 consecutive days. Successive
Payment Blockage Periods based on successive Non-payment Defaults may be
commenced; provided that no Non-payment Default with respect to Senior
Indebtedness which existed or was continuing on the date of the commencement of
any Payment Blockage Period shall be, or be made, the basis for the
commencement of any other Payment Blockage Period with respect to such Senior
Indebtedness unless such event of default shall have been cured or waived for a
period of not less than 180 consecutive days.
Regardless of anything to the contrary herein, nothing shall prevent
(a) any payment by the Trustee to the Securityholders of amounts deposited with
it pursuant to Article Fourteen or (b) any payment by the Trustee or Paying
Agent as permitted by Section 4.13.
SECTION 4.04. Payment Over of Proceeds in Certain Events. In the
event that any payment or distribution of assets of the Company of any kind or
character not permitted by Sections 4.02 or 4.03, whether in cash, property or
securities, shall be received by the Trustee or Paying Agent, if any, or the
holders of the Securities before all Senior Indebtedness is paid in full in
cash, such payment or distribution shall be received and held in trust for the
benefit of the holders of Senior Indebtedness and shall forthwith be paid over
or delivered by the Trustee, such Paying Agent or such Holders of the
Securities, as the case may be, directly to the holders of Senior Indebtedness
(pro rata to each such holder on the basis of the respective amounts of Senior
Indebtedness held by such holder) or the Senior Representative or the trustee
under the indenture or other agreement (if any) pursuant to which Senior
Indebtedness may have been issued, for application to the payment of, all
Senior Indebtedness remaining unpaid to the extent necessary to pay all
obligations in respect of such Senior Indebtedness in full in cash in
accordance with its terms, after giving effect to
19
<PAGE> 27
any other concurrent payment or distribution to the holders of such Senior
Indebtedness.
SECTION 4.05. No Waiver of Subordination Provisions. Without
notice to or the consent of the Securityholders or the Trustee, the holders of
Senior Indebtedness may at any time and from time to time, without impairing or
releasing the subordination herein made, change the manner, place or terms of
payments, or change or extend the time of payment of or renew or alter the
Senior Indebtedness, or amend or supplement in any manner any instrument
evidencing the Senior Indebtedness, any agreement pursuant to which the Senior
Indebtedness was issued or incurred or any instrument securing or relating to
the Senior Indebtedness; release any person liable in any manner for the
payment or collection of the Senior Indebtedness; exercise or refrain from
exercising any rights in respect of the Senior Indebtedness against the Company
or any other person; apply any moneys or other property paid by any person or
released in any manner to the Senior Indebtedness; or accept or release any
security for the Senior Indebtedness.
SECTION 4.06. Notice to Trustee of Specified Events; Reliance on
Certificate or Liquidating Agent. The Company shall give prompt written notice
to the Trustee and any Paying Agent of any fact known to the Company that would
prohibit the making of any payment to or by the Trustee or any Paying Agent in
respect of the Securities pursuant to the provisions of this Article.
Upon any distribution of assets of the Company or payment by or on
behalf of the Company referred to in this Article Four, the Trustee and the
holders of the Securities shall be entitled to rely upon any order or decree of
a court of competent jurisdiction in which any proceedings of the nature
referred to in Section 4.03 are pending, and the Trustee and the holders of the
Securities shall be entitled to rely upon a certificate of the liquidating
trustee or agent or other person making any such distribution to the Trustee or
to the holders of the Securities for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Four.
SECTION 4.07. Subrogation. After all Senior Indebtedness is paid
in full and until the Securities are paid in full, Securityholders shall be
subrogated to the rights of holders of Senior Indebtedness to receive
distributions applicable to Senior Indebtedness to the extent that
distributions otherwise payable to the Securityholders have been applied to the
payment of Senior Indebtedness. A distribution made or payment over made under
this Article to holders of Senior Indebtedness which otherwise would have been
made to Securityholders is not, as between the Company, its creditors other
than the holders of Senior Indebtedness and Securityholders, a payment or
distribution by the Company on or on account of Senior Indebtedness, it being
understood that the provisions of this Article Four are, and are intended,
solely
20
<PAGE> 28
for the purpose of defining the relative rights of the Securityholders, on the
one hand, and the holders of Senior Indebtedness, on the other hand.
SECTION 4.08. Obligation to Pay Not Impaired. Nothing contained in
this Article Four or elsewhere in this Indenture, or in the Securities, is
intended to or shall alter or impair, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the holders of the Securities the principal of (and premium, if any)
and interest on the Securities at the time and place and at the rate and in the
currency therein prescribed, or to affect the relative rights of the holders of
the Securities and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or the
holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the right, if any,
under this Article Four of the holders of the Senior Indebtedness in respect of
cash, property or securities of the Company received upon the exercise of any
such remedy.
SECTION 4.09. Reliance by Senior Indebtedness on Subordination
Provisions. Each holder of a Security by his acceptance thereof acknowledges
and agrees that the foregoing subordination provisions are, and are intended to
be, an inducement and a consideration to each holder of any Senior Indebtedness
(by its original terms or amendment thereof), whether such Senior Indebtedness
was created or acquired before or after the issuance of the Securities, to
acquire and hold, or to continue to hold, such Senior Indebtedness, and such
holder of Senior Indebtedness shall be deemed conclusively to have relied on
such subordination provisions in acquiring and continuing to hold, or in
holding, such Senior Indebtedness. The subordination provisions in this
Article Four may be enforced directly by the holders of Senior Indebtedness.
SECTION 4.10. Subordination Not to Be Prejudiced by Certain Acts.
No present or future holder of Senior Indebtedness shall be prejudiced in his
right to enforce subordination of the indebtedness evidenced by the Securities
by any act or failure to act in good faith by any such holder or by
noncompliance by the Company with the terms and provisions and covenants herein
regardless of any knowledge thereof any such holder may have or otherwise be
charged with.
SECTION 4.11. Trustee Authorized to Effectuate Subordination. Each
holder of Securities by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination as provided in this Article Four
and appoints the Trustee his attorney-in-fact for any and all such purposes
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency or
receivership or similar proceedings or upon an assignment for the benefit of
creditors or otherwise) tending towards liquidation of the business and assets
of the Company, to file a claim for the unpaid balance of its Securities in the
form required in said proceedings and to cause said claim to be approved. If
the Trustee does not file a proper claim or proof of debt in the form required
in such proceeding prior to 30 days
21
<PAGE> 29
before the expiration of the time to file such claim or proof, then the holders
of the Senior Indebtedness shall have the right to file and are hereby
authorized to file an appropriate claim or proof for and on behalf of the
holders of said Securities.
SECTION 4.12. Trustee's Relationship to Senior Indebtedness.
Except for the Trustee's duty to hold cash, properties or securities in trust
for the benefit of holders of Senior Indebtedness pursuant to Section 4.04
hereof, the Trustee shall owe no fiduciary duty to the holders of Senior
Indebtedness. The Trustee shall be entitled to all rights set forth in this
Article Four in respect of any Senior Indebtedness at any time held by it, to
the same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
SECTION 4.13. Trustee and Paying Agents Not Chargeable with
Knowledge Until Notice. Notwithstanding any of the provisions of this Article
Four or any other provisions of this Indenture, the Trustee and any Paying
Agent shall not at any time be charged with knowledge of the existence of any
facts which would prohibit the making of any payment of moneys to or by the
Trustee or any Paying Agent, unless and until a Responsible Officer of the
Trustee or such Paying Agent, as the case may be, shall have received written
notice thereof from the Company or a holder of a Senior Indebtedness, or any
trustee thereof, and, prior to the receipt of any such written notice, the
Trustee and any other Paying Agent shall be entitled to assume that no such
facts exist. If at least two Business Days prior to the date upon which the
terms of any such moneys may become payable for any purpose (including, without
limitation, the payment of either the principal of or the interest on any
Security) a Responsible Officer of the Trustee or Paying Agent, as the case may
be, shall not have received with respect to such moneys the notice provided for
in this Section 4.13, then, anything contained herein to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such moneys and to apply the same to the purpose for which they were received,
and shall not be affected by any notice to the contrary which may be received
by it on or after the commencement to such two Business Day period. Nothing
contained in this Section 4.13 shall limit the right of the holders of Senior
Indebtedness to recover payments as contemplated by Section 4.04.
SECTION 4.14. Article Applicable to Paying Agents. In case at any
time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context shall otherwise require) be
construed as extending to and including such Paying Agent within its meaning as
fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee, provided, however, that
Sections 4.12 and 4.13 shall not apply to the Company if it acts as a Paying
Agent.
SECTION 4.15. Trustee's Compensation Not Prejudiced. Nothing
contained in this Article Four shall affect or subordinate the rights of the
Trustee with respect to any fees, expenses or indemnities owing by the Company
to the Trustee under this Indenture.
22
<PAGE> 30
ARTICLE FIVE.
CONVERSION OF SECURITIES.
SECTION 5.01. Conversion Privilege; Conversion Price. A Holder of
a Security may convert it into Common Stock at any time during the period
stated in paragraph 8 of the Securities. The number of shares issuable upon
conversion of a Security is determined as follows: Divide the principal amount
to be converted by the conversion price in effect on the conversion date.
Round the result to the nearest 1/100th of a share. The Company will deliver a
check in lieu of any fractional share.
The initial conversion price is stated in paragraph 8 of the
Securities. The conversion price is subject to adjustment in accordance with
Section 5.04.
SECTION 5.02. Manner of Exercising Conversion Privilege. To
convert a Security a Holder must satisfy the requirements in paragraph 8 of the
Securities. The date on which the Holder satisfies all those requirements is
the conversion date. As soon as practicable, the Company shall deliver to the
Holder through the Conversion Agent a certificate for the number of full shares
of Common Stock issuable upon the conversion and a check in lieu of any
fractional share. The person in whose name the certificate is registered shall
be treated as a stockholder of record on and after the conversion date.
Except as provided below, no adjustment will be made on
conversion of a Security for interest accrued thereon or for dividends on
shares of Common Stock issued on conversion. If a Security is surrendered for
conversion during the period after the close of business on any regular record
date for the payment of interest and before the opening of business on the
corresponding interest payment date, then (a) notwithstanding such conversion,
the interest payable on such interest payment date will be paid by check to the
Person in whose name the Security is registered at the close of business on
such record date, and (b) (excluding Securities or portions thereof called for
redemption on a Redemption Date occurring after such regular record date and on
or prior to the fifth Business Day following such interest payment date), when
so surrendered for conversion, the Security shall also be accompanied by
payment in New York Clearing House funds or other funds acceptable to the
Company of an amount equal to the interest payable on such interest payment
date on the principal amount of such Security then being converted; provided,
however, that if the Company shall default in the payment of said interest,
said funds, if any shall be returned to the payor thereof. The interest
payment with respect to a Security (or portion of a Security) called for
redemption on a Redemption Date occurring on a date during the period after the
close of business on any regular record date and on or prior to the close of
business on the fifth Business Day after such corresponding interest payment
date, shall be payable by check on such interest payment date to the holder of
such Security at the close of business on such regular record date
notwithstanding the conversion of such Security after such regular record date
and on or prior to such interest payment
23
<PAGE> 31
date, and the holder converting such Security shall not be required to pay an
amount equal to the interest payable by check on such interest payment date
upon surrender of such Security for conversion.
As promptly as practicable after the receipt of such notice and of
such payment, if required, and the surrender of such Security as aforesaid, the
Company shall issue and deliver, at the office or agency at which such Security
is surrendered, to such holder or on his written order, as specified therein, a
certificate or certificates for the number of full shares of Common Stock
issuable upon the conversion of such Security (or specified portion thereof) in
accordance with the provisions of this Article Five, and cash as provided in
Section 5.03 in respect of any fractional share of Common Stock otherwise
issuable upon such conversion. Such conversion shall be deemed to have been
effected immediately prior to the close of business on the date on which
notice, payment, if required, and proper endorsement or transfer, if required,
shall have been received by the Company and such Security shall have been
surrendered as aforesaid (unless such holder shall have so surrendered such
Security and shall have instructed the Company to effect the conversion on a
particular date following such surrender and such holder shall be entitled to
convert such Security on such date in which case such conversion shall be
deemed to be effected immediately prior to the close of business on such date)
and at such time the rights of the holder of such Security as such
Securityholder shall cease and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become the holder or holders of record
of the shares represented thereby.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to or on the order of the holder thereof, at the expense of the
Company, a new Security or Securities of authorized denominations in principal
amount equal to the unconverted portion of such Security.
SECTION 5.03. Fractional Shares. The Company will not issue a
fractional share of Common Stock upon conversion of a Security. Instead the
Company will deliver its check for the current market value of the fractional
share. The current market value of a fraction of a share is determined as
follows: Multiply the current market price (as defined in Section 5.04) on the
Business Day next preceding the date of conversion of a full share by the
fraction. Round the result to the nearest cent.
If more than one Security shall be surrendered for conversion at one
time by the same Holder, the number of full shares which shall be issuable upon
conversion shall be computed on the basis of the aggregate principal amount of
Securities (or specified portions thereof to the extent permitted hereby) so
surrendered.
SECTION 5.04. Adjustment of Conversion Price. The conversion price
shall be adjusted from time to time as follows:
24
<PAGE> 32
(a) In case the Company shall hereafter (i) pay a dividend or
make a distribution on its Common Stock in shares of Common Stock,
(ii) subdivide its outstanding shares of Common Stock into a greater
number of shares, (iii) combine its outstanding shares of Common Stock
into a smaller number of shares, or (iv) issue by reclassification of
its Common Stock any shares of capital stock of the Company, the
conversion price in effect immediately prior to such action shall be
adjusted so that the holder of any Security thereafter surrendered for
conversion shall be entitled to receive the number of shares of Common
Stock or other capital stock of the Company which he would have owned
immediately following such action had such Security been converted
immediately prior thereto. An adjustment made pursuant to this
subsection shall become effective immediately after the record date in
the case of a dividend or distribution and shall become effective
immediately after the effective date in the case of a subdivision,
combination or reclassification. If, as a result of an adjustment
made pursuant to this subsection (a) the holder of any Security
thereafter surrendered for conversion shall become entitled to receive
shares of two or more classes of capital stock or shares of Common
Stock and other capital stock of the Company, the Board of Directors
(whose determination shall be conclusive and shall be described in a
statement filed with the Trustee and with any Conversion Agent) shall
determine in good faith the allocation of the adjusted conversion
price between or among shares of such classes of capital stock or
shares of Common Stock and other capital stock.
(b) In case the Company shall hereafter issue rights or
warrants to holders of its outstanding shares of Common Stock
generally entitling them to subscribe for or purchase shares of Common
Stock (or securities convertible into or exchangeable for Common
Stock) at a price per share (or having a conversion or exchange price
per share) less than the current market price per share (as determined
pursuant to subsection (e) of this Section 5.04) of the Common Stock
on the record date mentioned below, the conversion price shall be
adjusted so that the same shall equal the price determined by
multiplying the conversion price in effect immediately prior to such
record date by a fraction of which the numerator shall be the number
of shares of Common Stock outstanding on such record date plus the
number of shares of Common Stock which the aggregate offering price of
the total number of shares of Common Stock so offered for subscription
or purchase would purchase at such current market price, and of which
the denominator shall be the number of shares of Common Stock
outstanding on such record date plus the number of additional shares
of Common Stock offered for subscription or purchase. Such adjustment
shall be made successively whenever any such rights or warrants are
distributed, and shall become effective immediately after the record
date for the determination of stockholders entitled to receive such
rights or warrants. If at the end of the period during which such
rights or warrants are exercisable not all rights or warrants shall
have been exercised, the adjusted conversion price shall be
immediately readjusted to what it would have been based upon the
number of additional shares of Common Stock actually issued (or the
number of shares of
25
<PAGE> 33
Common Stock issuable upon conversion of convertible securities
actually issued).
(c) In case the Company shall hereafter distribute to holders
of its outstanding Common Stock generally evidences of its
indebtedness or assets (excluding cash dividends or distributions) or
rights or warrants to subscribe for securities of the Company
(excluding those referred to in subsection (b) of this Section 5.04),
then in each such case the conversion price of the shares of Common
Stock shall be adjusted so that the same shall equal the price
determined by multiplying the conversion price in effect immediately
prior to the date of such distribution by a fraction of which the
numerator shall be the current market price per share (determined as
provided in subsection (e) of this Section 5.04) of the Common Stock
on the record date mentioned below less the then fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive and shall be described in a statement filed with the
Trustee and with any Conversion Agent) of the portion of such
evidences of indebtedness or assets (but not cash) so distributed to
the holder of one share of Common Stock or of such subscription rights
or warrants applicable to one share of Common Stock, and of which the
denominator shall be such current market price per share of Common
Stock. Such adjustment shall become effective immediately after the
record date for the determination of stockholders entitled to receive
such distribution.
In any case in which this subsection (c) is applicable,
subsection (b) shall not be applicable.
(d) In case the Company shall, by dividend or otherwise, at
any time distribute to all holders of its Common Stock cash in an
aggregate amount that, together with the aggregate amount of any other
cash distributions to all holders of its Common Stock within the 12
months preceding the date of payment of such distribution and in
respect of which no conversion price adjustment pursuant to this
subsection (d) has been made previously exceeds an amount equal to 15%
of the amount determined by multiplying the current market price per
share (determined as provided in subsection (e) of this Section 5.04)
of the Common Stock on the date fixed for stockholders entitled to
receive such distribution by the number of shares of Common Stock
outstanding on such date (excluding shares held in the Treasury of the
Company), 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 subsection (d) by a fraction of which
the numerator shall be the current market price per share (determined
as provided in subsection (e) of this Section 5.04) of the Common
Stock on the date of such effectiveness less the amount of cash so
distributed applicable to one share of Common Stock and the
denominator shall be such current market price per share of the Common
Stock (determined as aforesaid), such reduction to
26
<PAGE> 34
become effective immediately prior to the opening of business on the
day following the date fixed for the payment of such distribution.
(e) For the purpose of any computation under subsections (b),
(c) and (d) of this Section 5.04 or under Section 5.03, the "current
market price" per share of Common Stock on any record date shall be
deemed to be the average of the daily closing prices for the five
consecutive trading days immediately preceding the date in question.
The closing price for each day shall be the last sale price regular
way or, in case no such sale takes place on such day, the average of
the closing bid and asked prices regular way, in either case on the
New York Stock Exchange, or, if the shares of Common Stock are not
listed or admitted to trading on such Exchange, on the principal
national securities exchange on which the shares are listed or
admitted to trading, or if they are not listed or admitted to trading
on any national securities exchange, on the National Association of
Securities Dealers Automated Quotation ("NASDAQ") national market
system or any comparable system, or if the Common Stock is not listed
on the NASDAQ system or a comparable system, the closing bid and asked
prices as furnished by any member of the National Association of
Securities Dealers, Inc. selected from time to time by the Company for
that purpose.
(f) In any case in which this Section 5.04 shall require that
an adjustment be made immediately following a record date, the Company
may elect to defer (but only until five Business Days following the
filing by the Company with the Trustee and any Conversion Agent of the
certificate of Independent Public Accountants described in Section
5.05) issuing to the holder of any Security converted after such
record date the shares of Common Stock issuable upon such conversion
over and above the shares of Common Stock issuable upon such
conversion on the basis of the conversion price prior to adjustment.
(g) No adjustment in the conversion price shall be required
unless such adjustment would require an increase or decrease of at
least 1% of such price; provided, however, that any adjustments which
by reason of this subsection (g) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment.
All calculations under this Section 5.04 shall be made to the nearest
cent or the nearest 1/100th of a share, as the case may be. Anything
in this Section 5.04 to the contrary notwithstanding, the Company
shall be entitled to make such reductions in the conversion price, in
addition to those required by this Section 5.04, as it in its
discretion shall determine to be advisable in order that any stock
dividend, subdivision of shares, distribution of rights to purchase
stock or securities, or distribution of securities convertible into or
exchangeable for stock hereafter made by the Company to its
stockholders shall not be taxable; provided that in no event shall
such conversion price be less than the par value of the Common Stock
at the time such reduction is made. No adjustment to the conversion
price pursuant to this Indenture shall reduce the conversion price
below the then existing par value per share of
27
<PAGE> 35
Common Stock. The Company hereby covenants not to take any action to
increase the par value per share of the Common Stock.
No adjustment in the conversion price need be made for rights to
purchase shares of Common Stock or issuances of Common Stock pursuant
to a Company plan for reinvestment of dividends or interest.
(h) In the event that at any time as a result of an
adjustment made pursuant to subsection (a) of this Section 5.04, the
holder of any Securities thereafter surrendered for conversion shall
become entitled to receive any shares of the Company other than shares
of Common Stock, thereafter the conversion price of such other shares
so receivable upon conversion of any Security shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to Common
Stock contained in this Article Five.
SECTION 5.05. Certificate Concerning Adjusted Conversion Price.
Whenever the conversion price is adjusted as herein provided, (i) the Company
shall promptly file with the Trustee and any Conversion Agent a certificate of
a firm of Independent Public Accountants (who may be the regular accountants
employed by the Company) setting forth the conversion price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment and the manner of computing the same, which certificate shall be
conclusive evidence of the correctness of such adjustment and (ii) a notice
stating that the conversion price has been adjusted and setting forth the
adjusted conversion price shall forthwith be given by the Company to the
Securityholders in the same manner provided in Section 16.03. The Trustee and
any Conversion Agent shall be under no duty or responsibility with respect to
any such certificate or the certificate provided for in Section 5.10 except to
exhibit the same from time to time to any holder of a Security desiring an
inspection of such certificate.
SECTION 5.06. Notice of Certain Corporate Action. In case:
(a) the Company shall take any action which would require an
adjustment in the conversion price pursuant to Sections 5.04(b),
5.04(c) or 5.04(d); or
(b) the Company shall authorize the granting to the holders
of its Common Stock of rights or warrants to subscribe for or purchase
any shares of stock of any class or of any other rights; or
(c) there shall be any capital reorganization or
reclassification of the Common Stock (other than a subdivision or
combination of the outstanding Common Stock and other than a change in
the par value of the Common Stock), or any consolidation or merger to
which the Company is a party or any statutory exchange of securities
with another corporation and for which approval of any stockholders of
the Company is required, or any sale or transfer of all or
substantially all of the assets of the Company; or
28
<PAGE> 36
(d) there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Company;
then the Company shall cause to be filed with the Trustee and any
Conversion Agent, and shall cause to be given to the Securityholders,
in the manner provided in Section 16.03, at least fifteen (15) days
prior to the applicable date hereinafter specified, a notice stating
(i) the date on which a record is to be taken for the purpose of such
distribution or rights, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to
such distribution or rights is to be determined, or (ii) the date on
which such reorganization, reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or winding-up is expected to
become effective, and the date as of which it is expected that holders
of Common Stock of record shall be entitled to exchange their shares
of Common Stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding-up. Failure to give
such notice or any defect therein shall not affect the legality or
validity of the proceedings described in subsection (a), (b), (c) or
(d) of this Section 5.06.
SECTION 5.07. Company to Provide Stock. The Company will at all
times reserve and keep available out of its authorized but unissued Common
Stock, for the purpose of effecting conversions of Securities, the full number
of shares of Common Stock deliverable upon the conversion of all outstanding
Securities. For purposes of this Section 5.07, the number of shares of Common
Stock which shall be deliverable upon the conversion of all outstanding
Securities shall be computed as if at the time of computation all outstanding
Securities were held by a single holder.
The Company will endeavor to list the shares of Common Stock required
to be delivered upon conversion of Securities prior to such delivery upon each
national securities exchange, if any, upon which the outstanding Common Stock
is listed at the time of such delivery.
Prior to the delivery of any securities or other property, including
cash, which the Company shall be obligated to deliver upon conversion of the
Securities, the Company will endeavor to comply with all Federal and State laws
and regulations thereunder governing the registration of such securities with,
or any approval of or consent to the delivery thereof by, any governmental
authority.
SECTION 5.08. Taxes on Conversions. The Company will pay any and
all taxes that may be payable in respect of the issue or delivery of shares of
Common Stock on conversion of Securities pursuant hereto. The Company shall
not, however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of shares of Common Stock in a name
other than that of the holder of the Security or Securities to be converted,
and no such issue or delivery shall be made unless and until the person
requesting such issue has paid to the Company the amount
29
<PAGE> 37
of any such tax, or has established, to the satisfaction of the Company, that
such tax has been paid.
SECTION 5.09. Covenant as to Stock. The Company covenants that all
shares of Common Stock which may be delivered upon conversion of Securities
will upon delivery be duly and validly issued and fully paid and
non-assessable, free of all liens and charges imposed by the Company and not
subject to any preemptive rights.
SECTION 5.10. Provision in Case of Consolidation or Merger.
Notwithstanding any other provision herein to the contrary, in case of any
consolidation or merger to which the Company is a party (other than a
transaction in which the Company is the continuing corporation and which does
not result in any reclassification or change of shares of Common Stock issuable
upon conversion of the Securities (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination)), or in case of any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially as
an entirety, or in the case of any statutory exchange of securities with
another corporation (including any exchange effected in connection with a
merger of a third corporation into the Company), there shall be no adjustments
under Section 5.04 but the holder of each Security then outstanding shall have
the right thereafter to convert such Security into the kind and amount of
securities, cash or other property which he would have owned or have been
entitled to receive immediately after such consolidation, merger, statutory
exchange, sale or conveyance had such Security been converted immediately prior
to the effective date of such consolidation, merger, statutory exchange, sale
or conveyance and in any such case, if necessary, appropriate adjustment shall
be made in the application of the provisions set forth in this Article Five
with respect to the rights and interests thereafter of the holders of the
Securities, to the end that the provisions set forth in this Article Five shall
thereafter correspondingly be made applicable, as nearly as may reasonably be,
in relation to any shares of stock or other securities or property thereafter
deliverable on the conversion of the Securities. Any such adjustments shall be
made by and set forth in a supplemental indenture executed by the Company and
the Trustee and evidenced by a certificate of a firm of Independent Public
Accountants (who may be the regular accountants employed by the Company), to
that effect; and any adjustment so approved shall for all purposes hereof
conclusively be deemed to be an appropriate adjustment.
The above provisions of this Section 5.10 shall similarly apply to
successive consolidations, mergers, statutory exchanges, sale or conveyances.
The Company shall give notice of the execution of such a supplemental
indenture to the holders of Securities in the manner provided in Section 16.03
within 30 days after the execution thereof.
SECTION 5.11. Trustee's Disclaimer of Responsibility for Certain
Matters. Neither the Trustee nor any Conversion Agent shall at any time be
under any duty or responsibility to any holder of Securities to determine
whether any facts exist which
30
<PAGE> 38
may require any adjustment of the conversion price, or with respect to the
nature or extent of any such adjustment when made, or with respect to the
method employed, or herein or in any supplemental indenture proved to be
employed, in making the same. Neither the Trustee nor any Conversion Agent
shall be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities or property, which
may at any time be issued or delivered upon the conversion of any Security; and
neither the Trustee nor any Conversion Agent makes any representation with
respect thereto. Neither the Trustee nor any Conversion Agent shall be
responsible for any failure of the Company to issue, transfer or deliver any
shares of Common Stock or stock certificates or other securities or property
upon the surrender of any Security for the purpose of conversion or to comply
with any of the covenants of the Company contained in this Article Five.
ARTICLE SIX.
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 6.01. Payment of Principal, Premium and Interest. The
Company covenants and agrees that it will duly and punctually pay or cause to
be paid the principal of (premium, if any) and interest on each of the
Securities at the time and place and in the manner provided in the Securities.
Principal of (and premium, if any) and interest on each of the Securities shall
be considered paid on the date due if the Paying Agent (other than the Company,
a Subsidiary thereof or any affiliate of any thereof) holds on that date, not
later than 11:00 a.m. New York City time, immediately available funds
designated for and sufficient to pay the installment. The Company shall pay
interest on overdue principal at the rate borne by the Securities; it shall pay
interest on overdue installments of interest at the same rate to the extent
lawful.
SECTION 6.02. Offices for Notices, Payments and Conversions. The
Company will maintain in the Borough of Manhattan, The City of New York, an
office or agency where Securities may be surrendered for registration of
transfer or exchange or conversion and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York for such purposes.
The Company will give prompt written notice to the
31
<PAGE> 39
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
The Company hereby designates the Corporate Trust Office of
the Trustee as an agency of the Company in accordance with Section 2.03.
SECTION 6.03. Paying Agents. (a) Any Paying Agent appointed by the
Company other than the Trustee shall be a bank or trust company of the
character and with the qualifications set forth in Section 9.10 and the Company
covenants and agrees to enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such Registrar or
Paying Agent. In addition, the Company covenants and agrees to cause such
Paying Agent to execute and deliver to the Trustee an instrument in which it
shall agree with the Trustee, subject to the provisions of this Section, (1)
that such Paying Agent shall hold in trust for the benefit of the
Securityholders all sums held by such Paying Agent for the payment of the
principal of (or premium, if any) or interest on any of the Securities, (2)
that such Paying Agent shall give to the Trustee notice of any failure by the
Company (or any other obligor on the Securities) to make any payment of the
principal of (or premium, if any) or interest on the Securities when the same
shall be due and payable, and (3) at any time during the continuance of such
default, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
(b) If the Company shall at any time act as its own Paying
Agent, then on or before each due date of the principal of (and premium, if
any) or interest on any of the Securities, it will set aside and segregate and
hold in trust for the benefit of the holders of the Securities, a sum
sufficient to pay such principal (and premium, if any) or interest so becoming
due, and will notify the Trustee of any failure to take such action.
(c) Anything in this Section 6.03 to the contrary
notwithstanding, 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
cause to be paid to the Trustee all sums held in trust by it or any Paying
Agent as required by this Section, such sums to be held by the Trustee upon the
terms herein contained.
(d) Anything in this Section 6.03 to the contrary
notwithstanding, the agreement to hold sums in trust as provided in this
Section is subject to the provisions of Sections 14.03 and 14.04 hereof.
SECTION 6.04. Annual Review Certificate. The Company covenants and
agrees to deliver to the Trustee, on or before a date not more than 90 days
after the end of each fiscal year of the Company ending after the date hereof,
a certificate from its principal executive officer, principal financial officer
or principal accounting officer stating that a review of the activities of the
Company and of its Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing officers with
32
<PAGE> 40
a view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture and further stating, as to each
such officer signing such certificate, that to the best of his knowledge the
Company has kept, observed, performed and fulfilled each and every covenant in
this Indenture contained and is not in default in the performance and
observance of any of the terms, provisions and conditions hereof (or, if they
Company shall be in default, specifying all such defaults and the nature
thereof of which he may have knowledge) and that to the best of his knowledge
no event has occurred and remains in existence by reason of which payments on
account of the principal of (or premium, if any) or interest on the Securities
is prohibited.
SECTION 6.05. Appointment to Fill a Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 9.08, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 6.06. Further Instruments and Acts. The Company will, upon
request of the Trustee, execute and deliver such further instruments and do
such further acts as may reasonably be necessary or proper to carry out more
effectually the purposes of this Indenture.
SECTION 6.07. Payment of Taxes and Assessments. The Company will,
and will cause each Subsidiary to, pay all taxes, assessments and governmental
charges lawfully levied or assessed upon it, its property, or upon any part
thereof or upon its income or profits, or any part thereof, before the same
shall become delinquent, and will duly observe and conform to all lawful
requirements of any governmental authority relative to any of its property, and
all covenants, terms and conditions upon or under which any of its property is
held; and within four months after the accruing of any lawful claims or demands
for labor, materials or supplies or other matters which might become a lien or
charge upon any of its property or the income therefrom, it will pay or cause
to be discharged or make adequate provision to satisfy and discharge the same;
provided that nothing in this Section 6.07 or elsewhere in this Indenture
contained shall require the Company to observe or conform to any requirements
of governmental authority or to cause to be paid or discharged, or to make
provision for, any such lien or charge or to pay any such tax assessment or
governmental charge so long as the applicability or validity thereof shall be
contested in good faith; and provided further, that neither the Company nor any
Subsidiary shall be required to pay any such taxes, assessments or charges, if
in the judgment of the Board of Directors of the Company or such Subsidiary,
such payment shall no longer be advantageous to the Company or such Subsidiary
in the conduct of its business.
SECTION 6.08. Maintenance of Corporate Existence. Except as
otherwise provided or permitted pursuant to the other provisions of this
Indenture, the Company will, and will cause each Subsidiary to, maintain its
corporate existence and right to carry on business and duly procure all
necessary renewals and extensions thereof and to use its best efforts to
maintain, preserve and renew all such rights, powers, privileges
33
<PAGE> 41
and franchises; provided, however, that nothing herein contained shall be
construed to prevent the Company or a Subsidiary from ceasing or omitting to
exercise any rights, powers, privileges or franchises (including, in the case
of a Subsidiary, the corporate existence thereof) which in the judgment of the
Board of Directors of the Company or of such Subsidiary should not be exercised
or the ceasing or omitting to exercise of which in the judgment of the Board of
Directors of the Company or of such Subsidiary will not have a material adverse
effect on the Company and its Subsidiaries considered as a whole; and provided
further, that any Subsidiary of the Company may consolidate with, merge into,
or transfer or distribute all or part of its property and assets to the Company
or any wholly-owned Subsidiary of the Company.
SECTION 6.09. Change of Control. (a) In the event that a Change
of Control occurs, each Securityholder shall have the right, at such
Securityholder's option, to require that the Company repurchase all or any
portion of such Securityholder's Securities at a purchase price (the "Change of
Control Repurchase Price") in cash equal to 100% of the principal amount
thereof together with accrued interest to the date of repurchase (the "Change
of Control Repurchase Date"), in accordance with the provisions of paragraph
(b) of this Section 6.09, on a date that shall be not later than the 40th
Business Day after the mailing by the Company of the notice that a Change of
Control has occurred.
(b) Within 15 Business Days after a Change of Control, the
Company shall mail a notice to the Trustee and each Securityholder of
record as of the date of the Change of Control stating:
(1) that a Change of Control has occurred and that
such Securityholder has the right to require the Company to
repurchase all or any portion of such Securityholder's
Securities at the Change of Control Repurchase Price;
(2) the current conversion price, the date on which
the right to convert such Holder's Securities into Common
Stock will expire and the place or places where such
Securities may be surrendered for conversion;
(3) the Change of Control Repurchase Date;
(4) that Holders electing to have Securities or a
portion thereof purchased will be required to surrender their
Securities to the Paying Agent at the address specified in
such notice prior to at any time prior to the close of
business on the Change of Control Repurchase Date with the
"Option of Holder to Elect Purchase" on the reverse thereof
completed and must complete any form of letter of transmittal
proposed by the Company and acceptable to the Trustee and the
Paying Agent;
(5) that Holders of Securities will be entitled to
withdraw their election to have Securities purchased if the
Paying Agent receives, not
34
<PAGE> 42
later than the close of business on the Change of Control
Repurchase Date, a tested telex, facsimile transmission or
letter setting forth the name of the Holder, the principal
amount at maturity of Securities the Holder delivered for
purchase, the Security certificate number (if any) and a
statement that such Holder is withdrawing his election to have
such Securities purchased;
(6) that Securities which have been surrendered to
the Paying Agent may be converted into Common Stock only to
the extent that the Holder of such Securities withdraws his
election to have such Securities purchased in accordance with
the terms of this Section 6.09;
(7) that any Security not tendered or not accepted
for payment will continue to accrue interest;
(8) that, unless the Company defaults in paying the
Change of Control Repurchase Price, any Security accepted for
payment shall cease to accrue interest after the Change of
Control Repurchase Date; and
(9) a description of the procedure which a Holder
must follow to exercise his right to have Securities
repurchases.
At the Company's request, the Trustee shall give such notice in the
Company's name and at the Company's expense, provided, however, that the
Company shall deliver to the Trustee, at least 5 days prior to the date upon
which notice must be mailed to Securityholders (unless a shorter time shall be
acceptable to the Trustee), an Officer's Certificate setting forth the
information to be stated in such notice as provided in this Section 6.09. No
failure of the Company to give the foregoing notice shall limit any
Securityholder's right to exercise a repurchase right.
The Trustee shall be under no obligation to ascertain the occurrence
of a Change of Control or to give notice with respect thereto other than as
provided above upon receipt of the written notice of a Change of Control from
the Company. The Trustee may conclusively presume, in the absence of written
notice from the Company to the contrary, that no Change of Control has
occurred.
(c) In the event a repurchase right shall be exercised in accordance
with the terms hereof, the Company shall pay or cause to be paid the price
payable with respect to the Securities as to which the repurchase right had
been exercised in cash to the Securityholder. In the event that a repurchase
right is exercised with respect to less than the entire principal amount of a
surrendered Security, the Company shall execute and the Trustee shall
authenticate for issuance in the name of the Securityholder a Security or
Securities in the aggregate principal amount of the unpurchased portion of such
surrendered Security.
35
<PAGE> 43
(d) In connection with any repurchase of Securities under this
Section 6.09, the Company shall (i) comply with Rule 13e-4 (which term, as used
herein, includes any successor provision thereto) under the Exchange Act, if
applicable, (ii) file the related Schedule 13e-4 (or any successor schedule,
form or report) under the Exchange Act, if applicable, and (iii) otherwise
comply with all federal and state securities laws so as to permit the rights
and obligations under this Section 6.09 to be exercised in the time and in the
manner specified in this Section 6.09.
SECTION 6.10. Waiver of 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, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension law or other law that would prohibit or forgive the
Company from paying all or any portion of the principal of or interest on the
Securities as contemplated herein or in the Securities, wherever enacted, now
or at any time hereafter in force, or that may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
the Company 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.
SECTION 6.11. SEC Reports. (a) The Company shall file all reports and
other information and documents which it is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act, and within 15 days after
it files all such reports, information and other documents with the SEC, the
Company shall file copies of all such reports, information and other documents
with the Trustee. The Company will cause any quarterly and annual reports
which it mails to its stockholders to be mailed to the Holders of the
Securities.
In the event the Company is at any time no longer subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
will prepare, for the first three quarters of each fiscal year, quarterly
financial statements substantially equivalent to the financial statements
required to be included in a report on Form 10-Q under the Exchange Act. The
Company will also prepare, on an annual basis, complete audited consolidated
financial statements, including, but not limited to, a balance sheet, a
statement of operations, a statement of cash flows and all appropriate notes.
All such financial statements will be prepared in accordance with generally
accepted accounting principles consistently applied, except for changes with
which the Company's independent accountants concur, and except that quarterly
statements may be subject to year-end adjustments. The Company will cause a
copy of such financial statements to be filed with the Trustee and mailed to
the Holders of the Securities within 50 days after the end of each of the first
three quarters of each fiscal year and within 95 days after the close of each
fiscal year. The Company will also comply with the other provisions of TIA
Section 314(a).
36
<PAGE> 44
ARTICLE SEVEN.
[Intentionally Omitted]
ARTICLE EIGHT.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT.
SECTION 8.01. Events of Default. An "Event of Default" occurs if:
(a) the Company defaults in the payment of any installment of
interest upon any of the Securities as and when the same shall become due and
payable and the default continues for a period of 30 days, whether or not such
payment is prohibited by the provisions of Article Four; or
(b) the Company defaults in the payment of the principal (or premium,
if any) of any of the Securities as and when the same shall become due and
payable either at maturity, upon redemption (including redemption and purchase
pursuant to Section 6.09), by declaration or otherwise, and in each case
whether or not such payment is prohibited by the provisions of Article Four; or
(c) the Company fails to perform or observe any other covenant or
agreement in the Securities or in this Indenture and the default continues for
the period and after the notice specified in the penultimate paragraph of this
Section 8.01; or
(d) the Company or any of its Significant Subsidiaries shall have
failed to pay principal at maturity of, or an event of default shall have
occurred and be continuing under and resulted in the acceleration of, any loan
agreement, mortgage, indenture or other instrument under which there is issued
or by which there is secured or evidenced any Indebtedness of the Company
(other than the Securities) or any of its Significant Subsidiaries, whether
such Indebtedness exists as of the Issuance Date or shall be created
thereafter, and the principal amount of such Indebtedness which, together with
any such other Indebtedness so accelerated or not paid at maturity, aggregates
an amount equal to or greater than $10,000,000; or
(e) there shall have been entered a decree or order under any
Bankruptcy Law by a court of competent jurisdiction that (A) is for relief in
respect of the Company or any Significant Subsidiary under any Bankruptcy Law,
or (B) appoints a Custodian of the Company or such Significant Subsidiary or of
any substantial part of the property of the Company or such Significant
Subsidiary, as the case may be, or (C) orders the winding-up or liquidation of
the affairs of the Company or such Subsidiary, as the case may be, and the
continuance of any such decree or order unstayed and in effect for a period of
60 consecutive days; or
37
<PAGE> 45
(f) the Company or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law (A) commences a voluntary case or proceeding
with respect to itself, (B) consents to the entry of a judgment, decree or
order for relief against it in an involuntary case or proceeding, (C) applies
for, consents to or acquiesces in the appointment of or taking possession by a
Custodian of the Company or such Significant Subsidiary or for a substantial
part of its properties or (D) makes a general assignment for the benefit of its
creditors; or
(g) a final judgment which, together with other outstanding final
judgments entered against the Company and/or any of its Significant
Subsidiaries, is equal to or exceeds an aggregate of $10,000,000 (not covered
by valid and collectible insurance from solvent unaffiliated insurers) shall be
entered against the Company and/or any of its Significant Subsidiaries and
within 60 days after entry thereof such judgment or judgments shall not have
been satisfied or discharged or execution thereof stayed pending appeal or,
within 60 days after the expiration of any such stay, such judgment shall not
have been satisfied or discharged.
The term "Bankruptcy Law" means Title 11 of the United States Code, as
now constituted or hereafter amended, or any other applicable Federal, state or
foreign bankruptcy, insolvency or other similar law. The term "Custodian"
means any receiver, liquidator, assignee, trustee, custodian, sequestrator or
similar official under any Bankruptcy Law.
A Default under clause (c) is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in principal
amount of the Securities then outstanding notify the Company and the Trustee,
of the Default and the Company does not cure the Default within 60 days after
receipt of such notice. The notice must specify the Default, demand that it be
remedied and state the notice is a "Notice of Default." When a Default is
cured, it ceases.
SECTION 8.02. Acceleration. If any Event of Default (other than an
Event of Default with respect to the Company specified in Sections 8.01(e) or
(f) above) occurs and is continuing, the Trustee by notice to the Company, or
the Holders of at least 25% in principal amount of the Securities then
outstanding by notice to the Company and the Trustee, may declare to be due and
payable immediately the principal amount of the Securities plus accrued
interest to the date of acceleration. Upon any such declaration, such amount
shall be due and payable immediately. If an Event of Default with respect to
the Company specified in Sections 8.01(e) or (f) above occurs, all unpaid
principal and accrued interest on the Securities then outstanding shall ipso
facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Securityholder. The Holders of a
majority in principal amount of the outstanding Securities by notice to the
Trustee may rescind an acceleration and its consequences if (x) all existing
Events of Default, other than the non-payment of the principal of the
Securities which shall have become due solely by such declaration of
acceleration, shall have been cured or waived, (y) to the extent the payment of
such interest is lawful, interest on overdue installments of interest and
38
<PAGE> 46
overdue principal which has become due otherwise than by such declaration of
acceleration has been paid, and (z) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction.
SECTION 8.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal or interest on the Securities or
to enforce the performance of any provision of the Securities or this
Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding, and any such proceeding instituted by the Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 8.04. Waiver of Defaults and Events of Default. Subject
only to the provisions of Sections 8.07 and 12.02 hereof, the Holders of a
majority in principal amount of the outstanding Securities by written notice to
the Trustee may waive an existing Default or Event of Default and its
consequences except (a) a Default in payment of principal or interest on any
Security as specified in clauses (a) and (b) of Section 8.01 or (b) in respect
of a covenant or provision hereof which under Article Twelve cannot be modified
or amended without the consent of the Holder of each outstanding Security
affected. When a Default or Event of Default is waived, it is cured and
ceases; but no such waiver shall extend to any subsequent or other Default or
Event of Default or impair any right consequent thereto.
SECTION 8.05. Control by Majority. The Holders of a majority in
principal amount of the outstanding Securities may 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 it, including, without limitation,
any remedies provided for in Section 8.03. The Trustee may refuse, however, to
follow any direction that conflicts with law, the Securities or this Indenture,
or that the Trustee determines may be unduly prejudicial to the rights of
another Securityholder, that may involve the Trustee in personal liability or
if the Trustee determines that it does not have adequate indemnification
against any loss or expense; provided that the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction.
SECTION 8.06. Limitation on Suits. Except as provided in Section
8.07, a Securityholder may not pursue any remedy with respect to this Indenture
or the Securities unless:
(a) the Holder gives to the Trustee written notice of a continuing Event
of Default;
39
<PAGE> 47
(b) the Holders of at least 25% in principal amount of the Securities then
outstanding make a written request to the Trustee to pursue the
remedy;
(c) such Holder or Holders offer to the Trustee indemnity satisfactory to
the Trustee against any loss, liability or expenses;
(d) the Trustee does not comply with the request within 30 days after
receipt of the notice, request and offer of indemnity; and
(e) no direction inconsistent with such written request has been given to
the Trustee during such 30-day period by the Holders of a majority in
principal amount of the Securities then outstanding.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
another Securityholder.
SECTION 8.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Security to receive payment of the principal of, premium, if any, and
interest on the Security, on or after the respective due dates expressed in the
Security (including the maturity date, the Redemption Date and the Change of
Control Purchase Date), or to bring suit for the enforcement of any such
payment on or after such respective dates, is absolute and unconditional and
shall not be impaired or affected without the consent of the Holder.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Security to convert the Security or to bring suit for
the enforcement of such right shall not be impaired or affected without the
consent of the Holder.
SECTION 8.08. Collection Suit by Trustee. If an Event of Default
in payment of interest or principal specified in Section 8.01(a) or (b) occurs
and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company or any other obligor on the
Securities for the whole amount of unpaid principal and accrued interest
remaining unpaid, together with interest on overdue principal and, to the
extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate borne by the Securities, and
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.
SECTION 8.09. Trustee May File Proofs of Claim. The Trustee may
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Securityholders allowed in any
judicial proceedings relative to the Company (or any other obligor upon the
Securities), its creditors or its property and
40
<PAGE> 48
shall be entitled and empowered to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the same.
Any Custodian in any such judicial proceeding is hereby authorized by each
Securityholder 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
Securityholders, to pay to the Trustee any amount due to 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 9.07.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceedings.
SECTION 8.10. Application of Money Collected by Trustee. Subject
to the provisions of Article Four, any moneys collected by the Trustee or any
Paying Agent pursuant to this Article Eight shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Securities, and stamping thereon
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 9.07 hereof;
Second: To holders of Senior Indebtedness of the Company to
the extent required by Article Four hereof;
Third: To the Securityholders for amounts owing and unpaid
upon the Securities for principal (and premium, if any) and interest,
with interest on the overdue principal and premium, if any, and (to
the extent that such interest has been collected by the Trustee or
Paying Agent) on overdue installments of interest at the rate borne by
the Securities, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for
principal (and premium, if any) and interest, respectively; and
Fourth: To the Company or as a court of competent
jurisdiction may direct.
SECTION 8.11. Undertaking to Pay Costs. All parties to this
Indenture agree, and each holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonably attorneys' fees, against any party
litigant
41
<PAGE> 49
in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 8.11 shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder, or group of Securityholders, holding in the
aggregate more than ten percent in aggregate principal amount of the Securities
outstanding, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Security against the Company on or after the due date expressed in such
Security.
SECTION 8.12. Restoration of Rights and Remedies. If the Trustee
or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture or any Security 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 case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 8.13. Rights and Remedies Cumulative. 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 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 8.14. Delay or Omission Not Waiver. No delay or omission
of the Trustee or of any Holder of any Security 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 Eight 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.
ARTICLE NINE.
CONCERNING THE TRUSTEE.
SECTION 9.01. Duties of Trustee.
(1) If an Event of Default has occurred and is continuing, the
Trustee shall exercise its rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of his own
affairs.
42
<PAGE> 50
(2) Except during the continuance of an Event of Default:
(a) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others.
(b) 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. The Trustee, however, shall examine the
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 9.01.
(2) The Trustee shall not be liable for any error in
judgment made in good faith by a Responsible Officer of the
Trustee, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
8.05.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this
Section 9.01.
(e) The Trustee may refuse to perform any duty or exercise
any right or power unless it receives indemnity reasonably
satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Company.
Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
SECTION 9.02. Rights of Trustee. Subject to Section 9.01:
(1) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need
not investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require
an Officer's Certificate or an Opinion of Counsel, which shall conform to
Section 16.04. The
43
<PAGE> 51
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Certificate or Opinion.
(3) The Trustee may act through Agents and shall not be responsible
for the misconduct or negligence of any Agent appointed with due care.
(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights
or powers.
SECTION 9.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Agent may do the same with like
rights. The Trustee, however, is subject to Sections 9.10 and 9.11.
SECTION 9.04. Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use of the proceeds
from the Securities, and it shall not be responsible for any statement in the
Securities other than its certificate of authentication or in any document used
in the sale of the Securities other than any statement in writing provided by
the Trustee for use in such document.
SECTION 9.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Securityholder notice of the Default within 90 days after it occurs. Except in
the case of a Default in payment of principal of or interest on any Security,
the Trustee may withhold the notice if and so long as it in good faith
determines that withholding the notice is in the interests of Securityholders.
SECTION 9.06. Reports by Trustee to Holders. Within 60 days after
each _______ __ beginning with ________ __, 1995, the Trustee shall mail to
each Securityholder a brief report dated as of such _______ __ that complies
with TIA Section 313(a). The Trustee also shall comply with TIA Section
313(b) and Section 313(c).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock national securities exchange on
which the Securities are listed. The Company agrees to notify the Trustee
whenever the Securities become listed on any national securities exchange.
SECTION 9.07. Compensation and Indemnity. The Company shall pay to
the Trustee from time to time reasonable compensation for its services (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust). The Company shall reimburse
the Trustee upon request for all reasonable disbursements, expenses and
advances incurred or made by it. Such expenses may include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
44
<PAGE> 52
Subject to the provisions of the following paragraph, the Company
shall indemnify the Trustee for, and hold it harmless against, any loss or
liability incurred by it in connection with its duties under this Indenture.
The Trustee shall notify the Company promptly of any claim asserted against the
Trustee for which it may seek indemnity and the Company may elect by written
notice to the Trustee, and with the consent of the Trustee, to assume the
defense of any such claim at the Company's expense with counsel reasonably
satisfactory to the Trustee. If the Trustee shall not consent to the Company's
assumption of the defense, the Company agrees to pay the reasonable costs and
expenses of counsel retained to represent the Trustee.
The Company need not reimburse the Trustee for any expense or
indemnify it against any loss or liability incurred by it through its
negligence or bad faith. The Company shall not be liable for any settlement of
any claim or action effected without the Company's consent, which consent shall
not be unreasonably withheld.
To secure the Company's payment obligations in this Section 9.07, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Sections 8.01(e) or (f) hereof occurs, the expenses and
the compensation for the services (including the reasonable fees and expenses
of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 9.08. Replacement of Trustee. A resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective only
upon the successor Trustee's acceptance of appointment as provided in this
Section 9.08.
The Trustee may resign by so notifying the Company. The holders of a
majority in principal amount of the Securities then outstanding may remove the
Trustee by so notifying the Trustee and may appoint a successor Trustee with
the Company's written consent. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 9.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or other public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the holders of a majority in principal
45
<PAGE> 53
amount of the Securities may appoint a successor Trustee to replace the
successor Trustee appointed by the Company, and if a successor trustee is not
appointed within such period, the holders shall no longer be permitted to
appoint a successor trustee to replace such successor trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the holders of at least 10% in principal amount of the Securities then
outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 9.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
that, the retiring Trustee shall, upon payment of its charges, transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 9.07, the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture. A successor
Trustee shall mail notice of its succession to each Securityholder.
SECTION 9.09. Successor Trustee by Merger, etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust assets to, another corporation, the successor
corporation without any further act shall be the successor Trustee.
SECTION 9.10. Eligibility; Disqualification. This Indenture shall
always have a Trustee who satisfies the requirements of TIA Section 310(a)(1).
The Trustee shall have a combined capital and surplus of at least $10,000,000
as set forth in its most recent published annual report of condition. The
Trustee shall comply with TIA Section 310(b).
SECTION 9.11. Preferential Collection of Claims Against Company.
The Trustee is subject to and shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
ARTICLE TEN.
CONCERNING THE SECURITYHOLDERS.
SECTION 10.01. Action by Securityholders. Whenever in this
Indenture it is provided that the holders of a specified percentage in
aggregate principal amount of the Securities may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that
46
<PAGE> 54
at the time of taking any such action the holders of such specified percentage
have joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by Securityholders in person or by agent
or proxy appointed in writing, or (b) by the record of the holders of
Securities voting in favor thereof at any meeting of Securityholders duly
called and held in accordance with the provisions of Article Eleven, or (c) by
a combination of such instrument or instruments and any such record of such a
meeting of Securityholders.
SECTION 10.02. Proof of Execution by Securityholders, Evidence of
Holdings. Subject to the provisions of Sections 9.01 and 11.05, proof of the
execution of any instrument by a Securityholder or his agent or proxy and proof
of the holding by any person of any of the Securities shall be sufficient for
any purpose of this Indenture if made in the following manner:
(a) The fact and date of the execution by any such person of
any instrument may be proved in any reasonable manner acceptable to
the Trustee.
(b) The ownership of Securities shall be proved by the
register of such Securities or by a certificate of the Security
Registrar.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 11.06.
The Trustee may require such additional proof of any matter referred
to in this Section 10.02 as it shall deem necessary.
SECTION 10.03. Company-owned Securities Disregarded. In determining
whether the holders of the requisite aggregate principal amount of Securities
have concurred in any direction or consent under this Indenture, Securities
which are owned by the Company or any other obligor on the Securities or by any
Affiliate of the Company or such obligor shall be disregarded and deemed not to
be outstanding for the purpose of any such determination, provided that for the
purposes of determining whether the Trustee shall be protected in relying on
any such direction or consent only Securities which the Trustee knows are so
owned shall be so disregarded.
SECTION 10.04. Revocation of Consents, Future Holders Bound. At any
time prior to but not after the evidencing to the Trustee, as provided in
Section 10.01, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Securities specified in this Indenture in
connection with such action, any holder of a Security which is included in the
Securities the holders of which have consented to such action may, by filing
written notice with the Trustee at its office and upon proof of holding as
provided in Section 10.02, revoke such action as far as concerns such Security.
Except as aforesaid any such action taken by the holder of any Security shall
be conclusive and binding upon such holder and upon all future holders and
owners of such Security, irrespective of whether or not any notation in regard
thereto is made upon such Security or any Security issued in exchange or
substitution therefor. Any
47
<PAGE> 55
action taken by the holders of the percentage in aggregate principal amount of
the Securities specified in this Indenture in connection with such action shall
be conclusively binding upon the Company, the Trustee and the holders of all
the Securities.
ARTICLE ELEVEN.
SECURITYHOLDERS' MEETINGS.
SECTION 11.01. Purposes of Meetings. A meeting of Securityholders
may be called at any time and from time to time pursuant to the provisions of
this Article Eleven for any of the following purposes:
(1) to give any notice to the Company or to the Trustee,
or to give any directions to the Trustee, or to consent to the waiving
of any default hereunder and its consequences, or to take any other
action authorized to be taken by Securityholders pursuant to any of
the provisions of Article Eight;
(2) to remove the Trustee and nominate a successor
trustee pursuant to the provisions of Article Nine;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Section
12.02; or
(4) to take any other action authorized to be taken by or
on behalf of the holders of any specified aggregate principal amount
of the Securities under any other provision of this Indenture or under
applicable law.
SECTION 11.02. Call of Meetings by Trustee. The Trustee may at any
time call a meeting of Securityholders to take any action specified in Section
11.01, to be held at such time and at such place in the Borough of Manhattan,
The City of New York, New York, as the Trustee shall determine. Notice of
every meeting of the Securityholders, 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 to the holders of Securities in the manner provided in
Section 16.03. Such notice shall be mailed not less than 20 nor more than 90
days prior to the date fixed for the meeting.
SECTION 11.03. Call of Meetings by Company or Securityholders. In
case at any time the Company, pursuant to a resolution of its Board of
Directors, or the holders of at least ten percent in aggregate principal amount
of the Securities then outstanding, shall have requested the Trustee to call a
meeting of Securityholders, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have mailed the notice of such meeting within 20 days after receipt of such
request, then the Company or such Securityholders may determine the time and
the place in The Borough of Manhattan, The City of New York,
48
<PAGE> 56
New York for such meeting and may call such meeting to take any action
authorized in Section 11.01, by mailing notice thereof as provided in Section
11.02.
SECTION 11.04. Qualifications for Voting. To be entitled to vote at
any meeting of Securityholders a person shall (a) be a holder of one or more
Securities; or (b) be a person appointed by an instrument in writing as proxy
by a holder of one or more Securities. The only persons who shall be entitled
to be present or to speak at any meeting of Securityholders shall be the
persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 11.05. Regulations. Notwithstanding any provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Securityholders. In regard to proof of the
holding of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination
of proxies and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 11.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by a majority vote of the
meeting.
Subject to the provisions of Section 10.03, at any meeting each
Securityholder or proxy shall be entitled to one vote for each $1,000 principal
amount of Securities 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 chairman of the meeting to be
not outstanding. The chairman of the meeting shall have no right to vote other
than by virtue of Securities held by him or instruments in writing as aforesaid
duly designating him as the person to vote on behalf of other Securityholders.
Any meeting of Securityholders duly called pursuant to the provisions of
Section 11.02 or 11.03 may be adjourned from time to time by a majority of
those present, whether or not constituting a quorum, and the meeting may be
held as so adjourned without further notice. At any meeting of Securityholders
duly called pursuant to the provisions of Section 11.02 or 11.03, the presence
of persons holding or representing Securities in an aggregate principal amount
sufficient to take action on any business for the transaction of which such
meeting was called shall constitute a quorum.
SECTION 11.06. Voting. The vote upon any resolution submitted to
any meeting of Securityholders shall be by written ballots on which shall be
subscribed the signatures of the holders of Securities or of their
representatives by proxy and the principal amount of the Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes
49
<PAGE> 57
cast at the meeting for or against any resolution and who shall make and file
with the secretary of the meeting their verified written reports in duplicate
of all votes cast at the meeting. A record in duplicate of the proceedings of
each meeting of Securityholders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one
or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was mailed as provided in
Section 11.02. The record shall be signed and verified by the affidavits of
the permanent chairman and secretary of the meeting and one of the duplicates
shall be delivered to the Company and the other to the Trustee to be preserved
by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 11.07. No Delay of Rights by Meeting. Nothing in this
Article Eleven contained shall be deemed or construed to authorize or permit,
by reason of any call of a meeting of Securityholders or any rights expressly
or impliedly conferred hereunder to make such call, any hindrance or delay in
the exercise of any right or rights conferred upon or reserved to the Trustee
or to the Securityholders under any of the provisions of this Indenture or of
the Securities.
ARTICLE TWELVE.
SUPPLEMENTAL INDENTURES.
SECTION 12.01. Supplemental Indenture Without Consent of
Securityholders. The Company, when authorized by the resolutions of its Board
of Directors, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto for one or more of the following
purposes:
(a) to make provision with respect to the conversion
rights of holders of Securities pursuant to the requirements of
Section 5.10;
(b) to evidence the succession of another corporation to
the Company, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of
the Company pursuant to Article Thirteen hereof;
(c) to add to the covenants of the Company such further
covenants, restrictions or conditions for the protection of the
holders of the Securities as the Board of Directors of the Company and
the Trustee shall consider to be for the protection of the holders of
Securities, and to make the occurrence, or the occurrence and
continuance, of a default in any of such additional covenants,
restrictions or conditions a default or an Event of Default permitting
the
50
<PAGE> 58
enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; provided, however, that in respect of
any such additional covenant, restriction or condition 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 default or may limit the remedies available to
the Trustee upon such default;
(d) to provide for uncertificated Securities in addition
to or in place of certificated Securities;
(e) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture, or to make such other provisions in
regard to matters or questions arising under this Indenture which
shall not adversely affect the interests of the holders of the
Securities; and
(f) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA, or under any similar
federal statute hereafter enacted.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Any supplemental indenture authorized by the provisions of this
Section 12.01 may be executed by the Company and the Trustee without the
consent of the holders of any of the Securities at the time outstanding,
notwithstanding any of the provisions of Section 12.02.
SECTION 12.02. Supplemental Indentures with Consent of
Securityholders. With the consent (evidenced as provided in Section 10.01) of
the holders of not less than a majority in aggregate principal amount of the
Securities at the time outstanding, the Company, when authorized by the
resolutions of its Board of Directors, and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the holders of the
Securities; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any Securities, or reduce the rate or extend the
time of payment of interest thereon, or reduce the principal amount thereof or
premium thereon, or modify the provisions of this Indenture with respect to the
subordination of the Securities, or
51
<PAGE> 59
impair the right to convert the Securities so affected, or (ii) reduce the
aforesaid percentage of Securities, the holders of which are required to
consent to any such supplemental indenture, without the consent of the holders
of the affected Securities then outstanding.
Upon the request of the Company, accompanied by a copy of the
resolutions of its Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any such supplemental indenture and upon
the filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 12.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 12.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures. Any supplemental indenture executed pursuant to the
provisions of this Article Twelve shall comply with the TIA as in effect on the
date of execution thereof. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article Twelve, this Indenture shall be and
be deemed to be modified and amended in accordance therewith and the respective
rights, limitation of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of Securities shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 12.04. Notation on Securities. Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article Twelve may bear a notation in form approved by the
Trustees as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Securities so modified as to
conform, in the opinion of the Trustee and the Board of Directors of the
Company, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and execution by the Company,
authenticated by the Trustee and delivered in exchange for the Securities then
outstanding.
SECTION 12.05. Evidence of Compliance of Supplemental Indenture to
Be Furnished Trustee. The Trustee, subject to the provisions of Section 9.01
may receive an Officers' Certificate and, an Opinion of Counsel both conforming
to Section 16.04 as conclusive evidence that any supplemental indenture
executed pursuant hereto complies with the requirements of this Indenture.
52
<PAGE> 60
ARTICLE THIRTEEN.
CONSOLIDATION, MERGER AND SALE BY THE COMPANY.
SECTION 13.01. When Company May Merge, Etc. The Company shall not
consolidate with or merge with, or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its assets to (each a
"transaction"), another person unless: (i)(a) the Company is the surviving
entity, or (b) the successor person (if other than the Company) formed by such
consolidation or into which the Company is merged or to which such assets are
sold, assigned, transferred, leased, conveyed or otherwise disposed is a
corporation organized and existing under the laws of the United States or a
state thereof or the District of Columbia and such corporation expressly
assumes by supplemental indenture all the obligations of the Company under the
Securities and the Indenture; (ii) at the time of and immediately after giving
effect to such transaction no Default or Event of Default has occurred and is
continuing; and (iii) the Company has delivered to the Trustee an Officers'
Certificate and opinion of counsel stating that the transaction and
supplemental indenture comply with the Indenture, and thereafter all
obligations of the Company (if the Company is not the resulting, surviving or
transferee person) shall terminate. For purposes of the foregoing, the
transfer (by lease, assignment, sale or otherwise) of all or substantially all
of the properties or assets of one or more Subsidiaries, the Capital Stock of
which constitutes all or substantially all of the properties and assets of the
Company shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
Notwithstanding the foregoing, this Article Thirteen shall not apply
to the merger (the "Merger") of the Company with ICN Pharmaceuticals, Inc., SPI
Pharmaceuticals, Inc. and Viratek, Inc., with the Company as the surviving
corporation, pursuant to an Agreement and Plan of Merger dated as of August 1,
1994, as amended, among the foregoing parties.
SECTION 13.02. Successor Corporation Substituted. Upon any
consolidation or merger, or any transfer of all or substantially all of the
assets of the Company in accordance with Section 13.01, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such transfer is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor corporation had been named as the Company
herein.
ARTICLE FOURTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS.
SECTION 14.01. Discharge of Indenture. If (a) there shall have been
delivered to the Trustee for cancellation all Securities theretofore
authenticated (other than any Securities which shall have been destroyed, lost
or stolen and in lieu of or in
53
<PAGE> 61
substitution for which other Securities shall have been authenticated and
delivered), or (b)(1) all such Securities not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or will become due
and payable at their stated maturity within one year, or have been called for
redemption, and the Company shall have irrevocably deposited with the Paying
Agent, in trust, funds (except funds paid to the Company pursuant to Section
14.04) sufficient to pay at maturity or upon redemption all of such Securities
(other than any Securities which shall have been destroyed, lost or stolen and
in lieu of or in substitution for which other Securities shall have been
authenticated and delivered) not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest, and such
deposit shall be upon terms making such funds payable forthwith upon due
presentation, whether before or after such date of maturity or redemption of
such Securities, (2) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that such trust funds will not be subject to any
rights of holders of Senior Indebtedness, including without limitation, those
arising under Article Four hereof, and (3) the Company shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for herein relating to the satisfaction
and discharge of this Indenture have been compiled with, and if in any such
case the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company, then (except as provided below) this Indenture shall
cease to be of further effect, and the Trustee, on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel as required
by Section 16.04 and at the cost and expense of the Company, shall execute
proper instruments acknowledging satisfaction of and discharging this
Indenture; provided, however, that the Company's obligations under Sections
2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 6.01, 6.02, 6.03, 9.07, 9.08, 14.04, 14.05
and Article Five shall survive until the Securities are no longer outstanding.
SECTION 14.02. Deposited Moneys to Be Held in Trust by Trustee. All
moneys deposited with the Paying Agent pursuant to Section 14.01 shall be held
in trust and, subject to the provisions of Section 14.04, applied by it to the
payment, either directly or through any Paying Agent, to the holders of the
particular Securities for the payment or redemption of which such moneys have
been deposited with the Trustee, of all sums due thereon for principal and
interest (and premium, if any).
SECTION 14.03. Paying Agent to Repay Moneys Held. Upon the
satisfaction and discharge of this Indenture all moneys then held by any Paying
Agent of the Securities (other than the Trustee) shall, upon demand of the
Company, be repaid to it and thereupon the Paying Agent shall be released from
all further liability with respect to such moneys.
SECTION 14.04. Unclaimed Moneys. Any moneys deposited with the
Trustee or any Paying Agent (including moneys held in trust by the Company if
it shall act as its own Paying Agent) not applied but remaining unclaimed by
the holders of Securities for two years after the date upon which the principal
of (and premium, if any) or interest on such Securities shall have become due
and payable shall be repaid to the Company by the Trustee or such Paying Agent
on demand, or if held in trust by the
54
<PAGE> 62
Company may at the Company's option be released from such trust; and the holder
of any of the Securities entitled to receive such payment shall thereafter look
only to the Company, as the holder of a general claim, for the payment thereof,
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
mailed to each such holder or published once a week for two successive weeks
(in each case on any day of the week) in a newspaper printed in the English
language and customarily published at least once a day for at least five days
in each calendar week and of general circulation in the Borough of Manhattan,
The City of New York, New York, or both, a notice that said moneys have not
been so applied and that after a date named therein any unclaimed balance of
said moneys then remaining will be returned to the Company.
SECTION 14.05. Reinstatement. If the Trustee or a Paying Agent is
unable to apply any moneys in accordance with Section 14.01 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 14.01 until such time as the Trustee or such Paying Agent is permitted
to apply all such moneys in accordance with Section 14.01; provided, however,
that if the Company has made any payment of principal or interest on any of the
Securities because of the reinstatement of its obligations, the Company shall
be subrogated to the rights of the holders of the Securities to receive such
payment from moneys held by the Trustee or such Paying Agent.
ARTICLE FIFTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.
SECTION 15.01. Indenture and Securities Solely Corporate
Obligations. No recourse for the payment of the principal or premium or
interest on any Security, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in this Indenture, or in any Security, or because of
the creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company or an successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that all such liability
is hereby expressly waived and released as a condition of, and as a
consideration for the execution of this Indenture and the issue of the
Securities.
55
<PAGE> 63
ARTICLE SIXTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 16.01. Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements in this Indenture contained by
or on behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 16.02. Official Acts by Successor Corporation. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful sole successor
of the Company.
SECTION 16.03. Notices. Any notice or demand which by any provision
of this Indenture is required or permitted to be given or served by the Trustee
or by the holders of Securities on the Company may be given or served by being
deposited, first class postage prepaid, in a United States post office letter
box addressed (until another address is filed by the Company with the Trustee)
to ICN Pharmaceuticals, Inc., 3300 Hyland Avenue, Costa Mesa, CA 92626, Attn:
Chief Executive Officer. Any notice, direction, request, or demand by any
Securityholder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made in writing at the principal
office of the Trustee, addressed to the attention of its Corporate Trust
Department.
Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or the Company to or
on the holders of Securities shall be given or served by first-class mail,
postage prepaid, addressed to the holders of such Securities at their last
address as the same appear on the registry books referred to in Section 2.03,
and any such notice shall be deemed to be given or served by being deposited in
a post office letter box in the form and manner provided in this Section 16.03.
SECTION 16.04. Evidence of Compliance with Conditions Precedent.
Upon any application or demand by the Company to the Trustee to take any action
under any of the provisions of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that in the opinion of the signers
all conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent have been
complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include: (1) a statement that
the person making such certificate or opinion has read such covenant or
condition; (2) a brief statement as to the nature and
56
<PAGE> 64
scope of the examination or investigation upon which the statements or opinion
contained in such certificate or opinion are based; (3) a statement that, in
the opinion of such person, he had such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and (4) a statement as to
whether or not, in the opinion of such person, such condition or covenant has
been complied with.
SECTION 16.05. Legal Holidays. In any case where the date of
maturity of interest on or principal of the Securities or the date fixed for
redemption of any Security or the last day on which a Securityholder has the
right to convert his Security at a particular conversion price shall not be a
Business Day, then payment of interest or principal (and premium, if any) or
conversion of the Securities need not be made on such date but may be made on
the next succeeding Business Day, with the same force and effect as if made on
the date of such maturity or the date fixed for redemption or such last day for
conversion, and, in the case of payment, no interest shall accrue for the
period from and after such date.
SECTION 16.06. Trust Indenture Act to Control. The provisions of
Section 310 to and including Section 317 of the TIA that imposes duties on any
person (including any such provisions automatically deemed included in an
indenture by the TIA) are a part of and govern this Indenture. If any
provision hereof limits, qualifies or conflicts with any of such duties imposed
by operation of such provisions of the TIA, the applicable provisions of the
TIA and duties imposed thereby shall control.
SECTION 16.07. Communications by Holders with Other Holders. A
Securityholder may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 16.08. Governing Law. This Indenture and each Security
shall be deemed to be a contract made under the laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of said
State, without giving effect to such State's conflicts of law principles.
SECTION 16.09. Table of Contents and Headings. The table of
contents, titles and headings of the articles and sections of this Indenture
have been inserted for convenience of reference only, are not to be considered
a part hereof, and shall in no way modify or restrict any of the terms or
provisions hereof.
SECTION 16.10. Execution in Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
The Trustee hereby accepts the trusts in this Indenture declared and
provided, upon terms and conditions hereinabove set forth.
57
<PAGE> 65
IN WITNESS WHEREOF, ICN Pharmaceuticals, Inc. has caused this
Indenture to be signed and acknowledged by its chairman, its president, or one
of its vice presidents, and its corporate seal to be affixed hereunto, and the
same to be attested by its secretary or one of its assistant secretaries, and
____________________ has caused this Indenture to be signed and acknowledged by
one of its vice presidents, has caused its corporate seal to be affixed
hereunto, and the same to be attested by one of its Responsible Officers, as of
the day and year first written above.
ICN PHARMACEUTICALS, INC.
By ______________________________________
Name:
Title:
Attest:
________________________________
Secretary
AMERICAN STOCK TRANSFER & TRUST COMPANY,
As Trustee
By ______________________________________
Name:
Title:
Attest:
________________________________
Trust Officer
58
<PAGE> 66
EXHIBIT A
ICN PHARMACEUTICALS, INC.
______% Convertible Subordinated Debenture due 2004
ICN PHARMACEUTICALS, INC., a Delaware corporation, promises to
pay to
or registered assigns,
the principal sum of _____________________________ Dollars, on __________,
2004.
Interest Payment Dates: ________ and __________
Record Dates: ________ and ____________
Additional provisions of this Security are set forth on other
side of this Security.
IN WITNESS WHEREOF, ICN PHARMACEUTICALS, INC. has caused this
instrument to be duly signed.
ICN PHARMACEUTICALS, INC.
By: ____________________
CERTIFICATE OF AUTHENTICATION By: ____________________
American Stock Transfer
& Trust Company,
as Trustee, certifies that
this is one of the Securities
referred to in the within
mentioned Indenture.
American Stock Transfer &
Trust Company, as Trustee
By: __________________________
Authorized Signatory
Dated:
A-1
<PAGE> 67
1. Interest. ICN PHARMACEUTICALS, INC., a Delaware
corporation (the "Company"), promises to pay interest on the principal amount
of this Security at __% per annum from and including the date of issuance of
this Security to maturity or earlier redemption. The Company will pay interest
semi-annually on ________ and __________ of each year beginning ________, 1995.
Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from __________, 1994.
If an Interest Payment Date falls on a day that is not a Business Day, the
interest payment to be made on such Interest Payment Date will be made on the
next succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment. Interest will be computed on the basis of a 360-day year
of twelve 30-day months. The Company shall pay interest on overdue principal
at the rate borne by this Security, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
2. Method of Payment. The Company will pay interest on
the Securities (except defaulted interest) to the persons who are the
registered Holders of the Securities at the close of business on the ________
or ____________ next preceding the interest payment date. Holders must
surrender Securities to a Paying Agent to collect principal payments. The
Company will pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts.
The Company, however, may pay principal and interest by its check payable in
such money. It may mail an interest check to a Holder's registered address.
3. Registrar and Agents. Initially, American Stock
Transfer & Trust Company will act as a Registrar, a Paying Agent, a Conversion
Agent and agent for service of notices and demands. The Company may change any
Registrar, co-registrar, Paying Agent, Conversion Agent and agent for service
of notices and demands without the prior consent of the Holders but upon notice
to the Holders. The Company or any of its Subsidiaries may act as Registrar,
co-registrar, Paying Agent or Conversion Agent.
4. Indenture; Limitations. The Company issued the
Securities under an Indenture dated as of __________, 1994 (the "Indenture")
between the Company and American Stock Transfer & Trust Company (the
"Trustee"). Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by the Trust
Indenture Act of 1939 (15 U.S. Code Section Section 77aaa-77bbbb) as in effect
on the date of the Indenture. The Securities are subject to all such terms,
and the Holders of the Securities are referred to the Indenture and said Act
for a statement of such terms.
The Securities are general unsecured obligations of the
Company limited to $172,500,000 principal amount.
5. Optional Redemption by the Company. The Company may,
at its option, redeem the Securities, in whole or from time to time in part, on
any date after
A-2
<PAGE> 68
________, 1997, at the following redemption prices, expressed as percentages of
the principal amount, if redeemed during the 12 months beginning __________ of
the years indicated below:
<TABLE>
<CAPTION>
Year Percentage Year Percentage
---- ---------- ---- ----------
<S> <C> <C> <C>
1997 . . . . . . . . . . . . . % 2001 . . . . . . . . . . . %
1998 . . . . . . . . . . . . . 2002 . . . . . . . . . . .
1999 . . . . . . . . . . . . . 2003 and thereafter . . . .
2000 . . . . . . . . . . . . .
</TABLE>
in each case plus accrued and unpaid interest to the Redemption Date.
6. Notice of Redemption. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the Redemption Date to
each Holder of Securities to be redeemed at his registered address. Securities
in denominations larger than $1,000 principal amount may be redeemed in part,
but only in an amount of $1,000 principal amount or integral multiples thereof.
In the event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof. On and after the Redemption Date
interest ceases to accrue on Securities or portions of them called for
redemption.
7. Change of Control. In the event of a Change of
Control (as hereinafter defined) with respect to the Company, then each Holder
of the Securities shall have the right, at the Holder's option, to require the
Company to purchase all or a portion of such Holder's Securities, in accordance
with the procedures set forth in the Indenture, at a price equal to 100% of
principal amount of the Securities, plus accrued and unpaid interest to the
date of purchase.
A "Change of Control" of the Company shall be deemed to have
occurred at such time when (i) the stockholders of the Company adopt a plan of
liquidation with respect to the Company or the Company sells, transfers, leases
or otherwise disposes of, in one transaction or series of related transactions,
all or substantially all of its assets; (ii) there shall be consummated any
consolidation or merger of the Company (1) in which the Company is not the
continuing or surviving corporation or (2) pursuant to which the Common Stock
would be converted into cash, securities or other property, in each case, other
than a consolidation or merger of the Company in which the holders of the
Common Stock immediately prior to the consolidation or merger have, directly or
indirectly, at least a majority of the total voting power of all classes of
Capital Stock of the continuing or surviving corporation immediately after such
consolidation or merger; (iii) a majority of the Board of Directors are not
Continuing Directors; or (iv) any person, or any persons acting together which
would
A-3
<PAGE> 69
constitute a "group" for purposes of Section 13(d) of the Exchange Act,
together with any Affiliate thereof shall beneficially own (as defined in Rule
13d-3 of the Exchange Act), at least 50% of the total voting power of all
classes of Capital Stock of the Company entitled to vote generally in the
election of directors of the Company.
8. Conversion. A Holder of a Security may convert such
Security into Common Stock of the Company at any time before the close of
business on __________, 2004. If the Security is called for redemption, the
Holder may convert it at any time before the close of business on a date
determined by the Company which shall be no earlier than the fifth Business Day
prior to the date fixed for such redemption or, if such fifth Business Day is a
Business Day, on the next succeeding Business Day (except that a Security which
the Company has offered to purchase pursuant to Section 6.09 of the Indenture
will remain convertible until the close of business on the Change of Control
Repurchase Date). The initial conversion price is $__________ principal amount
per share, subject to adjustment in certain events as set forth in the
Indenture. To determine the number of shares issuable upon conversion of a
Security, divide the principal amount to be converted by the conversion price
in effect on the conversion date and round to the nearest 1/100th share. The
Company will deliver a check for any fractional share.
To convert a Security, a Holder must (1) complete and sign the
conversion notice on the back of the Security, (2) surrender the Security to
the Conversion Agent or Registrar, (3) furnish appropriate endorsements and
transfer documents if required by the Registrar or Conversion Agent and (4) pay
any transfer or similar tax if required. Except as provided below, no
adjustment is to be made on conversion for interest accrued hereon or for
dividends on shares of Common Stock issued on conversion. If a Security is
surrendered for conversion after the close of business on any regular record
date for payment of interest and before the opening of business on the
corresponding interest payment date, then (a) notwithstanding such conversion,
the interest payable on such interest payment date will be paid by check to the
Person in whose name the Security is registered at the close of business on
such record date, and (b) (other than a Security or a portion of a Security
called for redemption on a Redemption Date occurring after such record date and
on or prior to the fifth Business Day following such interest payment date),
when so surrendered for conversion, the Security must be accompanied by payment
of an amount equal to the interest payable on such interest payment date on the
principal amount of such security then being converted. The interest payment
with respect to a Security (or portion of a Security) called for redemption on
a Redemption Date occurring on a date during the period after the close of
business on a date that would be any regular record date (if a call for
redemption had not been made) next preceding a date that would be any interest
payment date (if a call for redemption had not been made) to the close of
business on the fifth Business Day after the corresponding interest payment
date, shall be payable in cash on such interest payment date to the Holder of
such Security at the close of business on such regular record date
notwithstanding the conversion of such Security after such regular record date
and on or prior to such interest payment date, and the
A-4
<PAGE> 70
Holder shall not be required to pay an amount equal to the interest payable on
such interest payment date upon surrender of such Security for conversion.
If the Company is a party to a consolidation or merger or a
transfer or lease of all or substantially all of its assets, the right to
convert a Security into Common Stock may be changed into a right to convert it
into securities, cash or other assets of the Company or another Person.
9. Subordination. This Security is subordinated to all
existing and future Senior Indebtedness of the Company as defined in the
Indenture. To the extent and in the manner provided in the Indenture, Senior
Indebtedness must be paid in cash before any payment may be made to any Holders
of Securities. Any Securityholder by accepting this Security agrees to the
subordination and authorizes the Trustee to give it effect.
In addition to all other rights of Senior Indebtedness
described in the Indenture, the Senior Indebtedness shall continue to be Senior
Indebtedness and entitled to the benefits of the subordination provisions
irrespective of any amendment, modification or waiver of any term of any
instrument relating to the Senior Indebtedness or extension or renewal of the
Senior Indebtedness.
10. Denominations, Transfer, Exchange. The Securities
are in registered form without coupons in denominations of $1,000 principal
amount and integral multiples thereof. A Holder may register the transfer of
or exchange Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted
by the Indenture. The Registrar need not register the transfer of or exchange
any Securities selected for redemption in whole or in part or register the
transfer of or exchange any Securities for a period of 15 days before a
selection of Securities to be redeemed.
11. Persons Deemed Owners. The registered Holder of a
Security shall be treated as the owner of it for all purposes.
12. Unclaimed Money. If money for the payment of
principal or interest on any Securities remains unclaimed for two years, the
Trustee and the Paying Agent will pay the money back to the Company at its
request. After that, Holders may look only to the Company for payment.
13. Merger or Consolidation. The Company may not
consolidate with, or merge into, or transfer or lease all or substantially all
of its assets to, another person unless: the person is a corporation; such
corporation assumes by supplemental indenture all the obligations of the
Company under the Securities and the Indenture; at the time thereof and after
giving effect to the transaction no Default or Event of Default shall exist;
and certain other conditions set forth in the Indenture are satisfied.
A-5
<PAGE> 71
14. Discharge Prior to Redemption or Maturity. The
Indenture will be discharged and canceled except for certain sections thereof
upon payment of all the Securities sufficient to pay principal and interest due
on such payment or redemption.
15. Amendment and Waiver. Subject to certain exceptions,
the Indenture or the Securities may be amended with the consent of the Holders
of at least a majority in principal amount of the Securities then outstanding
and any existing default in compliance with any provision may be waived with
the consent of the Holders of a majority in principal amount of the Securities
then outstanding. Without the consent of or notice to any Securityholder, the
Company may amend the Indenture or the Securities to, among other things,
provide for uncertificated Securities, to cure any ambiguity, defect or
inconsistency or make any other change that does not adversely affect the
rights of any Securityholder.
16. Successors. When a successor assumes all the
obligations of its predecessor under the Securities and the Indenture, the
predecessor will be released from those obligations.
17. Defaults and Remedies. If an Event of Default, as
defined in the Indenture, occurs and is continuing, the Trustee or the Holders
of at least 25% in principal amount of Securities may declare all the
Securities to be due and payable in the manner and with the effect provided in
the Indenture, and upon any such declaration such principal and accrued
interest shall become due and payable immediately. Holders of Securities may
not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Securities. Subject to certain limitations,
Holders of a majority in principal amount of the Securities then outstanding
may direct the Trustee in its exercise of any trust or power. The Company is
required to file periodic reports with the Trustee as to the absence of
Default. An Event of Default is: default for 30 days in payment of interest
on the Securities; default in payment of principal on the Securities when due;
failure by the Company for 30 days after notice to it to comply with any of its
other agreements in the Indenture or the Securities; failure to pay at
maturity, or default under other Indebtedness of the Company or any Significant
Subsidiary of the Company that results in the acceleration prior to maturity,
of other Indebtedness equal to or in excess of an aggregate of $10,000,000; the
rendering of a final judgment or judgments against the Company or any
Significant Subsidiary of the Company equal to or in excess of $10,000,000
which is not discharged or stayed (or not covered by insurance) within a period
of 60 days; and certain events of bankruptcy or insolvency involving the
Company or its Significant Subsidiaries.
18. Trustee Dealings with the Company. The Trustee, in
its individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company or its affiliates, and may otherwise deal
with the Company or its affiliates, as if it were not Trustee.
A-6
<PAGE> 72
19. No Recourse Against Others. No stockholder,
director, officer or incorporator, as such, past, present or future, of the
Company or any successor corporation shall have any liability for any
obligation of the Company under the Securities or the Indenture of for any
claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of a Security by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
20. Authentication. This Security shall not be valid
until the Trustee signs the certificate of authentication on the other side of
this Security.
21. Abbreviations. Customary abbreviations may be used
in the name of a Securityholder or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (=joint tenants with
rights of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
The Company will furnish to any Securityholder upon written
request and without charge a copy of the Indenture. It also will furnish the
text of this Security in larger type. Requests may be made to: ICN
Pharmaceuticals, Inc., 3300 Hyland Avenue, Costa Mesa, CA 92626.
A-7
<PAGE> 73
ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to
(INSERT ASSIGNEE'S SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER)
_____________________________________
_____________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint
________________________________________________________________________________
______________________________________________________ agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
Date:___________________________________________________________________________
Your
signature:______________________________________________________________________
(Sign exactly as your name appears on the other side of this Security)
Signature
Guarantee:______________________________________________________________________
(by national bank, trust company or member firm of national securities
exchange or the National Association of Securities Dealers, Inc.)
<PAGE> 74
CONVERSION NOTICE
To convert this Security into Common Stock of the Company, check the box:
[ ]
To convert only part of this Security, state the principal amount to be
converted (which must be a minimum of $1,000 or any multiple thereof):
_________________
$
_________________
If you want the stock certificate made out in another person's name, fill in
the form below:
(INSERT OTHER PERSON'S SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER)
__________________________________________
__________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type other person's name, address and zip code)
Date:___________________________________________________________________________
Your
signature:______________________________________________________________________
(Sign exactly as your name appears on the other side of this Security)
<PAGE> 75
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 6.09 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 6.09 of the Indenture, state the
amount:
___________________________________
(in an integral multiple of $1,000)
Date:_______________ Signature(s): __________________
____________________________________________
(Sign exactly as your name(s) appear(s)
on the other side of this Security)
Signature(s) guaranteed by:_____________________________________________________
(All signatures must be guaranteed by a member of a
national securities exchange or of the National
Association of Securities Dealers, Inc. or by a
commercial bank or trust company located in the
United States)
<PAGE> 1
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________________________________________
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
_____________________________________________
AMERICAN STOCK TRANSFER & TRUST COMPANY
(Exact name of trustee as specified in its charter)
New York 13-3439945
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
40 Wall Street 10005
New York, New York (Zip Code)
(Address of trustee's principal executive offices)
_____________________________________________
ICN PHARMACEUTICALS, INC.
(Exact name of obligor as specified in its charter)
Delaware 33-0628076
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
3300 Hyland Avenue 92626
Costa Mesa, California (Zip Code)
(Address of principal executive offices)
_____________________________________________
% Convertible Subordinated Debentures due 2004
(Title of the Indenture Securities)
<PAGE> 2
-2-
GENERAL
1. General Information.
-------------------
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, Albany, New York
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
2. Affiliations with Obligor and Underwriters.
------------------------------------------
If the obligor or any underwriter for the obligor is an affiliate of the
trustee, describe each such affiliation.
None.
3. Voting Securities of the Trustee.
--------------------------------
Furnish the following information as to each class of voting securities of
the trustee:
As of October 26, 1994
________________________________________________________________________________
COL. A COL. B
________________________________________________________________________________
Title of Class Amount Outstanding
________________________________________________________________________________
Common Shares -- par value $600 per share. 1,000 shares
4. Trusteeships under Other Indentures.
-----------------------------------
None.
5. Interlocking Directorates and Similar Relationships with the Obligor or
-----------------------------------------------------------------------
Underwriters.
------------
None.
<PAGE> 3
-3-
6. Voting Securities of the Trustee Owned by the Obligor or its Officials.
----------------------------------------------------------------------
None.
7. Voting Securities of the Trustee Owned by Underwriters or their Officials.
-------------------------------------------------------------------------
None.
8. Securities of the Obligor Owned or Held by the Trustee.
------------------------------------------------------
None.
9. Securities of Underwriters Owned or Held by the Trustee.
-------------------------------------------------------
None.
10. Ownership or Holdings by the Trustee of Voting Securities of Certain
--------------------------------------------------------------------
Affiliates or Security Holders of the Obligor.
---------------------------------------------
None.
11. Ownership or Holdings by the Trustee of any Securities of a Person Owning
-------------------------------------------------------------------------
50 Percent or More of the Voting Securities of the Obligor.
----------------------------------------------------------
None.
12. Indebtedness of the Obligor to the Trustee.
------------------------------------------
None.
13. Defaults by the Obligor.
-----------------------
None.
14. Affiliations with the Underwriters.
----------------------------------
None.
15. Foreign Trustee.
---------------
Not applicable.
<PAGE> 4
-4-
16. List of Exhibits.
-----------------
T-1.1 - A copy of the Organization Certificate of American Stock
Transfer & Trust Company, as amended to date including
authority to commence business and exercise trust powers was
filed in connection with the Registration Statement of Live
Entertainment, Inc., File No. 33-54654, and is incorporated
herein by reference.
T-1.4 - A copy of the By-Laws of American Stock Transfer & Trust
Company, as amended to date was filed in connection with the
Registration Statement of Live Entertainment, Inc., File
No. 33-54654, and is incorporated herein by reference.
T-1.6 - The consent of the Trustee required by Section 312(b) of the
Trust Indenture Act of 1939. - Exhibit A.
T-1.7 - A copy of the latest report of condition of the Trustee
published pursuant to law or the requirements of its
supervising or examining authority. - Exhibit B.
---------------------------------------------------
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee,
American Stock Transfer and Trust Company, a corporation organized and existing
under the laws of the State of New York, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of New York, and State of New York,
on the 27th day of October 1994.
AMERICAN STOCK TRANSFER
AND TRUST COMPANY
Trustee
By: /s/ Herbert J. Lemmer
-----------------------------
Vice President
<PAGE> 5
EXHIBIT A
---------
Securities and Exchange Commission
Washington, DC 20549
Gentlemen:
Pursuant to the provisions of Section 321(b) of the Trust Indenture Act of
1939, and subject to the limitations therein contained, American Stock Transfer
& Trust Company hereby consents that reports of examinations of said
corporation by Federal, State, Territorial or District authorities may be
furnished by such authorities to you upon request therefor.
Very truly yours,
AMERICAN STOCK TRANSFER
& TRUST COMPANY
By /s/ Herbert J. Lemmer
----------------------------
Vice President
<PAGE> 6
<TABLE>
<S> <C>
Board of Governors of the Federal Reserve System
OMB Number: 7100-0024
Federal Deposit Insurance Corporation
OMB Number: 3064-0052
Office of the Comptroller of the Currency
OMB Number: 1557-0081
Federal Financial Institutions Examination Council Expires July 31, 1994
- ----------------------------------------------------------------------------------------------------------------
Please refer to page i, 1
Table of Contents, for
[LOGO] the required disclosure
of estimated burden.
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
Consolidated Reports of Condition and Income for
A Bank With Domestic Offices Only and
Total Assets of Less Than $100 Million--FFIEC 034
(940630)
-----------
Report at the close of business June 30, 1994 (RCRI 9999)
This report is required by law: 12 U.S.C. Section 324 (State member
banks); 12 U.S.C. Section 1817 (State nonmember banks); and 12 U.S.C. Section
161 (National banks).
This report form is to be filed by banks with domestic offices only.
Banks with branches and consolidated subsidiaries in U.S. territories and
possessions, Edge or Agreement subsidiaries, foreign branches, consolidated
foreign subsidiaries, or International Banking Facilities must file FFIEC 031.
- -------------------------------------------------------------------------------
NOTE: The Reports of Condition and Income must be signed by an authorized
officer and the Report of Condition must be attested to by not less than
two directors (trustees) for State nonmember banks and three directors for
State member and National banks.
I, Michael Karfunkel - President
-------------------------------------------------------
Name and Title of Officer Authorized to Sign Report
of the named bank do hereby declare that these Reports of Condition and Income
(including the supporting schedules) have been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and are true
to the best of my knowledge and belief.
/s/ MICHAEL KARFUNKEL
- ----------------------------------------------------------
Signature of Officer Authorized to Sign Report
July 28, 1994
- ----------------------------------------------------------
Date of Signature
The Reports of Condition and Income are to be prepared in accordance with
Federal regulatory authority instructions. NOTE: These instructions may in some
cases differ from generally accepted accounting principles.
We, the undersigned directors (trustees), attest to the correctness of this
Report of Condition (including the supporting schedules) and declare that it
has been axamined by us and to the best of our knowledge and belief has been
prepared in conformance with the instructions issued by the appropriate Federal
regulatory authority and is true and correct.
/s/ GEORGE KARFUNKEL
- ----------------------------------------------------------
Director (Trustee)
/s/ LEAH KARFUNKEL
- ----------------------------------------------------------
Director (Trustee)
/s/ HENRY REINHOLD
- ----------------------------------------------------------
Director (Trustee)
- --------------------------------------------------------------------------------
Return the original and one copy to:
State of New York Banking Department
Domestic Commercial Banks Division
Two Rector Street
New York, New York 10006
National Banks: Return the original only in the special return address envelope
provided. If express mail is used in lieu of the special return address
envelope, return the original only to the FDIC, c/o Quality Data Systems, 2139
Espey Court, Crofton, MD 21114.
- ----------------------------------------------------------
__
|
Banks should affix the address label in this space.
American Stock Transfer & Trust Company
----------------------------------------------------------
Legal Title of Bank (TEXT 9010)
----------------------------------------------------------
City (TEXT 9130)
----------------------------------------------------------
New York, New York 10005
----------------------------------------------------------
State Abbrev. (TEXT 9200) Zip Code (TEXT 9220)
|__ __|
Board of Governors of the Federal Reserve System, Federal Deposit
Insurance Corporation, Office of the Comptroller of the Currency
<PAGE> 7
Affix the address label in this space
American Stock Transfer & Trust Company
- ---------------------------------------------------
Legal Title of Bank
- ---------------------------------------------------
City
New York, New York 10005
- ----------------------------------------------------
State Zip Code
FDIC Certificate Number _____________________________
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1994
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC - Balance Sheet
<TABLE>
<CAPTION>
C100
----------
Dollar Amounts in Thousands Mil Thou
---- -----
<S> <C> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions:
RCON
a. Noninterest-bearing balances and currency and coin(1)(2)............................... 0061 1 551 1.a.
RCON
b. Interest-bearing balances(3)........................................................... 0071 1.b.
2. Securities:
RCON
a. Held-to-maturity securities (from Schedule RC-B, column A)............................. 1754 2.a.
RCON
b. Available-for-sale securities (from Schedule RC-B, column D)........................... 1773 7 602 2.b.
3. Federal funds sold and securities purchased under agreements to resell:
RCON
a. Federal funds sold(4).................................................................. 0276 3.a.
RCON
b. Securities purchased under agreements to resell(5)..................................... 0277 3.b.
4. Loans and lease financing receivables:
RCON
a. Loans and leases, net of unearned income (from Schedule (RC-C)......................... 2122 4.a.
RCON
b. LESS: Allowance for loan and lease losses.............................................. 3123 4.b.
RCON
c. LESS: Allocated transfer risk reserve.................................................. 3125 4.c.
d. Loans and leases, net of unearned income, allowance, and reserve (Item 4.a minus 4.b RCON
and 4.c................................................................................ 2125 4.d.
RCON
5. Assets held in trading accounts............................................................ 3545 5.
RCON
6. Premises and fixed assets (including capitalized leases)................................... 2145 3 072 6.
RCON
7. Other real estate owned (from Schedule RC-M)............................................... 2150 7.
RCON
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M)... 2130 8.
RCON
9. Customers' liability to this bank on acceptances outstanding............................... 2155 9.
RCON
10. Intangible assets (from Schedule RC-F).................................................... 2143 10.
RCON
11. Other assets (from Schedule RC-F)......................................................... 2160
4 355 11.
RCON
12. a. Total assets (sum of Items 1 through 11................................................ 2170 16 580 12.a.
RCON
b. Losses deferred pursuant to 12 U.S.C. 1823(j) (from Schedule RC-M)..................... 0306 12.b.
RCON
c. Total assets and losses deferred pursuant to U.S.C. 1823(j) (from Schedule RC-M)....... 0307 16 580 12.c.
</TABLE>
- ---------------
(1) Includes cash items in process of collection and unposted debits. Report
deposit accounts "due from" depository institutions that are overdrawn in
Schedule RC, item 16, "Other borrowed money."
(2) The amount reported in this item must be greater than or equal to the sum of
Schedule RC-M, Items 2 and 3.
(3) Includes time certificates of deposit not held in trading accounts.
(4) Report "term federal funds sold" in Schedule RC, Item 4.a, "Loans and
leases, net of unearned income," and in Schedule RC-C, part 1.
(5) Report securities purchased under agreements to resell that involve the
receipt of immediately available funds and mature in one business day or
roll over under a continuing contract in Schedule RC, Item 3.a, "Federal
funds sold."
<PAGE> 8
Schedule RC - Continued
<TABLE>
<CAPTION>
C100
---------
Dollar Amounts in Thousands Mil Thou
---- ----
<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
RCON
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E)............ 2200 13.a.
RCON
(1) Noninterest-bearing(1)........................................................... 0631 13.a.(1)
RCON
(2) Interest-bearing................................................................. 0656 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs........................
(1) Noninterest-bearing(1)...........................................................
(2) Interest-bearing.................................................................
14. Federal funds purchased and securities sold under agreements to repurchase:
RCON
a. Federal Funds purchased(2)........................................................... 0272 14.a.
RCON
b. Securities sold under agreements to repurchase(3).................................... 0279 14.b.
RCON
15. a. Demand notes issued to the U.S. Treasury............................................. 2340 15.a.
RCON
b. Trading liabilities.................................................................. 3548 15.b.
16. Other borrowed money:
RCON
a. With original maturity of one year or less........................................... 2332 5 16.a.
RCON
b. With original maturity of more than one year......................................... 2333 16.b.
RCON
17. Mortgage indebtedness and obligations under capitalized leases.......................... 2910 17.
RCON
18. Bank's liability on acceptances executed and outstanding................................ 2920 18.
RCON
19. Subordinated notes and debentures....................................................... 3200 19.
RCON
20. Other liabilities (from Schedule RC-G).................................................. 2930 1 456 20.
RCON
21. Total liabilities (sum of items 13 through 20).......................................... 2945 1 461
RCON
22. Limited-life preferred stock and related surplus........................................ 3262 22.
EQUITY CAPITAL
RCON
23. Perpetual preferred stock and related surplus........................................... 3638 23.
RCON
24. Common Stock............................................................................ 3230 600 24.
RCON
25. Surplus (exclude all surplus related to preferred stock)................................ 3639 6 378 25.
RCON
26. a. Undivided profits and capital reserves............................................... 3632 8 419 26.a.
RCON
26. b. Net unrealized holding gains (losses) in available-for-sale securities............... 3434 (278) 26.b.
27. Cumulative foreign currency translation adjustments.....................................
RCON
28. a. Total equity capital (sum of items 23 through 27).................................... 3210 15 119 28.a.
RCON
b. Losses deferred pursuant to 12 U.S.C. 1823(j) (from Schedule RC-M)................... 0306 28.b.
c. Total equity capital and losses deferred pursuant to 12 U.S.C. 1823(j) (sum of items RCON
28.a and 28.b)....................................................................... 3559 15 119 28.c.
29. Total liabilities, limited-life preferred stock, equity capital, and losses deferred RCON
pursuant to 12 U.S.C. 1823(j) (sum of items 21, 22, and 28.c)........................... 3257 16 580 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
<TABLE>
<CAPTION>
Number
-------------
<S> <C> <C> <C>
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external auditors as of any RCON
date during 1993....................................................................................... 6724 M.1.
</TABLE>
1=Independent audit of the bank conducted in accordance with generally accepted
auditing standards by a certified public accounting firm which submits a
report on the bank
2=Independent audit of the bank's parent holding company conducted in accordance
with generally accepted auditing standards by a certified public accounting
firm which submits a report on the consolidated holding company (but not on
the bank separately)
3=Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4=Directors' examination of the bank performed by other external auditors (may
be required by state chartering authority)
5=Review of the bank's financial statements by external auditors
6=Compilation of the bank's financial statements by external auditors
7=Other audit procedures (excluding tax preparation work)
8=No external audit work
- ---------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Report "term federal funds purchased" in Schedule RC, item 16, "Other
borrowed money."
(3) Report securities sold under agreements to repurchase that involve the
receipt of immediately available funds and mature in one business day or
roll over under a continuing contract in schedule RC, Item 14.a., "Federal
funds purchased."
