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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 13, 1996
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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TEXAS INSTRUMENTS INCORPORATED
(Exact name of registrant and guarantor as specified in its charter)
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<S> <C>
DELAWARE
(State or other jurisdiction of incorporation or 75-0289970
organization) (I.R.S. Employer Identification No.)
RICHARD J. AGNICH, SECRETARY
TEXAS INSTRUMENTS INCORPORATED
13500 NORTH CENTRAL EXPRESSWAY 13500 NORTH CENTRAL EXPRESSWAY
P.O. BOX 655474 P.O. BOX 655474
DALLAS, TEXAS 75265-5474 DALLAS, TEXAS 75265-5474
(214) 995-2551 (214) 995-2551
(Address, including zip code, and (Name, address, including zip code,
telephone number, including area code, and telephone number, including
of registrant's principal executive offices) area code, of agent for service)
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Copy to:
EDWIN DEANE LEONARD
DAVIS POLK & WARDWELL
450 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017
TELEPHONE (212) 450-4000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after the effective date of this registration statement as determined by
market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE AGGREGATE PRICE OFFERING REGISTRATION
SECURITIES BEING REGISTERED REGISTERED(1) PER UNIT(2) PRICE(2)(3) FEE
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Debt Securities, Preferred Stock ($25.00 par
value), Depositary Shares(4) and Common
Stock ($1.00 par value)(5)(6)............ $500,000,000(3) 100% $500,000,000 $172,414
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(1) Or, if any securities are issued at original issue discount, such greater
amount as shall result in an initial aggregate offering price of
$500,000,000.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933.
(3) In U.S. dollars or the equivalent thereof in foreign currencies, currency
units or composite currencies.
(4) Depositary Shares will be issued solely for the purpose of evidencing
ownership of Preferred Stock. No separate consideration will be received for
Depositary Shares.
(5) Includes such presently indeterminate number of shares of Common Stock into
which certain series of the Debt Securities and Preferred Stock may be
converted and for which no separate consideration will be given.
(6) Includes Preferred Share Purchase Rights. Prior to the occurrence of certain
events, the Rights will not be exercisable or evidenced separately from the
Common Stock.
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.
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* *
* INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A *
* REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED *
* WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT *
* BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME A FINAL *
* PROSPECTUS SUPPLEMENT IS DELIVERED. THIS PROSPECTUS SHALL NOT *
* CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY *
* NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH *
* SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO *
* REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH *
* STATE. *
* *
***************************************************************************
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PROSPECTUS (SUBJECT TO COMPLETION) COMPANY LOGO
ISSUED MAY 13, 1996
</TABLE>
TEXAS INSTRUMENTS INCORPORATED
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
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Texas Instruments Incorporated (the "Company") may from time to time offer,
together or separately, its (i) debt securities (the "Debt Securities"), (ii)
shares of preferred stock, par value $25.00 per share (the "Preferred Stock"),
which may be issued in the form of Depositary Shares (as defined below)
evidenced by Depositary Receipts (as defined below), and (iii) shares of common
stock, par value $1.00 per share (the "Common Stock"). The Debt Securities and
Preferred Stock may be convertible into Common Stock.
The Debt Securities, Preferred Stock and Common Stock are collectively
called the "Securities." The Securities offered pursuant to this Prospectus may
be issued in one or more series or issuances and will be limited to the initial
public offering price of $500,000,000 (or its equivalent in one or more foreign
currencies, currency units or composite currencies). Specific terms of the
securities in respect of which this Prospectus is being delivered ("Offered
Securities") will be set forth in an accompanying Prospectus Supplement
("Prospectus Supplement"), together with the terms of the offering of the
Offered Securities, the initial price thereof and the net proceeds from the sale
thereof. The Prospectus Supplement will set forth with regard to the particular
Offered Securities, without limitation, the following: (i) in the case of the
Debt Securities, the specific designation, aggregate principal amount,
authorized denomination, maturity, rate (which may be fixed or variable) or
method of calculation of interest and dates for payment thereof, and any
exchangeability, conversion, redemption, prepayment or sinking fund provisions
and any listing on a securities exchange, (ii) in the case of Preferred Stock,
the designation, number of shares or fractional interests therein, liquidation
preference per security, initial public offering price, dividend rate (or method
of calculation thereof), dates on which dividends shall be payable and dates
from which dividends shall accrue, any voting rights, any redemption, conversion
or exchange provisions, any other rights, preferences, privileges, limitations,
and restrictions relating to the Preferred Stock, and any listing on a
securities exchange, and (iii) in the case of Common Stock, the number of shares
offered, the initial offering price, market price and dividend information.
The Offered Securities may be offered directly, through agents designated
from time to time, through dealers, through underwriters or through remarketing
firms. Such agents or underwriters may act alone or with other agents or
underwriters. See "Plan of Distribution." Any such agents, dealers, underwriters
or remarketing firms will be set forth in a Prospectus Supplement. If an agent
of the Company or a dealer, underwriter or remarketing firm is involved in the
offering of the Offered Securities, the agent's commission, dealer's purchase
price, underwriter's discount, remarketing firm's compensation and net proceeds
to the Company will be set forth in, or may be calculated from, the Prospectus
Supplement. Any underwriters, dealers, agents or remarketing firms participating
in the offering may be deemed "underwriters" within the meaning of the
Securities Act of 1933.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is , 1996.
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IN CONNECTION WITH AN OFFERING, THE UNDERWRITERS FOR SUCH OFFERING MAY
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE
OF THE OFFERED SECURITIES AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN
THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK
EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF
COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR BY ANY UNDERWRITER, AGENT, DEALER OR REMARKETING
FIRM. THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT SHALL NOT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED
HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS
PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE THEREUNDER SHALL,
UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION THEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE THEREOF.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). The registration
statement of which this Prospectus forms a part, as well as reports, proxy
statements and other information filed by the Company, may be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, 7 World Trade Center, New York, New
York 10048 and Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. Copies of such material can be obtained at prescribed
rates from the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549. The Company's Common Stock is listed on the New
York Stock Exchange and reports and other information herein and therein
concerning the Company can also be inspected at the office of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
This Prospectus constitutes part of a Registration Statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") filed with the Commission under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Offered Securities. This
Prospectus does not contain all of the information set forth in such
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. Reference is made to such
Registration Statement and to the exhibits relating thereto for further
information with respect to the Company and the Offered Securities. Any
statements contained herein concerning the provisions of any document filed as
an exhibit to the Registration Statement or otherwise filed with the Commission
or incorporated by reference herein are not necessarily complete, and in each
instance reference is made to the copy of such document so filed for a more
complete description of the matter involved. Each such statement is qualified in
its entirety by such reference.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents have been filed by the Company with the Commission
pursuant to the Exchange Act and are hereby incorporated herein by reference and
made a part of this Prospectus:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996;
(c) The Company's Current Reports on Form 8-K dated January 2, 1996,
January 18, 1996, January 24, 1996, January 25, 1996, February 5, 1996 and
March 6, 1996.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Securities shall
be deemed to be incorporated herein by reference and to be a part hereof from
the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statements so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon written
or oral request of such person, a copy of any or all of the documents referred
to above which have been or may be incorporated by reference in this Prospectus
(not including the exhibits to such documents, unless such exhibits are
specifically incorporated by reference in such documents). Requests for such
documents should be directed to Texas Instruments Incorporated, 13500 North
Central Expressway, Post Office Box 655474, Dallas, Texas 75265-5474, Attention:
Manager of Investor Relations, telephone (214) 995-3773.
TEXAS INSTRUMENTS INCORPORATED
Texas Instruments Incorporated (the "Company") was incorporated in the
State of Delaware in 1938, and has its principal executive offices in Dallas,
Texas. The Company is engaged in the development, manufacture and sale of a
variety of products in the electrical and electronics industry for industrial,
government and consumer markets. These products consist of components, defense
electronics and digital products. The Company also produces metallurgical
materials. The Company's business is based principally on its broad
semiconductor technology and application of this technology to selected
electronic end-equipment markets.
The mailing address of the Company's principal executive offices is Post
Office Box 655474, Dallas, Texas 75265-5474, and its telephone number is (214)
995-2551.
USE OF PROCEEDS
The net proceeds received by the Company from the sale of the Offered
Securities will be added to the Company's general funds and used for general
corporate purposes, including possible redemption or purchase of existing debt
securities of the Company.
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RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table shows the ratio of earnings to fixed charges and the
ratio of earnings to combined fixed charges and preferred stock dividends for
each of the years ended December 31, 1991 through 1995 and for the three months
ended March 31, 1996.
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YEARS ENDED DECEMBER 31, THREE MONTHS
------------------------------------------ ENDED
1991 1992 1993 1994 1995 MARCH 31, 1996
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Ratio of earnings to fixed
charges(1).................... (2) 4.8x 8.5x 11.6x 15.6x 12.2x
Ratio of earnings to combined
fixed charges and preferred
stock dividends(1)............ (3) 3.1x 6.5x 11.6x 15.6x 12.2x
</TABLE>
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(1) For the purpose of computing the above ratios, "earnings" consist of income
(loss) before provision for income taxes, interest expense, amortization of
capitalized interest and that portion of rental and lease expense which is
representative of interest; "fixed charges" consist of interest incurred
(expensed and capitalized) and that portion of rental and lease expense
which is representative of interest; and "preferred stock dividends" are
calculated by increasing preferred stock dividends to an amount representing
the pre-tax earnings which would be required to cover such dividend
requirements. No shares of Preferred Stock have been issued or outstanding
since the end of 1993.
(2) Not meaningful because of losses for 1991. The coverage deficiency (amount
by which "fixed charges" exceed "earnings") for 1991 was $309 million.
(3) Not meaningful because of losses for 1991. The coverage deficiency (amount
by which "combined fixed charges and preferred stock dividends" exceed
"earnings") for 1991 was $343 million.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued in one or more series under an
Indenture dated as of , 1996 (the "Indenture") between the Company
and Citibank, N.A., as Trustee (the "Trustee"). The following summary of certain
provisions of the Indenture does not purport to be complete and is qualified in
its entirety by reference to the Indenture. The numerical references below are
to provisions of the Indenture. Whenever a defined term is indicated, the
definition thereof is contained in the Indenture.
GENERAL
The Indenture does not limit the amount of debentures, notes or other
evidences of indebtedness which may be issued thereunder (such securities issued
under the Indenture being herein referred to as "Debt Securities"). The
Indenture provides that Debt Securities may be issued from time to time in one
or more series and may be denominated and payable in United States dollars or,
at the option of the Company, in foreign currencies or units based on or
relating to foreign currencies, including European Currency Units ("ECUs"). The
Debt Securities will be unsecured and will rank on a parity with any other
unsecured and unsubordinated obligations of the Company. Thus, the Company will
not issue any unsecured indebtedness which is senior to the Debt Securities. As
of March 31, 1996, the Company had no long-term indebtedness outstanding that is
secured by any of its assets. If the Company, however, issues indebtedness
secured by any of its assets, such secured indebtedness generally will be
senior, with respect to such assets, to the Offered Debt Securities. Except as
may be described in the Prospectus Supplement relating to a specific series of
Debt Securities, the Indenture does not contain any covenants or provisions that
may afford holders of Debt Securities protection in the event of a highly
leveraged transaction.
Reference is made to the Prospectus Supplement for the following terms of
the Offered Debt Securities (to the extent such terms are applicable to such
Debt Securities): (i) designation, aggregate principal amount,
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purchase price and denomination; (ii) any rights of the holders of the Offered
Debt Securities to convert or exchange such Debt Securities and, if so, the
securities or rights into which such Debt Securities are convertible or
exchangeable, the terms and conditions upon which such conversion or exchange
will be effected, including the initial conversion or exchange price or rate,
the conversion or exchange period and any other related provisions; (iii)
currency or units based on or relating to currencies in which such Debt
Securities are denominated and/or in which principal (and premium, if any)
and/or any interest will or may be payable; (iv) any index used to determine the
amount of payments of principal of and premium, if any, and interest on the
Offered Debt Securities; (v) any date of maturity; (vi) interest rate or rates
(or method by which such rate will be determined), if any; (vii) the dates on
which any such interest will be payable; (viii) the place or places where the
principal of and interest, if any, on the Offered Debt Securities will be
payable; (ix) any redemption or sinking fund provisions; (x) whether the Offered
Debt Securities will be issuable in registered form or bearer form or both and,
if Offered Debt Securities in bearer form are issuable, restrictions applicable
to the exchange of one form for another and to the offer, sale and delivery of
Offered Debt Securities in bearer form; (xi) whether the Offered Debt Securities
will be represented by a single permanent global security or a temporary global
security; (xii) whether and under what circumstances the Company will pay
additional amounts on Offered Debt Securities held by a person who is not a U.S.
person (as defined in the Prospectus Supplement) in respect of any tax,
assessment or governmental charge withheld or deducted and, if so, whether the
Company will have the option to redeem such Debt Securities rather than pay such
additional amounts; and (xiii) any other specific terms of the Offered Debt
Securities, including any terms which may be required by or advisable under
applicable laws or regulations.
Debt Securities may be presented for conversion or exchange, and registered
Debt Securities may be presented for transfer in the manner, at the places and
subject to the restrictions set forth in the Debt Securities and the Prospectus
Supplement. Such services will be provided without charge, other than any tax or
other governmental charge payable in connection therewith, but subject to the
limitations provided in the Indenture. Debt Securities in bearer form and the
coupons, if any, appertaining thereto will be transferable by delivery.
Debt Securities may be issued under the Indenture as Original Issue
Discount Securities (bearing either no interest or bearing interest at a rate
which at the time of issuance is below the prevailing market rate) to be sold at
a substantial discount below their stated principal amount. Any special federal
income tax and other considerations applicable to such Original Issue Discount
Securities are described in the Prospectus Supplement relating thereto.
GLOBAL SECURITIES
The registered Debt Securities of a series may be issued in the form of one
or more fully registered global Securities (a "Registered Global Security") that
will be deposited with a depositary (a "Depositary") or with a nominee for a
Depositary identified in the Prospectus Supplement relating to such series. In
such case, one or more Registered Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding registered Debt Securities of the series to be
represented by such Registered Global Security or Securities. Unless and until
it is exchanged in whole for Debt Securities in definitive registered form, a
Registered Global Security may not be transferred except as a whole by the
Depositary for such Registered Global Security to a nominee of such Depositary
or by a nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor of such
Depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Registered Global
Security will be described in the Prospectus Supplement relating to such series.
The Company anticipates that the following provisions will apply to all
depositary arrangements.
Upon the issuance of a Registered Global Security, the Depositary for such
Registered Global Security will credit, on its book-entry registration and
transfer system, the respective principal amounts of the Debt Securities
represented by such Registered Global Security to the accounts of persons that
have accounts with such Depositary ("Participants"). The accounts to be credited
shall be designated by any underwriters or
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agents participating in the distribution of such Debt Securities. Ownership of
beneficial interests in a Registered Global Security will be limited to
Participants or persons that may hold interests through Participants. Ownership
of beneficial interests in such Registered Global Security will be shown on, and
the transfer of that ownership will be effected only through, records maintained
by the Depositary for such Registered Global Security (with respect to interests
of Participants) or by Participants or persons that hold through Participants
(with respect to interests of persons other than Participants).
So long as the Depositary for a Registered Global Security, or its nominee,
is the registered owner of such Registered Global Security, such Depositary or
such nominee, as the case may be, will be considered the sole owner or holder of
the Debt Securities represented by such Registered Global Security for all
purposes under the Indenture. Except as set forth below, owners of beneficial
interests in a Registered Global Security will not be entitled to have the Debt
Securities represented by such Registered Global Security registered in their
names, will not receive or be entitled to receive physical delivery of such Debt
Securities in definitive form and will not be considered the owners or holders
thereof under the Indenture.
Principal, premium, if any, and interest payments on Debt Securities
represented by a Registered Global Security registered in the name of a
Depositary or its nominee will be made to such Depositary or its nominee, as the
case may be, as the registered owner of such Registered Global Security. None of
the Company, the Trustee or any paying agent for such Debt Securities will have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in such Registered
Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
The Company expects that the Depositary for any Debt Securities represented
by a Registered Global Security, upon receipt of any payment of principal,
premium or interest, will immediately credit Participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Registered Global Security as shown on the records
of such Depositary. The Company also expects that payments by Participants to
owners of beneficial interests in such Registered Global Security held through
such Participants will be governed by standing instructions and customary
practices, as is now the case with the securities held for the accounts of
customers registered in "street names" and will be the responsibility of such
Participants.
If the Depositary for any Debt Security represented by a Registered Global
Security is at any time unwilling or unable to continue as Depositary and a
successor Depositary is not appointed by the Company within 90 days, the Company
will issue such Debt Securities in definitive form in exchange for such
Registered Global Security. In addition, the Company may at any time and in its
sole discretion determine not to have any of the Debt Securities of a series
represented by one or more Registered Global Securities and, in such event, will
issue Debt Securities of such series in definitive form in exchange for all of
the Registered Global Security or Securities representing such Debt Securities.
CERTAIN COVENANTS OF THE COMPANY
The following covenants apply to the Offered Debt Securities unless the
Prospectus Supplement indicates otherwise.
Certain Definitions. The term "Attributable Debt" in respect of a sale and
leaseback transaction means, at the time of determination, the present value
(discounted at the interest rate implicit in the lease or, if it is not
practicable to determine such rate, then at the Company's incremental borrowing
rate determined in accordance with generally accepted accounting principles) of
the obligation of the lessee for net rental payments during the remaining term
of any lease. (Section 3.7)
The term "Consolidated Net Tangible Assets" means, at any date, the total
assets appearing on the audited annual consolidated balance sheet of the Company
and its subsidiaries for the Company's most recently completed fiscal year,
prepared in accordance with generally accepted accounting principles, less (a)
all current liabilities as shown on such balance sheet, and (b) intangible
assets. (Section 1.1)
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The term "Funded Debt" means all Debt whether incurred, assumed or
guaranteed, including purchase money indebtedness, maturing by its terms more
than one year from the date of creation thereof or which is renewable or
extendable at the sole option of the obligor in such manner that it may become
payable more than one year from the date of creation thereof. (Section 1.1)
The term "Principal Manufacturing Property" means each manufacturing or
processing plant or facility of the Company or a subsidiary located in the
United States of America (other than its territories and possessions) or Puerto
Rico, except any such manufacturing or processing plant or facility which the
Board of Directors by resolution reasonably determines not to be of material
importance to the total business conducted by the Company and its consolidated
subsidiaries. (Section 1.1)
The term "Restricted Subsidiary" means (a) any subsidiary of the Company
which owns or is the lessee of any Principal Manufacturing Property; provided,
however, that the term "Restricted Subsidiary" shall not include (i) any
subsidiary primarily engaged in financing the operations of the Company or its
subsidiaries or both or (ii) any subsidiary acquired or organized for the
purpose of business acquisitions, or (b) any other subsidiary which is hereafter
designated by the Board of Directors as a Restricted Subsidiary. (Section 1.1)
Restrictions on Liens. The Company will not nor will it permit any
Restricted Subsidiary to issue or assume any debt for money borrowed
(hereinafter, including guarantees thereof, referred to as "Debt"), if such Debt
is secured by a mortgage, pledge, lien or other encumbrance (hereinafter
referred to as a "Mortgage") upon any Principal Manufacturing Property or on any
shares of stock or Debt of any Restricted Subsidiary (whether such Principal
Manufacturing Property, shares of stock or Debt is now owned or hereafter
acquired) without in any such case effectively providing that the Debt
Securities shall be secured equally and ratably with such Debt. The foregoing
restrictions shall not apply to (i) Mortgages on property existing at the time
of or within 120 days after acquisition thereof and certain purchase money
Mortgages, (ii) Mortgages on property of a corporation existing at the time such
corporation is merged into or consolidated with the Company or a Restricted
Subsidiary, (iii) Mortgages in favor of the United States or any political
subdivision or any instrumentality thereof, to secure certain payments pursuant
to any contract or statute or to secure any indebtedness incurred for the
purpose of financing all or any part of the purchase price or the cost of
construction of the property subject to such Mortgages, (iv) any extension,
renewal or replacement (or successive extensions, renewals or replacements), in
whole or in part, of any Mortgage referred to in the foregoing clauses (i)
through (iii), and (v) Mortgages securing the indebtedness of a Restricted
Subsidiary to the Company or to another Restricted Subsidiary. (Section 3.6)
Restrictions on Sale and Leaseback Transactions. The Company will not, and
will not permit any Restricted Subsidiary to, enter into any lease longer than
three years covering any Principal Manufacturing Property that is sold to any
other person in connection with such lease unless the proceeds from such sale or
transfer shall be at least equal to the fair value of such property as
determined by resolution of the Company's Board of Directors and either: (i) the
Company or such Restricted Subsidiary would be entitled, pursuant to
"Restrictions on Liens" described above, to incur Debt secured by a mortgage on
the Principal Manufacturing Property involved in an amount at least equal to the
Attributable Debt in respect thereof without equally and ratably securing the
Debt Securities, provided, that such Attributable Debt shall thereupon be deemed
to be Debt subject to the provisions of such restrictions on liens, or (ii)
within a period commencing twelve months prior to the consummation of the sale
and leaseback transaction and ending twelve months after consummation of such
transaction, the Company or such Restricted Subsidiary has expended or will
expend for Principal Manufacturing Property an amount equal to (a) the proceeds
of such sale and leaseback transaction and the Company elects to designate such
amount as a credit against such transaction or (b) a part of the proceeds of
such sale and leaseback transaction and the Company elects to designate such
amount as a credit against such transaction and treats an amount equal to the
remainder of the proceeds as provided in clause (iii) hereof, or (iii) an amount
equal to such Attributable Debt (less any amount elected under clause (ii)
hereof) (a) is applied within 120 days after the transaction to the retirement
of Funded Debt or (b) is considered Attributable Debt for purposes of the
calculation of Exempted Debt (as hereinafter referred to) and, after giving
effect thereto, Exempted Debt does not exceed 5% of Consolidated Net Tangible
Assets. (Section 3.7)
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Exempted Debt. Notwithstanding the restrictions on Mortgages and sale and
leaseback transactions described above, the Company or its Restricted
Subsidiaries may, in addition to amounts permitted under such restrictions,
create Debt secured by Mortgages, or enter into sale and leaseback transactions,
which would otherwise be subject to the foregoing restrictions, without equally
and ratably securing the Debt Securities and without any obligation to make
expenditures for Principal Manufacturing Property or to retire any Debt,
provided, that after giving effect thereto, the aggregate additional outstanding
amount of such Debt secured by Mortgages plus Attributable Debt resulting from
such sale and leaseback transactions does not exceed 5% of Consolidated Net
Tangible Assets. (Sections 3.6 and 3.7)
EVENTS OF DEFAULT
An Event of Default will occur under the Indenture with respect to Debt
Securities of any series if (a) the Company shall fail to pay when due any
installment of interest on any of the Debt Securities of such series and such
default shall continue for 30 days, (b) the Company shall fail to pay when due
all or any part of the principal of (and premium, if any, on) any of the Debt
Securities of such series (whether at maturity, upon redemption, upon
acceleration or otherwise), (c) the Company shall fail to perform or observe any
other term, covenant or agreement contained in the Indenture (other than a
covenant included in the Indenture solely for the benefit of a series of Debt
Securities other than such series) for a period of 90 days after written notice
thereof, as provided in the Indenture, (d) certain events of bankruptcy,
insolvency or reorganization shall have occurred, (e) the Company shall fail to
convert any of the Debt Securities of such series in accordance with the
Indenture and such default shall continue for 45 days, or (f) the Company has
not complied with any other covenant the noncompliance with which would
specifically constitute an Event of Default with respect to Debt Securities of
such series. (Section 5.1)
The Indenture provides that, (a) if an Event of Default due to the default
in payment of principal of, or interest on, any series of Debt Securities, or
due to the default in performance or breach of any other covenant or warranty of
the Company applicable to the Debt Securities of such series but not applicable
to all outstanding Debt Securities, or due to the default in the conversion of
any series of Debt Securities, shall have occurred and be continuing, either the
Trustee or the holders of 25% in principal amount of the Debt Securities of such
series then outstanding may declare the principal of all Debt Securities of such
series and interest accrued thereon to be due and payable immediately and (b) if
an Event of Default due to default in the performance of any other of the
covenants or agreements in the Indenture applicable to all outstanding Debt
Securities or due to certain events of bankruptcy, insolvency and reorganization
of the Company, shall have occurred and be continuing, either the Trustee or the
holders of 25% in principal amount of all Debt Securities then outstanding
(treated as one class) may declare the principal of all Debt Securities and
interest accrued thereon to be due and payable immediately, but upon certain
conditions such declarations may be annulled and past defaults may be waived
(except a continuing default in payment of principal of (or premium, if any) or
interest on the Debt Securities or in the conversion of any Debt Security in
accordance with the Indenture) by the holders of a majority in principal amount
of the Debt Securities of such series (or of all series, as the case may be)
then outstanding. (Sections 5.1 and 5.10)
The holders of a majority in principal amount of the outstanding Debt
Securities of any series 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 the Trustee, provided that such direction shall not be in
conflict with any rule of law or the Indenture. (Section 5.9) Before proceeding
to exercise any right or power under the Indenture at the direction of such
holders, the Trustee shall be entitled to receive from such holders reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with any such direction. (Section 5.6)
The Company will be required to furnish to the Trustee annually a statement
of certain officers of the Company to the effect that, to the best of their
knowledge, the Company is not in default in the performance of the terms of the
Indenture or, if they have knowledge that the Company is in default, specifying
such default. (Section 3.5)
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The Indenture requires the Trustee to give to all holders of outstanding
Debt Securities of any series notice of any default by the Company with respect
to that series, unless such default shall have been cured or waived; however,
except in the case of a default in the payment of principal of (and premium, if
any) or interest on any outstanding Debt Securities of that series or in the
payment of any sinking fund installment, the Trustee is entitled to withhold
such notice in the event that the board of directors, the executive committee or
a trust committee of directors or certain officers of the Trustee in good faith
determine that withholding such notice is in the interest of the holders of the
outstanding Debt Securities of that series. (Section 5.11)
DEFEASANCE AND DISCHARGE
The following defeasance provision will apply to the Offered Debt
Securities unless the Prospectus Supplement indicates otherwise.
The Indenture provides that, unless the terms of any series of Debt
Securities provide otherwise, the Company will be discharged from obligations in
respect of the Indenture and the outstanding Debt Securities of such series
(including its obligation to comply with the provisions referred to under
"Certain Covenants of the Company," if applicable, but excluding certain other
obligations, such as the obligation to pay principal of, premium, if any, and
interest, if any, on the Debt Securities of such series then outstanding,
obligations of the Company in the event of acceleration following default
referred to in clause (a) above under "Events of Default" and obligations to
register the transfer of, convert or exchange such outstanding Debt Securities
and to replace stolen, lost or mutilated certificates), upon the irrevocable
deposit, in trust, of cash or U.S. Government obligations (as defined) which
through the payment of interest and principal thereof in accordance with their
terms will provide cash in an amount sufficient to pay any installment of
principal of (and premium, if any) and interest on and mandatory sinking fund
payments in respect of such outstanding Debt Securities on the stated maturity
of such payments in accordance with the terms of the Indenture and such
outstanding Debt Securities, provided that the Company has received an opinion
of counsel to the effect that such a discharge will not be deemed, or result in,
a taxable event with respect to holders of the outstanding Debt Securities of
such series and that certain other conditions are met. (Section 10.1)
MODIFICATION OF THE INDENTURE
The Indenture provides that the Company and the Trustee may enter into
supplemental indentures without the consent of the holders of Debt Securities
to: (a) secure any Debt Securities, (b) evidence the assumption by a successor
corporation of the obligations of the Company, (c) add covenants for the
protection of the holders of Debt Securities, (d) cure any ambiguity or correct
any inconsistency in the Indenture, (e) establish the form or terms of Debt
Securities of any series and provide for adjustment of conversion rights, and
(f) evidence the acceptance of appointment by a successor trustee. (Section 8.1)
The Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
principal amount of Debt Securities of each series then outstanding and
affected, to add any provisions to, or change in any manner or eliminate any of
the provisions of, the Indenture or modify in any manner the rights of the
holders of the Debt Securities of each series so affected, provided that the
Company and the Trustee may not, without the consent of the holder of each
outstanding Debt Security affected thereby, (a) extend the stated maturity of
the principal of any Debt Security, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce any
amount payable on redemption thereof, or impair the right to institute suit for
the enforcement of any such payment when due or of any conversion thereof, or
affect any right to convert any Debt Security, or change the currency in which
the principal thereof (including any amount in respect of original issue
discount) or interest thereon is payable, or reduce the amount of any original
issue discount security payable upon acceleration or provable in bankruptcy, or
alter certain provisions of the Indenture relating to Debt Securities not
denominated in U.S. dollars, or (b) reduce the aforesaid percentage in principal
amount of Debt Securities of any series the consent of the holders of which is
required for any such modification. (Section 8.2)
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CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
The Company may, without the consent of the Trustee or the holders of Debt
Securities, consolidate or merge with, or convey, transfer or lease its
properties and assets substantially as an entirety to, any other corporation,
provided that any successor corporation is a corporation organized under the
laws of the United States of America or any state thereof or it agrees to
indemnify and hold harmless the holders of the Debt Securities, or any interest
coupons appertaining thereto, against certain taxes and expenses and that such
successor corporation expressly assumes all obligations of the Company under the
Debt Securities and that certain other conditions are met, and, thereafter,
except in the case of a lease, the Company shall be relieved of all obligations
thereunder. (Article Nine)
REDEMPTION
The following provisions apply to the Offered Debt Securities unless the
Prospectus Supplement indicates otherwise.
Offered Debt Securities that are redeemable in whole or in part at the
option of the Company will be so redeemable (i) if such Offered Debt Securities
are issuable in registered form, on at least 30 but not more than 60 days'
notice to the holders of such registered Offered Debt Securities to be redeemed
and (ii) if such Offered Debt Securities are issuable in bearer form, on at
least 30 but not more than 60 days' notice to the holders thereof who have filed
their names and addresses with the Trustee as permitted under the Indenture and
by publication in certain newspapers in New York, London and, in certain
circumstances, Luxembourg once in each of three successive calendar weeks, with
the first such publication at least 30 but not more than 60 days prior to the
date fixed for redemption. (Section 12.2)
Once notice of redemption has been given with respect to Offered Debt
Securities that are redeemable in whole or in part at the option of the Company,
such Offered Debt Securities will become due and payable on the date and at the
place stated in such notice at the applicable redemption price, together with
interest accrued to the date fixed for redemption. On and after such date fixed
for redemption, such Offered Debt Securities will, with certain limited
exceptions, cease to accrue interest and the unmatured coupons, if any,
appertaining thereto will be void. (Section 12.4)
With respect to Offered Debt Securities that are subject to a mandatory
sinking fund, the Indenture provides that the Company may deliver such Offered
Debt Securities to the Trustee or credit such Offered Debt Securities that have
been redeemed (otherwise than through operation of such mandatory sinking fund)
or previously delivered to the Trustee for cancellation, at the sinking fund
redemption price applicable thereto, in lieu of making all or any part of such
mandatory sinking fund payment in cash. Subject to a right of carryover if the
amount in the applicable sinking fund in any year is less than $50,000, the
Indenture provides that the Trustee will apply cash sinking fund payments to the
redemption of such Offered Debt Securities on the applicable sinking fund
payment date. (Section 12.6)
APPLICABLE LAW
The Debt Securities and the Indenture will be governed by and construed in
accordance with the laws of the State of New York. (Section 11.8)
DESCRIPTION OF THE CAPITAL STOCK
GENERAL
The authorized capital stock of the Company consists of 500,000,000 shares
of common stock, par value $1.00 per share (the "Common Stock"), and 10,000,000
shares of Preferred Stock, par value $25.00 per share (the "Preferred Stock").
As of March 31, 1996, there were issued 189,626,360 shares of Common Stock, of
which 140,725 were treasury shares and 189,485,635 were outstanding, and the
Company had no Preferred Stock issued or outstanding.
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The following summary of the terms of the Company's capital stock does not
purport to be complete and is qualified in its entirety by reference to the
applicable provisions of Delaware law and the Company's Restated Certificate of
Incorporation, as amended (the "Charter").
COMMON STOCK
The holders of shares of Common Stock, subject to the preferential rights
of the holders of any shares of Preferred Stock of the Company, are entitled to
dividends when and as declared by the Board of Directors. The holders of the
Common Stock have one vote per share on all matters submitted to a vote of the
shareholders, and the right to the net assets of the Company in liquidation
after payment of any amounts due to creditors and in respect of any Preferred
Stock of the Company. Holders of shares of Common Stock are not entitled as a
matter of right to any preemptive or subscription rights and are not entitled to
cumulative voting for directors. All outstanding shares of Common Stock are, and
the shares of Common Stock issued hereunder upon any conversion or exchange of
Debt Securities or Preferred Stock will be, fully paid and nonassessable.
The By-Laws of the Company provide that the annual meeting of shareholders
shall be held on such day in the month of April of each year as is designated by
the Board of Directors and as stated in a written notice, which notice is mailed
or delivered to each shareholder at least 10 days prior to any shareholder
meeting.
The Company is authorized to issue additional shares of common stock
without further stockholder approval (except as may be required by applicable
law or stock exchange regulations).
The Transfer Agent and Registrar for the Company's Common Stock is Harris
Trust and Savings Bank, 311 West Monroe Street, Chicago, Illinois 60690.
PREFERRED STOCK
Under the Charter, the Company is authorized to issue up to 10,000,000
shares of Preferred Stock, in one or more series, with such designations and
such relative voting, dividend, liquidation, conversion and other rights,
preferences and limitations as are stated in the Charter or any Certificate of
Designation establishing such series adopted by the Board of Directors of the
Company. The 10,000,000 authorized but unissued shares of Preferred Stock may be
issued pursuant to resolution of the Board of Directors without the vote of the
holders of any capital stock of the Company.
Shares of Preferred Stock of the Company may be issued in one or more
series and the shares of all series will rank pari passu and be identical in all
respects, except that with respect to each series the Board of Directors may
fix, among other things: the rate of dividends payable thereon; the time and
prices of redemption; the amount payable upon voluntary liquidation; the
retirement or sinking fund, if any; the conversion rights, if any; the voting
rights, if any, in addition to the voting right described below; the
restrictions, if any, upon creation of indebtedness of the Company, or any
subsidiary thereof, or the issuance of stock ranking on a parity with or senior
to the shares of Preferred Stock either as to dividends or upon liquidation; the
restrictions, if any, on the payment of dividends upon, or on the acquisition
of, the Common Stock or upon any other class or classes of stock of the Company
(other than Preferred Stock) ranking on a parity with or junior to the shares of
Preferred Stock either as to dividends or upon liquidation; and the number of
shares to comprise such series. Each series of Preferred Stock will be entitled
to receive an amount payable upon liquidation, dissolution or winding up, fixed
for each series, plus all dividends accumulated to the date of final
distribution, before any payment or distribution of assets of the Company is
made on Common Stock. Shares of Preferred Stock that have been issued and
reacquired in any manner by the Company (including shares redeemed, shares
purchased and retired and shares that have been converted into shares of another
series or class) may be reissued as part of the same or another series of
Preferred Stock.
PREFERRED STOCK DEPOSITARY SHARES
The Company may, at its option, elect to offer receipts for fractional
interests ("Depositary Shares") in Preferred Stock. In such event, receipts
("Depositary Receipts") for Depositary Shares, each of which will
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represent a fraction (to be set forth in the Prospectus Supplement relating to a
particular series of Preferred Stock) of a share of a particular series of
Preferred Stock, will be issued as described below.
The shares of any series of Preferred Stock represented by Depositary
Shares will be deposited under a deposit agreement (the "Deposit Agreement")
between the Company and the depositary named in the Prospectus Supplement
relating to such shares (the "Preferred Stock Depositary"). Subject to the terms
of the Deposit Agreement, each owner of a Depositary Share will be entitled, in
proportion to the applicable fraction of a share of Preferred Stock represented
by such Depositary Share, to all the rights and preferences of the Preferred
Stock represented thereby (including dividend, voting, redemption, conversion,
exchange, subscription and liquidation rights). The following summary of certain
provisions of the Deposit Agreement does not purport to be complete and is
subject to, and is qualified in its entirety by reference to, all the provisions
of the Deposit Agreement, including the definitions therein of certain terms.
Whenever particular sections of the Deposit Agreement are referred to, it is
intended that such section shall be incorporated herein by reference. Copies of
the forms of Deposit Agreement and Depositary Receipt are filed as exhibits to
the Registration Statement of which this Prospectus is a part, and the following
summary is qualified in its entirety by reference to such exhibits.
The Preferred Stock Depositary will distribute to holders of Depositary
Receipts all cash dividends or other cash distributions received in respect of
the Preferred Stock to the record holders of Depositary Shares relating to such
Preferred Stock in proportion to the numbers of such Depositary Shares owned by
such holders. (Deposit Agreement sec. 4.01)
In the event of a distribution other than in cash, the Preferred Stock
Depositary will distribute property received by it to the record holders of
Depositary Shares in an equitable manner, unless the Preferred Stock Depositary
determines that it is not feasible to make such distribution, in which case the
Preferred Stock Depositary may sell such property and distribute the net
proceeds from such sale to such holders. (Deposit Agreement sec. 4.02)
Upon surrender of a Depositary Receipt at the corporate trust office of the
Preferred Stock Depositary and upon payment of the taxes, charges and fees
provided for in the Deposit Agreement and subject to the terms thereof, the
holder of the Depositary Shares evidenced thereby is entitled to delivery at
such office, to or upon his or her order, of the number of whole shares of the
related series of Preferred Stock and any money or other property, if any,
represented by such Depositary Shares.
If a series of Preferred Stock represented by Depositary Shares is subject
to redemption, the Depositary Shares will be redeemed from the proceeds received
by the Preferred Stock Depositary resulting from the redemption, in whole or in
part, of such series of Preferred Stock held by the Preferred Stock Depositary.
The redemption price per Depositary Share will be equal to the applicable
fraction of the redemption price per share payable with respect to such series
of the Preferred Stock. Whenever the Company redeems shares of Preferred Stock
held by the Preferred Stock Depositary, the Preferred Stock Depositary will
redeem as of the same redemption date the number of Depositary Shares
representing shares of Preferred Stock so redeemed. If fewer than all the
Depositary Shares are to be redeemed, the Depositary Shares to be redeemed will
be selected by lot, pro rata or by any other equitable method as may be
determined by the Preferred Stock Depositary. (Deposit Agreement sec. 2.08)
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Preferred Stock Depositary will mail the
information contained in such notice of meeting to the record holders of the
Depositary Shares relating to such Preferred Stock. Each record holder of such
Depositary Shares on the record date (which will be the same date as the record
date for the Preferred Stock) will be entitled to instruct the Preferred Stock
Depositary as to the exercise of the voting rights pertaining to the amount of
the Preferred Stock represented by such holder's Depositary Shares. The
Preferred Stock Depositary will endeavor, insofar as practicable, to vote the
amount of the Preferred Stock represented by such Depositary Shares in
accordance with such instructions, and the Company will agree to take all
reasonable action which may be deemed necessary by the Preferred Stock
Depositary in order to enable the Preferred Stock Depositary to do so. The
Preferred Stock Depositary will abstain from voting shares of the Preferred
Stock to the extent it
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does not receive specific instructions from the holder of Depositary Shares
representing such Preferred Stock. (Deposit Agreement sec. 4.05)
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Preferred Stock Depositary. However, any amendment
which materially and adversely alters the rights of the holders of Depositary
Shares will not be effective unless such amendment has been approved by the
holders of at least a majority of the Depositary Shares then outstanding. The
Deposit Agreement will terminate only if (i) all outstanding Depositary Shares
have been redeemed or (ii) there has been a final distribution in respect of the
Preferred Stock in connection with any liquidation, dissolution or winding-up of
the Company and such distribution has been distributed to the holders of
Depositary Receipts. (Deposit Agreement sec.sec. 6.01, 6.02)
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay charges of the Preferred Stock Depositary in connection with the
initial deposit of the Preferred Stock and issuance of Depositary Receipts, all
withdrawals of shares of Preferred Stock by owners of Depositary Shares and any
redemption of the Preferred Stock. Holders of Depositary Receipts will pay other
transfer and other taxes and governmental charges and such other charges as are
expressly provided in the Deposit Agreement to be for their accounts. (Deposit
Agreement sec. 5.07)
The Preferred Stock Depositary may resign at any time by delivering to the
Company notice of its election to do so, and the Company may at any time remove
the Preferred Stock Depositary, any such resignation or removal to take effect
upon the appointment of a successor Preferred Stock Depositary and its
acceptance of such appointment. Such successor Preferred Stock Depositary must
be appointed within 60 days after delivery of the notice of resignation or
removal and must be a bank or trust company having its principal office in the
United States and having a combined capital and surplus of at least $50,000,000
(Deposit Agreement sec. 5.04)
The Preferred Stock Depositary will forward to holders of Depositary
Receipts all reports and communications from the Company which are delivered to
the Preferred Stock Depositary and which the Company is required or otherwise
determines to furnish to the holders of the Preferred Stock. (Deposit Agreement
sec. 4.07)
Neither the Preferred Stock Depositary nor the Company will be liable under
the Deposit Agreement to holders of Depositary Receipts other than for its
negligence, willful misconduct or bad faith. Neither the Company nor the
Preferred Stock Depositary will be obligated to prosecute or defend any legal
proceeding in respect of any Depositary Shares or Preferred Stock unless
satisfactory indemnity is furnished. The Company and the Preferred Stock
Depositary may rely upon written advice of its counsel or accountants, or upon
information provided by persons presenting Preferred Stock for deposit, holders
of Depositary Receipts or other persons believed to be competent and on
documents believed to be genuine. (Deposit Agreement sec. 5.03)
SHAREHOLDERS RIGHTS PLAN
In June 1988, the Board of Directors of the Company adopted a Shareholders
Rights Plan and declared a dividend distribution of one preferred share purchase
right (a "Right") for each outstanding share of the Common Stock. As a result of
a two-for-one stock split announced June 15, 1995, half a Right is attached to
each outstanding share of Common Stock. When exercisable, each Right entitles
the registered holder to purchase from the Company a unit consisting of one
onehundredth of a share (a "Unit") of Participating Cumulative Preferred Stock,
par value $25.00 per share (the "Preferred Stock"), at a purchase price (the
"Purchase Price") of $200 per Unit, subject to adjustment. The description and
terms of the Rights are set forth in the Rights Agreement between the Company
and Harris Trust and Savings Bank, as Rights Agent. The Rights Agreement
contains provisions that could have the effect of delaying, deferring or
preventing a merger, tender offer or other takeover attempt of the Company.
The Rights are attached to all outstanding shares of Common Stock, and no
separate Rights certificates will be distributed. The Rights will separate from
the Common Stock and a Distribution Date will occur upon
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the earlier of: (i) 10 days following the date (the "Stock Acquisition Date") of
any public announcement that a person or group of affiliated or associated
persons (an "Acquiring Person") has acquired beneficial ownership of 20% or more
of the outstanding shares of Common Stock, or (ii) 10 business days following
the commencement of a tender offer or exchange offer that would result in a
person or group becoming an Acquiring Person. Until the Distribution Date (or
earlier redemption or expiration of the Rights), (i) the Rights will be
evidenced by the Common Stock certificates and will be transferred with and only
with such Common Stock certificates, (ii) new Common Stock certificates issued
after June 30, 1988 will contain a notation incorporating the Rights Agreement
by reference, and (iii) the surrender for transfer of any certificates for
Common Stock will also constitute the transfer of the Rights associated with the
Common Stock represented by such certificates.
The Rights are not exercisable until the Distribution Date and will expire
at the close of business on June 17, 1998 unless previously redeemed by the
Company as described below.
As soon as practicable after the Distribution Date, Right certificates will
be mailed to holders of record of Common Stock as of the close of business on
the Distribution Date and, thereafter, the separate Right certificates alone
will represent the Rights. Except as otherwise determined by the Board of
Directors, with certain exceptions, only shares of Common Stock issued prior to
the Distribution Date will be issued with Rights.
In the event that any person becomes an Acquiring Person, proper provision
will be made so that each holder of a Right, other than Rights that are, or
(under certain circumstances specified in the Rights Agreement) were,
beneficially owned by an Acquiring Person (which will thereafter be void), will
thereafter have the right to receive upon exercise that number of shares of
Common Stock having a market value of two times the Purchase Price of the Right.
In the event that, at any time following the Stock Acquisition Date, (i) the
Company is acquired in a merger or other business combination transaction or
(ii) 50% or more of the Company's assets or earning power is sold, each holder
of a Right shall thereafter have the right to receive, upon exercise, Common
Stock of the acquiring company having a value equal to two times the Purchase
Price of the Right. The events described in this paragraph are referred to as
"Triggering Events."
The Purchase Price payable, and the number of Units of Preferred Stock or
other securities or property issuable, upon exercise of the Rights are subject
to adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Preferred
Stock, (ii) if holders of the Preferred Stock are granted certain rights or
warrants to subscribe for Preferred Stock or convertible securities at less than
the current market price of the Preferred Stock, or (iii) upon the distribution
to holders of the Preferred Stock of evidences of indebtedness or assets
(excluding regular quarterly cash dividends) or of subscription rights or
warrants (other than those referred to above).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional Units will be issued and, in lieu thereof, an adjustment in
cash will be made based on the market price of the Preferred Stock on the last
trading date prior to the date of exercise.
The Rights may be redeemed in whole, but not in part, at a price of $.01
per Right by the Board of Directors at any time until the tenth day after the
Stock Acquisition Date (or such later date as a majority of the Continuing
Directors (as defined below) then in office may determine). Under certain
circumstances set forth in the Rights Agreement, the decision to redeem shall
require the concurrence of a majority of the Continuing Directors. Immediately
upon the action of the Board of Directors ordering redemption of the Rights, the
Rights will terminate and thereafter the only right of the holders of Rights
will be to receive the redemption price.
The term "Continuing Director" means (i) any member of the Board of
Directors who was a member of the Board prior to the time the Acquiring Person
becomes such, and (ii) any person who is subsequently elected to the Board if
such person is recommended or approved by a majority of the Continuing
Directors. Continuing Directors do not include an Acquiring Person, or an
affiliate or associate of an Acquiring Person, or any representative of the
foregoing entities.
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Until a Right is exercised, the holder will have no rights as a shareholder
of the Company (beyond those as an existing shareholder), including the right to
vote or to receive dividends.
Other than those provisions relating to the principal economic terms of the
Rights, any of the provisions of the Rights Agreement may be amended by the
Board of Directors of the Company prior to the Distribution Date. After the
Distribution Date, the provisions of the Rights Agreement may be amended by the
Board in order to cure any ambiguity, to correct or supplement any provision
contained therein which may be defective or inconsistent with any other
provisions, to make changes which do not adversely affect the interests of
holders of Rights or to shorten or lengthen any time period under the Rights
Agreement; provided, however, that the Rights Agreement may not be amended to
lengthen (i) a time period relating to when the Rights may be redeemed at such
time as the Rights are not then redeemable or (ii) any other time period unless
such lengthening is for the purpose of protecting, enhancing or clarifying the
rights of, and/or benefits to, the holders of Rights.
PLAN OF DISTRIBUTION
Offered Securities may be sold (i) through agents, (ii) through
underwriters, (iii) through dealers, (iv) through remarketing firms or (v)
directly to purchasers (through a specific bidding or auction process or
otherwise).
Offers to purchase Offered Securities may be solicited by agents designated
by the Company from time to time. Any such agent involved in the offer or sale
of the Offered Securities will be named, and any commissions payable by the
Company to such agent will be set forth, in the Prospectus Supplement. Unless
otherwise indicated in the Prospectus Supplement, any such agent will be acting
on a best efforts basis for the period of its appointment. Any such agent may be
deemed to be an underwriter, as that term is defined in the Securities Act, of
the Offered Securities so offered and sold.
If an underwriter or underwriters are utilized in the sale of Offered
Securities, the Company will execute an underwriting agreement with such
underwriter or underwriters at the time an agreement for such sale is reached,
and the names of the specific managing underwriter or underwriters, as well as
any other underwriters, and the terms of the transactions, including
compensation of the underwriters and dealers, if any, will be set forth in the
Prospectus Supplement which will be used by the underwriters to make resales of
Offered Securities.
If a dealer is utilized in the sale of Offered Securities, the Company will
sell such Offered Securities to the dealer, as principal. The dealer may then
resell such Offered Securities to the public at varying prices to be determined
by such dealer at the time of resale. The name of the dealer and the terms of
the transactions will be set forth in the Prospectus Supplement relating
thereto.
Offers to purchase Offered Securities may be solicited directly by the
Company and sales thereof may be made by the Company directly to institutional
investors or others. The terms of any such sales, including the terms of any
bidding or auction process, if utilized, will be described in the Prospectus
Supplement relating thereto.
Offered Securities may also be offered and sold, if so indicated in the
Prospectus Supplement, in connection with a remarketing upon their purchase, in
accordance with a redemption or repayment pursuant to their terms, or otherwise,
by one or more firms ("remarketing firms"), acting as principals for their own
accounts or as agents for the Company. Any remarketing firm will be identified
and the terms of its agreement, if any, with the Company and its compensation
will be described in the Prospectus Supplement. Remarketing firms may be deemed
to be underwriters in connection with the Offered Securities remarketed thereby.
Agents, underwriters, dealers and remarketing firms may be entitled under
agreements which may be entered into with the Company to indemnification by the
Company against certain liabilities, including liabilities under the Securities
Act, and any such agents, underwriters, dealers or remarketing firms, or their
affiliates may be customers of, engage in transactions with, or perform services
for, the Company in the ordinary course of business.
15
<PAGE> 17
If so indicated in the Prospectus Supplement, the Company will authorize
agents and underwriters to solicit offers by certain institutions to purchase
Debt Securities from the Company at the public offering price set forth in the
Prospectus Supplement pursuant to Delayed Delivery Contracts ("Contracts")
providing for payment and delivery on the date stated in the Prospectus
Supplement. Such Contracts will be subject only to those conditions set forth in
the Prospectus Supplement. A commission indicated in the Prospectus Supplement
will be paid to underwriters and agents soliciting purchases of Debt Securities
pursuant to Contracts accepted by the Company.
LEGAL MATTERS
The validity of the Offered Securities will be passed upon for the Company
by Richard J. Agnich, Senior Vice President, Secretary and General Counsel of
the Company. Mr. Agnich beneficially owns, and has rights to acquire under
various employee benefit plans of the Company, an aggregate of less than 1% of
the Common Stock of the Company.
Certain legal matters relating to the Offered Securities will be passed
upon for underwriters and certain other purchasers by Davis Polk & Wardwell, New
York, New York.
EXPERTS
The consolidated financial statements of the Company incorporated by
reference in the Company's Annual Report on Form 10-K for the year ended
December 31, 1995 have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report incorporated therein by reference. Such financial
statements are, and audited financial statements to be included in subsequently
filed documents will be, incorporated herein in reliance upon the reports of
Ernst & Young LLP pertaining to such financial statements (to the extent covered
by consents filed with the Commission) and upon the authority of such firm as
experts in accounting and auditing.
16
<PAGE> 18
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Registration fees......................................................... $172,414
Trustee's fees............................................................ 10,000
Costs of printing and engraving........................................... 13,000
Legal fees................................................................ 5,000
Accounting fees........................................................... 3,000
Blue sky fees and expenses................................................ 15,000
Miscellaneous............................................................. 1,586
--------
Total........................................................... $220,000
========
</TABLE>
All amounts estimated except for registration fees.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, as amended, generally
permits the Registrant to indemnify its officers and directors for expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by any such officer or director in connection
with any action, suit or proceeding to which such officer or director is made a
party by reason of the fact that such officer or director was or is an officer
or director of the Registrant if such officer or director acted in good faith
and in a manner he or she reasonably believed to be in, or not opposed to, the
best interests of the Registrant, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Article VI, Section 2 of the Registrant's By-laws provides that the Registrant
shall indemnify its officers and directors for such expenses, judgments, fines
and amounts paid in settlement to the full extent permitted by the laws of the
State of Delaware.
Section 102(b)(7) of the Delaware General Corporation Law, as amended,
permits a corporation to provide in its certificate of incorporation that a
director of the corporation shall not be personally liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit. Article Sixth of the Registrant's Restated Certificate of Incorporation
contains such a provision.
Under insurance policies of the Registrant, directors and officers of the
Registrant may be indemnified against certain losses arising from certain
claims, including claims under the Securities Act of 1933, which may be made
against such persons by reason of their being such directors or officers.
See the forms of proposed Underwriting Agreements filed as Exhibits 1(b)
and (1)(c) for certain indemnification provisions.
II-1
<PAGE> 19
ITEM 16. EXHIBITS
<TABLE>
<C> <S>
1(a) -- Form of proposed Underwriting Agreement relating to the Debt
Securities.
1(b) -- Form of proposed Texas Instruments Incorporated Underwriting
Agreement Standard Provisions (Debt), with form of proposed Delayed
Delivery Contract attached as Schedule I thereto.
1(c) -- Form of proposed Underwriting Agreement relating to the Preferred
Stock, Common Stock and convertible Debt Securities (to be filed as
an Exhibit to a Current Report on 8-K and incorporated herein by
reference).
4(a) -- Indenture dated as of , 1996 between the Company and
Citibank, N.A. relating to the Debt Securities.
4(b) -- Form of Debt Securities. Any other form or forms of Debt Securities
with respect to a particular offering will be filed as an Exhibit to
a Current Report on Form 8-K and incorporated herein by reference.
4(c) -- Form of Deposit Agreement.
4(d) -- Form of Depositary Receipt for the Company's Depositary Shares
(included in Exhibit 4(c)).
5 -- Opinion of Richard J. Agnich, Esq.
12 -- Computation of Ratio of Earnings to Fixed Charges and Ratio of
Earnings to Combined Fixed Charges and Preferred Stock Dividends
(incorporated by reference to Exhibit 12 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1996).
23(a) -- Consent of Independent Public Accountants.
23(b) -- Consent of Richard J. Agnich, Esq. (included in Exhibit 5).
24 -- Powers of Attorney for the Directors of the Company.
25 -- Form T-I Statement of Eligibility and Qualification of the Trustee
under the Trust Indenture Act of 1939.
</TABLE>
ITEM 17. UNDERTAKINGS.
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in this registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that the undertakings set forth in paragraph (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in
this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
II-2
<PAGE> 20
offered herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The Registrant hereby further undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this registration statement shall be
deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions set forth or described in Item 15 of this
registration statement, or otherwise (but that term shall not include the
insurance policies referred to in Item 15), the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted against the
Registrant by such director, officer or controlling person, in connection with
the securities registered hereby, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
II-3
<PAGE> 21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, on the 9th day of May, 1996.
TEXAS INSTRUMENTS INCORPORATED
By /s/ WILLIAM A. AYLESWORTH
---------------------------------
William A. Aylesworth
Senior Vice President, Treasurer and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 9th day of May, 1996.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------- --------------------------------------------
<S> <C>
/s/ JAMES R. ADAMS* Director
- ---------------------------------------------
James R. Adams
/s/ DAVID L. BOREN* Director
- ---------------------------------------------
David L. Boren
/s/ JAMES B. BUSEY IV* Director
- ---------------------------------------------
James B. Busey IV
/s/ GERALD W. FRONTERHOUSE* Director
- ---------------------------------------------
Gerald W. Fronterhouse
/s/ DAVID R. GOODE* Director
- ---------------------------------------------
David R. Goode
/s/ JERRY R. JUNKINS* Chairman of the Board; President;
- --------------------------------------------- Chief Executive Officer; Director
Jerry R. Junkins
/s/ WILLIAM S. LEE* Director
- ---------------------------------------------
William S. Lee
/s/ WILLIAM B. MITCHELL* Vice Chairman; Director
- ---------------------------------------------
William B. Mitchell
/s/ GLORIA M. SHATTO* Director
- ---------------------------------------------
Gloria M. Shatto
/s/ WILLIAM P. WEBER* Vice Chairman; Director
- ---------------------------------------------
William P. Weber
Director
- ---------------------------------------------
Clayton K. Yeutter
/s/ WILLIAM A. AYLESWORTH Senior Vice President; Treasurer;
- --------------------------------------------- Chief Financial Officer
William A. Aylesworth
/s/ MARVIN M. LANE, JR.* Vice President; Corporate Controller
- ---------------------------------------------
Marvin M. Lane, Jr.
*By /s/ WILLIAM A. AYLESWORTH
------------------------------------------
William A. Aylesworth
Attorney-in-Fact
</TABLE>
II-4
<PAGE> 22
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
NUMBER
- ----------
<C> <S> <C>
1(a) -- Form of proposed Underwriting Agreement relating to the Debt
Securities.
1(b) -- Form of proposed Texas Instruments Incorporated Underwriting
Agreement Standard Provisions (Debt), with form of proposed Delayed
Delivery Contract attached as Schedule I thereto.
1(c) -- Form of proposed Underwriting Agreement relating to the Preferred
Stock, Common Stock and convertible Debt Securities (to be filed as
an Exhibit to a Current Report on 8-K and incorporated herein by
reference).
4(a) -- Indenture dated as of , 1996 between the Company and
Citibank, N.A. relating to the Debt Securities.
4(b) -- Form of Debt Securities. Any other form or forms of Debt Securities
with respect to a particular offering will be filed as an Exhibit to
a Current Report on Form 8-K and incorporated herein by reference.
4(c) -- Form of Deposit Agreement.
4(d) -- Form of Depositary Receipt for the Company's Depositary Shares
(included in Exhibit 4(c)).
5 -- Opinion of Richard J. Agnich, Esq.
12 -- Computation of Ratio of Earnings to Fixed Charges and Ratio of
Earnings to Combined Fixed Charges and Preferred Stock Dividends
(incorporated by reference to Exhibit 12 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1996).
23(a) -- Consent of Independent Public Accountants.
23(b) -- Consent of Richard J. Agnich, Esq. (included in Exhibit 5).
24 -- Powers of Attorney for the Directors of the Company.
25 -- Form T-I Statement of Eligibility and Qualification of the Trustee
under the Trust Indenture Act of 1939.
</TABLE>
<PAGE> 1
EXHIBIT 1(a)
UNDERWRITING AGREEMENT
_________________
Texas Instruments Incorporated
13500 North Central Expressway
Dallas, Texas 75243
Dear Sirs:
We (the "Underwriters") understand that Texas Instruments
Incorporated, a Delaware corporation (the "Company"), proposes to issue and
sell the principal amount of its debt securities (the "Offered Debt
Securities") identified in Schedule I hereto, as more fully described in the
Company's Prospectus Supplement dated_____________, 19__ relating to the
Offered Debt Securities and the Basic Prospectus dated_____________, 1996.
Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Underwriters offer to purchase, severally
and not jointly, at the respective purchase prices set forth in Schedule I
hereto, the principal amount of the Offered Debt Securities set forth opposite
their respective names in Schedule II hereto.
The Underwriters will pay for such Offered Debt Securities upon
delivery thereof at the offices of Davis Polk & Wardwell, 450 Lexington Avenue,
New York, New York 10017 at 10:00 A.M. (New York City time) on_____________,
19__ or at such other time, not later than _______________, 19__ as shall be
designated by the Manager.
All the provisions contained in the document entitled Texas
Instruments Incorporated Underwriting Agreement Standard Provisions (Debt)
dated_____________, 1996, a copy of which we have previously received, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as
<PAGE> 2
if such provisions had been set forth in full herein, except that the term
"Manager", as used therein, shall, for purposes of this Agreement, mean
________________________________, whose authority hereunder may be exercised by
them jointly or by ______________ alone.
2
<PAGE> 3
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below. This Agreement may
be signed in any number of counterparts with the same effect as if the
signatures thereto and hereto were upon the same instrument.
Very truly yours,
On behalf of themselves and the other
Underwriters named herein
By:___________________________________
By:___________________________________
Name:______________________________
Title:_____________________________
3
<PAGE> 4
Accepted as of the date written above:
TEXAS INSTRUMENTS INCORPORATED
By:_______________________________________
Name:__________________________________
Title:_________________________________
4
<PAGE> 5
SCHEDULE I TO UNDERWRITING AGREEMENT
Description of Offered Debt Securities:
Title: __________________
Principal amount (including currency or composite currency):
U.S.$__________________
Purchase price: $___________________ [plus accrued interest from __________]
Public offering price: $_____________ [plus accrued interest from
___________________]
Underwriting discount: $ _________________
Interest rate: ____% per annum, payable semi-annually on ___________ and
______________
Sinking fund provisions: ________________
Redemption provisions: _______________
<PAGE> 6
SCHEDULE II TO UNDERWRITING AGREEMENT
<TABLE>
<CAPTION>
Principal Amount
of Offered Debt
Securities to be
Underwriter Purchased
- ----------- ----------------
<S> <C>
Total
</TABLE>
<PAGE> 1
EXHIBIT 1(b)
Texas Instruments Incorporated Underwriting Agreement
Standard Provisions (Debt)
______________, 1996
From time to time, Texas Instruments Incorporated, a Delaware
corporation, may enter into one or more underwriting agreements that provide
for the sale of designated securities to the several underwriters named
therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Unless otherwise defined
herein, terms defined in the Underwriting Agreement are used herein as therein
defined.
I.
The Company proposes to issue and sell certain of its debt
securities ("the Debt Securities") issuable under an indenture dated as of
_________________, 1996 (the "Indenture") between the Company and Citibank,
N.A., as trustee (the "Trustee") identified in the Underwriting Agreement, in
one or more offerings on terms determined at the time of sale. The Debt
Securities will have varying designations, maturities, principal amounts,
rates and times of payment of interest, selling prices, conversion terms, if
any, and redemption terms.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement including a prospectus
relating to the Debt Securities and has filed with, or mailed for filing to,
the Commission a prospectus supplement specifically relating to the Offered
Debt Securities pursuant to Rule 424 under the Securities Act of 1933. The term
"Registration Statement" means the registration statement, including the
exhibits thereto, as amended to the date of the Underwriting Agreement. The
term "Basic Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with the
prospectus supplement or supplements specifically relating to Debt Securities
then being offered (the "Offered Debt
<PAGE> 2
Securities"), as filed with, or mailed for filing to, the Commission pursuant
to Rule 424. The term "preliminary prospectus" means a preliminary prospectus
supplement specifically relating to the Offered Debt Securities together with
the Basic Prospectus. As used herein, the terms "Registration Statement",
"Basic Prospectus", "Prospectus" and "preliminary prospectus" shall include in
each case the material, if any, incorporated by reference therein.
The term "Underwriters' Securities" means the Offered Debt
Securities to be purchased by the Underwriters herein. The term "Contract
Securities" means the Offered Debt Securities, if any, to be purchased pursuant
to the delayed delivery contracts referred to below.
II.
If the Prospectus provides for sales of Offered Debt
Securities pursuant to delayed delivery contracts, the Company hereby
authorizes the Underwriters to solicit offers to purchase Contract Securities
on the terms and subject to the conditions set forth in the Prospectus pursuant
to delayed delivery contracts substantially in the form of Schedule I attached
hereto ("Delayed Delivery Contracts") but with such changes therein as the
Company may authorize or approve. Delayed Delivery Contracts are to be with
institutional investors approved by the Company and of the types set forth in
the Prospectus. On the Closing Date (as hereinafter defined), the Company will
pay the Manager as compensation, for the accounts of the Underwriters, the fee
set forth in the Underwriting Agreement in respect of the principal amount of
Contract Securities. The Underwriters will not have any responsibility in
respect of the validity or the performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery
Contracts with institutional investors, the Contract Securities shall be
deducted from the Offered Debt Securities to be purchased by the several
Underwriters and the aggregate principal amount to be purchased by each
Underwriter shall be reduced pro rata in proportion to the principal amount of
Offered Debt Securities set forth opposite each Underwriter's name in the
Underwriting Agreement, except to the extent that the Manager determines that
such reduction shall be otherwise and so advises the Company.
III.
2
<PAGE> 3
The Company is advised by the Manager that the Underwriters
propose to make a public offering of their respective portions of the
Underwriters' Securities as soon after this Agreement is entered into as in the
Manager's judgment is advisable. The terms of the public offering of the
Underwriters' Securities are set forth in the Prospectus.
IV.
Payment for the Underwriters' Securities shall be made by
certified or official bank check or checks payable to the order of the Company
in New York Clearing House funds at the time and place set forth in the
Underwriting Agreement, upon delivery to the Manager for the respective
accounts of the several Underwriters of the Underwriters' Securities registered
in such names and in such denominations as the Manager shall request in writing
not less than two full business days prior to the date of delivery. The time
and date of such payment and delivery with respect to the Underwriters'
Securities are herein referred to as the Closing Date.
V.
The several obligations of the Underwriters hereunder are
subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission and
there shall have been no material adverse change (not in the ordinary
course of business) in the condition of the Company and its
subsidiaries, taken as a whole, from that set forth in or contemplated
by the Registration Statement and the Prospectus; and the Underwriters
shall have received, on the Closing Date, a certificate, dated the
Closing Date and signed by an executive officer of the Company, to the
foregoing effect. Such certificate shall also provide that the
representations and warranties of the Company contained herein are
true and correct as of the Closing Date. The officer making such
certificate may rely upon the best of his knowledge as to proceedings
pending or threatened.
(b) The Manager shall have received on the Closing Date
an opinion of Richard J. Agnich, Esq., Senior Vice President,
Secretary and General Counsel of the Company, dated the Closing Date,
to the effect that:
3
<PAGE> 4
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the State of Delaware and has full corporate power and
authority to own its properties and conduct its business as
presently conducted;
(ii) the Company is duly qualified to transact
business and is in good standing in each other state of the
United States, wherein it owns or leases material property or
conducts material business, which requires such qualification,
except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on
the Company;
(iii) the Indenture has been duly authorized,
executed and delivered by the Company and is a valid and
binding agreement of the Company and the Indenture is
qualified under the Trust Indenture Act of 1939;
(iv) the Offered Debt Securities have been duly
authorized and, when executed and authenticated in accordance
with the Indenture and when delivered to and paid for by the
Underwriters or by institutional investors, if any, pursuant
to Delayed Delivery Contracts, will be valid and binding
obligations of the Company and will be entitled to the
benefits of the Indenture;
(v) this Agreement has been duly authorized,
executed and delivered by the Company and is a valid and
binding agreement of the Company, except as rights to
indemnity hereunder may be limited under applicable law;
(vi) the Offered Debt Securities conform in all
material respects to the description thereof contained in the
Prospectus, as then amended or supplemented, if applicable,
under the caption "Description of Debt Securities";
(vii) the Registration Statement, and any
amendments thereto, is effective under the Securities Act of
1933, and, to the best of such counsel's knowledge, no
proceedings for a stop order are pending or threatened by the
Commission;
(viii) the execution, delivery and performance of
the Underwriting Agreement, the Offered Debt
4
<PAGE> 5
Securities and the Indenture will not contravene any provision
of applicable law or the certificate of incorporation or
by-laws of the Company or, to the knowledge of such counsel,
any agreement or other instrument binding upon the Company,
and no consent, approval or authorization of any governmental
body or agency is required for the performance by the Company
of its obligations under the Underwriting Agreement, the
Offered Debt Securities and the Indenture, except such as are
specified and have been obtained and such as may be required
by the securities or Blue Sky laws of the various states in
connection with the purchase and distribution of the Offered
Debt Securities by the Underwriters;
(ix) the statements in the Prospectus under the
captions "Description of Debt Securities" and "Plan of
Distribution", insofar as they constitute summaries of
documents or proceedings referred to therein, are accurate
summaries in all material respects of such documents and
proceedings;
(x) after due inquiry, such counsel does not know
of any legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries is a party or
to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so
described or of any contract or other document that is
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration
Statement that is not described or filed as required; and
(xi) such counsel (1) is of the opinion that each
document, if any, filed pursuant to the Securities Exchange
Act of 1934 (except for financial statements included therein,
as to which such counsel need not express any opinion) and
incorporated by reference in the Registration Statement and
Prospectus complied when so filed as to form in all material
respects with such Act and the rules and regulations
thereunder, (2) has no knowledge that (except for the
financial statements contained therein, as to which such
counsel need not express any belief) any part of the
Registration Statement (including the documents incorporated
by reference therein) filed
5
<PAGE> 6
with the Commission pursuant to the Securities Act of 1933
relating to the Offered Debt Securities, when such part became
effective, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, (3) is of the opinion that the Registration
Statement and Prospectus, as amended or supplemented, if
applicable (except for financial statements included therein,
as to which such counsel need not express any opinion), comply
as to form in all material respects with the Securities Act of
1933 and the rules and regulations thereunder and (4) has no
knowledge that (except for the financial statements contained
therein, as to which such counsel need not express any belief)
the Prospectus, as amended or supplemented, if applicable,
contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) The Manager shall have received on the Closing Date
an opinion of Davis Polk & Wardwell, counsel for the Underwriters,
dated the Closing Date, to the effect set forth in (iii), (iv), (v),
(vii), (ix) (as to "Description of Debt Securities") and (xi) of (b)
above, and further to the effect that statements in the Prospectus
under the caption "Plan of Distribution", insofar as such statements
constitute a summary of the documents referred to therein, are
accurate summaries of the material provisions of such documents.
It is understood that Richard J. Agnich, Esq. may rely as to
all matters relating to the laws of the State of New York upon the
opinion of Davis Polk & Wardwell.
With respect to the matters set forth in (b)(xi) above,
Richard J. Agnich, Esq., and Davis Polk & Wardwell may state that
their belief is based upon participation by them in the preparation of
the Registration Statement (excluding any documents incorporated by
reference therein) and review and discussion of the contents thereof
(including any such incorporated documents), but is without
independent check or verification, except as specified.
6
<PAGE> 7
(d) The Manager shall have received on the Closing Date a
letter dated the Closing Date, in form and substance satisfactory to
the Manager, from the Company's independent public accountants,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained or
incorporated by reference in the Registration Statement and the
Prospectus.
(e) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have occurred
any downgrading, nor shall any notice have been given of (i) any
intended or potential downgrading or (ii) any review or possible
change that, in the Manager's opinion, indicates an intended or
potential downgrading in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act of 1933, that, in the Manager's judgment, is
material and adverse and that makes it, in the Manager's judgment,
impracticable to market the Offered Debt Securities on the terms, in
the manner and substantially at the price contemplated in the
Prospectus.
(f) There shall not have occurred any change, or any
event that is reasonably likely to cause a change, in the financial
condition of the Company and its subsidiaries, taken as a whole, from
that set forth in or contemplated by the Registration Statement and
the Prospectus, that, in the Manager's judgment, is material and
adverse and that makes it, in the Manager's judgment, impracticable to
market the Offered Debt Securities on the terms, in the manner and
substantially at the price contemplated in the Prospectus.
VI.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
(a) To furnish the Manager, without charge, three copies
of the Registration Statement, including exhibits and materials, if
any, incorporated by reference therein, and, during the period
mentioned in paragraph (c) below, as many copies of the Prospectus,
7
<PAGE> 8
any documents incorporated by reference therein and any supplements
and amendments thereto as the Manager may reasonably request. The
terms "supplement" and "amendment" or "amend" as used in this
Agreement shall include all documents filed by the Company with the
Commission subsequent to the date of the Basic Prospectus, pursuant to
the Securities Exchange Act of 1934, which are deemed to be
incorporated by reference in the Prospectus.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Debt
Securities, to furnish the Manager a copy of each such proposed
amendment or supplement.
(c) If, during such period after the first date of the
public offering of the Offered Debt Securities as in the opinion of
counsel for the Underwriters the Prospectus is required by law to be
delivered, any event shall occur or condition shall exist as a result
of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare and furnish, at
its own expense, to the Underwriters, either amendments or supplements
to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances
when the Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus will comply with law.
(d) To qualify the Offered Debt Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as
the Manager shall reasonably request and to pay all expenses
(including fees and disbursements of counsel) in connection with such
qualification.
(e) To make generally available to the Company's security
holders as soon as practicable an earning statement covering a twelve
month period beginning after the date of the Underwriting Agreement,
which shall satisfy the provisions of Section 11(a) of the Securities
Act of 1933 and the applicable rules and regulations thereunder; it
being intended that the Company will satisfy the foregoing obligations
by making available copies of its annual report on Form 10-K and its
current reports on Form 10-Q.
8
<PAGE> 9
(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company substantially similar to the Offered
Debt Securities without the prior written consent of the Manager.
VII.
The Company represents and warrants to each Underwriter that
(i) each document, if any, filed or to be filed pursuant to the Securities
Exchange Act of 1934 and incorporated by reference in the Prospectus complied
or will comply when so filed in all material respects with such Act and the
rules and regulations thereunder, (ii) each part of the Registration Statement
(including the documents incorporated by reference therein) filed with the
Commission pursuant to the Securities Act of 1933 relating to the Offered Debt
Securities, when such part became effective, did not contain any untrue
statement of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
(iii) each preliminary prospectus, if any, filed pursuant to Rule 424 under the
Securities Act of 1933 complied when so filed in all material respects with
such Act and the applicable rules and regulations thereunder, (iv) the
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act of 1933 and the applicable rules and regulations thereunder and
(v) the Registration Statement and the Prospectus do not contain and, as
amended or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; except that these representations and warranties do not
apply to (a) that part of the Registration Statement that constitutes the
Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of 1939 of Citibank, N.A. as Trustee under the Indenture, or (b) statements
or omissions in the Registration Statement, any preliminary prospectus or the
Prospectus based upon information furnished to the Company in writing by any
Underwriter expressly for use therein.
The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls such Underwriter within the
meaning of either Section 15 of the Securities Act of 1933 or Section 20 of the
Securities Exchange Act of 1934, from and against any and all losses,
9
<PAGE> 10
claims, damages and liabilities (including the reasonable fees and expenses of
counsel in connection with any governmental or regulatory investigation or
proceeding) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any preliminary
prospectus or the Prospectus (if used within the period set forth in paragraph
(c) of Article VI hereof and as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information furnished to the Company in writing by any Underwriter
expressly for use therein.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company to
the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter expressly
for use in the Registration Statement, any preliminary prospectus or the
Prospectus.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
10
<PAGE> 11
between them. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties and that
all such fees and expenses shall be reimbursed as they are incurred. Such firm
shall be designated in writing by the Manager in the case of parties
indemnified pursuant to the second preceding paragraph and by the Company in
the case of parties indemnified pursuant to the first preceding paragraph. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but, if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 10
business days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in this Article VII under
the second or third paragraphs hereof is unavailable in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Offered
Debt Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, such
11
<PAGE> 12
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other in
connection with the offering of the Offered Debt Securities shall be deemed to
be in the same proportion as the net proceeds from the offering of such Offered
Debt Securities (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters in
respect thereof, in each case as set forth in the table on the cover of the
Prospectus. The relative fault of the Company on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Article VII were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Article VII, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Debt Securities underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act of 1933) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Article VII are several, in proportion to the respective principal amounts
12
<PAGE> 13
of Offered Debt Securities purchased by each of such Underwriters, and not
joint.
The indemnity and contribution agreements contained in this
Article VII and the representations and warranties of the Company in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its directors or officers or
any person controlling the Company and (iii) acceptance of and payment for any
of the Offered Debt Securities.
VIII.
This Agreement shall be subject to termination in the
Manager's absolute discretion, by notice given to the Company, if (a) after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange or the National Association of Securities Dealers, Inc., (ii) trading
of any securities of the Company shall have been suspended on the New York
Stock Exchange or in the U.S. over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (iv) there shall
have occurred any outbreak or escalation of hostilities or a severe
deterioration in U.S. financial markets or any other calamity or crisis that is
material and adverse and (b) in the case of any of the events specified in
clauses (a) (i) through (iv), such event singly or together with any other such
event makes it, in the Manager's judgment, impracticable to market the Offered
Debt Securities on the terms, in the manner and substantially at the price
contemplated in the Prospectus. Any such termination of this Agreement shall be
without liability on the part of any Manager or on the part of the Company
except as stated in Article IX.
IX.
If on the Closing Date any one or more of the Underwriters
shall fail or refuse to purchase Underwriters' Securities that it or they have
agreed to purchase on such date, and the aggregate principal amount of
Underwriters' Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of the
13
<PAGE> 14
Underwriters' Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the principal amount of
Offered Debt Securities set forth opposite their respective names in the
Underwriting Agreement bears to the aggregate principal amount of Offered Debt
Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of Underwriters' Securities that
any Underwriter has agreed to purchase pursuant to the Underwriting Agreement
be increased pursuant to this Article IX by an amount in excess of one-ninth of
such principal amount of Underwriters' Securities without the written consent
of such Underwriter. If on the Closing Date any Underwriter or Underwriters
shall fail or refuse to purchase Underwriters' Securities and the aggregate
principal amount of Underwriters' Securities with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of
Underwriters' Securities to be purchased on such date, and arrangements
satisfactory to the Underwriters and the Company for the purchase of such
Underwriters' Securities are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case either the Underwriters or the
Company shall have the right to postpone the Closing Date but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement, with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Underwriters in connection with
the Offered Debt Securities.
14
<PAGE> 15
This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15
<PAGE> 16
Schedule I
DELAYED DELIVERY CONTRACT
_______________, 19__
Dear Sirs:
The undersigned hereby agrees to purchase from Texas
Instrument Incorporated, a Delaware corporation (the "Company"), and the
Company agrees to sell to the undersigned the principal amount of its debt
securities (the "Offered Debt Securities") identified herein, as more fully
described in the Company's Prospectus Supplement dated ___________ relating
to the Offered Debt Securities and in the Prospectus dated _____________,
1996. Such agreement to purchase and sell is made on the further terms and
conditions set forth in this contract. The undersigned does not contemplate
selling Offered Debt Securities prior to making payment therefor.
Receipt of copies of the Prospectus and of the Prospectus
Supplement is hereby acknowledged.
The undersigned will purchase the Offered Debt Securities from
the Company on_____________, 19__, hereinafter referred to as the "Delivery
Date".
Payment for the Offered Debt Securities which the undersigned
has agreed to purchase on the Delivery Date shall be made to the Company or its
order by certified or official bank check in New York Clearing House funds at
the office of ____________________ New York, N.Y., at 10:00 A.M. (New York
time) on the Delivery Date, upon delivery to the undersigned of the Offered
Debt Securities to be purchased by the undersigned on the Delivery Date, in
such denominations and registered in such names as the undersigned may
designate by written or telegraphic communication addressed to the Company not
less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for the Offered Debt Securities on the Delivery Date shall be subject
to the conditions that (1) the purchase of Offered Debt Securities to be made
by the undersigned shall not at the time of delivery be prohibited under the
laws of the jurisdiction to which the undersigned
<PAGE> 17
is subject and (2) the Company shall have sold, and delivery shall have taken
place to the underwriters (the "Underwriters") named in the Prospectus
Supplement referred to above of, such part of the Offered Debt Securities as is
to be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in connection
therewith.
Failure to take delivery of and make payment for Offered Debt
Securities by any purchaser under any other Delayed Delivery Contract shall not
relieve the undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
If this contract is acceptable to the Company, it is requested
that the Company sign the form of acceptance below and mail or deliver one of
the counterparts hereof to the undersigned at its address set forth below.
This will become a binding contract, as of the date first above written,
between the Company and the undersigned when such counterpart is so mailed or
delivered.
THIS CONTRACT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
Yours very truly,
_____________________________________
(Purchaser)
By___________________________________
_____________________________________
(Title)
_____________________________________
_____________________________________
(Address)
2
<PAGE> 18
Accepted:
Texas Instruments Incorporated
By ________________________
PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of
the Purchaser with whom details of delivery on the Delivery Date may be
discussed is as follows: (Please print)
<TABLE>
<CAPTION>
Telephone No.
Name (Including Area Code) Department
---------- ---------------------- ----------------
<S> <C> <C>
---------- ---------------------- ----------------
---------- ---------------------- ----------------
---------- ---------------------- ----------------
</TABLE>
3
<PAGE> 1
EXHIBIT 4(a)
========================================================
TEXAS INSTRUMENTS INCORPORATED
AND
CITIBANK, N.A.
, Trustee
INDENTURE
Dated as of __________, 1996
__________
========================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Authorization of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Compliance with Legal Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Purpose of and Consideration for Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Attributable Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Composite Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Consolidated Net Tangible Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Conversion Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Exempted Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Foreign Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Funded Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Holder, holder of Securities, Securityholder . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Issuer Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
original issue date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Principal Manufacturing Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
Registered Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Security or Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Unregistered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
vice president . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.2 Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.3 Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.4 Authentication and Delivery of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.5 Execution of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.6 Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.7 Denomination and Date of Securities; Payments of Interest . . . . . . . . . . . . . . . . . . . 17
SECTION 2.8 Registration, Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . 22
SECTION 2.10 Cancellation of Securities; Destruction Thereof . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.11 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.2 Offices for Payments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 3.4 Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 3.5 Written Statement to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.6 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.7 Limitation on Sale and Leaseback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.8 Luxembourg Publications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE.
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and Addresses of Securityholders . . . . . . . 33
SECTION 4.2 Reports by the Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 4.3 Reports by the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default . . . . . . . . . . . . . 34
SECTION 5.2 Collection of Debt by Trustee; Trustee May Prove Debt . . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.3 Application of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.4 Suits for Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.6 Limitations on Suits by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.7 Unconditional Right of Securityholders to Institute Certain Suits . . . . . . . . . . . . . . . 42
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default . . . . . . . . . . . . 42
SECTION 5.9 Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 5.10 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5.11 Trustee to Give Notice of Default, But May Withhold in Certain Circumstances . . . . . . . . . . 44
SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay Costs . . . . . . . . . . . . . . . . . . 45
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default . . . . . . . . . . 46
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SECTION 6.2 Certain Rights of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds
Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.4 Trustee and Agents May Hold Securities or Coupons; Collections, etc. . . . . . . . . . . . . . . 49
SECTION 6.5 Moneys Held by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior Claim . . . . . . . . . . . . . . . . 49
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc. . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.8 Indentures Not Creating Potential Conflicting Interests for the Trustee . . . . . . . . . . . . 50
SECTION 6.9 Persons Eligible for Appointment as Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee . . . . . . . . . . . . . . . . . . . 51
SECTION 6.11 Acceptance of Appointment by Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee . . . . . . . . . . . . . 54
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 7.2 Proof of Execution of Instruments and of Holding of Securities . . . . . . . . . . . . . . . . . 56
SECTION 7.3 Holders to be Treated as Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 7.5 Right of Revocation of Action Taken . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders . . . . . . . . . . . . . . . . . . . 59
SECTION 8.2 Supplemental Indentures With Consent of Securityholders . . . . . . . . . . . . . . . . . . . . 61
SECTION 8.3 Effect of Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 8.4 Documents to Be Given to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
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SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures . . . . . . . . . . . . . . . . . . 63
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 9.2 Successor Issuer Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 9.3 Opinion of Counsel and Officers' Certificate to Trustee . . . . . . . . . . . . . . . . . . . . 65
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
SECTION 10.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of Securities . . . . . . . . . . . . . . 69
SECTION 10.3 Repayment of Moneys Held by Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years . . . . . . . . . . . 70
SECTION 10.5 Indemnity for U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of Issuer Exempt from Individual Liability . 71
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities and Coupons . 71
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of Securities and Coupons . . . . . . . . . . 71
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SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements to Be Contained Therein . . . . . . . 73
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939 . . . . . . . . . . . . 75
SECTION 11.8 New York Law to Govern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 11.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 11.10 Effect of Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 11.11 Securities in a Foreign Currency or in ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 11.12 Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 12.2 Notice of Redemption; Partial Redemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 12.3 Conversion Arrangement on Call for Redemption . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 12.4 Payment of Securities Called for Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 12.5 Exclusion of Certain Securities from Eligibility for Selection for Redemption . . . . . . . . . 82
SECTION 12.6 Mandatory and Optional Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
ARTICLE THIRTEEN
CONVERSION OF SECURITIES
SECTION 13.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 13.2 Exercise of Conversion Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 13.3 Fractional Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 13.4 Adjustment of Conversion Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 13.5 Continuation of Conversion Privilege in Case of Reclassification, Reorganization, Change,
Merger, Consolidation or Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
SECTION 13.6 Notice of Certain Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
SECTION 13.7 Taxes on Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 13.8 Issuer to Provide Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
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SECTION 13.9 Disclaimer of Responsibility for Certain Matters . . . . . . . . . . . . . . . . . . . . . . . . 96
SECTION 13.10 Return of Funds Deposited for Redemption of Converted Securities . . . . . . . . . . . . . . . . 97
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THIS INDENTURE, dated as of ______ __, 1996 between TEXAS
INSTRUMENTS INCORPORATED, a Delaware corporation (the "Issuer"), and
CITIBANK, N.A., a New York banking corporation (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer may from time to time duly authorize the issue
of its unsecured debentures, notes or other evidences of indebtedness to be
issued in one or more series (the "Securities") up to such principal amount or
amounts as may from time to time be authorized in accordance with the terms of
this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery
of this Indenture to provide, among other things, for the authentication,
delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective holders
from time to time of the Securities and of the Coupons, if any, appertaining
thereto as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms
(except as otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All other
terms used in this Indenture that are defined in the Trust Indenture Act of
1939 or the definitions of which in the Securities Act of 1933 are referred to
in the Trust Indenture Act of 1939, including terms defined therein by
reference to the Securities Act of 1933 (except as herein otherwise expressly
provided or unless the context otherwise clearly requires), shall have the
meanings assigned to such terms in said Trust Indenture
<PAGE> 10
Act and in said Securities Act as in force at the date of this Indenture. All
accounting terms used herein and not expressly defined shall have the meanings
assigned to such terms in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of any computation.
The words "herein", "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section
or other subdivision. The terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular.
"Attributable Debt" shall have the meaning set forth in Section
3.7.
"Authorized Newspaper" means a newspaper (which, in the case of
The City of New York, will, if practicable, be The Wall Street Journal (Eastern
Edition), in the case of the United Kingdom, will, if practicable, be the
Financial Times (London Edition) and, in the case of Luxembourg, will, if
practicable, be the Luxemburger Wort) published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York, the United Kingdom or in Luxembourg, as applicable. If it shall be
impractical in the opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or other notice in
lieu thereof which is made or given with the approval of the Trustee shall
constitute a sufficient publication of such notice.
"Board of Directors" means either the Board of Directors of the
Issuer or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer to have been
duly adopted by the Board of Directors and to be in full force and effect, and
delivered to the Trustee.
"Business Day" means, with respect to any Security, a day that in
the city (or in any of the cities, if more than one) in which amounts are
payable, as specified in the form of such Security, is not a day on which
banking institutions are authorized or required by law or regulation to close.
2
<PAGE> 11
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act of 1939, then the body performing such duties on such
date.
"Common Stock" means shares of common stock, par value $1.00 per
share, of the Issuer as the same exists at the date of execution and delivery
of this Indenture or as such stock may be reconstituted from time to time.
"Composite Rate" means, at any time, the rate of interest, per
annum, compounded semiannually, equal to the sum of the rates of interest borne
by the Securities of each series (as specified on the face of the Securities of
each series; provided, that, in the case of the Securities with variable rates
of interest, the interest rate to be used in calculating the Composite Rate
shall be the interest rate applicable to such Securities at the beginning of
the year in which the Composite Rate is being determined and provided, further,
that, in the case of Securities which do not bear interest, the interest rate
to be used in calculating the Composite Rate shall be a rate equal to the yield
to maturity on such Securities, calculated at the time of issuance of such
Securities) multiplied, in the case of each series of Securities, by the
percentage of the aggregate principal amount of the Securities of all series
Outstanding represented by the Outstanding Securities of such series. For the
purposes of this calculation, the aggregate principal amounts of Outstanding
Securities that are denominated in a foreign currency, shall be calculated in
the manner set forth in Section 11.11.
"Consolidated Net Tangible Assets" means, at any date, the total
assets appearing on the audited annual consolidated balance sheet of the Issuer
and its Subsidiaries for the Issuer's most recently completed fiscal year,
prepared in accordance with generally accepted accounting principles, less (a)
all current liabilities as shown on such balance sheet, and (b) intangible
assets. "Intangible assets" means the value (net of applicable reserves), as
shown on or reflected in such balance sheet, of: (i) all trade names,
trademarks, licenses, patents, copyrights and goodwill; (ii) organizational or
development costs; (iii) deferred charges (other than prepaid items such as
insurance, taxes, interest, commissions, rents and similar items and tangible
assets being amortized); and (iv) unamortized debt discount and expenses, less
unamortized
3
<PAGE> 12
premium; but in no event shall the term "intangible assets" include computer
programs and related products.
"Conversion Price" means the principal amount of the Securities of
a series convertible into one share of Common Stock, subject to adjustment in
accordance with Section 13.4.
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at 120 Wall Street, New York, New York 10043.
"Coupon" means any interest coupon appertaining to a Security.
"Debt" of any Person means any debt for money borrowed which is
created, assumed, incurred or guaranteed in any manner by such Person or for
which such Person is otherwise responsible or liable, and shall expressly
include any such guaranty thereof by such Person. For the purpose of computing
the amount of any Funded Debt or other Debt of any Person there shall be
excluded all Debt of such Person for the payment or redemption or satisfaction
of which money or securities (or evidences of such Debt, if permitted under the
terms of the instrument creating such Debt) in the necessary amount shall have
been deposited in trust with the proper depositary, whether upon or prior to
the maturity or the date fixed for redemption of such Debt; and, in any
instance where Debt is so excluded, for the purpose of computing the assets of
such Person there shall be excluded the money, securities or evidences of Debt
deposited by such Person in trust for the purpose of paying or satisfying such
Debt.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities, the
Person designated as Depositary by the Issuer pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is
more than one such Person, "Depositary" as used with respect to the Securities
of any such series shall mean the Depositary with respect to the Registered
Global Securities of that series.
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<PAGE> 13
"Dollar" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of European Communities.
"Event of Default" means any event or condition specified as such
in Section 5.1.
"Exempted Debt" means the sum of the following items outstanding
as of the date Exempted Debt is being determined: (i) Debt of the Issuer and
its Subsidiaries incurred after the date of this Indenture and secured by liens
created, assumed or permitted to exist pursuant to Section 3.6(b) and (ii)
Attributable Debt of the Issuer and its Subsidiaries in respect of all sale and
leaseback transactions entered into pursuant to Section 3.7(b), including
amounts considered to be Attributable Debt pursuant to Section 3.7(a)(iii)(B).
"Foreign Currency" means a currency issued by the government of a
country other than the United States.
"Funded Debt" means all Debt whether incurred, assumed or
guaranteed, including purchase money indebtedness, maturing by its terms more
than one year from the date of creation thereof or which is renewable or
extendable at the sole option of the obligor in such manner that it may become
payable more than one year from the date of creation thereof.
"Holder", "holder of Securities", "Securityholder" or other
similar terms mean (a) in the case of any Registered Security, the Person in
whose name such Security is registered in the security register kept by the
Issuer for that purpose in accordance with the terms hereof, and (b) in the
case of any Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular
series of Securities established as contemplated hereunder.
"interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
5
<PAGE> 14
"Issuer" means (except as otherwise provided in Article Six) Texas
Instruments Incorporated and, subject to Article Nine, its successors and
assigns.
"Issuer Order" means a written statement, request or order of the
Issuer signed in its name by the chairman of the Board of Directors, the
president or any vice president of the Issuer.
"Mortgage" has the meaning set forth in Section 3.6.
"Officers' Certificate" means a certificate signed by the chairman
of the Board of Directors or the president or any vice president and by the
treasurer or the secretary or any assistant secretary of the Issuer and
delivered to the Trustee. Each such certificate shall comply with Section 314
of the Trust Indenture Act of 1939 and shall include the statements provided
for in Section 11.5.
"Opinion of Counsel" means an opinion in writing signed by the
general corporate counsel or such other legal counsel who may be an employee of
or counsel to the Issuer and who shall be satisfactory to the Trustee. Each
such opinion shall comply with Section 314 of the Trust Indenture Act of 1939
and shall include the statements provided for in Section 11.5, if and to the
extent required hereby.
"original issue date" of any Security (or portion thereof) means
the earlier of (a) the date of such Security or (b) the date of any Security
(or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 5.1.
"Outstanding", when used with reference to Securities, shall,
subject to the provisions of Section 7.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys or U.S.
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Government Obligations (as provided for in Section 10.1) in the necessary
amount shall have been deposited in trust with the Trustee or with any
paying agent (other than the Issuer) or shall have been set aside,
segregated and held in trust by the Issuer for the Holders of such
Securities (if the Issuer shall act as its own paying agent); provided,
that if such Securities, or portions thereof, are to be redeemed prior to
the maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Trustee shall have been
made for giving such notice; and
(c) Securities in substitution for which other Securities shall
have been authenticated and delivered, or which shall have been paid,
pursuant to the terms of Section 2.9 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented that
such Security is held by a Person in whose hands such Security is a legal,
valid and binding obligation of the Issuer), Securities converted into
Common Stock pursuant hereto and Securities not deemed outstanding pursuant
to Section 12.2.
In determining whether the Holders of the requisite principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"Person" means any individual, corporation, partnership, limited
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"Principal Manufacturing Property" means each manufacturing or
processing plant or facility of the Issuer or a Subsidiary located in the
United States of America (other than its territories and possessions) or Puerto
Rico; except any such manufacturing or processing plant or facility which the
Board of Directors by resolution
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reasonably determines not to be of material importance to the total business
conducted by the Issuer and its consolidated Subsidiaries.
"Registered Global Security", means a Security evidencing all or a
part of a series of Registered Securities, issued to the Depositary for such
series in accordance with Section 2.4, and bearing the legend prescribed in
Section 2.4.
"Registered Security" means any Security registered on the
Security register of the Issuer.
"Responsible Officer", when used with respect to the Trustee,
means the chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any
vice president, the cashier, the secretary, the treasurer, any trust officer,
any assistant trust officer, any assistant vice president, any assistant
cashier, any assistant secretary, any assistant treasurer, or any other officer
or assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his
or her knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means (a) any Subsidiary which owns or is
the lessee of any Principal Manufacturing Property; provided, however, that the
term "Restricted Subsidiary" shall not include (A) any Subsidiary primarily
engaged in the business of purchasing, holding, collecting, servicing and
otherwise dealing in and with installment sales contracts, leases, trust
receipts, mortgages, commercial paper and other financing instruments, and any
collateral or agreements relating thereto, including, without limiting the
generality of the foregoing, financing (whether through long- or short-term
borrowings, pledges, discounts or otherwise) the sales, leasing or other
operations of the Issuer and its Subsidiaries or any of them, and not, except
as incidental to such financing business, engaged in owning, leasing or
operating any property which but for this proviso would qualify as a Principal
Manufacturing Property or (B) any Subsidiary acquired or organized for the
purpose of acquiring the stock or business or assets of any Person other than
the Issuer or any Restricted Subsidiary, whether by merger, consolidation,
acquisition of stock or assets or similar transaction, so long as such
Subsidiary does not acquire all or any
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<PAGE> 17
substantial part of the business or assets of the Issuer or any other
Restricted Subsidiary; and (b) any other Subsidiary which is hereafter
designated by the Board of Directors as a Restricted Subsidiary.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Subsidiary" means a corporation of which stock having a majority
of the voting power under ordinary circumstances is owned, directly or
indirectly, by the Issuer or by one or more subsidiaries of the Issuer, or by
the Issuer and one or more subsidiaries of the Issuer.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 8.1, 8.2 and 13.5) means the Trust Indenture Act of 1939 as in force
at the date as of which this Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also mean or include each
Person who is then a trustee hereunder and if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any series
shall mean the trustee with respect to the Securities of such series.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.1(A).
"vice president", when used with respect to the Issuer or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title of "vice president".
"Yield to Maturity" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
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ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series
and the Coupons, if any, to be attached thereto shall be substantially in such
form (not inconsistent with this Indenture) as shall be established by or
pursuant to one or more Board Resolutions (as set forth in a Board Resolution
or, to the extent established pursuant to rather than set forth in a Board
Resolution, an Officers' Certificate detailing such establishment) or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with any rules of any securities
exchange or to conform to general usage, all as may be determined by the
officers executing such Securities and Coupons, if any, as evidenced by their
execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and
Coupons, if any.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
Citibank, N.A.
---------------------------,
as Trustee
By
-------------------------
Authorized Officer
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SECTION 2.3 Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall
be established in or pursuant to one or more Board Resolutions of the Board of
Directors and set forth in a Board Resolution, or, to the extent established
pursuant to (rather than set forth in) a Board Resolution, in an Officers'
Certificate detailing such establishment and/or established in one or more
indentures supplemental hereto, prior to the initial issuance of Securities of
any series,
(1) the designation of the Securities of the series (which may be
part of a series of Securities previously issued);
(2) the terms and conditions, if applicable, upon which
conversion of the Securities into Common Stock will be effected, including
the initial Conversion Price or rate, the conversion period and other
provisions in addition to or in lieu of those described herein;
(3) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.4);
(4) if other than Dollars, the coin or currency in which the
Securities of that series are denominated (including, but not limited to,
any Foreign Currency or ECU);
(5) any date on which the principal of the Securities of the
series is payable;
(6) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which such interest shall
accrue, on which such interest shall be payable and (in the case of
Registered Securities) on which a record shall be taken for the
determination of Holders to whom interest is payable and/or the method by
which such rate or rates or date or dates shall be determined;
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(7) the place or places where the principal of and any interest
on Securities of the series shall be payable (if other than as provided in
Section 3.2);
(8) the price or prices at which, the period or periods within
which and the terms and conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option of the Issuer, pursuant to
any sinking fund or otherwise;
(9) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder thereof
and the price or prices at which and the period or periods within which and
any terms and conditions upon which Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(10) if other than denominations of $1,000 and any integral
multiple thereof in the case of Registered Securities, or $1,000 and $5,000
in the case of Unregistered Securities, the denominations in which
Securities of the series shall be issuable;
(11) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof;
(12) if other than the coin or currency in which the Securities
of that series are denominated, the coin or currency in which payment of
the principal of or interest on the Securities of such series shall be
payable;
(13) if the principal of or interest on the Securities of the
series is to be payable, at the election of the Issuer or a Holder thereof,
in a coin or currency other than that in which the Securities are
denominated, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(14) if the amount of payments of principal of and interest on
the Securities of the series may be determined with reference to an index
based on a coin or currency other than that in which the Securities of the
series are denominated, the manner in which such amounts shall be
determined;
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(15) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether such Securities will be issuable
as Registered Global Securities) or Unregistered Securities (with or
without Coupons), or any combination of the foregoing, any restrictions
applicable to the offer, sale or delivery of Unregistered Securities or the
payment of interest thereon and, if other than as provided in Section 2.8,
the terms upon which Unregistered Securities of any series may be exchanged
for Registered Securities of such series and vice versa;
(16) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a Person who is
not a U.S. Person in respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Issuer will have the option to
redeem such Securities rather than pay such additional amounts;
(17) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then
the form and terms of such certificates, documents or conditions;
(18) any trustees, authenticating or paying agents, transfer
agents or registrars or any other agents with respect to the Securities of
such series;
(19) any other events of default or covenants with respect to the
Securities of such series;
(20) if the Securities of the series may be issued in exchange
for surrendered Securities of another series, or for other securities of
the Issuer, pursuant to the terms of such Securities or securities or of
any agreement entered into by the Issuer, the ratio of the principal amount
of the Securities of the series to be issued to the principal amount of the
Securities or securities to be surrendered in exchange, and any other
material terms of the exchange; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
SECTION 2.4 Authentication and Delivery of Securities. The
Issuer may deliver Securities of any series
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having attached thereto appropriate Coupons, if any, executed by the Issuer to
the Trustee for authentication together with the applicable documents referred
to below in this Section, and the Trustee shall thereupon authenticate and
deliver such Securities to or upon the order of the Issuer (contained in the
Issuer Order referred to below in this Section) or pursuant to such procedures
acceptable to the Trustee and to such recipients as may be specified from time
to time by an Issuer Order. The maturity date, original issue date, interest
rate and any other terms of the Securities of such series and Coupons, if any,
appertaining thereto shall be determined by or pursuant to such Issuer Order
and procedures. If provided for in such procedures, such Issuer Order may
authorize authentication and delivery pursuant to oral instructions from the
Issuer or its duly authorized agent, which instructions shall be promptly
confirmed in writing. In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
6.1) shall be fully protected in relying upon:
(1) an Issuer Order requesting such authentication and setting forth
delivery instructions if the Securities and Coupons, if any, are not to be
delivered to the Issuer;
(2) any Board Resolution, Officers' Certificate and/or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant
to which the forms and terms of the Securities and Coupons, if any, were
established;
(3) an Officers' Certificate setting forth the form or forms and
terms of the Securities and Coupons, if any, stating that the form or forms
and terms of the Securities and Coupons, if any, have been established
pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and
covering such other matters as the Trustee may reasonably request; and
(4) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities and
Coupons, if any, have been established pursuant to Sections 2.1
and 2.3 and comply with this Indenture,
(b) the authentication and delivery of such Securities and
Coupons, if any, by the Trustee are authorized under the
provisions of this Indenture,
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(c) such Securities and Coupons, if any, when
authenticated and delivered by the Trustee and issued by the
Issuer in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and binding
obligations of the Issuer, and
(d) all laws and requirements in respect of the execution
and delivery by the Issuer of the Securities and Coupons, if any,
have been complied with,
and covering such other matters as the Trustee may reasonably request.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders or would affect the Trustee's own
rights, duties or immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Registered
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the Issuer Order with respect to such series,
authenticate and deliver one or more Registered Global Securities that (i)
shall represent and shall be denominated in an amount equal to the aggregate
principal amount of all of the Securities of such series issued and not yet
cancelled, (ii) shall be registered in the name of the Depositary for such
Registered Global Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this Security may not be transferred
except as a whole by the Depositary to the nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary."
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Each Depositary designated pursuant to Section 2.3 must, at the
time of its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of 1934 and any
other applicable statute or regulation.
SECTION 2.5 Execution of Securities. The Securities and, if
applicable, each Coupon appertaining thereto shall be signed on behalf of the
Issuer by the chairman of its Board of Directors or any vice chairman of its
Board of Directors or its president or any vice president or its treasurer,
under its corporate seal (except in the case of Coupons) which may, but need
not, be attested. Such signatures may be the manual or facsimile signatures of
the present or any future such officers. The seal of the Issuer may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Typographical and other minor errors
or defects in any such reproduction of the seal or any such signature shall not
affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Issuer, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or
Coupon had not ceased to be such officer of the Issuer; and any Security or
Coupon may be signed on behalf of the Issuer by such persons as, at the actual
date of the execution of such Security or Coupon, shall be the proper officers
of the Issuer, although at the date of the execution and delivery of this
Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, executed by the Trustee by the manual
signature of one of its authorized officers, shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. No Coupon shall
be entitled to the benefits of this Indenture or shall be valid and obligatory
for any purpose until the certificate of authentication on the Security to
which such Coupon appertains shall have been duly executed by the Trustee. The
execution of such certificate by the Trustee upon any Security executed by the
Issuer shall be conclusive evidence that the Security so
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authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, with respect to the Registered Securities of
any series, if not so established, in denominations of $1,000 and any integral
multiple thereof. If denominations of Unregistered Securities of any series
are not so established, such Securities shall be issuable in denominations of
$1,000 and $5,000. The Securities of each series shall be numbered, lettered
or otherwise distinguished in such manner or in accordance with such plan as
the officers of the Issuer executing the same may determine with the approval
of the Trustee, as evidenced by the execution and authentication thereof.
Unless otherwise indicated in a Board Resolution or supplemental indenture for
a particular series, interest will be calculated on the basis of a 360-day year
of twelve 30-day months.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as provided in the
resolution or resolutions of the Board of Directors of the Issuer referred to
in Section 2.3. The Securities of each series shall bear interest, if any,
from the date, and such interest shall be payable on the dates, established as
contemplated by Section 2.3.
The Person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer, exchange or conversion of such
Registered Security subsequent to the record date and prior to such interest
payment date (subject, in the case of conversion of such Security during such
period, to Section 13.2), except if and to the extent the Issuer shall default
in the payment of the interest due on such interest payment date for such
series, in which case such defaulted interest shall be paid to the Persons in
whose names Outstanding Registered Securities for such series are registered at
the close of business on a subsequent record date (which shall be not less than
five Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the
Holders of Registered Securities
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not less than 15 days preceding such subsequent record date. The term "record
date" as used with respect to any interest payment date (except a date for
payment of defaulted interest) for the Securities of any series shall mean the
date specified as such in the terms of the Registered Securities of such series
established as contemplated by Section 2.3, or, if no such date is so
established, if such interest payment date is the first day of a calendar
month, the 15th day of the next preceding calendar month or, if such interest
payment date is the 15th day of a calendar month, the first day of such
calendar month, whether or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer
will keep at each office or agency to be maintained for the purpose as provided
in Section 3.2 for each series of Securities a register or registers in which,
subject to such reasonable regulations as it may prescribe, it will provide for
the registration of Securities of such series and the registration of transfer
of Registered Securities of such series. Such register shall be in written
form in the English language or in any other form capable of being converted
into such form within a reasonable time. At all reasonable times such register
or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency to be maintained
for the purpose as provided in Section 3.2, the Issuer shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same
series, maturity date, interest rate and original issue date in authorized
denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary Unregistered
Securities) and Coupons (except for Coupons attached to any temporary
Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of any
series (except a Registered Global Security) may be exchanged for a Registered
Security or Registered Securities of such series having authorized
denominations and an equal aggregate principal amount, upon surrender of such
Registered Securities to be exchanged at the agency of the Issuer that shall be
maintained for such purpose in accordance with Section 3.2 and upon payment, if
the Issuer shall so require, of the charges hereinafter provided. If the
Securities of any series are issued in
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<PAGE> 27
both registered and unregistered form, except as otherwise specified pursuant
to Section 2.3, at the option of the Holder thereof, Unregistered Securities of
any series may be exchanged for Registered Securities of such series having
authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section
3.2, with, in the case of Unregistered Securities that have Coupons attached,
all unmatured Coupons and all matured Coupons in default thereto appertaining,
and upon payment, if the Issuer shall so require, of the charges hereinafter
provided. At the option of the Holder thereof, if Unregistered Securities of
any series, maturity date, interest rate and original issue date are issued in
more than one authorized denomination, except as otherwise specified pursuant
to Section 2.3, such Unregistered Securities may be exchanged for Unregistered
Securities of such series having authorized denominations and an equal
aggregate principal amount, upon surrender of such Unregistered Securities to
be exchanged at the agency of the Issuer that shall be maintained for such
purpose in accordance with Section 3.2 or as specified pursuant to Section 2.3,
with, in the case of Unregistered Securities that have Coupons attached, all
unmatured Coupons and all matured Coupons in default thereto appertaining, and
upon payment, if the Issuer shall so require, of the charges hereinafter
provided. Unless otherwise specified pursuant to Section 2.3, Registered
Securities of any series may not be exchanged for Unregistered Securities of
such series. Whenever any Securities are so surrendered for exchange, the
Issuer shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive. All
Securities and Coupons surrendered upon any exchange or transfer provided for
in this Indenture shall be promptly cancelled and disposed of by the Trustee
and the Trustee will deliver a certificate of disposition thereof to the
Issuer.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the Holder or his or her attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any
stamp or other tax or other governmental charge that may be imposed in
connection with any exchange or
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registration of transfer of Securities. No service charge shall be made for
any such transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing of notice of redemption of Securities of such
series to be redeemed or (b) any Securities selected, called or being called
for redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8, unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
If at any time the Depositary for the Registered Securities of a
series notifies the Issuer that it is unwilling or unable to continue as
Depositary for the Registered Securities of such series or if at any time the
Depositary for the Registered Securities of a series shall no longer be
eligible under Section 2.4, the Issuer shall appoint a successor Depositary
with respect to the Registered Securities of such series. If a successor
Depositary for the Registered Securities of such series is not appointed by the
Issuer within 90 days after the Issuer receives such notice or becomes aware of
such ineligibility, the Issuer's election pursuant to Section 2.3 that the
Registered Securities of such series be represented by a Registered Global
Security shall no longer be effective and the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive registered form without
Coupons, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of the Registered Global Security or Securities
representing the Registered Securities of such series, in exchange for such
Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion determine
that the Registered Securities of any series issued in the form of one or more
Registered Global Securities shall no longer be represented by a Registered
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<PAGE> 29
Global Security or Securities. In such event the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive registered form without
Coupons, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of the Registered Global Security or Securities
representing such series, in exchange for such Registered Global Security or
Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new Registered
Security or Securities of the same series, of any authorized denominations
as requested by such Person, in an aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Registered Global
Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal amount
of the surrendered Registered Global Security and the aggregate principal
amount of Registered Securities authenticated and delivered pursuant to
clause (i) above.
Upon the exchange of a Registered Global Security for Securities
in definitive registered form without Coupons, in authorized denominations,
such Registered Global Security shall be cancelled by the Trustee. Securities
in definitive registered form without Coupons issued in exchange for a
Registered Global Security pursuant to this Section 2.8 shall be registered in
such names and in such authorized denominations as the Depositary for such
Registered Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to or as directed by the Persons in whose names
such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the
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Issuer, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, neither the Issuer nor the Trustee (which shall
rely on an Officers' Certificate and an Opinion of Counsel) shall be required
to exchange any Unregistered Security for a Registered Security if such
exchange would result in adverse Federal income tax consequences to the Issuer
(such as, for example, the inability of the Issuer to deduct from its income,
as computed for Federal income tax purposes, the interest payable on the
Unregistered Securities) under then applicable United States Federal income tax
laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or any Coupon
appertaining to any Security shall become mutilated, defaced or be destroyed,
lost or stolen, the Issuer in its discretion may execute, and upon the written
request of any officer of the Issuer, the Trustee shall authenticate and
deliver a new Security of the same series, maturity date, interest rate and
original issue date, bearing a number or other distinguishing symbol not
contemporaneously outstanding, in exchange and substitution for the mutilated
or defaced Security, or in lieu of and substitution for the Security so
destroyed, lost or stolen with Coupons corresponding to the Coupons
appertaining to the Securities so mutilated, defaced, destroyed, lost or
stolen, or in exchange or substitution for the Security to which such
mutilated, defaced, destroyed, lost or stolen Coupon appertained, with Coupons
appertaining thereto corresponding to the Coupons so mutilated, defaced,
destroyed, lost or stolen. In every case the applicant for a substitute
Security or Coupon shall furnish to the Issuer and to the Trustee and any agent
of the Issuer or the Trustee such security or indemnity as may be required by
them to indemnify and defend and to save each of them harmless and, in every
case of destruction, loss or theft, evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the ownership
thereof and in the case of mutilation or defacement shall surrender the
Security and related Coupons to the Trustee.
Upon the issuance of any substitute Security or Coupon, the Issuer
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
In case any Security or Coupon which
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has matured or is about to mature or has been called for redemption in full, or
is being surrendered for conversion in full, shall become mutilated or defaced
or be destroyed, lost or stolen, the Issuer may, instead of issuing a
substitute Security (with the Holder's consent, in the case of convertible
Securities), pay or authorize the payment of the same or the relevant Coupon or
convert, or authorize conversion of the same (without surrender thereof except
in the case of a mutilated or defaced Security or Coupon), if the applicant for
such payment shall furnish to the Issuer and to the Trustee and any agent of
the Issuer or the Trustee such security or indemnity as any of them may require
to save each of them harmless, and, in every case of destruction, loss or
theft, the applicant shall also furnish to the Issuer and the Trustee and any
agent of the Issuer or the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the ownership
thereof.
Every substitute Security or Coupon of any series issued pursuant
to the provisions of this Section by virtue of the fact that any such Security
or Coupon is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Security or Coupon shall be at any time enforceable by anyone and shall
be entitled to all the benefits of (but shall be subject to all the limitations
of rights set forth in) this Indenture equally and proportionately with any and
all other Securities or Coupons of such series duly authenticated and delivered
hereunder. All Securities and Coupons shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment or conversion of
mutilated, defaced or destroyed, lost or stolen Securities and Coupons 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 2.10 Cancellation of Securities; Destruction Thereof.
All Securities and Coupons surrendered for exchange for Securities of the same
series or for payment, redemption, registration of transfer, conversion or for
credit against any payment in respect of a sinking or analogous fund, if
surrendered to the Issuer or any agent of the Issuer or the Trustee, shall be
delivered to the Trustee for cancellation or, if surrendered to the Trustee,
shall be cancelled by it; and no Securities or Coupons shall be issued in lieu
thereof except as expressly permitted by any
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of the provisions of this Indenture. The Trustee shall dispose of cancelled
Securities and Coupons held by it and deliver a certificate of disposition to
the Issuer. If the Issuer shall acquire any of the Securities or Coupons, such
acquisition shall not operate as a redemption or satisfaction of the Debt
represented by such Securities or Coupons unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without Coupons, or as Unregistered
Securities with or without Coupons attached thereto, of any authorized
denomination, and substantially in the form of the definitive Securities of
such series but with such omissions, insertions and variations as may be
appropriate for temporary Registered Securities, all as may be determined by
the Issuer with the concurrence of the Trustee as evidenced by the execution
and authentication thereof. Temporary Securities may contain such reference to
any provisions of this Indenture as may be appropriate. Every temporary
Security shall be executed by the Issuer and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities. Without unreasonable delay the Issuer
shall execute and shall furnish definitive Securities of such series and
thereupon temporary Registered Securities of such series may be surrendered in
exchange therefor without charge at each office or agency to be maintained by
the Issuer for that purpose pursuant to Section 3.2 and, in the case of
Unregistered Securities, at any agency maintained by the Issuer for such
purpose as specified pursuant to Section 2.3, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities of such
series an equal aggregate principal amount of definitive Securities of the same
series having authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons. Until so
exchanged, the temporary Securities of any series shall be entitled to the same
benefits under this Indenture as definitive Securities of such series, unless
the benefits of the temporary Securities are limited pursuant to Section 2.3.
The provisions of this Section are subject to any restrictions or limitations
on the issue and delivery of temporary Unregistered Securities of any series
that may be established pursuant to Section 2.3 (including any provision
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that Unregistered Securities of such series initially be issued in the form of
a single global Unregistered Security to be delivered to a depositary or agency
located outside the United States and the procedures pursuant to which
definitive or global Unregistered Securities of such series would be issued in
exchange for such temporary global Unregistered Security).
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of, and interest on,
each of the Securities of such series (together with any additional amounts
payable pursuant to the terms of such Securities) at the place or places, at
the respective times and in the manner provided in such Securities and in the
Coupons, if any, appertaining thereto and in this Indenture. The interest on
Securities with Coupons attached (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such interest
installments as are evidenced thereby as they severally mature. If any
temporary Unregistered Security provides that interest thereon may be paid
while such Security is in temporary form, the interest on any such temporary
Unregistered Security (together with any additional amounts payable pursuant to
the terms of such Security) shall be paid, as to the installments of interest
evidenced by Coupons attached thereto, if any, only upon presentation and
surrender thereof, and, as to the other installments of interest, if any, only
upon presentation of such Securities for notation thereon of the payment of
such interest, in each case subject to any restrictions that may be established
pursuant to Section 2.3. The interest on Registered Securities (together with
any additional amounts payable pursuant to the terms of such Securities) shall
be payable only to or upon the written order of the Holders thereof and at the
option of the Issuer may be paid by mailing checks for such interest payable to
or upon the written order of such Holders at their last addresses as they
appear on the registry books of the Issuer.
SECTION 3.2 Offices for Payments, etc. The Issuer will
maintain (i) in the Borough of Manhattan, The City of New York, an agency where
the Registered Securities of each series may be presented for payment, an
agency where
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the Securities of each series may be presented for exchange and conversion, if
applicable, as is provided in this Indenture and, if applicable, pursuant to
Section 2.3 and an agency where the Registered Securities of each series may be
presented for registration of transfer as in this Indenture provided and (ii)
such further agencies in such places as may be determined for the Securities of
such series pursuant to Section 2.3.
The Issuer will maintain one or more agencies in a city or cities
located outside the United States (including any city in which such an agency
is required to be maintained under the rules of any stock exchange on which the
Securities of such series are listed) where the Unregistered Securities, if
any, of each series and Coupons, if any, appertaining thereto may be presented
for payment. No payment on any Unregistered Security or Coupon will be made
upon presentation of such Unregistered Security or Coupon at an agency of the
Issuer within the United States nor will any payment be made by transfer to an
account in, or by mail to an address in, the United States unless pursuant to
applicable United States laws and regulations then in effect such payment can
be made without adverse tax consequences to the Issuer. Notwithstanding the
foregoing, payments in Dollars of Unregistered Securities of any series and
Coupons appertaining thereto which are payable in Dollars may be made at an
agency of the Issuer maintained in the Borough of Manhattan, The City of New
York, if such payment in Dollars at each agency maintained by the Issuer
outside the United States for payment on such Unregistered Securities is
illegal or effectively precluded by exchange controls or other similar
restrictions.
The Issuer will maintain in the Borough of Manhattan, The City of
New York, an agency where notices and demands to or upon the Issuer in respect
of the Securities of any series, the Coupons appertaining thereto or this
Indenture may be served.
The Issuer will give to the Trustee written notice of the location
of each such agency and of any change of location thereof. In case the Issuer
shall fail to maintain any agency required by this Section to be located in the
Borough of Manhattan, The City of New York, or shall fail to give such notice
of the location or of any change in the location of any of the above agencies,
presentations and demands may be made and notices may be served at the
Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more additional
agencies where the Securities of a series
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and any Coupons appertaining thereto may be presented for payment, where the
Securities of that series may be presented for exchange or conversion, if
applicable, as provided in this Indenture and pursuant to Section 2.3 and where
the Registered Securities of that series may be presented for registration of
transfer as in this Indenture provided, and the Issuer may from time to time
rescind any such designation, as the Issuer may deem desirable or expedient;
provided, however, that no such designation or rescission shall in any manner
relieve the Issuer of its obligation to maintain the agencies provided for in
this Section. The Issuer will give to the Trustee prompt written notice of any
such designation or rescission thereof.
SECTION 3.3 Appointment to Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee with respect to each
series of Securities hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall appoint
a paying agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other
obligor on the Securities of such series) in trust for the benefit of the
Holders of the Securities of such series, or Coupons appertaining thereto,
if any, or of the Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities of such series) to make any
payment of the principal of or interest on the Securities of such series
when the same shall be due and payable, and
(c) that at any time during the continuance of any such failure, upon
the written request of the Trustee, it will forthwith pay to the Trustee
all sums so held in trust by such paying agent.
The Issuer will, on or prior to each due date of the principal of
or interest on the Securities of such series, deposit with the paying agent a
sum sufficient to
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pay such principal or interest so becoming due, and (unless such paying agent
is the Trustee) the Issuer will promptly notify the Trustee of any failure to
take such action.
If the Issuer shall act as its own paying agent with respect to
the Securities of any series, it will, on or before each due date of the
principal of or interest on the Securities of such series, set aside, segregate
and hold in trust for the benefit of the Holders of the Securities of such
series or the Coupons appertaining thereto a sum sufficient to pay such
principal or interest so becoming due. The Issuer will promptly notify the
Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, but
subject to Section 10.1, the Issuer may at any time, for the purpose of
obtaining a satisfaction and discharge with respect to one or more or all
series of Securities hereunder, or for any other reason, pay or cause to be
paid to the Trustee all sums held in trust for any such series by the Issuer or
any paying agent hereunder, as required by this Section, such sums to be held
by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.3 and 10.4.
SECTION 3.5 Written Statement to Trustee. So long as any
Securities are Outstanding, the Issuer will deliver to the Trustee on or before
_______ __ in each year (beginning in 1997) a written statement covering the
previous calendar year, signed by two of its officers (which need not comply
with Section 11.5), stating that in the course of the performance of their
duties as officers of the Issuer they would normally have knowledge of any
default by the Issuer in the performance or fulfillment of any covenant,
agreement or condition contained in this Indenture, stating whether or not they
have knowledge of any such default and, if so, specifying each such default of
which the signers have knowledge and the nature thereof.
SECTION 3.6 Limitation on Liens. The following provisions
shall apply to the Securities of each series unless specifically otherwise
provided in a Board Resolution, Officers' Certificate or indenture supplemental
hereto as provided pursuant to Section 2.3.
(a) The Issuer will not issue or assume, and will not permit any
Restricted Subsidiary to issue or assume, any
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Debt secured by any mortgage, pledge, lien or other encumbrance (mortgages,
pledges, liens and other encumbrances being hereinafter called "Mortgage" or
"Mortgages") upon any Principal Manufacturing Property, or shares of capital
stock or Debt of any Restricted Subsidiary (whether such Principal
Manufacturing Property, shares of stock or Debt is now owned or hereafter
acquired) without in any such case effectively providing, concurrently with the
issuance or assumption of such Debt, that the Securities (together with, if the
Issuer shall so determine, any other Debt of the Issuer or such Restricted
Subsidiary ranking equally with the Securities and then existing or thereafter
created) shall be secured equally and ratably with such Debt; provided, that
the foregoing restrictions shall not apply to:
(i) Mortgages on any Principal Manufacturing Property hereafter
acquired by the Issuer or a Restricted Subsidiary prior to, at the time of,
or within 120 days after the latest of the acquisition, completion of
construction (including any improvements on an existing property) or
commencement of commercial operation of such property, to secure or provide
for the payment or financing of all or any part of the purchase price
thereof or construction of fixed improvements thereon, or, in addition to
assumptions in transactions contemplated by subparagraph (ii) below, the
assumption of any Mortgage upon any such property hereafter acquired
existing at the time of such acquisition, or the acquisition of any such
property subject to any Mortgage without the assumption thereof; provided,
that the aggregate principal amount of Debt secured by any such Mortgage so
issued, assumed or existing shall not exceed 100% of the cost of such
Principal Manufacturing Property to the corporation acquiring the same or
of the fair value thereof (as determined by resolution adopted by the Board
of Directors) at the time of such acquisition, whichever is less, and
provided, further, that in the case of any such acquisition, construction
or improvement the Mortgage shall not apply to any property theretofore
owned by the Issuer or a Restricted Subsidiary, other than, in the case of
any such construction or improvement, any theretofore unimproved real
property on which the property so constructed, or the improvement, is
located;
(ii) the assumption of any Mortgage on any Principal Manufacturing
Property of a corporation which is merged into or consolidated with the
Issuer or a Restricted Subsidiary or substantially all the assets
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of which are acquired by the Issuer or a Restricted Subsidiary;
(iii) Mortgages on any Principal Manufacturing Property of the Issuer or
a Restricted Subsidiary in favor of the United States of America or any
State thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof, or in
favor of any other country, or any political subdivision thereof, to secure
partial, progress, advance or other payments pursuant to any contract or
statute or to secure any Debt incurred or guaranteed for the purpose of
financing all or any part of the cost of acquiring, constructing or
improving the property subject to such Mortgages (including Mortgages
incurred in connection with pollution control, industrial revenue, Title XI
maritime financings or similar financings);
(iv) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part, of any Mortgage referred to
in the foregoing clauses (i) through (iii); provided, however, that the
principal amount of Debt so secured thereby shall not exceed the principal
amount of Debt so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement shall be
limited to all or a part of the property which secured the Mortgage so
extended, renewed or replaced (plus improvements and construction on such
property); and
(v) Mortgages securing Debt of a Restricted Subsidiary owing to the
Issuer or another Restricted Subsidiary.
(b) Notwithstanding the provisions of subsection (a) of this
Section 3.6, the Issuer or any one or more Subsidiaries may issue or assume
Debt secured by a Mortgage in addition to those permitted by subsection (a) of
this Section 3.6 and renew, extend or replace such Mortgages; provided, that at
the time of such creation, assumption, renewal, extension or replacement, and
after giving effect thereto, Exempted Debt does not exceed 5% of Consolidated
Net Tangible Assets.
SECTION 3.7 Limitation on Sale and Leaseback. The following
provisions shall apply to the Securities of each series unless specifically
otherwise provided in a Board Resolution, Officers' Certificate or indenture
supplemental hereto provided pursuant to Section 2.3.
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(a) The Issuer will not, nor will it permit any Restricted
Subsidiary to, enter into any arrangement with any Person providing for the
leasing by the Issuer or any Restricted Subsidiary of any Principal
Manufacturing Property, whether such Principal Manufacturing Property is now
owned or hereafter acquired, except for temporary leases for a term, including
renewals at the option of the lessee, of not more than three years and except
for leases between the Issuer and a Restricted Subsidiary or between Restricted
Subsidiaries, which property has been or is to be sold or transferred by the
Issuer or such Restricted Subsidiary to such Person with the intention of
taking back a lease of such property (a "sale and leaseback transaction")
unless the proceeds of such sale or transfer shall be at least equal to the
fair value of such property as determined by resolution adopted by the Board of
Directors and either:
(i) the Issuer or such Restricted Subsidiary would be entitled,
pursuant to the provisions of Section 3.6, to issue or assume Debt secured
by a Mortgage on such property at least equal in amount to the Attributable
Debt in respect of such sale and leaseback transaction without equally and
ratably securing the Securities; provided, however, that from and after the
date on which such sale and leaseback transaction becomes effective the
Attributable Debt in respect of such arrangement shall be deemed for all
purposes under Section 3.6 and this Section 3.7 to be Debt subject to the
provisions of Section 3.6; or
(ii) within a period commencing 12 months prior to the consummation of
such sale and leaseback transaction and ending 12 months after the
consummation of such sale and leaseback transaction, the Issuer or
Restricted Subsidiary, as the case may be, has expended, or will expend,
for Principal Manufacturing Property an amount equal to (A) the proceeds of
such sale and leaseback transaction and the Issuer elects to designate such
amount as a credit against such sale and leaseback transaction or (B) a
part of the proceeds of such sale and leaseback transaction and the Issuer
elects to designate such amount as a credit against such sale and leaseback
transaction and treats an amount equal to the remainder of the proceeds as
provided in clause (iii) hereof; or
(iii) such sale or transfer does not come within the exceptions provided
by clause (i) hereof and the Issuer does not make the election permitted by
clause (ii) hereof or makes such election only as to part of such proceeds,
in either of which events the Issuer will (A)
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within 120 days after such sale and leaseback transaction, apply an amount
equal to the Attributable Debt in respect of such sale and leaseback
transaction (less an amount equal to the amount, if any, elected under
clause (ii) hereof) to the retirement (other than any mandatory retirement
or by way of payment at maturity) of Funded Debt of the Issuer or any
Restricted Subsidiary, or (B) consider an amount equal to the Attributable
Debt in respect of such sale and leaseback transaction (less an amount
equal to the amount, if any, elected under clause (ii) hereof) to be
Attributable Debt for purposes of the calculation of Exempted Debt;
provided, that, after giving effect thereto, Exempted Debt does not exceed
5% of Consolidated Net Tangible Assets.
For the purpose of this Section 3.7 the term "Attributable Debt"
shall mean, at the time of determination, the present value (discounted at the
interest rate implicit in the lease or, if it is not practicable to determine
such rate, then at the Issuer's incremental borrowing rate determined in
accordance with generally accepted accounting principles) of the obligation of
the lessee for net rental payments during the remaining term of any lease
included in the sale and leaseback transaction (including any period for which
such lease has been extended or may, at the option of the lessor, be extended).
The term "net rental payments" under any lease for any period shall mean the
sum of the rental and other payments required to be paid by such lessee
thereunder, not including, however, amounts payable by the lessee for
maintenance and repairs, insurance, taxes, assessments and similar charges and
for contingent rents (such as those based on sales).
(b) Notwithstanding the provisions of paragraph (a) of this
Section 3.7, the Issuer and any Restricted Subsidiary may enter into sale and
leaseback transactions in addition to those permitted by paragraph (a) of this
Section 3.7 and without any obligation to make expenditures for Principal
Manufacturing Property or to retire any Debt; provided, that at the time of
entering into such sale and leaseback transactions and after giving effect
thereto, Exempted Debt does not exceed 5% of Consolidated Net Tangible Assets.
SECTION 3.8 Luxembourg Publications. In the event of the
publication of any notice pursuant to Section 5.11, 6.10(a), 6.11, 8.2, 10.4,
12.2 or 12.6, the party making such publication in the Borough of Manhattan,
The City of New York, and London shall also, to the extent that notice is
required to be given to Holders of Securities of
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any series by applicable Luxembourg law or stock exchange regulation, as
evidenced by an Officers' Certificate delivered to such party, make a similar
publication in Luxembourg.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE.
SECTION 4.1 Issuer to Furnish Trustee Information as to Names
and Addresses of Securityholders. The Issuer covenants and agrees that it will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders of the
Registered Securities of each series pursuant to Section 312 of the Trust
Indenture Act of 1939:
(a) semiannually and not more than 15 days after each record date for
the payment of interest on such Registered Securities, as hereinabove
specified, as of such record date and on dates to be determined pursuant to
Section 2.3 for non-interest bearing Registered Securities in each year,
and
(b) at such other times as the Trustee may request in writing, within
30 days after receipt by the Issuer of any such request as of a date not
more than 15 days prior to the time such information is furnished,
provided, that, if and so long as the Trustee shall be the Security registrar
for such series and all of the Securities of any series are Registered
Securities, such list shall not be required to be furnished.
SECTION 4.2 Reports by the Issuer. The Issuer covenants to
file with the Trustee, within 15 days after the Issuer is required to file the
same with the Commission, copies of the annual reports and of the information,
documents, and other reports which the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934.
SECTION 4.3 Reports by the Trustee. Any Trustee's report
required under Section 313(a) of the Trust Indenture Act of 1939 shall be
transmitted on or before _______ in each year following the date hereof, so
long as any Securities are Outstanding hereunder, and shall be dated
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as of a date convenient to the Trustee but no more than 60 nor less than 45
days prior thereto.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default", with respect to Securities of
any series wherever used herein, means each one of the following events which
shall have occurred and be continuing (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal on any
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise;
or
(c) default in the performance, or breach, of any covenant or
warranty of the Issuer in respect of the Securities of such series (other
than a covenant or warranty in respect of the Securities of such series a
default in the performance or breach of which is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a
period of 90 days after there has been given, by registered or certified
mail, to the Issuer by the Trustee or to the Issuer and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities
of all series affected thereby, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(d) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or
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hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Issuer or
for any substantial part of its property or ordering the winding up or
liquidation of its affairs, and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or
(e) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under
any such law, or consent to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Issuer or for any substantial part of its
property, or make any general assignment for the benefit of creditors; or
(f) default by the Issuer in the conversion of any Security in
accordance herewith and continuance of such default for a period of 45
days; or
(g) any other Event of Default provided in the supplemental indenture
or resolution of the Board of Directors under which such series of
Securities is issued or in the form of Security for such series.
If an Event of Default described in clauses (a), (b), (c), (f) or (g) (if the
Event of Default under clause (c) or (g) is with respect to less than all
series of Securities then Outstanding) occurs and is continuing, then, and in
each and every such case, unless the principal of all of the Securities of such
series shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Securities of
such series then Outstanding hereunder (each such series voting as a separate
class) by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of
such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) of all
Securities of such series and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default described in clause (c) or
(g) (if the Event of Default under clause (c) or (g) is with respect to all
series of Securities then Outstanding), (d) or (e) occurs and is continuing,
then and in each and every such case, unless the principal of all the
Securities shall have already become
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due and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of all the Securities then Outstanding hereunder
(treated as one class), by notice in writing to the Issuer (and to the Trustee
if given by Securityholders), may declare the entire principal (or, if any
Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities then
Outstanding and interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately
due and payable.
The foregoing provisions, however, are subject to the condition
that if, at any time after the principal (or, if the Securities are Original
Issue Discount Securities, such portion of the principal as may be specified in
the terms thereof) of the Securities of any series (or of all the Securities,
as the case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the Issuer shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured installments of interest upon
all the Securities of such series (or of all the Securities, as the case may
be) and the principal of any and all Securities of such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments
of interest, at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities of
such series, (or at the respective rates of interest or Yields to Maturity of
all the Securities, as the case may be) to the date of such payment or deposit)
and such amount as shall be sufficient to cover reasonable compensation to the
Trustee, its agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee except as a result
of negligence or bad faith, and if any and all Events of Default under the
Indenture, other than the non-payment of the principal of Securities which
shall have become due by acceleration, shall have been cured, waived or
otherwise remedied as provided herein--then and in every such case the Holders
of a majority in aggregate principal amount of all the Securities of such
series, each series voting as a separate class, (or of all the Securities, as
the case may be, voting as a single class) then Outstanding, by written notice
to the Issuer and to the Trustee, may waive all defaults with respect to such
series (or with respect to all the Securities, as the case may be) and rescind
and annul
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such declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities shall
be deemed, for all purposes hereunder, to be such portion of the principal
thereof as shall be due and payable as a result of such acceleration, and
payment of such portion of the principal thereof as shall be due and payable as
a result of such acceleration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full of such
Original Issue Discount Securities.
SECTION 5.2 Collection of Debt by Trustee; Trustee May Prove
Debt. The Issuer covenants that (a) in case default shall be made in the
payment of any installment of interest on any of the Securities of any series
when such interest shall have become due and payable, and such default shall
have continued for a period of 30 days or (b) in case default shall be made in
the payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity
of the Securities of such series or upon any redemption or by declaration or
otherwise--then, upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole
amount that then shall have become due and payable on all Securities of such
series, and such Coupons, for principal or interest, as the case may be (with
interest to the date of such payment upon the overdue principal and, to the
extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of such series); and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including reasonable compensation to the Trustee and each predecessor trustee,
their respective agents, attorneys and counsel, and any expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor trustee except as a result of its negligence or bad faith.
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In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon such Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon such Securities, wherever
situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer
or any other obligor upon the Securities under Title 11 of the United States
Code or any other applicable Federal or state bankruptcy, insolvency or other
similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor or its property, or in case of any other comparable judicial
proceedings relative to the Issuer or other obligor upon the Securities of any
series, or to the creditors or property of the Issuer or such other obligor,
the Trustee, irrespective of whether the principal of any Securities shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section, shall be entitled and empowered, by intervention in
such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) owing and unpaid in respect of the
Securities of any series, and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and each
predecessor trustee, and their respective agents, attorneys and counsel,
and for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor trustee, except as a
result of negligence or bad faith) and of the Securityholders allowed in
any judicial proceedings relative to the Issuer or other obligor upon the
Securities of any series, or to the creditors or property of the Issuer or
such other obligor,
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(b) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Securities of any series in any
election of a trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or person
performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee shall
consent to the making of payments directly to the Securityholders, to pay
to the Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
trustee except as a result of negligence or bad faith and all other amounts
due to the Trustee or any predecessor trustee pursuant to Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture,
or under any of the Securities of any series or Coupons appertaining to such
Securities, may be enforced by the Trustee without the possession of any of the
Securities of such series or Coupons appertaining to such Securities or the
production thereof on any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment, subject
to the payment of the expenses, disbursements and compensation of the Trustee,
each predecessor trustee and their respective agents and attorneys, shall be
for the ratable benefit of the Holders
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of the Securities or Coupons appertaining to such Securities in respect of
which such action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities or Coupons appertaining to such Securities in
respect to which such action was taken, and it shall not be necessary to make
any Holders of such Securities or Coupons appertaining to such Securities
parties to any such proceedings.
SECTION 5.3 Application of Proceeds. Any moneys collected by
the Trustee pursuant to this Article in respect of any series shall be applied
in the following order at the date or dates fixed by the Trustee and, in case
of the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining to such
Securities in respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee or any
predecessor trustee pursuant to Section 6.6;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the Persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent that such
interest has
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been collected by the Trustee) upon overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of such
series; and in case such moneys shall be insufficient to pay in full the
whole amount so due and unpaid upon the Securities of such series, then to
the payment of such principal and interest or Yield to Maturity, without
preference or priority of principal over interest or Yield to Maturity, or
of interest or Yield to Maturity over principal, or of any installment of
interest over any other installment of interest, or of any Security of such
series over any other Security of such series, ratably to the aggregate of
such principal and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or any
other Person lawfully entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an Event of
Default has occurred, has not been waived and is continuing, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.5 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the
Trustee, then and in every such case the Issuer and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Issuer, the Trustee and the Securityholders
shall continue as though no such proceedings had been taken.
SECTION 5.6 Limitations on Suits by Securityholders. No
Holder of any Security of any series or of any Coupon appertaining thereto
shall have any right by virtue or by availing of any provision of this
Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to
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this Indenture, or for the appointment of a trustee, receiver, liquidator,
custodian or other similar official or for any other remedy hereunder, unless
such Holder previously shall have given to the Trustee written notice of
default and of the continuance thereof, as hereinbefore provided, and unless
also the Holders of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding shall have made written request upon
the Trustee to institute such action or proceedings in its own name as trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such action
or proceeding and no direction inconsistent with such written request shall
have been given to the Trustee pursuant to Section 5.9; it being understood and
intended, and being expressly covenanted by the taker and Holder of every
Security or Coupon with every other taker and Holder and the Trustee, that no
one or more Holders of Securities of any series or Coupons appertaining to such
Securities shall have any right in any manner whatever by virtue or by availing
of any provision of this Indenture to affect, disturb or prejudice the rights
of any other such Holder of Securities or Coupons appertaining to such
Securities, or to obtain or seek to obtain priority over or preference to any
other such Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders of Securities of the applicable series and Coupons appertaining to such
Securities. For the protection and enforcement of the provisions of this
Section, each and every Securityholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 5.7 Unconditional Right of Securityholders to
Institute Certain Suits. Notwithstanding any other provision in this Indenture
and any provision of any Security, the right of any Holder of any Security or
Coupon to receive payment of the principal of and interest on such Security or
Coupon on or after the respective due dates expressed in such Security or
Coupon, or to convert such Security in accordance with Article Thirteen, or to
institute suit for the enforcement of any such payment on or after such
respective dates, or for the enforcement of such conversion right, shall not be
impaired or affected without the consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default. Except as provided in Section 5.6, no right or remedy
herein conferred upon or
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reserved to the Trustee or to the Holders of Securities or Coupons is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of Securities
or Coupons to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.6, every power and remedy given
by this Indenture or by law to the Trustee or to the Holders of Securities or
Coupons may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders of Securities or Coupons.
SECTION 5.9 Control by Holders of Securities. The Holders of
a majority in aggregate principal amount of the Securities of each series
affected (with each series voting as a separate class) at the time Outstanding
shall have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series by
this Indenture; provided, that such direction shall not be otherwise than in
accordance with law and the provisions of this Indenture and provided, further,
that (subject to the provisions of Section 6.1) the Trustee shall have the
right to decline to follow any such direction if the Trustee, being advised by
counsel, shall determine that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith by its board of directors,
the executive committee, or a trust committee of directors or Responsible
Officers of the Trustee shall determine that the action or proceedings so
directed would involve the Trustee in personal liability or if the Trustee in
good faith shall so determine that the actions or forebearances specified in or
pursuant to such direction would be unduly prejudicial to the interests of
Holders of the Securities of all series so affected not joining in the giving
of said direction, it being understood that (subject to Section 6.1) the
Trustee shall have no duty to ascertain whether or not such actions or
forebearances are unduly prejudicial to such Holders.
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Nothing in this Indenture shall impair the right of the Trustee in
its discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the Securities of any series
as provided in Section 5.1, the Holders of a majority in aggregate principal
amount of the Securities of such series at the time Outstanding may on behalf
of the Holders of all the Securities of such series waive any past default or
Event of Default described in clause (c) or (g) of Section 5.1 (or, in the case
of an event specified in clause (c) or (g) of Section 5.1 which relates to less
than all series of Securities then Outstanding, the Holders of a majority in
aggregate principal amount of the Securities then Outstanding affected thereby
(each series voting as a separate class) may waive any such default or Event of
Default, or, in the case of an event specified in clause (c) or (g) (if the
Event of Default under clause (c) or (g) relates to all series of Securities
then Outstanding), (d) or (e) of Section 5.1 the Holders of Securities of a
majority in principal amount of all the Securities then Outstanding (voting as
one class) may waive any such default or Event of Default), and its
consequences except a default in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the Holder of each
Security affected. In the case of any such waiver, the Issuer, the Trustee and
the Holders of the Securities of such series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 5.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances. The Trustee shall, within 90 days after the
occurrence of a default with respect to the Securities of any series, give
notice of all defaults with respect to that series known to the Trustee (i) if
any Unregistered Securities of that series are then Outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan,
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The City of New York, and at least once in an Authorized Newspaper in London
(and, if required by Section 3.8, at least once in an Authorized Newspaper in
Luxembourg) and (ii) to all Holders of Securities of such series in the manner
and to the extent provided in Section 4.3, unless in each case such defaults
shall have been cured before the mailing or publication of such notice (the
term "defaults" for the purpose of this Section being hereby defined to mean
any event or condition which is, or with notice or lapse of time or both would
become, an Event of Default); provided, that, except in the case of default in
the payment of the principal of or interest on any of the Securities of such
series, or in the payment of any sinking fund installment on such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
or trustees and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Securityholders
of such series.
SECTION 5.12 Right of Court to Require Filing of Undertaking
to Pay Costs. All parties to this Indenture agree, and each Holder of any
Security or Coupon by his or her 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, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any
Securityholder or group of Securityholders of any series holding in the
aggregate more than 10% in aggregate principal amount of the Securities of such
series, or, in the case of any suit relating to or arising under clause (c) or
(g) of Section 5.1 (if the suit relates to Securities of more than one but less
than all series), 10% in aggregate principal amount of Securities then
Outstanding and affected thereby, or in the case of any suit relating to or
arising under clause (c) or (g) (if the suit under clause (c) or (g) relates to
all the Securities then Outstanding), (d) or (e) of Section 5.1, 10% in
aggregate principal amount of all Securities then Outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or interest on any Security on or after the due date expressed in
such Security or any date fixed for redemption or for the
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enforcement of a right to convert any Security in accordance with Article
Thirteen.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event
of Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect
to such series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived), the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect
to the Securities of any series and after the curing or waiving of all such
Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined solely
by the express provisions of this Indenture, and the Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon any statements, certificates or opinions furnished to the
Trustee and conforming to the
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requirements of this Indenture; but, in the case of any such
statements, certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 5.9 relating to the time,
method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture.
None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and
subject to Sections 315 and 316 of the Trust Indenture Act of 1939.
SECTION 6.2 Certain Rights of the Trustee. In furtherance of
and subject to the Trust Indenture Act of 1939 and subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently
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evidenced by an Officers' Certificate (unless other evidence in respect
thereof be herein specifically prescribed); and any resolution of the Board
of Directors may be evidenced to the Trustee by a copy thereof certified by
the secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders pursuant to the provisions of
this Indenture, unless such Securityholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within
the discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note,
coupon, security, or other paper or document unless requested in writing so
to do by the Holders of not less than a majority in aggregate principal
amount of the Securities of all series affected then Outstanding; provided,
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every
such investigation shall be paid by the Issuer or, if paid by the Trustee
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or any predecessor trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof. The recitals contained
herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes
no representation as to the validity or sufficiency of this Indenture or of the
Securities or Coupons. The Trustee shall not be accountable for the use or
application by the Issuer of any of the Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities or
Coupons; Collections, etc. The Trustee or any agent of the Issuer or the
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons with the same rights it would have if it were
not the Trustee or such agent and may otherwise deal with the Issuer and
receive, collect, hold and retain collections from the Issuer with the same
rights it would have if it were not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the
provisions of Section 10.4 hereof, all moneys received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated from other funds except to
the extent required by mandatory provisions of law. Neither the Trustee nor
any agent of the Issuer or the Trustee shall be under any liability for
interest on any moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and
Its Prior Claim. The Issuer covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and the Issuer covenants and
agrees to pay or reimburse the Trustee and each predecessor trustee upon its
request for all
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reasonable expenses, disbursements and advances incurred or made by or on
behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its counsel and of all agents and other persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Issuer also covenants to indemnify the Trustee
and each predecessor trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder, including the costs
and expenses of defending itself against or investigating any claim of
liability in the premises. The obligations of the Issuer under this Section to
compensate and indemnify the Trustee and each predecessor trustee and to pay or
reimburse the Trustee and each predecessor trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture. Such additional
indebtedness shall be a senior claim to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities or Coupons,
and the Securities are hereby subordinated to such senior claim.
SECTION 6.7 Right of Trustee to Rely on Officers'
Certificate, etc. Subject to Sections 6.1 and 6.2, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to
the Trustee, and such certificate, in the absence of negligence or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted by it under the provisions of this Indenture upon
the faith thereof.
SECTION 6.8 Indentures Creating Potential Conflicting
Interests for the Trustee. No indentures are hereby specifically described
for the purposes of Section 310(b)(1) of the Trust Indenture Act of 1939.
SECTION 6.9 Persons Eligible for Appointment as Trustee. The
Trustee for each series of Securities
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hereunder shall at all times be a corporation having a combined capital and
surplus of at least $50,000,000 and shall be eligible in accordance with the
provisions of Section 310(a) of the Trust Indenture Act of 1939. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of a Federal, State or District of Columbia supervising
or examining authority, then, for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
SECTION 6.10 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign with respect to one or more or all series of Securities by
giving written notice of resignation to the Issuer and (i) if any Unregistered
Securities of a series affected are then Outstanding, by giving notice of such
resignation to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York, and at
least once in an Authorized Newspaper in London (and, if required by Section
3.8, at least once in an Authorized Newspaper in Luxembourg), (ii) if any
Unregistered Securities of a series affected are then Outstanding, by mailing
notice of such resignation to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 4.3 at such addresses as
were so furnished to the Trustee and (iii) by mailing notice of such
resignation to the Holders of then Outstanding Registered Securities of each
series affected at their addresses as they shall appear on the registry books.
Upon receiving such notice of resignation, the Issuer shall promptly appoint a
successor trustee or trustees with respect to the applicable series by written
instrument in duplicate, executed by authority of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee or trustees. If no successor trustee shall have
been so appointed with respect to any series and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning
trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee, or any Securityholder who has been a bona fide Holder of a
Security or Securities of the applicable series for at least six months may,
subject to the provisions of Section 5.12, on behalf of himself or herself and
all others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
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(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions
of Section 310(b) of the Trust Indenture Act of 1939 with respect
to any series of Securities after written request therefor by the
Issuer or by any Securityholder who has been a bona fide Holder of
a Security or Securities of such series for at least six months;
or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 310(a) of the Trust Indenture Act
of 1939 and shall fail to resign after written request therefor by
the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a
bankrupt or insolvent, or a receiver or liquidator of the Trustee
or of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of
Directors of the Issuer, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to
Section 315(e) of the Trust Indenture Act of 1939, any Securityholder who has
been a bona fide Holder of a Security or Securities of such series for at least
six months may on behalf of himself or herself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor trustee with respect to such series.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of
the Securities of each series at the time Outstanding may at any time remove
the Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer the
evidence provided
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for in Section 7.1 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as
if originally named as trustee for such series hereunder; but, nevertheless, on
the written request of the Issuer or of the successor trustee, upon payment of
its charges then unpaid, the trustee ceasing to act shall, subject to Section
10.4, pay over to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming
to such successor trustee all such rights and powers. Any trustee ceasing to
act shall, nevertheless, retain a prior claim upon all property or funds held
or collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities
of one or more (but not all) series, the Issuer, the predecessor trustee and
each successor trustee with respect to the Securities of any applicable series
shall execute and deliver an indenture supplemental hereto which shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor trustee with respect
to the Securities of any series as to which the predecessor trustee is not
retiring shall continue to be vested in the predecessor trustee, and shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one trustee, it being
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understood that nothing herein or in such supplemental indenture shall
constitute such trustees co-trustees of the same trust and that each such
trustee shall be trustee of a trust or trusts under separate indentures.
No successor trustee with respect to any series of Securities
shall accept appointment as provided in this Section 6.11 unless at the time of
such acceptance such successor trustee shall be qualified under the provisions
of Section 310(b) of the Trust Indenture Act of 1939 and eligible under the
provisions of Section 310(a) of the Trust Indenture Act of 1939.
Upon acceptance of appointment by any successor trustee as
provided in this Section 6.11, the Issuer shall mail notice thereof (a) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof, by publication of such notice at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York, and at least once
in an Authorized Newspaper in London (and, if required by Section 3.8, at least
once in an Authorized Newspaper in Luxembourg), (b) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof
who have filed their names and addresses with the Trustee pursuant to Section
4.3, by mailing such notice to such Holders at such addresses as were so
furnished to the Trustee (and the Trustee shall make such information available
to the Issuer for such purpose) and (c) to the Holders of Registered Securities
of each series affected, by mailing such notice to such Holders at their
addresses as they shall appear on the registry books. If the acceptance of
appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 6.10. If the Issuer fails to mail such notice within ten
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be given at the expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession
to Business of Trustee. Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder; provided, that such
corporation shall be qualified under the provisions of Section 310(b) of the
Trust Indenture Act of 1939 and eligible under the provisions of Section 310(a)
of the Trust
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Indenture Act of 1939, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
In case, at the time such successor to the Trustee shall succeed
to the trusts created by this Indenture, any of the Securities of any series
shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor trustee
and deliver such Securities so authenticated; and, in case at that time any of
the Securities of any series shall not have been authenticated, any successor
to the Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor trustee; and in all such
cases such certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the certificate of
the Trustee shall have; provided, that the right to adopt the certificate of
authentication of any predecessor trustee or to authenticate Securities of any
series in the name of any predecessor trustee shall apply only to its successor
or successors by merger, conversion or consolidation.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee. Proof of execution of any instrument
or of a writing appointing any such agent shall be sufficient for any purpose
of this Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of
the Trustee and the Issuer, if made in the manner provided in this Article.
SECTION 7.2 Proof of Execution of Instruments and of Holding
of Securities. Subject to Sections 6.1 and 6.2, the execution of any
instrument by a Securityholder or
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his or her agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or other
officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the person executing such instruments acknowledged to
him or her the execution thereof, or by an affidavit of a witness to such
execution sworn to before any such notary or other such officer. Where
such execution is by or on behalf of any legal entity other than an
individual, such certificate or affidavit shall also constitute sufficient
proof of the authority of the person executing the same. The fact of the
holding by any Holder of an Unregistered Security of any series, and the
identifying number of such Security and the date of his or her holding the
same, may be proved by the production of such Security or by a certificate
executed by any trust company, bank, banker or recognized securities dealer
wherever situated satisfactory to the Trustee, if such certificate shall be
deemed by the Trustee to be satisfactory. Each such certificate shall be
dated and shall state that on the date thereof a Security of such series
bearing a specified identifying number was deposited with or exhibited to
such trust company, bank, banker or recognized securities dealer by the
Person named in such certificate. Any such certificate may be issued in
respect of one or more Unregistered Securities of one or more series
specified therein. The holding by the Person named in any such certificate
of any Unregistered Securities of any series specified therein shall be
presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding (1)
another certificate bearing a later date issued in respect of the same
Securities shall be produced, or (2) the Security of such series specified
in such certificate shall be produced by some other Person, or (3) the
Security of such series specified in such certificate shall have ceased to
be Outstanding. Subject to Sections 6.1 and 6.2, the fact and date of the
execution of any such instrument and the amount and numbers of Securities
of any series held by the Person so executing such instrument and the
amount and numbers of any Security or Securities for such series may also
be proven in accordance with such reasonable rules and regulations as may
be prescribed by the Trustee for
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such series or in any other manner which the Trustee for such series may
deem sufficient.
(b) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security register or by a certificate of
the Security registrar.
(c) If the Issuer shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other action, the Issuer may, at its option, by Board Resolution,
fix in advance a record date for the determination of Holders of Registered
Securities entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other action, but the Issuer shall have no
obligation to do so. Notice of such record date shall be given to the
Trustee as soon as practicable after the time that the record date has been
fixed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be
given before or after such record date, but only the Holders of Registered
Securities of record at the close of business on such record date shall be
deemed to be Holders of Registered Securities for the purposes of
determining whether Holders of Registered Securities of the requisite
proportion of Outstanding Securities have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver
or other action, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided, that no such authorization,
agreement or consent by the Holders of Registered Securities on such record
date shall be deemed effective unless it shall become effective pursuant to
the provisions of this Indenture not later than six months after the record
date.
SECTION 7.3 Holders to be Treated as Owners. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the
Person in whose name any Security shall be registered upon the Security
register for such series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) 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 Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be affected by any
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notice to the contrary. The Issuer, the Trustee and any agent of the Issuer or
the Trustee may treat the Holder of any Unregistered Security and the Holder of
any Coupon as the absolute owner of such Unregistered Security or Coupon
(whether or not such Unregistered Security or Coupon shall be overdue) for the
purpose of receiving payment thereof or on account thereof and for all other
purposes and neither the Issuer, the Trustee, nor any agent of the Issuer or
the Trustee shall be affected by any notice to the contrary. All such payments
so made to any such Person, or upon his or her order, shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Unregistered Security or Coupon.
SECTION 7.4 Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have concurred
in any direction, consent or waiver under this Indenture, Securities which are
owned by the Issuer or any other obligor on the Securities with respect to
which such determination is being made or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that, for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver, only Securities which the Trustee knows are
so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon the
Securities or any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer or any other obligor on
the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the Issuer shall
furnish to the Trustee promptly an Officers' Certificate listing and
identifying all Securities, if any, known by the Issuer to be owned or held by
or for the account of any of the above-described Persons; and, subject to
Sections 6.1 and 6.2, the Trustee shall be entitled to accept such Officers'
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all
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Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
7.1, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article, revoke such action so far as
concerns such Security. Except as aforesaid, any such action taken by the
Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security and of any Securities
issued in exchange or substitution therefor or on registration of transfer
thereof, irrespective of whether or not any notation in regard thereto is made
upon any such Security. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the Holders of all the
Securities affected by such action.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution 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 in form satisfactory to the Trustee
for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer,
or successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Issuer pursuant to
Article Nine;
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(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as its Board of Directors and the
Trustee shall consider to be for the protection of the Holders of
Securities or Coupons, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting the enforcement of
all or any of the several remedies provided in this Indenture as herein set
forth; provided, that in respect of any such additional covenant,
restriction, condition or provision such supplemental indenture may provide
for a particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount
of the Securities of such series to waive such an Event of Default;
(d) 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 any other provisions as the Board of
Directors may deem necessary or desirable; provided, that no such action
shall adversely affect the interests of the Holders of the Securities or
Coupons;
(e) to establish the form or terms of Securities of any series or of
the Coupons appertaining to such Securities as permitted by Sections 2.1
and 2.3 and to provide for adjustment of conversion rights pursuant to
Section 13.5; and
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee, pursuant to the requirements
of Section 6.11.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations
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which may be therein contained and to accept the conveyance, transfer,
assignment, mortgage or pledge 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 may be executed without the consent of the Holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of
Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Article Seven) of
the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of all series affected by such supplemental
indenture (voting as one class), the Issuer, when authorized by a resolution 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 of each such series
or of the Coupons appertaining to such Securities; provided, that no such
supplemental indenture shall (a) extend the final maturity of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption
thereof, or make the principal thereof (including any amount in respect of
original issue discount) or interest thereon payable in any coin or currency
other than that provided in the Securities and Coupons or in accordance with
the terms thereof, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of the
maturity thereof pursuant to Section 5.1 or the amount thereof provable in
bankruptcy pursuant to Section 5.2, or alter the provisions of Section 11.11 or
11.12, or impair or affect the right of any Securityholder to institute suit
for the payment or conversion thereof, or materially and adversely affect the
right to convert the Securities in accordance with Article Thirteen or, if the
Securities provide therefor, any right of repayment at the option of the
Securityholder, in each case without the consent of the Holder of each Security
so affected; provided, that no consent of any Holder of any Security shall be
necessary under this Section 8.2 to permit the Trustee and the Issuer to
execute supplemental indentures
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pursuant to Section 8.1(e) and Section 13.5 of this Indenture, or (b) reduce
the aforesaid percentage of Securities of any series, the consent of the
Holders of which is required for any such supplemental indenture, without the
consent of the Holders of each Security so affected.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of Holders of Securities of such series, or of Coupons
appertaining to such Securities, with respect to such covenant or provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or of the Coupons appertaining to such
Securities.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors certified by the secretary or an assistant
secretary of the Issuer authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid and other documents, if any, required by Section
7.1, the Trustee shall join with the Issuer 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 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall give a notice thereof (i) to the Holders of then Outstanding Registered
Securities of each series affected thereby, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the
Security register, (ii) if any Unregistered Securities of a series affected
thereby are then Outstanding, to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 4.3, by mailing a notice
thereof by first-class mail to such Holders at such addresses as were so
furnished to the Trustee and (iii) if any Unregistered
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Securities of a series affected thereby are then Outstanding, to all Holders
thereof, by publication of a notice thereof at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York, and at least once
in an Authorized Newspaper in London (and, if required by Section 3.8, at least
once in an Authorized Newspaper in Luxembourg), and in each case such notice
shall set forth in general terms the substance of such supplemental indenture.
Any failure of the Issuer to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Issuer and the Holders
of Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Eight complies with
the applicable provisions of this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
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ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms.
The Issuer covenants that it will not merge or consolidate with any other
corporation or sell or convey (including by way of lease) all or substantially
all of its assets to any Person, unless (i) either the Issuer shall be the
continuing corporation, or the successor corporation or the Person which
acquires by sale or conveyance substantially all the assets of the Issuer (if
other than the Issuer) shall expressly assume the due and punctual payment of
the principal of and interest on all the Securities and Coupons, according to
their tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed or observed by the
Issuer, including, without limitation, the conversion rights, if any, provided
for in accordance with Article Thirteen, by supplemental indenture satisfactory
to the Trustee, executed and delivered to the Trustee by such corporation or
entity, and shall be a corporation or entity organized under the laws of the
United States of America or any State thereof or a corporation or entity not
organized under such laws which shall agree, in form satisfactory to the
Trustee, (A) to subject itself to the jurisdiction of the United States
district court for the Southern District of New York, and (B) to indemnify and
hold harmless the holders of all Securities or Coupons against (a) any tax,
assessment or governmental charge imposed on such holders by a jurisdiction
other than the United States or any political subdivision or taxing authority
thereof or therein with respect to, and withheld on the making of, any payment
of principal of or interest on such Securities or Coupons and which would not
have been so imposed and withheld had such consolidation, merger, sale or
conveyance not been made and (b) any tax, assessment or governmental charge
imposed on or relating to, and any costs or expenses involved in, such
consolidation, merger, sale or conveyance, and (ii) the Issuer or such
successor corporation or entity, as the case may be, shall not, immediately
after such merger or consolidation, or such sale or conveyance, be in default
in the performance of any such covenant or condition.
SECTION 9.2 Successor Issuer Substituted. In case of any
such consolidation, merger, sale or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer with the same effect as if it had
been named herein. Such successor corporation may cause to be signed, and may
issue either in its own name or in the
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name of the Issuer prior to such succession any or all of the Securities
issuable hereunder, together with any Coupons appertaining thereto, which
theretofore shall not have been signed by the Issuer and delivered to the
Trustee; and, upon the order of such successor corporation instead of the
Issuer and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities, together with any Coupons appertaining thereto, which previously
shall have been signed and delivered by the officers of the Issuer to the
Trustee for authentication, and any Securities, together with any Coupons
appertaining thereto, which such successor corporation thereafter shall cause
to be signed and delivered to the Trustee for that purpose. All of the
Securities so issued, together with any Coupons appertaining thereto, shall in
all respects have the same legal rank and benefit under this Indenture as the
Securities and Coupons theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Securities and Coupons had been
issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Securities and Coupons thereafter to be issued as may be
appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease), the Issuer or any successor corporation which
shall theretofore have become such in the manner described in this Article
shall be discharged from all obligations and covenants under this Indenture and
the Securities and may be liquidated and dissolved.
SECTION 9.3 Opinion of Counsel and Officers' Certificate to
Trustee. The Trustee, subject to the provisions of Sections 6.1 and 6.2, may
receive an Opinion of Counsel and an Officers' Certificate, prepared in
accordance with Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
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ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
SECTION 10.1 Satisfaction and Discharge of Indenture. (A) If
at any time (a) the Issuer shall have paid or caused to be paid the principal
of and interest on all the Securities of any series Outstanding hereunder and
all unmatured Coupons appertaining thereto (other than Securities of such
series and Coupons appertaining thereto which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.9) as and
when the same shall have become due and payable, or (b) the Issuer shall have
delivered to the Trustee for cancellation all Securities of any series
theretofore authenticated and all unmatured Coupons appertaining thereto (other
than any Securities of such series and Coupons appertaining thereto which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.9) or (c) in the case of any series of Securities the
exact amount (including the currency of payment) of principal of and interest
due on which on the dates referred to in clause (ii) below can be determined at
the time of making the deposit referred to in such clause, (i) all the
Securities of such series and all unmatured Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and (ii) the Issuer shall
have irrevocably deposited or caused to be deposited with the Trustee as trust
funds the entire amount in cash (other than moneys repaid by the Trustee or any
paying agent to the Issuer in accordance with Section 10.4) or, in the case of
any series of Securities the payments on which may only be made in Dollars,
direct obligations of the United States of America, backed by its full faith
and credit ("U.S. Government Obligations"), maturing as to principal and
interest in such amounts and at such times as will insure the availability of
cash sufficient to pay on any subsequent interest payment date all interest due
on such interest payment date on the Securities of such series and all Coupons
appertaining thereto and to pay at maturity or upon redemption all Securities
of such series and all unmatured Coupons appertaining thereto (in each case
other than any Securities of such series and Coupons appertaining thereto which
shall have been destroyed, lost or stolen and which shall have been replaced or
paid as provided in Section 2.9) not theretofore delivered to the Trustee for
cancellation,
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including principal and interest due or to become due to such date of maturity,
as the case may be, and if, in any such case, the Issuer shall also pay or
cause to be paid all other sums payable hereunder by the Issuer, including
amounts due the Trustee pursuant to Section 6.6, with respect to Securities of
such series, then this Indenture shall cease to be of further effect with
respect to Securities of such series (except as to (i) rights of registration
of transfer, conversion and exchange of Securities of such series, and of
Coupons appertaining thereto, and the Issuer's right of optional redemption,
(ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities
or Coupons, (iii) rights of Holders of Securities and Coupons appertaining
thereto to receive payments of principal thereof and interest thereon upon the
original stated due dates therefor (but not upon acceleration) and remaining
rights of the Holders to receive mandatory sinking fund payments, if any, (iv)
the rights (including the Trustee's rights under Section 10.5) and immunities
of the Trustee hereunder and the Trustee's obligations under Sections 10.2 and
10.4, (v) the rights of the Holders of Securities of such series and Coupons
appertaining thereto as beneficiaries hereof with respect to the property so
deposited with the Trustee payable to all or any of them and (vi) the
obligations of the Issuer under Section 3.2), and the Trustee, on demand of the
Issuer accompanied by an Officers' Certificate and an Opinion of Counsel which
complies with Section 11.5 and at the cost and expense of the Issuer, shall
execute proper instruments acknowledging such satisfaction of and discharging
this Indenture with respect to such series; provided, that the rights of
Holders of the Securities and Coupons to receive amounts in respect of
principal of and interest on the Securities and Coupons held by them shall not
be delayed longer than required by then-applicable mandatory rules or policies
of any securities exchange upon which the Securities are listed. The Issuer
agrees to reimburse the Trustee for any costs or expenses thereafter reasonably
and properly incurred and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture or the Securities of such series.
(B) The following provisions shall apply to the Securities of
each series unless specifically otherwise provided in a Board Resolution,
Officers' Certificate or indenture supplemental hereto provided pursuant to
Section 2.3. In addition to discharge of the Indenture pursuant to the next
preceding paragraph, in the case of any series of Securities the exact amounts
(including the currency of payment) of principal of and interest subsequently
due on
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which can be determined at the time of making the deposit referred to in clause
(a) below, the Issuer shall be deemed to have paid and discharged the entire
Debt on all the Securities of such a series and the Coupons appertaining
thereto on the 121st day after the date of the deposit referred to in
subparagraph (a) below, and the provisions of this Indenture with respect to
the Securities of such series and Coupons appertaining thereto shall no longer
be in effect (except as to (i) rights of registration of transfer, conversion
and exchange of Securities of such series, and of Coupons appertaining thereto,
(ii) substitution of apparently mutilated, defaced, destroyed, lost or stolen
Securities or Coupons, (iii) rights of Holders of Securities and Coupons
appertaining thereto to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration) and remaining rights of the Holders to receive sinking fund
payments, if any, (iv) the rights (including the Trustee's rights under Section
10.5) and immunities of the Trustee hereunder and the Trustee's obligations
with respect to the Securities of such series under Sections 10.2 and 10.4, (v)
the rights of the Holders of Securities of such series and Coupons appertaining
thereto as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them and (vi) the obligations of the
Issuer under Section 3.2) and the Trustee, at the expense of the Issuer, shall
at the Issuer's request, execute proper instruments acknowledging the same, if
(a) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as trust
funds in trust, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of the Securities of such series and Coupons
appertaining thereto (i) cash in an amount, or (ii) in the case of any
series of Securities the payments on which may only be made in Dollars,
U.S. Government Obligations, maturing as to principal and interest at such
times and in such amounts as will insure the availability of cash or (iii)
a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (A) the principal
and interest on all Securities of such series and Coupons appertaining
thereto on the date that such principal or interest is due and payable and
(B) any mandatory sinking fund payments on the day on which such payments
are due and payable in accordance with the terms of the Indenture and the
Securities of such series;
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(b) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the Issuer
is a party or by which it is bound;
(c) the Issuer has delivered to the Trustee an Officers' Certificate
and an opinion of independent legal counsel satisfactory to the Trustee to
the effect that the Issuer has received from, or there has been published
by, the Internal Revenue Service a ruling to the effect that Holders of the
Securities of such series and Coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount and in the same manner and at the same times,
as would have been the case if such deposit, defeasance and discharge had
not occurred; and
(d) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
provided for relating to the defeasance contemplated by this provision have
been complied with, and the Opinion of Counsel shall also state that such
deposit does not violate applicable law.
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 10.4, all moneys deposited with the
Trustee (or other trustee) pursuant to Section 10.1 shall be held in trust and
applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series and of Coupons appertaining thereto for
the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest;
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent under the
provisions of this Indenture with respect to such series of Securities shall,
upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon
such paying agent shall be released from all further liability with respect to
such moneys.
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SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of or interest on any
Security of any series or Coupons attached thereto and not applied but
remaining unclaimed for two years after the date upon which such principal or
interest shall have become due and payable, shall, upon the written request of
the Issuer and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Issuer by the
Trustee for such series or such paying agent, and the Holder of the Securities
of such series and of any Coupons appertaining thereto shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, thereafter look only to the Issuer for any payment
which such Holder may be entitled to collect, and all liability of the Trustee
or any paying agent with respect to such moneys shall thereupon cease;
provided, however, that the Trustee or such paying agent, before being required
to make any such repayment with respect to moneys deposited with it for any
payment (a) in respect of Registered Securities of any series, shall at the
expense of the Issuer, mail by first-class mail to Holders of such Securities
at their addresses as they shall appear on the Security register, and (b) in
respect of Unregistered Securities of any series, shall at the expense of the
Issuer cause to be published once, in an Authorized Newspaper in the Borough of
Manhattan, The City of New York, and once in an Authorized Newspaper in London
(and if required by Section 3.8, once in an Authorized Newspaper in
Luxembourg), notice, that such moneys remain and that, after a date specified
therein, which shall not be less than 30 days from the date of such mailing or
publication, any unclaimed balance of such money then remaining will be repaid
to the Issuer.
SECTION 10.5 Indemnity for U.S. Government Obligations. The
Issuer shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 10.1 or the principal or interest received in respect of
such obligations.
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ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such, or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
Coupons appertaining thereto by the Holders thereof and as part of the
consideration for the issue of the Securities and the Coupons appertaining
thereto.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities and Coupons. Nothing in this Indenture, in
the Securities or in the Coupons appertaining thereto, expressed or implied,
shall give or be construed to give to any person, firm or corporation, other
than the parties hereto and their successors and the Holders of the Securities
or Coupons, if any, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities or Coupons, if any.
SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and agreements contained
in this Indenture by or on behalf of the Issuer shall bind its successors and
assigns, whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and
Holders of Securities and Coupons. 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 or Coupons to or on the Issuer may be given or
served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of the
Issuer is filed by the Issuer with the Trustee) to Texas Instruments
Incorporated, Post Office Box 655474, Dallas, Texas 75265-5474, Attn:
Secretary. Any notice, direction,
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request or demand by the Issuer or any Holder of Securities or Coupons to or
upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made at Citibank, N.A., 120 Wall Street, New York,
New York 10043, Attn: Corporate Trustee Administration Department.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder entitled thereto, at his or her last address as it appears in the
Security register. In any case where notice to such Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides for notice to
Holders of Unregistered Securities, such notice shall be sufficiently given to
Holders of Unregistered Securities if published in an Authorized Newspaper in
London and New York and, if the Unregistered Securities of such series are then
listed on the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require, in
Luxembourg, or in any other required city or, if not practicable, elsewhere in
Europe on a Business Day at least twice, the first such publication to be not
earlier than the earliest date, and not later than the latest date, prescribed
for the giving of such notice. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Issuer
when such notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be satisfactory to
the Trustee shall be deemed to be a sufficient giving of such notice.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice of any event to
Holders of Registered Securities when said notice is required to be given
pursuant to any provision of this Indenture or of the Securities, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be a
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sufficient giving of such notice. Neither the failure to give notice, nor any
defect in any notice so given, to any particular Holder of a Registered
Security shall affect the sufficiency of such notice with respect to other
Holders of Registered Securities or the sufficiency of any notice by
publication to Holders of Unregistered Securities given as provided above.
In case, by reason of the suspension of publication of any
Authorized Newspaper or by reason of any other cause, it shall be impossible or
impracticable to make publication of any notice to Holders of Unregistered
Securities in an Authorized Newspaper or Authorized Newspapers as required by
this Indenture or by the Unregistered Securities, then such method of
publication or notification to Holders of Unregistered Securities as shall be
made in a manner satisfactory to the Trustee shall constitute a sufficient
publication of such notice. Neither the failure to give notice by publication
to Holders of Unregistered Securities as provided above nor any defect in any
notice as published shall affect the sufficiency of any notice mailed to
Holders of Registered Securities. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent have
been complied with, except that in the case of any such application or demand
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
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 (a) a statement that the
person making such certificate or opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope
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of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based, (c) a statement that, in
the opinion of such person, he or she has made such examination or
investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been complied with
and (d) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his or her certificate, statement or opinion may be based as aforesaid
are erroneous, or in the exercise of reasonable care should know that the same
are erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with respect to which is
in the possession of the Issuer, upon the certificate, statement or opinion of
or representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with
respect to the matters upon which his or her certificate, statement or opinion
may be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer
or of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his or her certificate, statement
or opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays.
If the date of maturity of interest on or principal of the Securities of any
series or any Coupons appertaining thereto or the date fixed for redemption or
repayment of any such Security or Coupon, or the last day on
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which a Holder has the right to convert any Security, shall not be a Business
Day, then payment of interest or principal, or any conversion, 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 maturity or the date fixed for
redemption or on such last day for conversion, and no interest shall accrue for
the period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in
this Indenture by operation of Sections 310 to 317, inclusive, of the Trust
Indenture Act of 1939, such incorporated provision shall control.
SECTION 11.8 New York Law to Govern. This Indenture and each
Security and Coupon shall be deemed to be a contract under the laws of the
State of New York, and for all purposes shall be construed in accordance with
the laws of such State, except as may otherwise be required by mandatory
provisions of law.
SECTION 11.9 Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
SECTION 11.11 Securities in a Foreign Currency or in ECU.
Unless otherwise specified in an Officers' Certificate delivered pursuant to
Section 2.3 of this Indenture with respect to a particular series of
Securities, whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount of
Securities of all series or all series affected by a particular action at the
time Outstanding and, at such time, there are Outstanding Securities of any
series which are denominated in a coin or currency other than Dollars
(including ECUs), then the principal amount of Securities of such series which
shall be deemed to be Outstanding for the purpose of taking such action shall
be that amount of Dollars that could be obtained for such amount at the Market
Exchange Rate. For purposes of this Section 11.11, Market Exchange Rate shall
mean the noon Dollar buying rate for that currency for cable transfers
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quoted in The City of New York as certified for customs purposes by the Federal
Reserve Bank of New York; provided, however, that, in the case of ECUs, Market
Exchange Rate shall mean the rate of exchange determined by the Commission of
the European Communities (or any successor thereto) as published in the
Official Journal of the European Communities (such publication or any successor
publication, the "Journal"). If such Market Exchange Rate is not available for
any reason with respect to such currency, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York or, in the case of ECUs, the rate of exchange as
published in the Journal, as of the most recent available date, or quotations
or, in the case of ECUs, rates of exchange from one or more major banks in The
City of New York or in the country of issue of the currency in question, which
for purposes of the ECU shall be Brussels, Belgium, or such other quotations
or, in the case of ECUs, rates of exchange as the Trustee shall deem
appropriate. The provisions of this paragraph shall apply in determining the
equivalent principal amount in respect of Securities of a series denominated in
a currency other than Dollars in connection with any action taken by Holders of
Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the
Market Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in its sole discretion and shall, in the absence
of manifest error, be conclusive for all purposes and irrevocably binding upon
the Issuer and all Holders.
SECTION 11.12 Judgment Currency. The Issuer agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if
for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the principal of or interest on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment
Currency on the New York Banking Day preceding that on which final unappealable
judgment is given and (b) its obligations under this Indenture to make payments
in the Required Currency (i) shall not be discharged or satisfied by any
tender, or any recovery pursuant to any judgment (whether or not entered in
accordance with subsection (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the
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payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, "New York Banking Day" means
any day except a Saturday, Sunday or legal holiday in The City of New York or a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to close.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series, except as otherwise specified, as contemplated by
Section 2.3 for Securities of such series.
SECTION 12.2 Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Registered Securities of any series to
be redeemed as a whole or in part at the option of the Issuer shall be given by
mailing notice of such redemption by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders of Securities of such series at their last addresses as they
shall appear upon the registry books. Notice of redemption to the Holders of
Unregistered Securities to be redeemed as a whole or in part, who have filed
their names and addresses with the Trustee pursuant to Section 4.3, shall be
given by mailing notice of such redemption, by first class mail, postage
prepaid, at least 30 days and not more than 60 prior to the date fixed for
redemption, to such Holders at such addresses as were so furnished to the
Trustee (and, in the case of any such notice given by the Issuer, the Trustee
shall make such information available to the Issuer for such purpose). Notice
of redemption to all other Holders of Unregistered Securities shall be
published in an Authorized Newspaper in the Borough of Manhattan, The City of
New York, and in an Authorized Newspaper in London (and, if required by Section
3.8, in an Authorized Newspaper in Luxembourg), in each case, once in each of
three successive calendar weeks, the first publication to be not less than 30
nor more
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than 60 days prior to the date fixed for redemption. Any notice which is given
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice. Failure to give notice
or any defect in the notice to the Holder of any Security of a series
designated for redemption as a whole or in part shall not affect the validity
of the proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Securities and, in the case of Securities with Coupons attached thereto,
of all Coupons appertaining thereto maturing after the date fixed for
redemption, that such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, that interest accrued to the date
fixed for redemption will be paid as specified in such notice and that on and
after said date interest thereon or on the portions thereof to be redeemed will
cease to accrue and shall also specify, if applicable, the Conversion Price
then in effect and the date on which the right to convert such Securities or
the portions thereof to be redeemed will expire. In case any Security of a
series is to be redeemed in part only, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer or, at the
Issuer's request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in Section
3.4) an amount of money sufficient to redeem on the redemption date all the
Securities of such series so called for redemption (other than those
theretofore surrendered for conversion into Common Stock) at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption. If any Security called for redemption is converted pursuant
hereto, any money deposited with the
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Trustee or any paying agent or so segregated and held in trust for the
redemption of such Security shall be paid to the Issuer upon the Issuer's
request, or, if then held by the Issuer, shall be discharged from such trust.
The Issuer will deliver to the Trustee at least 70 days prior to the date fixed
for redemption (unless a shorter time period shall be acceptable to the
Trustee) an Officers' Certificate (which need not comply with Section 11.5)
stating the aggregate principal amount of Securities to be redeemed. In case
of a redemption at the election of the Issuer prior to the expiration of any
restriction on such redemption, the Issuer shall deliver to the Trustee, prior
to the giving of any notice of redemption to Holders pursuant to this Section,
an Officers' Certificate stating that such restriction has been complied with.
If less than all the Securities of a series are to be redeemed,
the Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such Series to be redeemed in whole or in part. Securities may
be redeemed in part in multiples equal to the minimum authorized denomination
for Securities of such series or any multiple thereof. The Trustee shall
promptly notify the Issuer in writing of the Securities of such series selected
for redemption and, in the case of any Securities of such series selected for
partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed. If any Security selected for partial redemption is surrendered for
conversion after such selection, the converted portion of such Security shall
be deemed (so far as may be) to be the portion selected for redemption. Upon
any redemption of less than all the Securities, the Issuer and the Trustee may
treat as Outstanding Securities surrendered for conversion during the period of
15 days next preceding the mailing of a notice of redemption, and need not
treat as Outstanding any Security authenticated and delivered during such
period in exchange for the unconverted portion of any Security converted in
part during such period.
SECTION 12.3 Conversion Arrangement on Call for Redemption.
In connection with any redemption of Securities, the Issuer may arrange for the
purchase and conversion in accordance with Article Thirteen of any Securities
called for redemption by an agreement with one or more investment bankers or
other purchasers to purchase such
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Securities by paying to the paying agent, in trust for the Securityholders, on
or before the close of business on the redemption date, an amount that,
together with any amounts deposited with the paying agent by the Issuer for the
redemption of such Securities, is not less than the redemption price of such
Securities together with interest to and including the redemption date.
Notwithstanding anything to the contrary contained in this Article Twelve, the
obligation of the Issuer to pay the redemption price of such Securities shall
be deemed to be satisfied and discharged to the extent such amount is so paid
by such purchasers. If such an agreement is entered into, any Securities not
duly surrendered for conversion in accordance with Article Thirteen by the
Holders thereof may, at the option of the Issuer, be deemed, to the fullest
extent permitted by law, acquired by such purchasers from such Holders and
(notwithstanding anything to the contrary contained in Article Thirteen)
surrendered by such purchasers for conversion, all as of immediately prior to
the close of business on the redemption date, subject to payment of the above
amount as aforesaid. The paying agent shall hold and pay to the Holders whose
Securities are selected for redemption any such amount paid to it in the same
manner as it would moneys deposited with it by the Issuer for the redemption of
Securities. Without the paying agent's and the Trustee's prior written
consent, no arrangement between the Issuer and such purchasers for the purchase
and conversion of any Securities shall increase or otherwise affect any of the
powers, duties, responsibilities or obligations of the paying agent or the
Trustee as set forth in this Indenture, and the Issuer agrees to indemnify the
paying agent and the Trustee from, and hold them harmless against, any loss,
liability or expense arising out of or in connection with any such arrangement
for the purchase and conversion of any Securities between the Issuer and such
purchasers, including the costs and expenses incurred by the paying agent or
the Trustee in the defense of any claim or liability arising out of or in
connection with the exercise or performance of any of its powers, duties,
responsibilities or obligations under this Indenture.
SECTION 12.4 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption, and on
and after said date (unless the Issuer shall default in the payment of such
Securities at the redemption price, together with interest accrued to said
date) interest on the Securities or portions of Securities
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so called for redemption shall cease to accrue, and the unmatured Coupons, if
any, appertaining thereto shall be void, and, except as provided in Sections
6.5 and 10.4, such Securities shall cease from and after the date fixed for
redemption to be convertible into Common Stock, if applicable, and to be
entitled to any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, together with all Coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided, that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with Coupons attached thereto, to the Holders of the
Coupons for such interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities registered as such on
the relevant record date subject to the terms and provisions of Sections 2.3
and 2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security and, if applicable, such Security shall remain
convertible into Common Stock until the principal of such Security shall have
been paid or duly provided for.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing after the
date fixed for redemption, the surrender of such missing Coupon or Coupons may
be waived by the Issuer and the Trustee if there be furnished to each of them
such security or indemnity as they may require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Issuer, a new Security
or Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
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SECTION 12.5 Exclusion of Certain Securities from Eligibility
for Selection for Redemption. Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and
certificate number in an Officers' Certificate delivered to the Trustee at
least 40 days prior to the last date on which notice of redemption may be given
as being owned of record and beneficially by, and not pledged or hypothecated
by either (a) the Issuer or (b) an entity specifically identified in such
written statement as directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer.
SECTION 12.6 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the terms of the
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of the Securities of any series is herein referred to as an "optional
sinking fund payment". The date on which a sinking fund payment is to be made
is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10 and, if applicable, receive credit for
Securities (not previously so credited) converted into Common Stock and so
delivered to the Trustee for cancellation, (b) receive credit for optional
sinking fund payments (not previously so credited) made pursuant to this
Section, or (c) receive credit for Securities of such series (not previously so
credited) redeemed by the Issuer through any optional redemption provision
contained in the terms of such series. Securities so delivered or credited
shall be received or credited by the Trustee at the sinking fund redemption
price specified in such Securities.
On or before the 60th day next preceding each sinking fund payment
date for any series, the Issuer will deliver to the Trustee an Officers'
Certificate (which need not contain the statements required by Section 11.5)
(a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be
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satisfied by credit of Securities of such series and the basis for such credit,
(b) stating that none of the Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived
or cured) and are continuing and (d) stating whether or not the Issuer intends
to exercise its right to make an optional sinking fund payment with respect to
such series and, if so, specifying the amount of such optional sinking fund
payment which the Issuer intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be credited and
required to be delivered to the Trustee in order for the Issuer to be entitled
to credit therefor as aforesaid which have not theretofore been delivered to
the Trustee shall be delivered for cancellation pursuant to Section 2.10 to the
Trustee with such Officers' Certificate (or reasonably promptly thereafter if
acceptable to the Trustee). Such Officers' Certificate shall be irrevocable
and upon its receipt by the Trustee the Issuer shall become unconditionally
obligated to make all the cash payments or payments therein referred to, if
any, on or before the next succeeding sinking fund payment date. Failure of
the Issuer, on or before any such 60th day, to deliver such Officers'
Certificate and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of
such series in respect thereof and (ii) that the Issuer will make no optional
sinking fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or the equivalent thereof in any Foreign Currency or ECU or a
lesser sum in Dollars or in any Foreign Currency or ECU if the Issuer shall so
request) with respect to the Securities of any particular series, such cash
shall be applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the sinking fund redemption price
together with accrued interest to the date fixed for redemption. If such
amount shall be $50,000 (or the equivalent thereof in any Foreign Currency or
ECU) or less and the Issuer makes no such request then it shall be carried over
until a sum in excess of $50,000 (or the equivalent thereof in any Foreign
Currency or ECU) is
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available. The Trustee shall select, in the manner provided in Section 12.2,
for redemption on such sinking fund payment date a sufficient principal amount
of Securities of such series to absorb said cash, as nearly as may be, and
shall (if requested in writing by the Issuer) inform the Issuer of the serial
numbers of the Securities of such series (or portions thereof) so selected.
Securities shall be excluded from eligibility for redemption under this Section
if they are identified by registration and certificate number in an Officers'
Certificate delivered to the Trustee at least 60 days prior to the sinking fund
payment date as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity specifically identified
in such Officers' Certificate as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer. The
Trustee, in the name and at the expense of the Issuer (or the Issuer, if it
shall so request the Trustee in writing), shall cause notice of redemption of
the Securities of such series to be given in substantially the manner provided
in Section 12.2 (and with the effect provided in Section 12.4) for the
redemption of Securities of such series in part at the option of the Issuer.
The amount of any sinking fund payments not so applied or allocated to the
redemption of Securities of such series shall be added to the next cash sinking
fund payment for such series and, together with such payment, shall be applied
in accordance with the provisions of this Section. Any and all sinking fund
moneys held on the stated maturity date of the Securities of any particular
series (or earlier, if such maturity is accelerated), which are not held for
the payment or redemption of particular Securities of such series, shall be
applied, together with other moneys, if necessary, sufficient for the purpose,
to the payment of the principal of, and interest on, the Securities of such
series at maturity. The Issuer's obligation to make a mandatory or optional
sinking fund payment shall automatically be reduced by an amount equal to the
sinking fund redemption price allocable to any Securities or portions thereof
called for redemption pursuant to the preceding paragraph on any sinking fund
payment date and converted into Common Stock; provided, that, if the Trustee is
not the conversion agent for the Securities, the Issuer or such conversion
agent shall give the Trustee written notice prior to the date fixed for
redemption of the principal amount of Securities or portions thereof so
converted.
On or before each sinking fund payment date, the Issuer shall pay
to the Trustee in cash or shall otherwise provide for the payment of all
interest accrued to the date
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fixed for redemption on Securities to be redeemed on the next following sinking
fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or give any notice of
redemption of Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest on such Securities
or of any Event of Default except that, where the mailing of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any
such default or Event of Default shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such default or Event
of Default, be deemed to have been collected under Article Five and held for
the payment of all such Securities. In case such Event of Default shall have
been waived as provided in Section 5.10, or the default cured on or before the
60th day preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
ARTICLE THIRTEEN
CONVERSION OF SECURITIES
SECTION 13.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
convertible into Common Stock, except as otherwise specified, as contemplated
by Section 2.3 for Securities of such series.
SECTION 13.2 Exercise of Conversion Privilege. In order to
exercise the conversion privilege, the Holder of any Security to be converted
shall surrender such Security, together with all unmatured Coupons, to the
Issuer at any time during usual business hours at its office or agency
maintained for the purpose as provided in this Indenture, accompanied by a
fully executed written notice, in substantially the form set forth on the
reverse of the Security, that the Holder elects to convert such Security or a
stated portion thereof constituting a multiple of the minimum authorized
denomination thereof, and, if such Security is surrendered for conversion
during the period between the close of business on any record date for such
Security and the opening of business on the related interest
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payment date (unless such Security shall have been called for redemption on a
redemption date within such period or on such interest payment date),
accompanied also by payment of an amount equal to the interest payable on such
interest payment date on the portion of the principal amount of the Security
being surrendered for conversion. A Holder of any Security on a record date
for such Security who converts such Security on the related interest payment
date will receive the interest payable on such Security, and such converting
Holder need not include a payment for any such interest upon surrender of such
Security for conversion. Such notice shall also state the name or names (with
address) in which the certificate or certificates for shares of Common Stock
shall be issued. Securities and any appurtenant Coupons surrendered for
conversion shall (if so required by the Issuer or the Trustee) be duly endorsed
by, or be accompanied by a written instrument or instruments of transfer in
form satisfactory to the Issuer and the Trustee duly executed by, the Holder or
his or her attorney duly authorized in writing. As promptly as practicable
after the receipt of such notice and the surrender of such Security and any
appurtenant Coupons as aforesaid, the Issuer shall, subject to the provisions
of Section 13.7, issue and deliver at such office or agency to such Holder, or
on his or her written order, a certificate or certificates for the number of
full shares of Common Stock issuable on such conversion of Securities in
accordance with the provisions of this Article and cash, as provided in Section
13.3, in respect of any fraction of a 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 (herein called the "Date
of Conversion") on which such notice shall have been received by the Issuer and
such Security and any appurtenant Coupons shall have been surrendered as
aforesaid, 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 on the Date of Conversion the holder or holders
of record of the shares represented thereby; provided, however, that any such
surrender on any date when the stock transfer books of the Issuer shall be
closed shall constitute the Person or Persons in whose name or names the
certificate or certificates for such shares are to be issued as the
recordholder or holders thereof for all purposes at the opening of business on
the next succeeding day on which such stock transfer books are open but such
conversion shall nevertheless be at the Conversion Price in effect at the close
of business on the date when such Security and any appurtenant Coupons shall
have been so surrendered with the conversion notice. In the case of conversion
of a portion, but less than all, of a Security, the Issuer shall execute, and
the Trustee shall authenticate and deliver to the Holder thereof, at the
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expense of the Issuer, a Security or Securities in the aggregate principal
amount of the unconverted portion of the Security surrendered. Except as
otherwise expressly provided in this Indenture, no payment or adjustment shall
be made for interest accrued on any Security (or portion thereof) converted or
for dividends or distributions on any Common Stock issued upon conversion of
any Security; provided, however, that, in the case of any Securities which are
converted after the close of business on a relevant record date and on or prior
to the next succeeding interest payment date, installments of interest which
are due and payable on the next succeeding interest payment date shall be
payable on such interest payment date notwithstanding such conversion (unless
such Security shall have been called for redemption on a redemption date after
the close of business on such record date and prior to the opening of business
on such interest payment date) and such interest (whether or not punctually
paid or duly provided for) shall be paid to the Holder of such Securities
registered as such at the close of business on the relevant record date
according to their terms and the provisions of Section 2.7.
If any Security surrendered for conversion shall not be
accompanied by all appurtenant Coupons maturing after the Date of Conversion,
such Security may be converted after payment in cash by the Holder thereof in
an amount equal to the face amount of all such missing Coupons, or the
surrender of such missing Coupons may be waived by the Issuer and any
conversion agent if there be furnished to the Issuer and any such conversion
agent such security or indemnity as they may require to save each of them
harmless.
SECTION 13.3 Fractional Interests. No fractions of shares or
scrip representing fractions of shares shall be issued upon conversion of
Securities. If more than one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares which shall be issuable
upon conversion thereof shall be computed on the basis of the aggregate
principal amount of the Securities so surrendered. If any fraction of a share
of Common Stock would, except for the provisions of this Section, be issuable
on the conversion of any Security or Securities, the Issuer shall make payment
in lieu thereof in an amount of Dollars equal to the value of such fraction
computed on the basis of the last sale price of the Common Stock as reported on
the Composite Tape for New York Stock Exchange - Listed Stocks (or if not
listed or admitted to trading on such Exchange, then on the principal national
securities exchange on which the Common Stock is listed or admitted to trading,
or, if not listed or admitted to trading on any national securities exchange,
then as reported by the National Association of Securities Dealers, Inc.
through NASDAQ or a similar organization if NASDAQ is no longer reporting
information) on the last trading day prior to the Date of Conversion or, if no
such sale takes place on such day, the last sale price for such day shall be
the average of the closing bid and asked prices regular way on the New York
Stock Exchange (or if not listed or admitted to trading on such Exchange, on
the principal national securities exchange on which the Common Stock is listed
or admitted to trading, or if not listed or admitted to trading on any
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national securities exchange, the average of the highest bid and lowest asked
prices as reported by the National Association of Securities Dealers, Inc.
through NASDAQ or a similar organization if NASDAQ is no longer reporting
information) (any such last sale price being hereinafter referred to as the
"Last Sale Price"). If on such trading day the Common Stock is not quoted by
any such organization, the fair value of such Common Stock on such day, as
determined by the Board of Directors, shall be used. For the purpose of this
Section 13.3, the term "trading day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday, other than any day on which securities are not
traded on such exchange or in such market.
SECTION 13.4 Adjustment of Conversion Price. The Conversion
Price shall be subject to adjustment from time to time as follows:
(a) In case the Issuer shall (1) pay a dividend or make a
distribution on Common Stock in shares of Common Stock, (2) subdivide its
Outstanding shares of Common Stock into a greater number of shares or (3)
combine its Outstanding shares of Common Stock into a smaller number of
shares, the Conversion Price in effect immediately prior to such action
shall be adjusted as provided below so that the Holder of any Security
thereafter surrendered for conversion shall be entitled to receive the
number of shares of Common Stock which he or she would have or been
entitled to receive immediately following such action had such Security
been converted immediately prior thereto. An adjustment made pursuant to
this subsection (a) shall become effective immediately, except as provided
in subsection (e) below, 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 or combination.
(b) In case the Issuer shall issue rights, warrants or options to all
Holders of Common Stock entitling them (for a period not exceeding 45 days
from the date of such issuance) to subscribe for or purchase shares of
Common Stock at a price per share less than the current market price per
share (as determined pursuant to subsection (d) below) of the Common Stock
on the record date mentioned below, the Conversion Price shall be adjusted
to a price, computed to the nearest cent, so that the same shall equal the
price determined by multiplying:
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(1) the Conversion Price in effect immediately prior to the
date of issuance of such rights, warrants or options by a
fraction, of which
(2) the numerator shall be (A) the number of shares of
Common Stock Outstanding on the date of issuance of such rights,
warrants or options immediately prior to such issuance, plus (B)
the number of shares which the aggregate offering price of the
total number of shares so offered for subscription or purchase
would purchase at such current market price (determined by
multiplying such total number of shares by the exercise price of
such rights, warrants or options and dividing the product so
obtained by such current market price), and of which
(3) the denominator shall be (A) the number of shares of
Common Stock Outstanding on the date of issuance of such rights,
warrants or options, immediately prior to such issuance, plus (B)
the number of additional shares of Common Stock which are so
offered for subscription or purchase.
Such adjustment shall become effective immediately, except as provided
in subsection (e) below, after the record date for the determination of
Holders entitled to receive such rights, warrants or options.
(c) In case the Issuer shall distribute to substantially all Holders
of Common Stock evidences of indebtedness, equity securities (including
equity interests in the Issuer's Subsidiaries) other than Common Stock or
other assets (other than cash dividends paid out of earned surplus of the
Issuer or, if there shall be no earned surplus, out of net profits for the
fiscal year in which the dividend is made and/or the preceding fiscal
year), or shall distribute to substantially all Holders of Common Stock
rights, warrants or options to subscribe to securities (other than those
referred to in subsection (b) above), then in each such case the Conversion
Price shall be adjusted so that the same shall equal the price determined
by multiplying the Conversion Price in effect immediately prior to the date
of such distribution by a fraction of which the numerator shall be the
current market price per share (determined as provided in subsection (d)
below) of the Common Stock on the record date mentioned below less the then
fair
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market value (as determined by the Board of Directors, whose determination
shall be conclusive evidence of such fair market value, and described in a
Board Resolution filed with the Trustee) of the portion of the assets,
evidences of indebtedness and equity securities so distributed or of such
subscription rights, warrants or options applicable to one share of Common
Stock, and of which the denominator shall be such current market price per
share of the Common Stock. Such adjustment shall become effective
immediately, except as provided in subsection (e) below, after the record
date for the determination of stockholders entitled to receive such
distribution.
(d) For the purpose of any computation under subsections (b) and (c)
above, the current market price per share of Common Stock on any date shall
be deemed to be the average of the Last Sale Prices of a share of Common
Stock for the five consecutive trading days commencing not more than 20
trading days before, and ending not later than, the earliest of the date in
question and the date before the "ex" date with respect to the issuance or
distribution requiring such computation. If on any such trading day the
Common Stock is not quoted by any organization referred to in the
definition of Last Sale Price in Section 13.3, the fair value of the Common
Stock on such day, as determined by the Board of Directors, shall be used.
For purposes of this paragraph, the term "`ex' date", when used with
respect to any issuance or distribution, means the first date on which the
Common Stock trades regular way on the principal national securities
exchange on which the Common Stock is listed or admitted to trading (or, if
not so listed or admitted, on NASDAQ or a similar organization if NASDAQ is
no longer reporting trading information) without the right to receive such
issuance or distribution.
(e) In any case in which this Section shall require that an
adjustment be made immediately following a record date, the Issuer may
elect to defer the effectiveness of such adjustment (but in no event until
a date later than the effective time of the event giving rise to such
adjustment), in which case the Issuer shall, with respect to any Security
converted after such record date and before such adjustment shall have
become effective (i) defer making any cash payment pursuant to Section 13.3
or issuing to the Holder of such Security the number of shares of Common
Stock and other capital stock of the Issuer issuable upon such conversion
in excess of the number of shares of Common
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<PAGE> 99
Stock and other capital stock of the Issuer issuable thereupon only on the
basis of the Conversion Price prior to adjustment, and (ii) not later than
five Business Days after such adjustment shall have become effective, pay
to such Holder the appropriate cash payment pursuant to Section 13.3 and
issue to such Holder the additional shares of Common Stock and other
capital Stock of the Issuer issuable on such conversion.
(f) No adjustment in the Conversion Price shall be required if
Securityholders are to participate in the transaction on a basis and with
notice that the Board of Directors determines to be fair and appropriate in
light of the basis and notice on which holders of Common Stock participate
in the transaction. In addition, no adjustment in the Conversion Price
shall be required unless such adjustment would require an increase or
decrease of at least 1% in the Conversion Price; provided, that any
adjustments which by reason of this subsection (f) are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Article shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may
be.
(g) Whenever the Conversion Price is adjusted as herein provided, the
Issuer shall promptly (i) file with the Trustee and each conversion agent
an Officers' Certificate setting forth the Conversion Price after such
adjustment and setting forth in reasonable detail the facts requiring such
adjustment and the calculations on which the adjustment is based, which
certificate shall be conclusive evidence of the correctness of such
adjustment and which shall be made available by the Trustee to the Holders
of Securities for inspection thereof and (ii) mail or cause to be mailed a
notice of such adjustment, setting forth the adjusted Conversion Price and
the date on which such adjustment became or becomes effective, to each
Holder of Securities at his or her address as the same appears on the
registry books of the Issuer.
Anything in this Section to the contrary notwithstanding, the
Issuer shall be entitled to make such reductions in the Conversion Price, in
addition to those required by this Section, as it in its discretion shall
determine to be advisable in order that any stock dividend, subdivision or
combination of shares, distribution of rights, warrants or options to purchase
stock or securities, distribution of securities convertible into or
exchangeable
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for stock or distribution of other assets (other than cash dividends) hereafter
made by the Issuer to its stockholders shall not be taxable.
SECTION 13.5 Continuation of Conversion Privilege in Case of
Reclassification, Reorganization, Change, Merger, Consolidation or Sale of
Assets. In case of any reclassification or change of Outstanding shares of
Common Stock (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 consolidation of the Issuer with, or merger of
the Issuer with or into, any other Person, any merger of another Person into
the Issuer (other than a merger which does not result in any reclassification,
change, conversion, exchange or cancellation of Outstanding shares of Common
Stock of the Issuer) or any sale or transfer of all or substantially all of the
assets of the Issuer, the Issuer, or the Person formed by such consolidation or
resulting from such merger or which acquires such assets, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture complying
with the provisions of Article Nine, in form satisfactory to the Trustee,
providing that the Holder of each Security then Outstanding shall have the
right thereafter to convert such Security only into the kind and amount of
securities, cash and other property receivable upon such reclassification,
change, consolidation, merger, sale or transfer by a holder of the number of
shares of Common Stock of the Company into which such Security might have been
converted immediately prior to such reclassification, change, consolidation,
merger, sale or transfer, assuming such holder of Common Stock of the Issuer
(i) is not a Person with which the Issuer consolidated or into which the Issuer
merged or which merged into the Issuer or to which such sale or transfer was
made, as the case may be ("constituent Person"), or an Affiliate of a
constituent Person and (ii) failed to exercise his or her rights of an
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such reclassification, change, consolidation, merger,
sale or transfer (provided, that, if the kind or amount of securities, cash and
other property receivable upon such reclassification, change, consolidation,
merger, sale or transfer is not the same for each share of Common Stock of the
Issuer held immediately prior to such reclassification, change, consolidation,
merger, sale or transfer by other than a constituent Person or an Affiliate
thereof and in respect of which such rights of election shall not have been
exercised ("non-electing share"), then for the purpose of this Section the kind
and amount of securities, cash and other property receivable upon such
reclassification,
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<PAGE> 101
change, consolidation, merger, sale or transfer by each non-electing share
shall be deemed to be the kind and amount so receivable per share by a
plurality of the non-electing shares). Such supplemental indenture shall
provide for adjustments which, for events subsequent to the effective date of
such supplemental indenture, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article. If, in the case
of any such reclassification, change, consolidation, merger, sale or transfer,
the stock or other securities and property (including cash) receivable
thereupon by a Holder of shares of Common Stock includes shares of stock or
other securities and property (including cash) of a corporation other than the
successor or purchasing corporation, as the case may be, in such
reclassification, change, consolidation, merger, sale or transfer, then such
supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the
Holders of the Securities as the Board of Directors shall reasonably consider
necessary by reason of the foregoing. The above provisions of this Section
shall similarly apply to successive reclassifications, changes, consolidations,
mergers, sales or transfers.
Notice of the execution of each such supplemental indenture shall
be mailed to each Holder of Securities at his or her address as the same
appears on the registry books of the Issuer.
Neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property or cash receivable by Holders of Securities
upon the conversion of their Securities after any such reclassification,
change, consolidation, merger, sale or transfer or to any adjustment to be made
with respect thereto, but, subject to the provisions of Sections 6.1 and 6.2,
may accept as conclusive evidence of the correctness of any such provisions,
and shall be protected in relying upon, the Officers' Certificate (which the
Issuer shall be obligated to file with the Trustee prior to the execution of
any such supplemental indenture) with respect thereto.
SECTION 13.6 Notice of Certain Events. In case:
(a) the Issuer shall declare a dividend (or any other distribution)
payable to the holders of Common Stock (other than cash dividends paid out
of the earned surplus of the Issuer or, if there shall be no earned
surplus, out of net profits for the fiscal year in
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<PAGE> 102
which the dividend is made and/or the preceding fiscal year, and dividends
payable in Common Stock); or
(b) the Issuer shall authorize the granting to the holders of Common
Stock of rights, warrants or options to subscribe for or purchase any
shares of stock of any class or of any other rights, warrants or options;
or
(c) the Issuer shall authorize any reclassification or change of the
Common Stock (other than a subdivision or combination of its Outstanding
shares of Common Stock or a change in par value, or from par value to no
par value, or from no par value to par value), or any consolidation or
merger to which the Issuer is a party and for which approval of any
stockholders of the Issuer is required, or the sale or transfer of all or
substantially all the property or business of the Issuer; or
(d) there shall be proposed any voluntary or involuntary dissolution,
liquidation or winding-up of the Issuer;
then, the Issuer shall cause to be filed with the Trustee, and, if other than
the Corporate Trust Office of the Trustee, at the office or agency maintained
for the purpose of conversion of the Securities as provided in Section 3.2, and
shall cause to be mailed to each Holder of Securities, at his or her address as
it shall appear on the registry books of the Issuer, as promptly as possible
but in any event at least 20 days before the date hereinafter specified (or the
earlier of the dates hereinafter specified, in the event that more than one
date is specified), a notice stating the date on which (1) a record is expected
to be taken for the purpose of such dividend, distribution, rights, warrants or
options, or if a record is not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such dividend, distribution, rights or
warrants are to be determined, or (2) such reclassification, change,
consolidation, merger, sale, transfer, dissolution, liquidation or winding-up
is expected to become effective and the date, if any is to be fixed, 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 reclassification, change, consolidation, merger, sale,
transfer, dissolution, liquidation or winding-up.
SECTION 13.7 Taxes on Conversion. The issuance and delivery
of certificates for shares of Common Stock on
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conversion of Securities shall be made without charge to the converting Holder
of Securities for such certificates or for any documentary, stamp or similar
taxes payable to the United States of America or any political subdivision or
taxing authority thereof in respect of the issuance or delivery of such
certificates; provided, however, that the Issuer shall not be required to pay
any tax which may be payable in respect of any transfer involved in the
issuance of certificates for shares of Common Stock, and no such issue or
delivery shall be made unless and until the Person requesting such issue or
delivery has paid to the Issuer the amount of any such tax or has established,
to the satisfaction of the Issuer, that such tax has been paid.
SECTION 13.8 Issuer to Provide Common Stock. The Issuer
covenants that it will reserve and keep available, free from preemptive rights,
out of its authorized but unissued shares, solely for the purpose of issue upon
conversion of Securities as herein provided, sufficient shares to provide for
the conversion of the Securities from time to time as such Securities are
presented for conversion.
If any shares of Common Stock to be reserved for the purpose of
conversion of Securities hereunder require registration with or approval of any
governmental authority under any Federal or State law before such shares may be
validly issued or delivered upon conversion, then the Issuer covenants that it
will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be; provided, however, that nothing
in this Section shall be deemed to affect in any way the obligations of the
Issuer to convert Securities into Common Stock as provided in this Article.
Before taking any action which would cause an adjustment reducing
the Conversion Price below the then par value, if any, of the Common Stock, the
Issuer will take all corporate action which may, in the Opinion of Counsel, be
necessary in order that the Issuer may validly and legally issue fully paid and
non-assessable shares of Common Stock at such adjusted Conversion Price.
The Issuer covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be duly and validly issued
and fully paid and non-assessable by the Issuer and free of preemptive rights
and that, if the Common Stock is then listed on any national securities
exchange, the shares of Common Stock which may be issued upon conversion of
Securities will be similarly listed at the time of such issuance.
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SECTION 13.9 Disclaimer of Responsibility for Certain Matters.
Neither the Trustee nor any conversion agent or agent of the Trustee shall at
any time be under any duty or responsibility to any Holder of Securities to
determine whether any facts exist which may require any adjustment of the
Conversion Price, or with respect to the Officers' Certificate referred to in
Section 13.4(g) or 13.5, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same.
Neither the Trustee nor any conversion agent nor any agent of the Trustee shall
be accountable with respect to the validity, registration, listing, or value
(or the kind or amount) of any shares of Common Stock, or of any securities or
cash or other property, which may at any time be issued or delivered upon the
conversion of any Security; and neither the Trustee nor any agent of the
Trustee nor any conversion agent makes any representation with respect thereto.
Neither the Trustee nor any conversion agent nor any agent of the Trustee shall
be responsible for any failure of the Issuer to make any cash payment or to
issue, register the transfer of or deliver any shares of Common Stock or stock
certificates or other securities or property upon the surrender of any Security
and any appurtenant Coupons for the purpose of conversion or, subject to
Sections 6.1 and 6.2, to comply with any of the covenants of the Issuer
contained in this Article.
SECTION 13.10 Return of Funds Deposited for Redemption of
Converted Securities. Any funds which at any time shall have been deposited by
the Issuer or on its behalf with the Trustee or any other paying agent for the
purpose of paying the principal of and interest on any of the Securities and
which shall not be required for such purposes because of the conversion of such
Securities, as provided in this Article, shall after such conversion, upon the
written request of the Issuer, be repaid to the Issuer by the Trustee or such
other paying agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of _________ __, 1996.
TEXAS INSTRUMENTS INCORPORATED
By ________________________________
Title:
[CORPORATE SEAL]
Attest:
By ________________________________
Title:
CITIBANK, N.A., Trustee
By ________________________________
Title:
[CORPORATE SEAL]
Attest:
By ________________________________
Title:
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<PAGE> 106
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On this __th day of _____________, 1996 before me personally came
, to me personally known, who, being by me duly sworn, did depose and say that
[s]he resides at , that [s]he is the of TEXAS
INSTRUMENTS INCORPORATED, one of the corporations described in and which
executed the above instrument; that [s]he knows the corporate seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that [s]he signed his[/her] name thereto by like authority.
[NOTARIAL SEAL]
___________________________________
Notary Public
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<PAGE> 107
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this __th day of ___________, 1996 before me personally came
, to me personally known, who, being by me duly sworn, did depose and say that
[s]he resides at , that [s]he is a of
CITIBANK, N.A., one of the corporations described in and which executed the
above instrument; that [s]he knows the corporate seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that
[s]he signed his[/her] name thereto by like authority.
[NOTARIAL SEAL]
___________________________________
Notary Public
99
<PAGE> 1
EXHIBIT 4(b)
[FORM OF FACE OF NOTE]
[Unless this Certificate is presented by an authorized
representative of The Depositary Trust Company, a New York corporation ("DTC"),
to the Issuer or its agent for registration of transfer, conversion, exchange
or payment, and any certificate issued is registered in the name of Cede & Co.
or in such other name as is requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or to such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OF OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.](1)
No. $___________
CUSIP________
TEXAS INSTRUMENTS INCORPORATED
% Note Due
TEXAS INSTRUMENTS INCORPORATED, a Delaware corporation (the
"Issuer"), for value received, hereby promises to pay to or
registered assigns, at the office or agency of the Issuer in the Borough of
Manhattan, The City of New York, the principal sum of Dollars on
, in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, and
to pay interest, semiannually on and of each year,
commencing , , on said principal sum at said office or agency,
in like coin or currency, at the rate per annum specified in the title of this
Note, from the or the , as the case may be, next preceding
the date of this Note to which interest has been paid, unless the date hereof
is a date to which interest has been paid or duly provided for, in which case
from the date of this Note, or unless no interest has been paid or duly
provided for on these Notes, in which case from , , until
____________________
(1) To be used for Registered Global Securities.
<PAGE> 2
payment of said principal sum has been made or duly provided for; provided,
that payment of interest may be made at the option of the Issuer by check
mailed to the address of the person entitled thereto as such address shall
appear on the Security register. Notwithstanding the foregoing, if the date
hereof is after the day of or , as the case may be, and
before the following or , this Note shall bear interest from
such or ; provided, that if the Issuer shall default in the payment
of interest due on such or , then this Note shall bear interest from
the next preceding or , to which interest has been paid or
duly provided for or, if no interest has been paid or duly provided for on this
Note, from . The interest so payable on any or ,
will, subject to certain exceptions provided in the Indenture referred to on
the reverse hereof, be paid to the person in whose name this Note is registered
at the close of business on the or , as the case may be, next
preceding such or .
Reference is made to the further provisions of this Note set forth on
the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, Texas Instruments Incorporated has caused this
instrument to be signed by facsimile by its duly authorized officers and has
caused a facsimile of its corporate seal to be affixed hereunto or imprinted
hereon.
Dated:
TEXAS INSTRUMENTS INCORPORATED
[CORPORATE SEAL]
By______________________________
By______________________________
2
<PAGE> 3
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
Citibank, N.A., as Trustee
By__________________________
Authorized Officer
[FORM OF REVERSE OF NOTE]
TEXAS INSTRUMENTS INCORPORATED
% Note Due
This Note is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Issuer (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an indenture dated as of _____________ (herein called the
"Indenture"), duly executed and delivered by the Issuer to Citibank, N.A.,
Trustee (herein called the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Issuer and the registered holders of the Securities (herein called
the "Holders"). The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may
be subject to different redemption provisions (if any), may be subject to
different conversion provisions (if any), may be subject to different sinking,
purchase or analogous funds (if any) and may otherwise vary as in the Indenture
provided. This Note is one of a series designated as the % Notes Due
of the Issuer,
3
<PAGE> 4
limited in aggregate principal amount to $ (the "Notes").
In case an Event of Default, as defined in the Indenture, with
respect to the Notes shall have occurred and be continuing, the principal
hereof may be declared, and, upon such declaration, shall become due and
payable in the manner, with the effect and subject to the conditions provided
in the Indenture.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time Outstanding (as
defined in the Indenture) of all series to be affected (voting as one class),
evidenced as in the Indenture provided, to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or modifying in
any manner the rights of the Holders of the Securities of each such series;
provided, however, that no such supplemental indenture shall (i) extend the
final maturity of any Security, or reduce the principal amount thereof
(including any premium thereon) or reduce the rate or extend the time of
payment of any interest thereon, or reduce any amount payable on redemption
thereof, or impair the right to institute suit for the enforcement of any such
payment when due or of any conversion thereof, or affect any right to convert
any Security, or change the currency in which the principal thereof (including
any amount in respect of original issue discount) or interest thereon is
payable, or reduce the amount of any original discount security payable upon
acceleration or provable in bankruptcy, or alter certain provisions of the
Indenture relating to Securities not denominated in U.S. dollars without the
consent of the Holder of each Security so affected, or (ii) reduce the
aforesaid percentage of Securities of any series, the consent of the Holders of
which is required for any such supplemental indenture, without the consent of
the Holder of each Security affected. It is also provided in the Indenture
that, with respect to certain defaults or Events of Default regarding the
Securities of any series, prior to any declaration accelerating the maturity of
such Securities, the Holders of a majority in aggregate principal amount
Outstanding of the Securities of such series (or, in the case of certain
defaults or Events of Default, all or certain series of the Securities) may on
behalf of the Holders of all the Securities of such series (or all or certain
series of the Securities, as the case may be) waive any such past default or
Event of Default and its consequences. The preceding sentence shall not,
however,
4
<PAGE> 5
apply to a default in the payment of the principal (including any premium) of
or interest on any of the Securities, or in the conversion of any Security in
accordance with the Indenture. Any such consent or waiver by the Holder of
this Note (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such Holder and upon all future Holders and owners of this Note
and any Notes which may be issued in exchange or substitution herefor,
irrespective of whether or not any notation thereof is made upon this Note or
such other Notes.
[The provisions for defeasance contained in Section 10.1(B) of the
Indenture shall not apply to the Notes.]
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal (including any premium) and
interest on this Note in the manner, at the respective times, at the rate and
in the coin or currency herein prescribed.
[The Notes are issuable in registered form without coupons in
denominations of $ and any multiple of $ and, at the office or agency of
the Issuer in the Borough of Manhattan, The City of New York, in the manner and
subject to the limitations provided in the Indenture, but without the payment
of any service charge, Notes may be exchanged for a like aggregate principal
amount of Notes of other authorized denominations.](2)
[The Notes are being issued by means of a book-entry system, with no
physical distribution of certificates to be made except as provided in the
Indenture. The Notes are issuable only in registered form, without coupons.
One certificate will be issued for each $200,000,000 aggregate principal amount
or portion thereof of the Notes, each registered in the name of Cede & Co. The
Issuer has designated DTC as the depositary with respect to the Notes, which
has designated Cede & Co. as its nominee. The book-entry only system will
evidence positions held in the Notes by DTC participants; beneficial ownership
of the Notes in the principal amount of $1,000, or any integral multiple
thereof, shall be evidenced in the records of such participants. Transfers of
ownership shall be effected on the records of DTC and its participants pursuant
to rules and procedures established by DTC and its participants.
____________________
(2) To be used for certificated Securities.
5
<PAGE> 6
The Issuer and the Trustee will recognize the registered owner of
this Note as the owner of this Note for all purposes, including payments of
principal of and interest on this Note, notices and voting. Transfers of
principal and interest payments to beneficial owners of this Note by
participants of DTC will be the responsibility of such participants and other
nominees of such beneficial owners. The Issuer will not be responsible or
liable for such transfers of payments or for maintaining, supervising or
reviewing the records maintained by DTC, Cede & Co., its participants or
persons acting through such participants. While Cede & Co. is the owner of
this Note, notwithstanding any provisions herein contained to the contrary,
payments of principal of and interest on this Note shall be made in accordance
with existing arrangements among the Trustee, the Issuer and DTC.](3)
[The Notes may be redeemed at the option of the Issuer as a whole, or
from time to time in part, on any date after and prior to maturity,
upon mailing a notice of such redemption not less than 30 nor more than 60 days
prior to the date fixed for redemption to the Holders of Notes at their last
registered addresses, all as further provided in the Indenture, at the
following redemption prices (expressed in percentages of the principal amount)
together in each case with accrued interest to the date fixed for redemption:
If redeemed during the twelve-month period beginning ,
Year Percentage Year Percentage
- ---- ---------- ---- ----------
](4)
[The Notes are not redeemable prior to maturity.](5)
[Subject to the provisions of the Indenture, the Holder has the
right, at his or her option, at any time until and including, but not after the
close of business on, _______________ (except that, in case this Note or a
portion
____________________
(3) To be used for book-entry Securities.
(4) To be used for redeemable Securities.
(5) To be used for non-redeemable Securities.
6
<PAGE> 7
hereof shall be called for redemption and the Issuer shall not thereafter
default in making due provision for the payment of the redemption price, such
right shall terminate with respect to this Note or such portion hereof at the
close of business on the date fixed for redemption), to convert the principal
of this Note (or any portion hereof which is $__ or an integral multiple
thereof) into fully paid and nonassessable shares (calculated as to each
conversion to the nearest 1/100th of a share) of the Issuer's Common Stock, par
value $1.00 per share (the "Common Stock"), as said shares shall be constituted
at the date of conversion, at the conversion price of $___ principal amount of
Notes for each share of Common Stock, or at the adjusted conversion price in
effect at the date of conversion, determined as provided in the Indenture, upon
surrender of this Note to the Issuer at the office or agency of the Issuer
maintained for the purpose in the Borough of Manhattan, The City of New York,
together with a fully executed notice substantially in the form set forth at
the foot hereof that the Holder elects so to convert this Note (or any portion
hereof which is a multiple of $__) and, if this Note is surrendered for
conversion during the period between the close of business on a record date and
the opening of business on the interest payment date next following such record
date and has not been called for redemption on a date fixed for redemption
during such period, accompanied by payment of an amount equal to the interest
payable on such interest payment date on the principal amount of the Note being
surrendered for conversion. Except as provided in the preceding sentence or as
otherwise expressly provided in the Indenture, no payment or adjustment shall
be made on account of interest accrued on this Note (or portion hereof) so
converted or on account of any dividend or distribution on any such Common
Stock issued upon conversion. If so required by the Issuer or the Trustee,
this Note, upon surrender for conversion as aforesaid, shall be duly endorsed
by, or be accompanied by an instrument of transfer, in form satisfactory to the
Issuer and the Trustee, duly executed by, the Holder or by his or her duly
authorized attorney. Subject to the aforesaid requirement for payment and, in
the case of a conversion after the record date next preceding any interest
payment date and on or before such interest payment date, to the right of the
Holder of this Note (or any predecessor security) of record at such record date
to receive an installment of interest (with certain exceptions provided in the
Indenture), no adjustment is to be made on conversion for interest accrued
hereon or for dividends on shares of Common Stock issued on conversion. The
conversion price from time to time in effect is subject to adjustment as
provided in the Indenture. No fractions of shares will be
7
<PAGE> 8
issued on conversion, but an adjustment in cash will be made for any fractional
interest as provided in the Indenture. In addition, the Indenture provides
that, in the case of certain consolidations, mergers or share exchanges to
which the Issuer is a party, or the sale of substantially all of the assets of
the Issuer, the Indenture shall be amended, without the consent of any Holders,
so that this Note, if then Outstanding, will be convertible thereafter, during
the period this Note shall be convertible as specified above, only into the
kind and amount of securities, cash and other property receivable upon the
consolidation, merger, share exchange or sale by a holder of the number of
shares of Common Stock into which this Note might have been converted
immediately prior to such consolidation, merger, share exchange or sale
(assuming such holder of Common Stock failed to exercise any rights of election
and received per share the kind and amount received per share by a plurality of
non-electing shares). In the event of conversion of this Note in part only, a
new Note or Notes for the unconverted portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.](6)
[As and for a sinking fund for the retirement of the Notes and so
long as any of the Notes remain Outstanding and unpaid, the Issuer will pay to
the Trustee in cash (subject to the right to deliver certain Notes in credit
therefor as in the Indenture provided), on or before and on or before in
each year thereafter to and including an amount sufficient to redeem
$____________ principal amount of the Notes (or such lesser amount equal to the
principal amount then Outstanding) at 100% of the principal amount thereof (the
"sinking fund redemption price"), together with accrued interest to the date
fixed for redemption. The Notes shall be redeemed through the operation of the
sinking fund as herein provided on and on each thereafter to and
including on notice as set forth in the Indenture. [At its option the
Issuer may pay into the sinking fund for the retirement of Notes, in cash
except as provided in the Indenture, on or before and on or before in
each year thereafter to and including an amount sufficient to redeem an
additional principal amount of Notes up to but not to exceed $__________ at the
sinking fund redemption price. To the extent that the right to such optional
sinking fund payment is not exercised in any year, it shall not be cumulative
or carried forward to any subsequent year.] The Trustee shall select Notes for
redemption, by prorating, as nearly as may be, the principal amount of
____________________
(6) To be used for convertible Securities.
8
<PAGE> 9
Notes to be redeemed among the Holders of Notes. The Trustee shall make such
adjustments, reallocations and eliminations to such proration as it shall deem
proper to the end that the principal amount of Notes so redeemed shall be
$1,000 or a multiple thereof, by increasing or decreasing or eliminating the
amount which would be allocable to any Holder on the basis of exact proration
by an amount not exceeding $1,000. The Trustee in its discretion may determine
the particular Notes (if there are more than one) registered in the name of any
Holder which are to be redeemed, in whole or in part.](7)
Upon due presentment for registration of transfer of this Note at the
office or agency of the Issuer in the Borough of Manhattan, The City of New
York, a new Note or Notes of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange herefor, subject
to the limitations provided in the Indenture, without charge except for any
stamp or other tax or other governmental charge imposed in connection
therewith.
The Issuer, the Trustee and any agent of the Issuer or the Trustee
may deem and treat the registered Holder hereof as the absolute owner of this
Note (whether or not this Note shall be overdue and notwithstanding any
notation of ownership or other writing hereon), for the purpose of receiving
payment of, or on account of, the principal hereof (including any premium) and,
subject to the provisions on the face hereof, interest hereon, and for all
other purposes; and neither the Issuer nor the Trustee nor any agent of the
Issuer or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of
the Issuer in the Indenture or any indenture supplemental thereto or in any
Note, or because of any indebtedness evidenced hereby or thereby, shall be had
against any incorporator, as such, or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
____________________
(7) To be used for Securities with sinking fund provisions.
9
<PAGE> 10
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
10
<PAGE> 11
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL
ZIP CODE, OF ASSIGNEE
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ___________________ attorney to transfer said Note on the books of
the Issuer, with full power of substitution in the premises.
Dated:__________________
______________________________________
Signature
NOTICE: The signature assignment must
correspond with the name as
it appears upon the face of
the within Note in every
particular, without
alteration or enlargement or
any change whatsoever.
______________________________
Signature Guarantee
NOTICE: The signature must be
guaranteed by an eligible
guarantor institution (banks,
stockbrokers, savings and loan
associations and credit unions
with membership in an approved
signature guarantee program)
pursuant to SEC Rule 17Ad-15.
11
<PAGE> 12
[FORM OF CONVERSION NOTICE](8)
To: Texas Instruments Incorporated
The undersigned owner of this Note hereby: (i) irrevocably
exercises the option to convert this Note, or the portion hereof (which is $___
or an integral multiple thereof) below designated, into shares of Common Stock,
par value $1.00 per share, of Texas Instruments Incorporated ("Common Stock")
in accordance with the terms of the Indenture referred to in this Note and (ii)
directs that such shares of Common Stock deliverable upon the conversion,
together with any check in payment for fractional shares and any Note(s)
representing any unconverted principal amount hereof, be issued and delivered
to the registered holder hereof unless a different name has been indicated
below. If this Note is being delivered on a date after the close of business
on a record date and prior to the opening of business on the related interest
payment date (unless this Note or portion hereof being converted has been
called for redemption on a date fixed for redemption within such period), this
Notice is accompanied by payment, in funds acceptable to the Issuer, of an
amount equal to the interest payable on such interest payment date of the
principal of this Note to be converted. If shares are to be delivered
registered in the name of a person other than the undersigned, the undersigned
will pay all transfer taxes payable with respect thereto. Any amount required
to be paid by the undersigned on account of interest accompanies this Note.
Principal Amount to be
Converted (in an integral
multiple of $_______ if
less than all):
$_______________________
Dated:
______________________________
Signature
______________________________
______________________________
______________________________
____________________
(8) To be used for convertible Securities.
12
<PAGE> 13
Address for delivery of Common
Stock and cash or Note(s) (such
Note(s) representing any
unconverted principal amount)
______________________________
Signature Guarantee
NOTICE: The signature must be
guaranteed by an eligible
guarantor institution (banks,
stockbrokers, savings and loan
associations and credit unions
with membership in an approved
signature guarantee program)
pursuant to SEC Rule 17Ad-15
if shares of Common Stock
are to be delivered, or Notes to
be issued, other than to and in the
name of the registered holder.
Fill in for registration of shares of Common Stock to be delivered, and of
Notes to be issued, otherwise than to and in the name of the registered holder.
______________________________
Social Security or Other
Taxpayer Identifying Number
__________________________
(Name)
__________________________
(Street Address)
__________________________
(City, State and Zip Code)
(Please print name and
address)
13
<PAGE> 1
Exhibit 4(c)
TEXAS INSTRUMENTS INCORPORATED,
[ ], As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
___________________
DEPOSIT AGREEMENT
___________________
Dated as of [ ]
______________________________________________________________
<PAGE> 2
<TABLE>
<S> <C> <C>
ARTICLE I
Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in Respect Thereof . . . . . . . . . . . 4
SECTION 2.03. Registration of Transfer of Receipts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.04. Split-ups and Combinations of Receipts; Surrender of Receipts and Withdrawal of Stock . . . . 5
SECTION 2.05. Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts . . . . . 6
SECTION 2.06. Lost Receipts, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.07. Cancellation and Destruction of Surrendered Receipts. . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.08. Redemption of Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other Information. . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3.02. Payment of Taxes or Other Governmental Charges. . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3.03. Warranty as to Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or Privileges. . . . . . . . . . . . . . . 10
SECTION 4.03. Subscription Rights, Preferences or Privileges . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.04. Notice of Dividends, etc.; Fixing Record Date for Holders of Receipts . . . . . . . . . . . . 12
SECTION 4.05. Voting Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.06. Changes Affecting Deposited Securities and Reclassifications, Recapitalizations, etc. . . . . 13
SECTION 4.07. Delivery of Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.08. List of Receipt Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by the Depositary; Registrar. . . . . . . 15
SECTION 5.02. Prevention of or Delay in Performance by the Depositary, the Depositary's Agents,
the Registrar or the Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.03. Obligation of the Depositary, the Depositary's Agents, the Registrar and the Company. . . . . 16
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of Successor Depositary. . . . . . . . 18
SECTION 5.05. Corporate Notices and Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 5.06. Indemnification by the Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 5.07. Charges and Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 5.08. Tax Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE VI
Amendment and Termination
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
SECTION 6.01. Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.02. Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 7.02. Exclusive Benefit of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 7.03. Invalidity of Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 7.04. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 7.05. Appointment of Registrar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 7.06. Holders of Receipts are Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 7.07. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 7.08. Inspection of Deposit Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 7.09. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Form of Face of Receipt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Form of Reverse of Receipt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-3
</TABLE>
iii
<PAGE> 5
DEPOSIT AGREEMENT, dated as of [ ], among TEXAS
INSTRUMENTS INCORPORATED, a Delaware corporation, (the "Company"), [ ],
a [ ] (the "Depositary"), and the holders from time to time of the
Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of shares of [ % Preferred Stock] of
the Company with the Depositary for the purposes set forth in this Deposit
Agreement and for the issuance hereunder of Receipts evidencing Depositary
Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Annex
A annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the promises contained herein,
the parties hereto agree as follows:
ARTICLE I
Definitions
The following definitions shall, for all purposes, unless
otherwise indicated, apply to the respective terms used in this Deposit
Agreement:
"Articles" shall mean the Certificate of Designation of the
Company establishing the Stock as a series of preferred stock of the Company.
"Deposit Agreement" shall mean this Deposit Agreement, as amended
or supplemented from time to time.
"Depositary" shall mean [ ], and any successor
as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each
representing [ ] of a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 5.01 and shall include the Registrar if such
Registrar is not the Depositary.
<PAGE> 6
"Depositary's Office" shall mean the principal office of the
Depositary, at which at any particular time its depositary receipt business
shall be administered.
"Receipt" shall mean one of the Depositary Receipts, substantially
in the form set forth as Annex A hereto, issued hereunder, whether in
definitive or temporary form and evidencing the number of Depositary Shares
held of record by the record holder of such Depositary Shares.
"Record holder" or "holder" as applied to a Receipt shall mean the
person in whose name a Receipt is registered on the books of the Depositary
maintained for such purpose.
"Registrar" shall mean the Depositary or such other bank or trust
company which shall be appointed to register ownership and transfers of
Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stock" shall mean shares of the Company's [ ]% Preferred Stock,
par value $25.00 per share.
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts
shall be engraved or printed or lithographed on steel-engraved borders, with
appropriate insertions, modifications and omissions, as hereinafter provided,
if required by any securities exchange on which the Receipts are listed.
Pending the preparation of definitive Receipts or if definitive Receipts are
not required by any securities exchange on which the Receipts are listed, the
Depositary, upon the written order of the Company or any holder of Stock, as
the case may be, delivered in compliance with Section 2.02, shall execute and
deliver temporary Receipts which are printed, lithographed, typewritten,
mimeographed or otherwise substantially of the tenor of the definitive Receipts
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the persons executing such
Receipts may determine, as evidenced by their execution of such Receipts. If
temporary Receipts are issued and
2
<PAGE> 7
definitive Receipts are required by any securities exchange on which the
Receipts are listed, the Company and the Depositary will cause definitive
Receipts to be prepared without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for
definitive Receipts upon surrender of the temporary Receipts at the
Depositary's Office or at such other place or places as the Depositary shall
determine, without charge to the holder. Upon surrender for cancellation of
any one or more temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number of
Depositary Shares as represented by the surrendered temporary Receipt or
Receipts. Such exchange shall be made at the Company's expense and without any
charge to the holder therefor. Until so exchanged, the temporary Receipts
shall in all respects be entitled to the same benefits under this Deposit
Agreement, and with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized officer of the Depositary; provided, that such
signature may be a facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such Receipts are countersigned by a
manual signature of a duly authorized officer of the Registrar. No Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless it shall have been executed manually by a
duly authorized officer of the Depositary or, if a Registrar for the Receipts
(other than the Depositary) shall have been appointed, by manual or facsimile
signature of a duly authorized officer of the Depositary and countersigned,
manually, by a duly authorized officer of such Registrar. The Depositary shall
record on its books each Receipt so signed and delivered as hereinafter
provided.
Receipts shall be in denominations of any number of whole
Depositary Shares. The Company shall deliver to the Depositary from time to
time such quantities of Receipts as the Depositary may request to enable the
Depositary to perform its obligations under this Deposit Agreement.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or any regulation thereunder or with
the rules and regulations of any securities exchange upon which the Stock, the
Depositary Shares or the Receipts may
3
<PAGE> 8
be listed or to confirm with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Receipts are
subject.
Title to Depositary Shares evidenced by a Receipt, which is
properly endorsed or accompanied by a properly executed instrument of transfer,
shall be transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, however, that until transfer of a Receipt
shall be registered on the books of the Depositary as provided in Section 2.03,
the Depositary may, notwithstanding any notice to the contrary, treat the
record holder thereof at such time as the absolute owner thereof for the
purpose of determining the person entitled to distributions of dividends or
other distributions or to any notice provided for in this Deposit Agreement and
for all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this
Deposit Agreement, the Company or any holder of Stock may from time to time
deposit shares of the Stock under this Deposit Agreement by delivery to the
Depositary of a certificate or certificates for the Stock to be deposited,
properly endorsed or accompanied, if required by the Depositary, by a duly
executed instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and
together with a written order of the Company or such holder, as the case may
be, directing the Depositary to execute and deliver to, or upon the written
order to, the person or persons stated in such order a Receipt or Receipts for
the number of Depositary Shares representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the
Depositary's Office or at such other place or places as the Depositary shall
determine.
Upon receipt by the Depositary of a certificate or certificates
for Stock deposited in accordance with the provisions of this Section, together
with the other documents required as above specified, and upon recordation of
the Stock on the books of the Company in the name of the Depositary or its
nominee, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver, to or upon the order of the person or
persons named in the written order delivered to the Depositary referred to in
the first paragraph of this Section, a Receipt or Receipts for the whole number
of
4
<PAGE> 9
Depositary Shares representing the Stock so deposited and registered in such
name or names as may be requested by such person or persons. The Depositary
shall execute and deliver such Receipt or Receipts at the Depositary's Office
or such other offices, if any, as the Depositary may designate. Delivery at
other offices shall be at the risk and expense of the person requesting such
delivery.
SECTION 2.03. Registration of Transfer of Receipts. Subject to
the terms and conditions of this Deposit Agreement, the Depositary shall
register on its books from time to time transfers of Receipts upon any
surrender thereof by the holder in person or by a duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of transfer.
Thereupon, the Depositary shall execute a new Receipt or Receipts evidencing
the same aggregate number of Depositary Shares as those evidenced by the
Receipt or Receipts surrendered and deliver such new Receipt or Receipts to or
upon the order of the person entitled thereto.
SECTION 2.04. Split-ups and Combinations of Receipts; Surrender
of Receipts and Withdrawal of Stock. Upon surrender of a Receipt or Receipts
at the Depositary's Office or at such other offices as it may designate for the
purpose of effecting a split-up or combination of such Receipt or Receipts, and
subject to the terms and conditions of this Deposit Agreement, the Depositary
shall execute and deliver a new Receipt or Receipts in the authorized
denomination or denominations requested, evidencing the aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered, provided,
however, that the Depositary shall not issue any Receipt evidencing a
fractional Depositary Share.
Any holder of a Receipt or Receipts representing any number of
whole shares of Stock may (unless the related Depositary Shares have previously
been called for redemption) withdraw the Stock and all money and other
property, if any, represented thereby by surrendering such Receipt or Receipts
at the Depositary's Office or at such other offices as the Depositary may
designate for such withdrawals. Thereafter, without unreasonable delay, the
Depositary shall deliver to such holder or to the person or persons designated
by such holder as hereinafter provided, the number of whole shares of Stock and
all money and other property, if any, represented by the Receipt or Receipts so
surrendered for withdrawal, but holders of such whole shares of Stock will not
thereafter be entitled to deposit such Stock hereunder or to receive Depositary
Shares therefor. If a Receipt delivered by the holder to the Depositary in
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connection with such withdrawal shall evidence a number of Depositary Shares
representing in excess of the number of whole shares of Stock to be so
withdrawn, the Depositary shall at the same time, in addition to such number of
whole shares of Stock and such money and other property, if any, to be so
withdrawn, deliver to such holder, or upon his order, a new Receipt evidencing
such excess number of Depositary Shares, provided, however, that the Depositary
shall not issue any Receipt evidencing a fractional Depositary Share. Delivery
of the Stock and money and other property being withdrawn may be made by the
delivery of such certificates, documents of title and other instruments as the
Depositary may deem appropriate which, if required by the Depositary, shall be
properly endorsed or accompanied by proper instruments of transfer.
If the Stock and the money and other property being withdrawn are
to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of Stock, such holders
shall execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer
in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
SECTION 2.05. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Sections 3.02 and 5.07, may require the production of
evidence satisfactory to it as to the identity and genuineness of any signature
and may also require compliance with such regulations, if any, as the
Depositary or the Company may establish consistent with the provisions of this
Deposit Agreement.
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The deposit of Stock may be refused, the delivery of Receipts
against Stock may be suspended, the registration of transfer of Receipts may be
refused and the registration of transfer, surrender or exchange of outstanding
Receipts may be suspended (i) during any period when the register of
stockholders of the Company is closed, (ii) if any such action is deemed
necessary or advisable by the Depositary, any of the Depositary's Agents or the
Company at any time or from time to time because of any requirement of law or
of any government or governmental body or commission or under any provision of
this Deposit Agreement or (iii) with the approval of the Company, for any other
reason.
SECTION 2.06. Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and
of his or her ownership thereof, (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it and (iii) the payment of any
expense (including fees, charges and expenses of the Depositary) in connection
with such execution and delivery.
SECTION 2.07. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's Agent
shall be canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Company is authorized to destroy all Receipts so canceled.
SECTION 2.08. Redemption of Stock. Whenever the Company shall be
permitted and shall elect to redeem shares of Stock in accordance with the
provisions of the Articles, it shall (unless otherwise agreed to in writing
with the Depositary) give or cause to be given to the Depositary not less than
15 days' notice of the date of such proposed redemption of Stock and of the
number of such shares held by the Depositary to be so redeemed and the
applicable redemption price, as set forth in the Articles, which notice shall
be accompanied by a certificate from the Company stating that such redemption
of Stock is in accordance with the provisions of the Articles. On the date of
such redemption, provided that the Company shall then have paid or caused to be
paid in full to the Depositary the redemption price of the Stock to be
redeemed, plus an amount equal to any accrued and unpaid dividends thereon to
the
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date fixed for redemption, in accordance with the provisions of the Articles,
the Depositary shall redeem the number of Depositary Shares representing such
Stock. The Depositary shall mail notice of the Company's redemption of Stock
and the proposed simultaneous redemption of the number of Depositary Shares
representing the Stock to be redeemed by first class mail, postage prepaid, not
less than 20 and not more than 60 days prior to the date fixed for redemption
of such Stock and Depositary Shares (the "Redemption Date") to the holders (of
record on the record date fixed by the Company with respect to the Stock) of
the Receipts evidencing the Depositary Shares to be so redeemed, at the
addresses of such holders as they appear on the records of the Depositary; but
neither failure to mail any such notice of redemption of Depositary Shares to
one or more such holders nor any defect in any notice of redemption of
Depositary Shares to one or more such holders shall affect the sufficiency of
the proceedings for redemption as to the other holders. The Company will
provide the Depositary with the information necessary for the Depositary to
prepare such notice and each such notice shall state: (i) the Redemption Date;
(ii) the number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed or, at the option of
the Company, that a further notice with such number will be sent as soon as
practicable after the record date fixed for such redemption pursuant to Section
4.04 hereof to the holders of record on such record date of the Depository
Shares to be redeemed; (iii) the redemption price; (iv) the place or places
where Receipts evidencing Depositary Shares are to be surrendered for payment
of the redemption price; and (v) that dividends in respect of the Stock
represented by the Depositary Shares to be redeemed will cease to accrue on
such Redemption Date. In case less than all the outstanding Depositary Shares
are to be redeemed, the Depositary Shares to be so redeemed shall be selected
by the Depositary by lot or pro rata (as nearly as may be) or by any other
method, in each case, as determined by the Depositary in its sole discretion to
be equitable.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to provide the
funds necessary to redeem the Stock evidenced by the Depositary Shares called
for redemption) (i) dividends on the shares of Stock so called for redemption
shall cease to accrue from and after such date, (ii) the Depositary Shares
being redeemed from such proceeds shall be deemed no longer to be outstanding,
(iii) all rights of the holders of Receipts evidencing such Depositary Shares
(except the right to receive the redemption price) shall, to the extent of such
Depositary Shares, cease and terminate, and (iv) upon surrender in accordance
with such redemption notice of the Receipts evidencing any such Depositary
Shares called for redemption (properly endorsed or assigned for transfer, if
the Depositary or applicable law shall so require), such
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Depositary Shares shall be redeemed by the Depositary at a redemption price per
Depositary Share equal to one- [ ] of the redemption price per share
paid with respect to the shares of Stock plus all money and other property, if
any, represented by such Depositary Shares, including all amounts paid by the
Company in respect of dividends which on the Redemption Date have accumulated
on the shares of Stock to be so redeemed and have not theretofore been paid.
If fewer than all of the Depositary Shares evidenced by a Receipt
are called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with the redemption
payment, a new Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption.
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other Information.
Any holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the
Company may reasonably deem necessary or proper. The Depositary or the Company
may withhold the delivery, or delay the registration of transfer, redemption or
exchange, of any Receipt or the withdrawal or conversion of the Stock
represented by the Depositary Shares evidenced by any Receipt or the
distribution of any dividend or other distribution or the sale of any rights or
of the proceeds thereof until such proof or other information is filed or such
certificates are executed or such representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.07. Registration of
transfer of any Receipt or any withdrawal of Stock and all money or other
property, if any, represented by the Depositary Shares evidenced by such
Receipt may be refused until any such payment due is made, and any dividends,
interest payments or other distributions may be withheld or any part of or all
the Stock or other property represented by the Depositary Shares evidenced by
such
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Receipt and not theretofore sold may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder prior to
such sale), and such dividends, interest payments or other distributions or the
proceeds of any such sale may be applied to any payment of such charges or
expenses, the holder of such Receipt remaining liable for any deficiency.
SECTION 3.03. Warranty as to Stock. The Company hereby
represents and warrants that the Stock, when issued, will be duly authorized,
validly issued, fully paid and nonassessable. Such representation and warranty
shall survive the deposit of the Stock and the issuance of Receipts.
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on Stock, the Depositary
shall, subject to Section 3.01 and 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts of such
dividend or distribution as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders; provided, however, that in case the Company or the Depositary shall be
required to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes or as
otherwise required by law, regulation or court process, the amount made
available for distribution or distributed in respect of Depositary Shares shall
be reduced accordingly. In the event that the calculation of any such cash
dividend or other cash distribution to be paid to any record holder on the
aggregate number of Depositary Receipts held by such holder results in an
amount which is a fraction of a cent, the amount the Depositary shall
distribute to such record holder shall be rounded to the next highest whole
cent; and, upon request of the Depositary, the Company shall pay the additional
amount to the Depositary for distribution.
SECTION 4.02. Distributions Other than Cash, Rights, Preferences
or Privileges. Whenever the Depositary shall receive any distribution other
than cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Sections 3.01 and 3.02, distribute to record holders of Receipts on
the record date fixed pursuant to Section 4.04 such amounts of the securities
or property
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received by it as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such record holders, or if
for any other reason (including any requirement that the Company or the
Depositary withhold an amount on account of taxes) the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as it
deems equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received, or any part thereof, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall, subject to
Section 3.01 and 3.02, be distributed or made available for distribution, as
the case may be, by the Depositary to record holders of Receipts as provided by
Section 4.01 in the case of a distribution received in cash.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If
the Company shall at any time offer or cause to be offered to the persons in
whose names Stock is recorded on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance be made available by the Depositary
to the record holders of Receipts in such manner as the Depositary may
determine, either by the issue to such record holders of warrants representing
such rights, preferences or privileges or by such other method as may be
approved by the Depositary in its discretion with the approval of the Company;
provided, however, that (i) if at the time of issue or offer of any such
rights, preferences or privileges the Depositary determines that it is not
lawful or (after consultation with the Company) not feasible to make such
rights, preferences or privileges available to holders of Receipts by the issue
of warrants or otherwise, or (ii) if and to the extent so instructed by holders
of Receipts who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with approval of the
Company, in any case where the Depositary has determined that it is not
feasible to make such rights, preferences or privileges available), may, if
applicable laws or the terms of such rights, preferences or privileges permit
such transfer, sell such rights, preferences or privileges at public or private
sale, at such place or places and upon such terms as it may deem proper. The
net proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed by the
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Depositary to the record holders of Receipts entitled thereto as provided by
Section 4.01 in the case of a distribution received in cash.
If registration under the Securities Act of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company will file promptly a registration
statement pursuant to such Act with respect to such rights, preferences or
privileges and securities and use its reasonable best efforts and take all
steps available to it to cause such registration statement to become effective
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until it has received written notice from the Company
that such registration statement shall have become effective, or that the
offering and sale of such securities to such holders are exempt from
registration under the provisions of the Securities Act and the Company shall
have provided to the Depositary an opinion of counsel to such effect.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to
holders of Receipts, the Company will use its reasonable best efforts to take
such action or obtain such authorization, consent or permit sufficiently in
advance of the expiration of such rights, preferences or privileges to enable
such holders to exercise such rights, preferences or privileges.
SECTION 4.04. Notice of Dividends, etc.; Fixing Record Date for
Holders of Receipts. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or if
rights, preferences or privileges shall at any time be offered, with respect to
Stock, or whenever the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote or of which holders of Stock are entitled
to notice, or whenever the Depositary and the Company shall decide it is
appropriate, the Depositary shall in each such instance fix a record date
(which shall be the same date as the record date fixed by the Company with
respect to or otherwise in accordance with the terms of the Stock except that,
in the case of a redemption of any shares of Stock, at the option of the
Company the record date may be a date at least eleven days after the record
date fixed by the Company with respect to or otherwise in accordance with the
terms of the Stock) for the determination of the holders of Receipts who
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shall be entitled to receive such dividend, distribution, rights, preferences
or privileges or the net proceeds of the sale thereof, or to give instructions
for the exercise of voting rights at any such meeting, or who shall be entitled
to notice of such meeting or for any other appropriate reasons.
SECTION 4.05. Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the record holders of
Receipts a notice which shall contain (i) such information as is contained in
such notice of meeting and (ii) a statement that the holders may, subject to
any applicable restrictions, instruct the Depositary as to the exercise of the
voting rights pertaining to the amount of Stock represented by their respective
Depositary Shares (including an express indication that instructions may be
given to the Depositary to give a discretionary proxy to a person designated by
the Company) and a brief statement as to the manner in which such instructions
may be given. Upon the written request of the holders of Receipts on the
relevant record date, the Depositary shall endeavor insofar as practicable to
vote or cause to be voted, in accordance with the instructions set forth in
such requests, the maximum number of whole shares of Stock represented by the
Depositary Shares evidenced by all Receipts as to which any particular voting
instructions are received. The Company hereby agrees to take all reasonable
action which may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted. In the absence
of specific instructions from the holder of a Receipt, the Depositary will not
vote (but, at its discretion, may appear at any meeting with respect to such
Stock unless directed to the contrary by the holders of all the Receipts) to
the extent of the Stock represented by the Depositary Shares evidenced by such
Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or stated
value or liquidation preference, split-up, combination or any other
reclassification of the Stock, or upon any recapitalization, reorganization,
merger, statutory share exchange or consolidation affecting the Company or to
which it is a party, the Depositary may in its discretion with the approval of,
and shall upon the instructions of, the Company, and (in either case) in such
manner as the Depositary may deem equitable, (i) make such adjustments as are
certified by the Company in the fraction of an interest represented by one
Depositary Share in one share of Stock as
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may be necessary fully to reflect the effects of such change in par or stated
value or liquidation preference, split-up, combination or other
reclassification of Stock, or of such recapitalization, reorganization, merger,
share exchange or consolidation and (ii) treat any securities which shall be
received by the Depositary in exchange for or upon conversion of or in respect
of the Stock as new deposited securities so received in exchange for or upon
conversion or in respect of such Stock. In any such case the Depositary may in
its discretion, with the approval of the Company, execute and deliver
additional Receipts or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities. Anything to the contrary herein notwithstanding, holders of
Receipts shall have the right from and after the effective date of any such
change in par or stated value or liquidation preference, split-up, combination
or other reclassification of the Stock or any such recapitalization,
reorganization, merger, share exchange or consolidation to surrender such
Receipts to the Depositary with instructions to convert, exchange or surrender
the Stock represented thereby only into or for, as the case may be, the kind
and amount of shares of stock and other securities and property and cash into
which the Stock represented by such Receipts might have been converted or for
which such Stock might have been exchanged or surrendered immediately prior to
the effective date of such transaction.
SECTION 4.07. Delivery of Reports. The Depositary shall furnish
to holders of Receipts any reports and communications received from the Company
which are received by the Depositary as the holder of Stock.
SECTION 4.08. List of Receipt Holders. Promptly upon request
from time to time by the Company, the Depositary shall furnish to it a list, as
of the most recent practicable date, of the names, addresses and holdings of
Depositary Shares of all record holders of Receipts. The Company shall be
entitled to receive such list twice annually without charge.
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ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books
by the Depositary; Registrar. Upon execution of this Deposit Agreement, the
Depositary shall maintain at the Depositary's Office facilities for the
execution and delivery, registration and registration of transfer, surrender
and exchange of Receipts, and at the offices of the Depositary's Agents, if
any, facilities for the delivery, registration of transfer, surrender and
exchange of Receipts, all in accordance with the provisions of this Deposit
Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books during
normal business hours shall be open for inspection by the record holders of
Receipts; provided that any such holder requesting to exercise such right shall
certify to the Depositary that such inspection shall be for a proper purpose
reasonably related to such person's interest as an owner of Depositary Shares
evidenced by the Receipts.
The Depositary may close such books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder.
The Depositary may, with the approval of the Company, appoint a
Registrar for registration of the Receipts or the Depositary Shares evidenced
thereby. If the Receipts or the Depositary Shares evidenced thereby or the
Stock represented by such Depositary Shares shall be listed on one or more
national stock exchanges, the Depositary will appoint a Registrar (acceptable
to the Company) for registration of such Receipts or Depositary Shares in
accordance with any requirements of such exchange. Such Registrar (which may
be the Depositary if so permitted by the requirements of any such exchange) may
be removed and a substitute registrar appointed by the Depositary upon the
request or with the approval of the Company. If the Receipts, such Depositary
Shares or such Stock are listed on one or more other stock exchanges, the
Depositary will, at the request and at the expense of the Company, arrange such
facilities for the delivery, registration, registration of transfer, surrender
and exchange of such Receipts, such
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Depositary Shares or such Stock as may be required by law or applicable stock
exchange regulation.
The Depositary may from time to time appoint Depositary's Agents
to act in any respect for the Depositary for the purposes of this Deposit
Agreement and may at any time appoint additional Depositary's Agents and vary
or terminate the appointment of such Depositary's Agents. The Depositary will
notify the Company of any such action.
SECTION 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Company. Neither the
Depositary nor any Depositary's Agent nor the Registrar nor the Company shall
incur any liability to any holder of any Receipt if by reason of any provision
of any present or future law, or regulation thereunder, of the United States of
America or of any other governmental authority or, in the case of the
Depositary, the Depositary's Agent or the Registrar, by reason of any
provision, present or future, of the Company's Articles of Incorporation or by
reason of any act of God or war or other circumstance beyond the reasonable
control of the relevant party, the Depositary, the Depositary's Agent, the
Registrar or the Company shall be prevented, delayed or forbidden from, or
subjected to any penalty on account of, doing or performing any act or thing
which the terms of this Deposit Agreement provide shall be done or performed,
nor shall the Depositary, any Depositary's Agent, the Registrar or the Company
incur liability to any holder of a Receipt (i) by reason of any nonperformance
or delay, caused as aforesaid, in the performance of any act or thing which the
terms of this Deposit Agreement shall provide shall or may be done or
performed, or (ii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement except, in the case of any
such exercise or failure to exercise discretion not caused as aforesaid, if
caused by the negligence or willful misconduct of the party charged with such
exercise or failure to exercise.
SECTION 5.03. Obligation of the Depositary, the Depositary's
Agents, the Registrar and the Company. Neither the Depositary nor any
Depositary's Agent nor the Registrar nor the Company assumes any obligation or
shall be subject to any liability under this Deposit Agreement or any Receipt
to holders of Receipts other than for its negligence, willful misconduct or bad
faith.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be under any obligation to appear in, prosecute
or defend any action,
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suit or other proceeding in respect of the Stock, the Depositary Shares or the
Receipts which in its opinion may involve it in expense or liability unless
indemnity satisfactory to it against all expense and liability be furnished as
often as may be required.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be liable for any action or any failure to act
by it in reliance upon the written advice of legal counsel or accountants, or
information from any person presenting Stock for deposit, any holder of a
Receipt or any other person believed by it in good faith to be competent to
give such information. The Depositary, any Depositary's Agent, the Registrar
and the Company may each rely and shall each be protected in acting upon any
written notice, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry
out any instruction to vote any of the shares of Stock or for the manner or
effect of any such vote made, as long as any such action or non-action is in
good faith. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only duties as are specifically set forth
in this Deposit Agreement, and no implied covenants or obligations shall be
read into this Deposit Agreement against the Depositary or any Registrar. The
Depositary will indemnify the Company and hold it harmless from any loss,
liability or expense (including the reasonable costs and expenses of defending
itself) which may arise out of acts performed or omitted by the Depositary,
including when such Depositary acts as Registrar, or the Depositary's Agents in
connection with this Deposit Agreement due to its or their negligence, willful
misconduct or bad faith. The indemnification obligations of the Depositary set
forth in this Section 5.03 shall survive any termination of this Deposit
Agreement and any succession of any Depositary.
The Depositary, its affiliates or subsidiaries, the Depositary's
Agents, and the Registrar may own, buy, sell and deal in any class of
securities of the Company and its affiliates and in Receipts or Depositary
Shares or become pecuniarily interested in any transaction in which the Company
or its affiliates may be interested or contract with or lend money to or
otherwise act as fully or as freely as if it were not the Depositary, its
affiliate or subsidiary or Depositary's Agent or Registrar hereunder. The
Depositary may also act as trustee, transfer agent or
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registrar of any of the securities of the Company and its affiliates.
It is intended that neither the Depositary nor any Depositary's
Agent nor the Registrar, acting as the Depositary Agent or Registrar, as the
case may be, shall be deemed to be an "issuer" of the securities under the
federal securities laws or applicable state securities laws, it being expressly
understood and agreed that the Depositary, any Depositary's Agent and the
Registrar are acting only in a ministerial capacity as Depositary or Registrar
for the Stock.
Neither the Depositary (or its officers, directors, employees or
agents) nor any Depositary's Agent nor the Registrar makes any representation
or has any responsibility as to the validity of the registration statement
pursuant to which the Depositary Shares are registered under the Securities
Act, the Stock, the Depositary Shares or the Receipts (except for its
counter-signature thereon) or any instruments referred to therein or herein, or
as to the correctness of any statement made therein or herein.
The Depositary assumes no responsibility for the correctness of
the description that appears in the Receipts, which can be taken as a statement
of the Company summarizing certain provisions of this Deposit Agreement.
Notwithstanding any other provision herein or in the Receipts, the Depositary
makes no warranties or representations as to the validity, genuineness or
sufficiency of any Stock at any time deposited with the Depositary hereunder or
of the Depositary Shares, as to the validity or sufficiency of this Deposit
Agreement, as to the value of the Depositary Shares or as to any right, title
or interest of the record holders of Receipts in and to the Depositary Shares.
The Depositary shall not be accountable for the use or application by the
Company of the Depositary Shares or the Receipts or the proceeds thereof.
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by delivering notice of its election to do so to the
Company, such resignation to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice
of such removal delivered to the Depositary, such removal to take effect upon
the appointment
18
<PAGE> 23
of a successor Depositary and its acceptance of such appointment as hereinafter
provided.
In case at any time the Depositary acting hereunder shall resign
or be removed, the Company shall, within 60 days after the delivery of the
notice of resignation or removal, as the case may be, appoint a successor
Depositary, which shall be a bank or trust company having its principal office
in the United States of America and having a combined capital and surplus of at
least $50,000,000. If no successor Depositary shall have been so appointed and
have accepted appointment within 60 days after delivery of such notice, the
resigning or removed Depositary may petition any court of competent
jurisdiction for the appointment of a successor Depositary. Every successor
Depositary shall execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor Depositary, without any further act or deed, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
and for all purposes shall be the Depositary under this Deposit Agreement, and
such predecessor, upon payment of all sums due it and on the written request of
the Company, shall execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Stock and any
moneys or property held hereunder to such successor, and shall deliver to such
successor a list of the record holders of all outstanding Receipts and such
records, books and other information in its possession relating thereto. Any
successor Depositary shall promptly mail notice of its appointment to the
record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof
shall not be required hereunder. Such successor Depositary may authenticate
the Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The Company agrees
that it will deliver to the Depositary, and the Depositary will, promptly after
receipt thereof, transmit to the record holders of Receipts, in each case at
the addresses recorded in the Depositary's books, copies of all notices and
reports (including without limitation financial statements) required by law or
by the rules of any national securities exchange upon which the Stock, the
Depositary Shares or the Receipts are listed, to be
19
<PAGE> 24
furnished to the record holders of Receipts. Such transmission will be at the
Company's expense and the Company will provide the Depositary with such number
of copies of such documents as the Depositary may reasonably request.
SECTION 5.06. Indemnification by the Company. The Company shall
indemnify the Depositary, any Depositary's Agent and the Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
reasonable costs and expenses of defending itself) which may arise out of acts
performed or omitted in connection with this Deposit Agreement and the Receipts
by the Depositary, any Registrar or any of their respective agents (including
any Depositary's Agent), except for any liability arising out of negligence,
willful misconduct or bad faith on the respective parts of any such person or
persons. The obligations of the Company set forth in this Section 5.06 shall
survive any succession of any Depositary or Depositary's Agent.
SECTION 5.07. Charges and Expenses. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company shall pay all charges of
the Depositary in connection with the initial deposit of the Stock and the
initial issuance of the Depositary Shares, all withdrawals of shares of the
Stock by owners of Depositary Shares, and any redemption or exchange of the
Stock at the option of the Company. All other transfer and other taxes and
governmental charges shall be at the expense of holders of Depositary Shares.
If, at the request of a holder of Receipts, the Depositary incurs charges or
expenses for which it is not otherwise liable hereunder, such holder will be
liable for such charges and expenses. All other charges and expenses of the
Depositary and any Depositary's Agent hereunder (including, in each case,
reasonable fees and expenses of counsel) incident to the performance of their
respective obligations hereunder will be paid upon consultation and agreement
between the Depositary and the Company as to the amount and nature of such
charges and expenses. The Depositary shall present its statement for charges
and expenses to the Company at such intervals as the Company and the Depositary
may agree.
SECTION 5.08. Tax Compliance. The Depositary, on its own behalf
and on behalf of the Company, will comply with all applicable certification,
information reporting and withholding (including "backup" withholding)
requirements imposed by applicable tax laws, regulations or administrative
practice with respect to (i) any payments
20
<PAGE> 25
made with respect to the Depositary Shares or (ii) the issuance, delivery,
holding, transfer, redemption or exercise of rights under the Receipts or the
Depositary Shares. Such compliance shall include, without limitation, the
preparation and timely filing of required returns and the timely payment of all
amounts required to be withheld to the appropriate taxing authority or its
designated agent.
The Depositary shall comply with any direction received from the
Company with respect to the application of such requirements to particular
payments or holders or in other particular circumstances, and may for purposes
of this Deposit Agreement rely on any such direction in accordance with the
provisions of Section 5.03 hereof.
The Depositary shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available on
request to the Company or to its authorized representatives.
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect
which they may deem necessary or desirable; provided, however, that no such
amendment (other than any change in the fees of any Depositary or Registrar,
which shall go into effect not sooner than three months after notice thereof to
the holders of the Receipts) which shall materially and adversely alter the
rights of the holders of Receipts shall be effective unless such amendment
shall have been approved by the holders of at least a majority of the
Depositary Shares then outstanding. Every holder of an outstanding Receipt at
the time any such amendment becomes effective shall be deemed, by continuing to
hold such Receipt, to consent and agree to such amendment and to be bound by
the Deposit Agreement as amended thereby.
SECTION 6.02. Termination. This Deposit Agreement may be
terminated by the Company or the Depositary only after (i) all outstanding
Depositary Shares have been redeemed pursuant to Section 2.08 or (ii) there
shall have been made a final distribution in respect of the Stock in connection
with any liquidation, dissolution or winding up of the Company and such
distribution shall have been
21
<PAGE> 26
distributed to the holders of Depositary Receipts pursuant to Sections 4.01 or
4.02, as applicable.
If any Receipts shall remain outstanding after the date of
termination of this Deposit Agreement, the Depositary thereafter shall
discontinue the transfer of Receipts, shall suspend the distribution of
dividends to the holders thereof and shall not give any further notices (other
than notice of such termination) or perform any further acts under this Deposit
Agreement, except that the Depositary shall continue to collect dividends and
other distributions pertaining to Stock, shall sell rights, preferences or
privileges as provided in this Deposit Agreement and shall continue to deliver
the Stock and any money and other property represented by Receipts upon
surrender thereof by the holders thereof. At any time after the expiration of
two years from the date of termination, the Depositary may sell Stock then held
hereunder at public or private sale, at such places and upon such terms as it
deems proper and may thereafter hold the net proceeds of any such sale,
together with any money and other property held by it hereunder, without
liability for interest, for the benefit, pro rata in accordance with their
holdings, of the holders of Receipts that have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from
all obligations under this Deposit Agreement except to account for such net
proceeds and money and other property.
Upon the termination of this Deposit Agreement, the Company shall
be discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, the Registrar and any Depositary's Agent under
Sections 5.06 and 5.07.
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts taken
together shall constitute one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder,
22
<PAGE> 27
and shall not be deemed to give any legal or equitable right, remedy or claim
to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more
of the provisions contained in this Deposit Agreement or in the Receipts should
be or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail, or by telegram
or facsimile transmission confirmed by letter, addressed to the Company at:
Texas Instruments Incorporated
13500 North Central Expressway
P.O. Box 655474
Dallas, Texas 75265-5474
Attention: Secretary
Facsimile No.: (___) ______-________
or at any other address of which the Company shall have notified the Depositary
in writing.
Any and all notices to be given to the Depositary hereunder or
under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, or by telegram or facsimile
transmission confirmed by letter, addressed to the Depositary at the
Depositary's Office, at:
[ ]
Attention: [ ]
Facsimile No.: [ ]
or at any other address of which the Depositary shall have notified the Company
in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to such record holder at
the address of such record holder as it appears on the books of the Depositary,
or if such holder shall have filed with the Depositary a written request that
23
<PAGE> 28
notices intended for such holder be mailed to some other address, at the
address designated in such request.
Delivery of a notice sent by mail or by telegram or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a telegram
or facsimile transmission) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon any telegram
or facsimile transmission received by it from the other or from any holder of a
Receipt, notwithstanding that such telegram or facsimile transmission shall not
subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. Appointment of Registrar. The Company hereby also
appoints the Depositary as Registrar in respect of the Receipts and the
Depositary hereby accepts such appointments.
SECTION 7.06. Holders of Receipts are Parties. The holders of
Receipts from time to time shall be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
SECTION 7.07. GOVERNING LAW. THIS DEPOSIT AGREEMENT AND THE
RECEIPTS AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND
THEREOF SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
SECTION 7.08. Inspection of Deposit Agreement. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's Agent
and shall be open to inspection during business hours at the Depositary's
Office or respective offices of the Depositary's Agent, if any, by any holder
of a Receipt.
SECTION 7.09. Headings. The headings of articles and sections in
this Deposit Agreement and in the form of the Receipt set forth in Annex A
hereto have been inserted for convenience only and are not to be regarded as a
part of this Deposit Agreement or the Receipts or to have any bearing upon the
meaning or interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Deposit Agreement as of the date and year first above set forth,
and all holders of Receipts shall
24
<PAGE> 29
become parties hereto by and upon acceptance by them of delivery of Receipts
issued in accordance with the terms hereof.
Texas Instruments Incorporated
Attested by
________________________ By_______________________
[SEAL]
Attested by
[ ]
________________________ By_______________________
[SEAL]
25
<PAGE> 30
ANNEX A
[TEMPORARY RECEIPT EXCHANGEABLE FOR CERTIFICATE FOR
DEFINITIVE ENGRAVED RECEIPT WHEN READY [ ]
FOR DELIVERY] DEPOSITARY SHARES
THE DEPOSITARY SHARES REPRESENTED BY THIS TRANSFERABLE
RECEIPT ARE NOT SAVINGS ACCOUNTS, DEPOSITS DEPOSITARY RECEIPT
OR OTHER OBLIGATIONS OF _____________, THE This Certificate is
DEPOSITARY HEREUNDER, OR OF ANY BANK OR transferable in
NON-BANK DEPOSITARY OF TEXAS INSTRUMENTS New York, New York
INCORPORATED AND ARE NOT INSURED BY THE
SAVINGS ASSOCIATION INSURANCE FUND
OR THE BANK INSURANCE FUND OF THE FEDERAL CUSIP [ ]
DEPOSIT INSURANCE CORPORATION, OR ANY SEE REVERSE FOR
OTHER GOVERNMENT AGENCY CERTAIN DEFINITIONS
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
EACH DEPOSITARY SHARE REPRESENTING A
[ ] INTEREST IN ONE SHARE OF
[ % PREFERRED STOCK]
TEXAS INSTRUMENTS INCORPORATED
A CORPORATION INCORPORATED
UNDER THE LAWS OF THE STATE OF
DELAWARE
[ ], as Depositary (the "Depositary"),
hereby certifies that
is the registered owner of ___________________ DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing a [ ] interest in
one share of [ % Preferred Stock], par value $25.00 per share, (the "Stock"),
of Texas Instruments Incorporated, a Delaware corporation (the "Corporation"),
on deposit with the Depositary, subject to the terms and entitled to the
benefits of the Deposit Agreement dated as of [ ]
(the "Deposit Agreement"), between the Corporation and the Depositary. By
accepting this Depositary Receipt, the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit Agreement.
This Depositary Receipt shall not be valid or obligatory for any purpose or be
entitled to any benefits under the Deposit Agreement unless it shall have been
executed by the Depositary by the manual signature of a duly authorized officer
or, if executed in facsimile by the
A-1
<PAGE> 31
Depositary, countersigned by a Registrar in respect of the Depositary Receipts
by a duly authorized officer thereof.
Dated:
Countersigned
[ ]
Depositary and Registrar
By
Authorized Officer
A-2
<PAGE> 32
TEXAS INSTRUMENTS INCORPORATED
TEXAS INSTRUMENTS INCORPORATED WILL FURNISH WITHOUT CHARGE TO EACH
RECEIPT-HOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A STATEMENT
OR SUMMARY OF THE CERTIFICATE OF DESIGNATION ESTABLISHING THE POWERS,
DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER
SPECIFIED RIGHTS OF THE [ ]% PREFERRED STOCK AND EACH OTHER CLASS OF
PREFERRED STOCK OR SERIES THEREOF WHICH THE CORPORATION IS AUTHORIZED TO ISSUE
AND OF THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES
AND/OR RIGHTS. ANY SUCH REQUEST SHOULD BE ADDRESSED TO TEXAS INSTRUMENTS
INCORPORATED, ATTENTION: SECRETARY, 13500 NORTH CENTRAL EXPRESSWAY, P.O. BOX
655474, DALLAS, TEXAS 75265-5474.
____________________
The following abbreviations, when used in the inscription on the
face of this Depositary Receipt, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - ______ Custodian _______
(Cust) (Minor)
under Uniform Gifts to
Minors Act____________
(State)
UNIF TRAN MIN ACT - ______ Custodian (until age __)
(Cust)
_______ under Uniform Transfers
(Minor)
to Minors Act ___________________
(State)
Additional abbreviations may also be
used though not in the above list.
A-3
<PAGE> 33
For value received, _____________________ hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________
____________________________________________________________
____________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
____________________________________________________________
___________________ Depositary Shares represented by the within Depositary
Receipt, and do(es) hereby irrevocably constitute and appoint
______________________ Attorney to transfer the said Depositary Shares on the
books of the within named Depositary with full power of substitution in the
premises.
Dated______________________ Signature:
_______________________________________
NOTICE: The signature to this
assignment must correspond
with the name as written upon
the face of this Depositary
Receipt in every particular,
without alteration or
enlargement or any change
whatever.
SIGNATURE GUARANTEE
___________________________
A-4
<PAGE> 1
EXHIBIT 5
May 7, 1996
Board of Directors
Texas Instruments Incorporated
13500 North Central Expressway
P.O. Box 225474
Dallas, Texas 75265
Gentlemen:
As Senior Vice President, Secretary and General Counsel of Texas
Instruments Incorporated (the "Company"), I am familiar with a Registration
Statement on Form S-3 to be filed by the Company with the Securities and
Exchange Commission in connection with the registration under the Securities
Act of 1933, as amended (the "Act"), of up to $500,000,000 aggregate initial
offering price of an indeterminate amount of the following: (i) shares of the
Company's common stock, $1.00 par value per share ("Common Stock"), (ii) shares
of the Company's preferred stock, $25.00 par value per share ("Preferred
Stock"), which may be convertible into shares of Common Stock, (iii) receipts
for fractional interests ("Depositary Shares") in Preferred Stock, which are to
be issued pursuant to a Deposit Agreement (the "Deposit Agreement") among the
Company, a preferred stock depositary and the holders of depositary receipts
issued thereunder, (iv) the Company's debt securities (the "Debt Securities"),
which may be convertible into shares of Common Stock and which are to be issued
pursuant to an Indenture (the "Indenture") between the Company and Citibank,
N.A., as trustee (the "Trustee") and (v) units ("Units") consisting of two or
more of the foregoing securities. The Debt Securities, Common Stock, Preferred
Stock, Depositary Shares and the Units (collectively, the "Securities") may be
issued from time to time pursuant to Rule 415 under the Act and will be subject
to specific terms pertaining to each respective series of Securities as
determined at the time of sale and as set forth in one or more supplements to
the Prospectus constituting part of the Registration Statement.
I have (directly or through attorneys acting under my direction)
examined the Registration Statement, forms of the Indenture and of the Deposit
Agreement and such records of the Company's corporate proceedings and such
other documents and have made such other factual and legal investigations as I
have deemed necessary or appropriate in order to render this opinion. Further,
I am familiar with additional corporate procedures that the Company
contemplates taking prior to the issuance of any Securities.
Based upon such examinations and investigations and subject to (i) the
occurrence of such additional corporate procedures as are now contemplated
prior to the issuance of any Securities,
<PAGE> 2
Board of Directors
May 7, 1996
Page 2
(ii) the effectiveness of the Registration Statement under the Act, (iii) the
establishment of the terms of each series of Securities in accordance with the
terms of (a) the Company's Restated Certificate of Incorporation and By-laws,
(b) any applicable judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company, (c) any applicable agreement,
indenture, mortgage, deed of trust, deposit agreement, undertaking or other
instrument that is binding upon the Company, and (d) applicable law, (iv) the
due authorization, execution and delivery of the Indenture and the Deposit
Agreement, as applicable, and (v) the execution, delivery and, as applicable,
authentication of and payment for the Securities, it is my opinion that:
1. The Common Stock (including any Common Stock that may be issuable
pursuant to the conversion of any Preferred Stock or Debt Securities or as a
part of any Units) will, upon the issuance and sale thereof in the manner
contemplated by the Registration Statement, be validly issued, fully paid, and
nonassessable.
2. The Preferred Stock (including any Preferred Stock that may be
issuable as a part of any Units) will, upon the issuance and sale thereof in
the manner contemplated by the Registration Statement, be validly issued, fully
paid, and nonassessable.
3. The Depositary Shares (including any Depositary Shares that may be
issuable as a part of any Units) will, upon the issuance and sale thereof in
the manner contemplated by the Registration Statement, constitute legally valid
and binding obligations of the Company.
4. The Debt Securities (including any Debt Securities that may be
issuable as a part of any Units) will, upon the issuance and sale thereof in
the manner contemplated by the Registration Statement, constitute legally valid
and binding obligations of the Company.
I consent to the use of this opinion as an exhibit to the Registration
Statement and to the reference to my name under the caption "Legal Matters" in
the Prospectus which is part of the Registration Statement. In giving such
consent I do not thereby admit that I come within the category of persons whose
consent is required under Section 7 of the Act or of the Rules and Regulations
of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ RICHARD J. AGNICH
Richard J. Agnich
Senior Vice President, Secretary
and General Counsel
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement and related Prospectus of Texas Instruments Incorporated
for the registration of $500,000,000 of securities, and to the incorporation by
reference therein of our report dated January 22, 1996, with respect to the
consolidated financial statements of Texas Instruments Incorporated
incorporated by reference in its Annual Report (Form 10-K) for the year ended
December 31, 1995, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
------------------------------
May 8, 1996
Dallas, Texas
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints JERRY R. JUNKINS, WILLIAM A. AYLESWORTH and RICHARD J. AGNICH, and
each of them, with full power to act without the others, his true and lawful
attorneys-in-fact and agents, with full and several power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign a
Registration Statement on Form S-3 in connection with the registration of
securities of Texas Instruments Incorporated from which Texas Instruments
Incorporated will receive proceeds of up to an aggregate of $500,000,000, and
any or all amendments to such Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said 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 to all intents and purposes as they or he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney as of the 7th day of May, 1996.
/s/ WILLIAM S. LEE
---------------------------------
William S. Lee
<PAGE> 2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints JERRY R. JUNKINS, WILLIAM A. AYLESWORTH and RICHARD J. AGNICH, and
each of them, with full power to act without the others, his true and lawful
attorneys-in-fact and agents, with full and several power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign a
Registration Statement on Form S-3 in connection with the registration of
securities of Texas Instruments Incorporated from which Texas Instruments
Incorporated will receive proceeds of up to an aggregate of $500,000,000, and
any or all amendments to such Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said 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 to all intents and purposes as they or he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney as of the 7th day of May, 1996.
/s/ WILLIAM P. WEBER
---------------------------------
William P. Weber
<PAGE> 3
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints JERRY R. JUNKINS, WILLIAM A. AYLESWORTH and RICHARD J. AGNICH, and
each of them, with full power to act without the others, his true and lawful
attorneys-in-fact and agents, with full and several power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign a
Registration Statement on Form S-3 in connection with the registration of
securities of Texas Instruments Incorporated from which Texas Instruments
Incorporated will receive proceeds of up to an aggregate of $500,000,000, and
any or all amendments to such Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said 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 to all intents and purposes as they or he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney as of the 7th day of May, 1996.
/s/ WILLIAM B. MITCHELL
---------------------------------
William B. Mitchell
<PAGE> 4
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints JERRY R. JUNKINS, WILLIAM A. AYLESWORTH and RICHARD J. AGNICH, and
each of them, with full power to act without the others, his true and lawful
attorneys-in-fact and agents, with full and several power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign a
Registration Statement on Form S-3 in connection with the registration of
securities of Texas Instruments Incorporated from which Texas Instruments
Incorporated will receive proceeds of up to an aggregate of $500,000,000, and
any or all amendments to such Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said 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 to all intents and purposes as they or he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney as of the 7th day of May, 1996.
/s/ MARVIN M. LANE, JR.
---------------------------------
Marvin M. Lane, Jr.
<PAGE> 5
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints JERRY R. JUNKINS, WILLIAM A. AYLESWORTH and RICHARD J. AGNICH, and
each of them, with full power to act without the others, his true and lawful
attorneys-in-fact and agents, with full and several power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign a
Registration Statement on Form S-3 in connection with the registration of
securities of Texas Instruments Incorporated from which Texas Instruments
Incorporated will receive proceeds of up to an aggregate of $500,000,000, and
any or all amendments to such Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said 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 to all intents and purposes as they or he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney as of the 7th day of May, 1996.
/s/ JERRY R. JUNKINS
---------------------------------
Jerry R. Junkins
<PAGE> 6
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints JERRY R. JUNKINS, WILLIAM A. AYLESWORTH and RICHARD J. AGNICH, and
each of them, with full power to act without the others, his true and lawful
attorneys-in-fact and agents, with full and several power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign a
Registration Statement on Form S-3 in connection with the registration of
securities of Texas Instruments Incorporated from which Texas Instruments
Incorporated will receive proceeds of up to an aggregate of $500,000,000, and
any or all amendments to such Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said 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 to all intents and purposes as they or he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney as of the 7th day of May, 1996.
/s/ JAMES R. ADAMS
---------------------------------
James R. Adams
<PAGE> 7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints JERRY R. JUNKINS, WILLIAM A. AYLESWORTH and RICHARD J. AGNICH, and
each of them, with full power to act without the others, his true and lawful
attorneys-in-fact and agents, with full and several power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign a
Registration Statement on Form S-3 in connection with the registration of
securities of Texas Instruments Incorporated from which Texas Instruments
Incorporated will receive proceeds of up to an aggregate of $500,000,000, and
any or all amendments to such Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said 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 to all intents and purposes as they or he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney as of the 8th day of May, 1996.
/s/ JAMES B. BUSEY IV
---------------------------------
James B. Busey IV
<PAGE> 8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints JERRY R. JUNKINS, WILLIAM A. AYLESWORTH and RICHARD J. AGNICH, and
each of them, with full power to act without the others, his true and lawful
attorneys-in-fact and agents, with full and several power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign a
Registration Statement on Form S-3 in connection with the registration of
securities of Texas Instruments Incorporated from which Texas Instruments
Incorporated will receive proceeds of up to an aggregate of $500,000,000, and
any or all amendments to such Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said 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 to all intents and purposes as they or he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney as of the 7th day of May, 1996.
/s/ GERALD W. FRONTERHOUSE
---------------------------------
Gerald W. Fronterhouse
<PAGE> 9
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints JERRY R. JUNKINS, WILLIAM A. AYLESWORTH and RICHARD J. AGNICH, and
each of them, with full power to act without the others, her true and lawful
attorneys-in-fact and agents, with full and several power of substitution, for
her and in her name, place and stead, in any and all capacities, to sign a
Registration Statement on Form S-3 in connection with the registration of
securities of Texas Instruments Incorporated from which Texas Instruments
Incorporated will receive proceeds of up to an aggregate of $500,000,000, and
any or all amendments to such Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said 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 to all intents and purposes as they or she might or could do
in person, hereby ratifying and confirming all that said 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.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney as of the 8th day of May, 1996.
/s/ GLORIA M. SHATTO
---------------------------------
Gloria M. Shatto
<PAGE> 10
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints JERRY R. JUNKINS, WILLIAM A. AYLESWORTH and RICHARD J. AGNICH, and
each of them, with full power to act without the others, his true and lawful
attorneys-in-fact and agents, with full and several power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign a
Registration Statement on Form S-3 in connection with the registration of
securities of Texas Instruments Incorporated from which Texas Instruments
Incorporated will receive proceeds of up to an aggregate of $500,000,000, and
any or all amendments to such Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said 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 to all intents and purposes as they or he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney as of the 7th day of May, 1996.
/s/ DAVID R. GOODE
---------------------------------
David R. Goode
<PAGE> 11
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints JERRY R. JUNKINS, WILLIAM A. AYLESWORTH and RICHARD J. AGNICH, and
each of them, with full power to act without the others, his true and lawful
attorneys-in-fact and agents, with full and several power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign a
Registration Statement on Form S-3 in connection with the registration of
securities of Texas Instruments Incorporated from which Texas Instruments
Incorporated will receive proceeds of up to an aggregate of $500,000,000, and
any or all amendments to such Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said 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 to all intents and purposes as they or he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney as of the 8th day of May, 1996.
/s/ DAVID L. BOREN
---------------------------------
David L. Boren
<PAGE> 1
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee
pursuant to Section 305(b)(2) ____
------------------------
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. Employer
Identification No.)
399 Park Avenue, New York, New York 10043
(Address of principal executive offices) (Zip Code)
------------------------
TEXAS INSTRUMENTS INCORPORATED
(Exact name of obligor as specified in its charter)
Delaware 75-0289970
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
13500 North Central Expressway
Dallas, Texas 75243
(Address of principal executive offices) (Zip Code)
------------------------
Debt Securities
(Title of the indenture securities)
<PAGE> 2
Item 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.
<TABLE>
<CAPTION>
Name Address
---- -------
<S> <C>
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of New York New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None.
Item 16. LIST OF EXHIBITS.
Exhibit 1 - Copy of Articles of Association of the Trustee, as
now in effect. (Exhibit 1 to T-1 to Registration Statement
No. 2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee to
commence business. (Exhibit 2 to T-1 to Registration
Statement No. 2-29577)
Exhibit 3 - Copy of authorization of the Trustee to exercise
corporate trust powers. (Exhibit 3 to T-1 to Registration
Statement No. 2-55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit
4 to T-1 to Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
Exhibit 6 - The consent of the Trustee required by Section
321(b) of the Trust Indenture Act of 1939. (Exhibit 6 to T-1
to Registration Statement No. 33-19227)
Exhibit 7 - Copy of the latest Report of Condition of
Citibank, N.A. (as of December 31, 1995 - attached)
<PAGE> 3
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
2
<PAGE> 4
------------------------
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Citibank, N.A., a national banking association organized and existing
under the laws of the United States of America, has duly caused this statement
of eligibility 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 3rd day
of May, 1996.
CITIBANK, N.A.
By: /s/ Robert Kirchner
------------------------------------
Vice President
<PAGE> 5
Charter No. 1461
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATING
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
CITIBANK, N.A.
OF NEW YORK IN THE STATE OF NEW YORK, AT THE CLOSE OF BUSINESS ON DECEMBER 31,
1995, PUBLISHED IN RESPONSE TO CALL MADE BY COMPTROLLER OF THE CURRENCY, UNDER
TITLE 12, UNITED STATES CODE, SECTION 161. CHARTER NUMBER 1461 COMPTROLLER OF
THE CURRENCY NORTHEASTERN DISTRICT.
ASSETS
<TABLE>
<CAPTION>
THOUSANDS
OF DOLLARS
<S> <C>
Cash and balances due from de-
pository institutions:
Noninterest-bearing balances
and currency and coin . . . . . . . . . . . . . . . . $ 7,451,000
Interest-bearing balances . . . . . . . . . . . . . . 9,256,000
Held-to-maturity securities . . . . . . . . . . . . . . . 0
Available-for-sale securities . . . . . . . . . . . . . . 15,587,000
Federal funds sold and securities
purchased under agreements to
resell in domestic offices of the
bank and of its Edge and Agree-
ment subsidiaries, and in IBFs:
Federal funds sold . . . . . . . . . . . . . . . . . . . 3,981,000
Securities purchased under
agreements to resell . . . . . . . . . . . . . . . . . . 423,000
Loans and lease financing receivables:
Loans and Leases, net of unearned income . .$145,221,000
LESS: Allowance for loan
and lease losses . . . . . . . . . . . . . . 4,403,000
------------
Loans and leases, net of unearned income,
allowance, and reserve . . . . . . . . . . . . . . . . . 140,818,000
Trading assets . . . . . . . . . . . . . . . . . . . . . 28,407,000
Premises and fixed assets (includ-
ing capitalized leases) . . . . . . . . . . . . . . . . 3,454,000
Other real estate owned . . . . . . . . . . . . . . . . . 849,000
Investments in unconsolidated
subsidiaries and associated companies. . . . . . . . . . 1,181,000
Customers' liability to this bank on
acceptances outstanding . . . . . . . . . . . . . . . . 1,542,000
Intangible assets . . . . . . . . . . . . . . . . . . . . 14,000
Other assets . . . . . . . . . . . . . . . . . . . . . . 7,147,000
------------
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . . . $220,110,000
============
LIABILITIES
DEPOSITS:
In domestic offices . . . . . . . . . . . . . . . . . . $ 35,377,000
Noninterest-
bearing . . . . . . . . . . . . . . . . . .$ 13,214,000
Interest-
bearing . . . . . . . . . . . . . . . . . . 22,163,000
------------
In foreign offices, Edge and
Agreement subsidiaries, and
IBFs . . . . . . . . . . . . . . . . . . . . . . . . . . 121,599,000
Noninterest-
bearing . . . . . . . . . . . . . . . . . . 8,014,000
Interest-
bearing . . . . . . . . . . . . . . . . . . 113,585,000
------------
Federal funds purchased and securities sold
under agreements to repurchase in domestic offices
of the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds purchased . . . . . . . . . . . . . . . . 1,852,000
Securities sold under agreements to repurchase. . . . . 556,000
Trading liabilities . . . . . . . . . . . . . . . . . . . 17,544,000
Other borrowed money:
With original maturity of one year or less . . . . . . 7,740,000
With original maturity of more than one year . . . . . 5,788,000
Mortgage indebtedness and obligations under
capitalized leases . . . . . . . . . . . . . . . . . . 95,000
Bank's liability on acceptances executed and
outstanding . . . . . . . . . . . . . . . . . . . . . . 1,559,000
Subordinated notes and debentures . . . . . . . . . . . . 4,700,000
Other Liabilities . . . . . . . . . . . . . . . . . . . . 8,483,000
------------
TOTAL LIABILITIES . . . . . . . . . . . . . . . . . . . . $205,293,000
============
EQUITY CAPITAL
Common stock . . . . . . . . . . . . . . . . . . . . . . $ 751,000
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . 6,744,000
Undivided profits and capital reserves. . . . . . . . . . 7,816,000
Net unrealized holding gains (losses) on available-
for-sale securities . . . . . . . . . . . . . . . . . . 62,000
Cumulative foreign currency translation adjustments . . . (556,000)
------------
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . . . $ 14,817,000
------------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND
EQUITY CAPITAL. . . . . . . . . . . . . . . . . . . . . $220,110,000
============
</TABLE>
I, Roger W. Trupin, Controller of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and
belief.
ROGER W. TRUPIN
We, the undersigned directors, attest to the correctness of this Report of
Condition. We declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions and
is true and correct.
PEI-YUAN CHIA
WILLIAM R. RHODES
PAUL J. COLLINS
DIRECTORS
